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Chapter 8 - Stays

8.1 - In General

A stay prevents the Department of Homeland Security (DHS) from executing an order of removal, deportation, or exclusion.  Stays are automatic in some instances and discretionary in others.  This chapter provides general guidance regarding the procedures to follow when filing for a stay before the immigration court or the Board of Immigration Appeals (BIA).  For particular cases, parties should note that the procedures are not the same before the immigration court and the BIA and should consult the controlling law and regulations.  See INA §§ 240(b)(5)(C), 240(c)(7)(C)(iv); 8 C.F.R. §§ 1003.2(f), 1003.6, 1003.23(b)(1)(v), and 1003.23(b)(4)(ii), (iii)(C).

A noncitizen under a final order of deportation or removal may seek a stay of deportation or removal from DHS.  A denial of the stay by DHS does not preclude an immigration judge or the BIA from granting a stay in connection with a previously filed motion to reopen or motion to reconsider.  DHS shall take all reasonable steps to comply with a stay granted by an immigration judge or the BIA, but such a stay shall cease to have effect if granted or communicated after the noncitizen has been placed aboard an aircraft or other conveyance for removal and the normal boarding has been completed.  8 C.F.R. §§ 241.6, 1241.6.

In the context of bond proceedings, the BIA has the authority to grant a stay of the execution of an immigration judge’s decision when DHS has appealed or provided notice of intent to appeal by filing the Notice of Service Intent to Appeal Custody Redetermination (Form EOIR-43) with the immigration court within one business day of the immigration judge’s bond order, and files the appeal within 10 business days.  The BIA may also entertain motions to reconsider discretionary stays it has granted.  See 8 C.F.R. § 1003.19(i)(1)-(2); see also Chapter 9.3(f) (Appeals).

There are important differences between the automatic stay provisions in deportation and exclusion proceedings and the automatic stay provisions in removal proceedings.  Other than a motion to reopen in absentia deportation proceedings, those differences are not covered in this Practice Manual.  Accordingly, parties in deportation or exclusion proceedings should carefully review the controlling law and regulations.