6.2 - Automatic Stays

There are certain circumstances when an immigration judge’s order of removal is automatically stayed pending further action on an appeal or motion.  When a stay is automatic, the immigration courts and the Board do not issue a written order on the stay. 

(a) During the Appeal Period

After an immigration judge issues a final decision on the merits of a case (not including bond or custody, credible fear, claimed status review, or reasonable fear determinations), the order is automatically stayed for the 30-day period for filing an appeal with the Board.  However, the order is not stayed if the losing party waived the right to appeal.  8 C.F.R. § 1003.6(a).

(b) During the Adjudication of an Appeal

If a party appeals an immigration judge’s decision on the merits of the case (not including bond and custody determinations) to the Board during the appeal period, the order of removal is automatically stayed during the Board’s adjudication of the appeal.  8 C.F.R. § 1003.6(a).  The stay remains in effect until the Board renders a final decision in the case.

(c) During the Adjudication of Case Certified to the Board

A removal order is stayed while the Board adjudicates a case that is before that appellate body by certification.  8 C.F.R. § 1003.6(a); see also Chapter 4.18 (Certification by an Immigration Judge).  The stay remains in effect until the Board renders a final decision in the case or declines to accept certification of the case.

(d) Motions to Reopen

      (1) Removal proceedings - An immigration judge’s removal order is stayed during the period between the filing of a motion to reopen removal proceedings conducted in absentia and the immigration judge’s ruling on that motion.  8 C.F.R. § 1003.23(b)(4)(ii).  An immigration judge’s removal order is automatically stayed during the Board’s adjudication of an appeal of the immigration judge’s ruling in certain motions to reopen filed by battered spouses, children, and parents.  INA § 240(c)(7)(C)(iv).  An immigration judge’s order is not automatically stayed in appeals to the Board from an immigration judge’s denial of a motion to reopen removal proceedings conducted in absentia, and motions to reopen or reconsider a prior Board decision are not automatically stayed. 

      (2) Deportation proceedings - An immigration judge’s deportation order is stayed during the period between the filing of a motion to reopen deportation proceedings conducted in absentia under prior INA § 242B and the immigration judge’s ruling on that motion, as well as during the adjudication by the Board of any subsequent appeal of that motion.  8 C.F.R. § 1003.23(b)(4)(iii)(C). 

Automatic stays only attach to the original appeal from an immigration judge’s denial of a motion to reopen deportation proceedings conducted in absentia under prior INA § 242B.  See 8 C.F.R. § 1003.23(b)(4)(iii)(C).  Additionally, there is no automatic stay to a motion to reopen or reconsider the Board’s prior dismissal of an appeal from an immigration judge’s denial of a motion to reopen deportation proceedings conducted in absentia under prior INA § 242B. 

(e) Federal Court Remands

A federal court remand to the Board results in an automatic stay of an order of removal if:

• The Board’s decision before the federal court involved a direct appeal of an immigration judge’s decision on the merits of the case (excluding bond and custody determinations); or 
• The Board’s decision before the federal court involved an appeal of an immigration judge’s denial of a motion to reopen deportation proceedings conducted in absentia under prior INA § 242B.