To request a stay of removal, you either let a timely appeal trigger an automatic stay, or you file a written motion asking an immigration judge, the Board of Immigration Appeals (BIA), ICE, or a federal circuit court to pause your deportation while you pursue other relief. Which venue you use depends entirely on where your case sits at the moment. A stay does not grant status; it buys time.<\/p>\n
The simplest way to pause a removal order is to appeal the immigration judge’s decision within the deadline. Under 8 CFR 1003.6, a removal order cannot be executed while your time to appeal is still running or while the appeal is pending at the BIA.1<\/a><\/sup>eCFR. 8 CFR 1003.6 – Stay of Deportation<\/a><\/span> The stay is automatic. You do not file a separate request for it.<\/p>\n To get that protection, file Form EOIR-26, Notice of Appeal, within 30 calendar days of the judge’s oral decision or the mailing of a written decision.2<\/a><\/sup>Executive Office for Immigration Review. EOIR Policy Manual – 3.5 Appeal Deadlines<\/a><\/span> The filing fee is $1,030, and you can request a fee waiver on Form EOIR-26A if you cannot pay.3<\/a><\/sup>Executive Office for Immigration Review. Types of Appeals, Motions, and Required Fees<\/a><\/span> Identify specific legal or factual errors in the judge’s decision. Vague appeals can be summarily dismissed, which ends the stay along with the appeal.4<\/a><\/sup>Executive Office for Immigration Review. Appeal an Immigration Judge’s Decision<\/a><\/span><\/p>\n One important limit: appealing a judge’s denial of a motion to reopen or reconsider does not trigger the automatic stay.1<\/a><\/sup>eCFR. 8 CFR 1003.6 – Stay of Deportation<\/a><\/span> In that situation you have to ask the BIA for a discretionary stay separately.<\/p>\n When a stay is not automatic, every decision maker (immigration judge, BIA, or federal court) evaluates your request under the four-factor test from Nken v. Holder<\/em>:<\/p>\n The first two factors carry the most weight, and courts often do not reach the last two unless the first two are satisfied.5<\/a><\/sup>Legal Information Institute. Nken v. Holder<\/a><\/span> Your motion has to show that the appeal or pending application has real legal substance and that removal would cause harm a later court order cannot undo.<\/p>\n Where you file depends on jurisdiction. If the case is still in front of the immigration court, file the stay motion there. If the case has moved to the BIA on appeal or you have a motion pending before the BIA, file it there.6<\/a><\/sup>Executive Office for Immigration Review. EOIR Policy Manual – Discretionary Stays<\/a><\/span><\/p>\n The written motion should lay out the full case history and the facts that matter, attach a copy of the order you want stayed, and address each of the four Nken<\/em> factors head-on. If you cannot attach the order itself, give the date of the decision and a detailed description of the judge’s ruling and reasoning.7<\/a><\/sup>Executive Office for Immigration Review. EOIR Policy Manual – 7.3 Discretionary Stays<\/a><\/span> Explain what relief you are pursuing: an appeal, a motion to reopen based on new evidence, or an application for an immigration benefit.<\/p>\n Supporting evidence makes the motion stronger. Useful attachments include:<\/p>\n Every motion has to be served on DHS, the opposing party in removal proceedings. If all parties are enrolled in the EOIR Courts and Appeals System (ECAS), service happens automatically. Otherwise, you serve DHS separately and file a certificate of service with your motion. The BIA rejects filings without proof of service.8<\/a><\/sup>Executive Office for Immigration Review. EOIR Policy Manual – 2.2 Service<\/a><\/span><\/p>\n ECAS has been mandatory for electronic filing at all immigration courts and the BIA since February 2022.9<\/a><\/sup>Executive Office for Immigration Review. EOIR Courts and Appeals System (ECAS) – Online Filing<\/a><\/span> Attorneys and accredited representatives register through the ECAS Case Portal. Unrepresented filers are being phased in and will be told when they can register; until then, filing in person at the clerk’s window or by mail with proof of delivery is still available.<\/p>\n If you have a scheduled removal date and are in ICE custody, the BIA’s Emergency Stay Unit (ESU) is the only office that handles urgent stay requests. Contacting any other BIA office will not help. To qualify, DHS must have confirmed a specific removal date and time, you must be in DHS physical custody, and you must submit the stay request in writing. You also need a pending matter before the BIA, such as an appeal or a motion to reopen.10<\/a><\/sup>Executive Office for Immigration Review. BIA Emergency Stay Requests<\/a><\/span><\/p>\n Call the ESU at 703-306-0093, Monday through Friday, 9:00 a.m. to 5:30 p.m. Eastern Time, excluding federal holidays, for specific filing instructions.11<\/a><\/sup>Executive Office for Immigration Review. Contact the Board of Immigration Appeals<\/a><\/span> Filing the request by itself does not halt removal. ICE stops only if the BIA actually grants the stay.<\/p>\n If you have no active case before the immigration court or the BIA, request a stay directly from ICE by filing Form I-246, Application for Stay of Deportation or Removal, at your local Enforcement and Removal Operations (ERO) field office.12<\/a><\/sup>U.S. Immigration and Customs Enforcement. Application for a Stay of Deportation or Removal (ICE Form I-246)<\/a><\/span> File in person with the $155 fee (cash, money order, or cashier’s check). The fee is nonrefundable.