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EOIR Policy Manual

EOIR Policy Manual
Part II - OCIJ Immigration Court Practice Manual

7.3 - Discretionary Stays

(a) Jurisdiction

Both Immigration Judges and the Board of Immigration Appeals (Board) have authority to grant and reconsider stays as a matter of discretion but only for matters within the Immigration Judges’ or the Board’s respective jurisdiction.  See Chapter 1.4 (Jurisdiction and Authority), Part I, Chapters 1.3 (EOIR Jurisdiction and Authority).  Immigration Judges consider requests for discretionary stays only when a motion to reopen or a motion to reconsider is pending before the immigration court.

(b) Motion to Reopen to Apply for Asylum, Withholding of Removal under the Act, or Protection under the Convention Against Torture

Time and numerical limitations do not apply to motions to reopen to apply for asylum, withholding of removal under the Immigration and Nationality Act, or protection under the Convention Against Torture if the motion is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous proceeding.  The filing of a motion to reopen in such circumstances does not automatically stay an alien’s removal.  The alien may request a stay and if granted by the immigration court shall not be removed pending disposition of the motion.  If the original asylum application was denied based on a finding that it was frivolous, the alien is ineligible to file a motion to reopen or reconsider or for a stay of removal.  8 C.F.R. § 1003.23(b)(4)(i).

(c) Motion Required

Parties should submit a request for a discretionary stay by filing a written motion.  The motion should comply with all the requirements for filing, including formatting, inclusion of a proof of service, and submission of possible fees.  See Chapter 2 (Filing with the Immigration Court), Appendix D (Cover Pages).

  1. Contents A party requesting a discretionary stay of removal before the immigration court should submit a motion stating the complete case history and all relevant facts.  It should also include a copy of the order that the party wants stayed, if available.  If the moving party does not have a copy of the order, that party should provide the date of the order and a detailed description of the Immigration Judge’s ruling and reasoning, as articulated by the Immigration Judge.  If the facts are in dispute, the moving party should provide appropriate evidence.  See Chapter 4.2(e) (Evidence).  A discretionary request to stay removal, deportation, or exclusion may be submitted at any time after an alien becomes subject to a final order of removal, deportation, or exclusion if a motion to reopen or reconsider is pending before the immigration court.  

    A party requesting a discretionary stay of removal, deportation, or exclusion before Board should follow the procedures outlined in Part III, Chapter 5.3 (Discretionary Stays).  

  2. Emergency v. Non-Emergency — The immigration courts and the Board categorize stay requests into two categories: emergency and non-emergency.  When filing a stay request with the immigration court, the parties should submit their motions with cover pages either labeled “MOTION TO STAY REMOVAL” or “EMERGENCY MOTION TO STAY REMOVAL,” as relevant.

          (A) Emergency — The immigration courts and the Board may rule immediately on an “emergency” stay request.  The immigration court and the Board only consider a stay request to be an emergency when a respondent is in the Department of Homeland Security’s (DHS’s) physical custody and removal, deportation, or exclusion is imminent.

The motion should contain a specific statement of the time exigencies involved.

If a party is seeking an emergency stay from the Board, the party must contact the Board’s Emergency Stay Unit by calling 703-306-0093.  If a party is seeking an emergency stay from an immigration court, he or she must call the immigration court from which the removal order was issued.  For more information, see Part III, Chapter 5.3 (Discretionary Stays).  Immigration courts will consider stay requests during posted operating hours.

Parties can obtain instructions for filing an emergency stay motion with the Board by calling the same numbers.  For a list of immigration court numbers, see Appendix A (Directory) or visit the Executive Office for Immigration Review’s (EOIR’s) website.

When circumstances require immediate attention from the Board or immigration courts, EOIR may, at the adjudicator’s discretion, entertain a telephonic stay request.

EOIR promptly notifies the parties of its decision.

            (B) Non-Emergency — The immigration courts and the Board do not rule immediately on a “non-emergency” stay request.  Instead, the request is considered during the normal course of adjudication.  Non-emergency stay requests include those from aliens who are not facing removal within the next three business days, and who are either:

  1. not in detention; or
  2. in detention but not facing imminent removal, deportation, or exclusion.

(d) Pending Motions

Neither Immigration Judges nor the Board automatically grant discretionary stays.  The mere filing of a motion for a discretionary stay of an order does not prevent the execution of the order.  Therefore, DHS may execute the underlying removal, deportation, or exclusion order unless and until the Immigration Judge or the Board grants the motion for a stay.

(e) Adjudication and Notice

When an Immigration Judge or the Board grants a discretionary stay of removal, deportation, or exclusion, the Immigration Judge or the Board issues a written order.  When a discretionary stay is granted, the parties are promptly notified about the decision.

(f) Duration

A discretionary stay of removal, deportation, or exclusion lasts until the Immigration Judge adjudicates the motion to reopen or motion to reconsider or until the Board renders a final decision on the merits of the appeal, motion to reopen, or the motion to reconsider.