# Nken v. Holder **556 U.S. 418 (2009).** The case that supplies the standard every federal court applies when asked to suspend an order pending appeal. Chief Justice [[John Roberts]] wrote for the Court, holding that the traditional equitable stay factors — not the far more demanding standard the government read into 8 U.S.C. § 1252(f)(2) — govern a court of appeals' authority to stay a noncitizen's removal while a petition for review is pending. The immigration holding is now the less important half. What made *Nken* structural is that it restated the four-factor test, drawn from *Hilton v. Braunskill* (1987), in the form courts have used ever since: 1. whether the applicant has made a **strong showing** that it is likely to succeed on the merits; 2. whether the applicant will be **irreparably injured** absent a stay; 3. whether a stay will **substantially injure the other parties**; 4. where the **public interest** lies. **The clause that does the most work is the one nobody quotes.** *Nken* adds that the third and fourth factors "merge when the Government is the opposing party." Because the federal government is the applicant in nearly every emergency stay fight of the second Trump term, the framework that looks like a four-part balance operates as a three-part one — and the interests of the people a district court's injunction was protecting are weighed inside the government's own claimed interest rather than against it. *Nken* is the written standard at the center of [[How an Emergency Stay Application Moves Through the Courts]]. It is also the standard that an [[Administrative Stay]] is expressly **not** subject to, which is why the unregulated instrument so often decides what the regulated one was supposed to. ## See also - [[How an Emergency Stay Application Moves Through the Courts]] — where in the pipeline these factors are applied - [[Administrative Stay]] — the order that freezes a case without applying them - [[Shadow Docket]] — the docket this standard nominally governs - [[Supreme Court of the United States]]