<\/p>\n ICE decides these applications under its own discretion, considering the facts of the case and humanitarian factors.13<\/a><\/sup>eCFR. 8 CFR 241.6 – Administrative Stay of Removal<\/a><\/span> You will need identity documents. A valid passport must remain valid for at least six months past the stay period you request. If your country requires a passport for reentry and you do not have one, show proof that you applied for it.12<\/a><\/sup>U.S. Immigration and Customs Enforcement. Application for a Stay of Deportation or Removal (ICE Form I-246)<\/a><\/span><\/p>\n Form I-246 lets you request a stay of one year, six months, three months, or another period. If ICE grants it, you will be placed on an Order of Supervision (Form I-220B) with conditions you have to follow. A denial cannot be appealed, but it does not stop an immigration judge or the BIA from granting a stay tied to a motion to reopen or reconsider.13<\/a><\/sup>eCFR. 8 CFR 241.6 – Administrative Stay of Removal<\/a><\/span><\/p>\n After the BIA denies your appeal, your next step is a petition for review with the federal circuit court covering your area. Filing the petition does not, by itself, stop removal. Federal law lets ICE proceed with deportation while the petition is pending unless the court orders otherwise.5<\/a><\/sup>Legal Information Institute. Nken v. Holder<\/a><\/span> You have to file a separate motion for a stay of removal and satisfy the same four-factor Nken<\/em> standard.<\/p>\n Circuits handle interim protection differently. Some automatically pause removal for a short window once a stay motion is filed with the petition for review. Others require the government to notify the court of a scheduled removal date, giving you a brief chance to respond. At least one circuit provides no automatic protection and only considers emergency motions from people with confirmed removal dates who are already in custody. Check your circuit’s specific procedures the moment you file.<\/p>\n A common and costly mistake: filing a motion to reopen does not pause deportation. Federal regulations are explicit that, outside of in absentia cases, filing a motion to reopen or reconsider does not stay execution of a removal order. Removal continues unless an immigration judge, the BIA, or an authorized DHS officer grants a stay.14<\/a><\/sup>eCFR. 8 CFR 1003.23 – Reopening or Reconsideration Before the Immigration Court<\/a><\/span><\/p>\n So if you are filing a motion to reopen, file a motion for a discretionary stay at the same time. A motion to reopen has to be filed within 90 days of the final administrative order of removal.14<\/a><\/sup>eCFR. 8 CFR 1003.23 – Reopening or Reconsideration Before the Immigration Court<\/a><\/span> A motion to reconsider has a tighter 30-day deadline and is limited to one per case.15<\/a><\/sup>Executive Office for Immigration Review. EOIR Policy Manual – 4.8 Motions to Reconsider<\/a><\/span><\/p>\n The exception is in absentia removal. If you were ordered removed because you missed a hearing, filing a motion to reopen the in absentia order automatically stays removal while the judge decides the motion.14<\/a><\/sup>eCFR. 8 CFR 1003.23 – Reopening or Reconsideration Before the Immigration Court<\/a><\/span><\/p>\n A denial is not always the end. If an immigration judge denies a discretionary stay, you can appeal to the BIA. If the BIA denies it, you can seek one from the federal circuit court as part of a petition for review. The same four-factor test applies at every level, but a new decision maker may weigh the facts differently. An ICE Form I-246 denial cannot be appealed, but you can still ask the immigration court or BIA for a stay if you have a pending motion to reopen or reconsider.13<\/a><\/sup>eCFR. 8 CFR 241.6 – Administrative Stay of Removal<\/a><\/span><\/p>\n Every stay has a hard limit. A stay from an immigration judge or the BIA ends when the underlying matter is decided. An ICE administrative stay lasts only for the approved period. And a court-granted stay becomes meaningless once you have been placed aboard an aircraft and normal boarding has been completed.13<\/a><\/sup>eCFR. 8 CFR 241.6 – Administrative Stay of Removal<\/a><\/span> Act on the next step before your current stay runs out.<\/p>\n","protected":false},"excerpt":{"rendered":" Learn how to request a stay of removal, from automatic stays on appeal to discretionary motions, emergency requests, and reviews in federal court.<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[],"class_list":["post-99","post","type-post","status-publish","format-standard","hentry","category-immigration-visas-citizenship","article","has-excerpt","has-avatar","has-author","has-date","has-comment-count","has-category-meta","has-read-more","thumbnail-"],"_links":{"self":[{"href":"https:\/\/fedlaws.org\/index.php?rest_route=\/wp\/v2\/posts\/99","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fedlaws.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fedlaws.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fedlaws.org\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fedlaws.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=99"}],"version-history":[{"count":0,"href":"https:\/\/fedlaws.org\/index.php?rest_route=\/wp\/v2\/posts\/99\/revisions"}],"wp:attachment":[{"href":"https:\/\/fedlaws.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=99"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fedlaws.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=99"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fedlaws.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=99"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}The Four-Factor Standard for Discretionary Stays<\/h2>\n
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Filing a Discretionary Stay With the Immigration Court or BIA<\/h2>\n
What to Put in the Motion<\/h3>\n
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Service and Filing<\/h3>\n
Emergency Stays When Removal Is Imminent<\/h2>\n
Administrative Stays Through ICE<\/h2>\n
Requesting a Stay From a Federal Circuit Court<\/h2>\n
Motions to Reopen Do Not Stop Removal on Their Own<\/h2>\n
If a Stay Is Denied or Expires<\/h2>\n