A removal order can be carried out unless something stops it. That something is a stay: an order, or in a few situations a rule of law, that suspends removal while a challenge is pending. Filing an appeal or a motion does not always produce one, and knowing which filings stay removal automatically is often the most urgent question in a case.
Quick Facts
- Automatic stays: an appeal to the Board; a motion to reopen an in absentia order
- No automatic stay: most motions to reopen; a petition for review
- Administrative stay: ICE, on Form I-246
- Court-of-appeals stay standard: Nken v. Holder, 556 U.S. 418 (2009)
Automatic stays
- Appeal to the Board of Immigration Appeals. Except in limited circumstances, an immigration judge’s decision is not executed while the time to appeal runs or while a timely appeal is pending (8 C.F.R. § 1003.6(a)).
- Motion to reopen an in absentia order. Filing a motion to reopen and rescind an in absentia removal order stays removal until the immigration judge decides it (8 U.S.C. § 1229a(b)(5)(C)).
Stays that must be requested
- From ICE: an administrative stay of removal, requested on Form I-246 (8 C.F.R. § 241.6).
- From the immigration judge or the Board: a stay pending a motion to reopen or reconsider, since most such motions do not stop removal on their own (8 C.F.R. §§ 1003.2(f), 1003.23(b)(1)(v)).
- From the court of appeals: filing a petition for review does not stay removal unless the court orders otherwise (8 U.S.C. § 1252(b)(3)(B)). The court applies the traditional four-factor test for a stay, with likely success and irreparable injury weighed most heavily (Nken v. Holder, 556 U.S. 418 (2009)).
- From a district court in habeas: where a habeas petition challenges detention or the lawfulness of a removal the court can review, a temporary restraining order can preserve the court’s ability to decide. See TRO, Preliminary Injunction, Permanent Injunction.
Motions to reopen and reconsider
Motion to reopen
A motion to reopen asks the immigration judge or the Board to reopen a closed case on the basis of new facts supported by evidence. Generally only one is allowed, and it must be filed within 90 days of the final order (8 U.S.C. § 1229a(c)(7)). Exceptions include asylum claims based on changed country conditions, which have no deadline, and in absentia orders, which follow their own rules: 180 days for exceptional circumstances, or at any time for lack of proper notice.
Motion to reconsider
A motion to reconsider asks the adjudicator to correct an error of law or fact in its own decision. Generally only one is allowed, within 30 days of the final order (8 U.S.C. § 1229a(c)(6)).
Reopening on the adjudicator’s own motion
Immigration judges and the Board also have regulatory authority to reopen a case on their own motion (8 C.F.R. §§ 1003.2(a), 1003.23(b)(1)). It is discretionary and reserved for exceptional situations.