Ninth Circuit Keeps Easier Injunction Test in Immigration Cases
A legal standard that makes it easier for immigrants and others to win emergency court orders against the government is still standing in the western United States. On October 16, 2026, the Ninth Circuit Court of Appeals refused to reconsider its 'serious questions' test for preliminary injunctions — the orders that can pause deportations or policy enforcement while a lawsuit proceeds. Ten judges dissented, warning the standard conflicts with Supreme Court precedent and may not survive much longer.
What if you are fighting a deportation order or a government policy in court — and you need a judge to pause enforcement while your case proceeds? Whether that pause is easy or hard to get just became a live question again. On October 16, 2026, the Ninth Circuit Court of Appeals declined to reconsider its own standard for granting preliminary injunctions — the emergency court orders that can stop the government from acting while a lawsuit plays out.
What the court decided
The Ninth Circuit denied a petition for rehearing en banc (a full-court review) in Whitfield v. Mullin. The case started when Daryl Whitfield, a disabled military veteran working as an import specialist at U.S. Customs and Border Protection, sued after CBP required him to return to full-time in-office work in March 2025. Whitfield argued CBP failed to give him a reasonable disability accommodation under the Rehabilitation Act. A three-judge panel had already ruled in his favor in May 2026, sending the case back to the lower court with instructions to use the Ninth Circuit's so-called "sliding scale" or "serious questions" test — a lower bar than what the Supreme Court set in Winter v. Natural Resources Defense Council (2008).
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The government asked the full Ninth Circuit to scrap that easier test. Ten judges — led by Judge Bress and joined by Judges Callahan, Bennett, R. Nelson, Bade, Collins, Lee, Bumatay, VanDyke, and Tung — dissented from the denial, arguing the "serious questions" standard conflicts with Supreme Court precedent, especially after Starbucks Corp. v. McKinney (2024). Under the Supreme Court's four-part Winter test, a plaintiff must show: (1) a likely win on the merits, (2) likely irreparable harm without the injunction, (3) that the balance of equities favors them, and (4) that an injunction serves the public interest. The Ninth Circuit's sliding scale lets plaintiffs skip a strong showing on the merits if the hardship balance tips sharply in their favor — they only need to raise "serious questions." The dissenting judges say that is too easy and that other federal circuits have already rejected it.
Why this matters for immigrants
Preliminary injunctions are a key tool in immigration litigation. Lawyers use them to pause deportations, halt enforcement of new policies, or stop DACA or TPS terminations while courts decide the underlying case. The Ninth Circuit — which covers California, Arizona, Washington, Oregon, Nevada, Idaho, Montana, Alaska, and Hawaii — handles more immigration cases than any other circuit. As long as the "serious questions" test stays in place, immigrants and advocacy groups suing in those states face a somewhat lower legal bar to win emergency court protection. The dissent signals, however, that this standard remains contested and could eventually reach the Supreme Court.
What to do
- If you are in removal proceedings (the formal process to deport someone) and believe a new government policy harms you, ask your immigration lawyer whether a preliminary injunction is an option in your circuit.
- If you live in the Ninth Circuit's states (California, Arizona, Washington, Oregon, Nevada, Idaho, Montana, Alaska, Hawaii), the current "serious questions" standard still applies — confirm this with your attorney before filing any emergency motion.
- Document every government action that affects your immigration status: dates, letters, notices, and any accommodation requests you made. Courts need this record to weigh hardship.
- Follow updates on this case and any Supreme Court petition — if the high court takes it up, the standard could change for everyone nationwide.
What to do, step by step — see our guide “Appealing to the BIA”.
Fishkin Law Firm, New York
The Ninth Circuit's 'serious questions' test has long been a valuable tool for immigrants seeking to pause harmful government actions while their cases proceed — but the October 2026 dissent by ten judges is a serious warning sign that this standard is on borrowed time. If you are considering filing for a preliminary injunction in a Ninth Circuit court, do it now rather than waiting, because a future Supreme Court ruling could raise the bar significantly. Consult an immigration attorney to assess whether your facts support both the 'serious questions' standard and the stricter Winter four-factor test, so you are prepared either way.
Frequently Asked Questions
What is a preliminary injunction and why does it matter in immigration cases?
A preliminary injunction is an emergency court order that tells the government to stop or pause an action — like a deportation or a policy change — while the court decides the full case. In immigration, lawyers use them to halt removals, pause TPS or DACA terminations, or block new enforcement rules.
What is the 'serious questions' test and how is it different from the standard Supreme Court test?
The Supreme Court's standard (from Winter v. NRDC) requires you to show you are likely to win your case, likely to suffer serious harm without the order, that fairness favors you, and that the public interest supports the injunction. The Ninth Circuit's 'serious questions' test lets you replace a strong showing of likely success with just raising serious legal questions — as long as the hardship balance tips sharply in your favor. That is a lower bar.
Does this ruling affect immigrants outside the Ninth Circuit states?
No, not directly. The Ninth Circuit covers California, Arizona, Washington, Oregon, Nevada, Idaho, Montana, Alaska, and Hawaii. Other circuits — like the Fourth Circuit — have already rejected the 'serious questions' test. If you are in a different state, check with your attorney which standard applies in your circuit.
Could the Supreme Court change this standard nationwide?
Yes. The ten dissenting judges explicitly noted a split among federal circuits on this issue and argued the Ninth Circuit is on the wrong side of it. That kind of circuit split is exactly what the Supreme Court often agrees to resolve. If the high court takes up this question, the outcome could raise the bar for emergency injunctions in immigration cases across the entire country.