Stay of Removal
A stay of removal is a temporary postponement, which prevents the Department of Homeland Security (DHS) from carrying out an order of removal. In some cases, a stay of removal may be automatic, while in others, it may be discretionary.
Automatic Stays of Removal
An automatic stay of removal will only go into effect if an appeal is filed properly within the time frame specified by the immigration laws. Appeals of an immigration judge’s decision are made to the Board of Immigration Appeals (BIA). The BIA is the highest administrative body which interprets and applies the immigration laws. The BIA typically does not conduct courtroom proceedings. Instead, they do a “paper review” for most cases. If an automatic stay of removal is granted, it will expire when the BIA gives a final decision on a given case.
There are a few narrow circumstances when an order of removal will be automatically stayed including:
- During the 30-day period for filing a direct appeal of an immigration judge’s decision on the merits of a case, unless the right to appeal has been waived.
- If an alien files a direct appeal of an immigration judge’s decision on the merits of a case. The decision that is being appealed cannot be based on bond or custody determinations.
- If an appeal is filed because of an immigration judge’s denial of a motion to re-open deportation proceedings that were conducted in absentia. The term “in absentia” refers to a deportation proceeding where the alien for some reason is not present.
- When a final outcome or decision is pending on a case before an immigration judge. This is also true for certain appeals of motions to re-open from battered spouses, children, and parents.
Discretionary Stays of Removal
The BIA is allowed to grant stays at their discretion for matters that are within their jurisdiction and authority. The BIA will only consider granting a discretionary stay of removal when an appeal, a motion to reopen, or a motion to reconsider is pending before them.
The Process for Requesting a Stay of Removal
A request for a discretionary stay of removal should generally be made in the form of a written motion. If the circumstances are urgent and immediate attention is needed, the BIA may at its discretion allow an oral stay request to be made by telephone.
It is important to note that a motion to request a discretionary stay of removal does not by itself postpone execution of an order. The BIA must grant the motion request for the stay to go into effect and for the previous removal order to be suspended. A discretionary stay of removal is issued in a written order. The discretionary stay of removal expires when the BIA announces a final decision on a case.
Immigration laws are subject to change, therefore it is important to consult a competent immigration attorney or the Department of Justice website for the most up-to-date rules and regulations regarding stays of removal.