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Chapter 8 - Stays

8.3 - Discretionary Stays

(a) Jurisdiction — Both immigration judges and the BIA have authority to grant and reconsider stays as a matter of discretion but only for matters within the judges’ or the BIA’s respective jurisdiction.  See Chapters 1.4 (Jurisdiction and Authority), 9.3(b) (Jurisdiction).  Immigration judges consider requests for discretionary stays only when a motion to reopen or a motion to reconsider is pending before the immigration court.

In most cases, the BIA entertains stays only when there is an appeal from an immigration judge’s denial of a motion to reopen removal proceedings or a motion to reopen or reconsider a prior BIA decision pending before the BIA.  The BIA may also consider a stay of an immigration judge’s bond decision while a bond appeal is pending in order to prevent the noncitizen’s release from detention.  See Chapter 9.3(f) (Appeals).

(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 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 a noncitizen’s removal.  The noncitizen 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 noncitizen 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).

When filing a motion to reopen to apply for asylum, withholding of removal under the Act, or protection under the Convention Against Torture based on changed country conditions, the noncitizen does not need to file a copy of their record of proceedings or A-file.

(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 3 (Filing with the Immigration Court), Appendix E (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 5.2(e) (Evidence).  A discretionary request to stay removal, deportation, or exclusion may be submitted at any time after a noncitizen 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 BIA should follow the procedures described below:

(A) Who may request — A respondent (or a respondent’s practitioner of record) may request a discretionary stay of removal, deportation, or exclusion only if the respondent’s case is currently before the BIA and the respondent is subject to a removal, deportation, or exclusion order.

(B) Timing of request — A request to stay removal, deportation, or exclusion may be submitted at any time during the pendency of a case before the BIA.

(C) Form of request — Requests to stay removal, deportation, or exclusion must be made in writing.  The BIA prefers that stay requests be submitted in the form of a “MOTION TO STAY REMOVAL.” See Appendix E (Cover Pages).

(D) Contents — The motion should contain a complete recitation of the relevant facts and case history and indicate the current status of the case.  The motion must also contain a specific statement of the time exigencies involved.  Motions containing vague or general statements of urgency are not persuasive.

A copy of the existing immigration judge or BIA order should be included, when available.  When the moving party does not have a copy of the order, the moving party should provide the date of the immigration judge’s decision and a detailed description of both the ruling and the basis of that ruling, as articulated by the immigration judge.  If the facts are in dispute, the moving party should furnish evidence supporting the motion to stay.

(E) Format — The motion should comply with the general rules for filing motions.  See Chapter 5.2 (Filing a Motion).  The motion must include a Proof of Service.  See Chapter 3.2 (Service on the Opposing Party), Appendix F (Cert. of Service).

(F) Fee — A motion to stay removal, deportation, or exclusion does not, by itself, require a filing fee.  The underlying appeal or motion, however, may still require a fee.  See Chapter 3.4 (Filing Fees).

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

(A) Emergency — The immigration courts and the BIA may rule immediately on an “emergency” stay request.  The immigration court and the BIA only consider a stay request to be an emergency when a respondent is:

          1. in DHS’s physical custody and removal, deportation, or exclusion is imminent;

          2. turning themselves in to DHS custody in order to be removed, deported, or excluded and removal, deportation, or exclusion is expected to occur within the next 3 business days; or

          3. scheduled to self-execute an order of removal, deportation, or exclusion within the next 3 business days.

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

If a party is seeking an emergency stay from the BIA, the party must contact the BIA’s Emergency Stay Unit by calling 703-306-0093.  If a party is seeking an emergency stay from an immigration court, they must call the immigration court from which the removal order was issued.  EOIR otherwise will not be able to properly process the request as an emergency stay.  The BIA’s Emergency Stay Unit is closed on federal holidays.  It will consider an emergency stay request only on non-holiday weekdays from 9:00 a.m. to 5:30 p.m. (Eastern Time).  Immigration courts will consider stay requests during posted operating hours.

A respondent may supplement a non-emergency stay request with an emergency stay request if qualifying circumstances, such as when a respondent reports to DHS custody for imminent removal, arise.

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

When circumstances require immediate attention from the BIA 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 BIA 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 respondents who are not facing removal within the next 3 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 the immigration judges nor the BIA 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 BIA grants the motion for a stay.

(e) Adjudication and Notice — When an immigration judge or the BIA grants a discretionary stay of removal, deportation, or exclusion, the immigration judge or the BIA 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 BIA renders a final decision on the merits of the appeal, motion to reopen, or the motion to reconsider.