Facing a Removal Order? Understand Your Options for a Stay During Appeal

If an immigration judge ordered you removed, you may be asking whether an appeal can stop the order. In many cases, a timely appeal to the Board of Immigration Appeals (BIA) means the order cannot be carried out while the appeal is pending.

Whether that pause covers your case depends on the facts, including the type of order and the dates. This guide explains the main rules and the deadlines to watch.

What a Stay of Removal Means

A stay of removal is a pause on carrying out a removal order while the case is still under review.

A stay does not decide the appeal. The BIA still has to review the immigration judge’s decision and issue its ruling.

A stay of removal is different from other immigration tools. Bond is about release from custody, and custody rules are set out in 8 CFR 1003.19. Voluntary departure lets a person leave on an agreed schedule, and its rules are in 8 CFR 1240.26. Neither one is the same as a pause on removal.

How the Automatic Stay Works After a BIA Appeal Is Filed

The main rule is that a removal decision is not carried out during the time allowed for an appeal.

The deadline to appeal an immigration judge decision is short. Under 8 CFR 1003.38(b)(1), except as provided in paragraph (b)(2) of that section, the Notice of Appeal (Form EOIR-26) must be filed directly with the Board within 10 calendar days. Asylum cases get 30 days in some situations, as that same section explains.

The deadline runs from the oral decision or from the mailing or electronic notice of a written decision.

The filing must also be complete. Under 8 CFR 1003.3, the appeal must be accompanied by proof of payment of the filing fee or a fee waiver request; if the respondent or applicant is represented, Form EOIR-27 must be filed with the Notice of Appeal; if the respondent or applicant receives document assistance from a practitioner with the appeal, Form EOIR-60 must be filed with the Notice of Appeal; and the appeal and all attachments must be in English or accompanied by a certified English translation. Without that, the appeal may not trigger the stay.

Who Qualifies for a Stay of Removal

A person with a timely, properly filed appeal of a removal order generally does not need a separate stay request. The pause comes from the rule itself.

Still, the rule has exceptions, and the regulation names them. Whether the pause applies to a particular order depends on the facts of that order and how the case reached the BIA.

An appeal also has to be an appeal the law allows. Under 8 CFR 1240.15, no appeal lies from an order of removal entered in absentia. A person in that position cannot rely on an appeal to pause removal.

The statement of reasons matters too. Under 8 CFR 1240.15, failing to state the reasons for the appeal may be a ground for dismissal.

When the Automatic Stay Does Not Apply

The automatic stay does not cover every kind of order. When it does not apply, the path to a pause runs through a request for a stay or another filing.

One exception involves certain immigration judge orders. Under 8 CFR 1003.6(b), the automatic-stay rule does not apply to an order denying a motion to reopen or reconsider, or to stay deportation. The exception does not apply where the order expressly grants a stay, or where the motion was filed under a specific provision the regulation lists.

A custody stay is a different thing. Under 8 CFR 1003.19, while the Transition Period Custody Rules remain in effect, an immigration judge may not redetermine custody conditions imposed by the Service for certain classes, including aliens described in section 237(a)(4) of the Act, though such an alien may still seek a determination by an immigration judge that the alien is not properly included in that class. That stay concerns release from custody, not the removal order itself.

Missing the appeal deadline has serious effects. Under 8 CFR 1003.39, except when certified to the Board, the immigration judge’s decision becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken, whichever occurs first.

Requesting a Discretionary Stay From the BIA

The BIA can grant a stay in some situations even when the automatic stay does not apply.

The regulation gives the Board discretion in one clear case. Under 8 CFR 1003.6(b), the Board may stay deportation while an appeal is pending from an order denying a motion to reopen or reconsider, if no stay was granted earlier.

A stay request should explain the reasons for the pause. It should also state where the appeal stands, so the Board can see what is pending and why a pause makes sense.

Timing matters. When removal is close, the request should be filed as early as possible. A denial by DHS does not stop an immigration judge or the Board from granting a stay tied to a motion to reopen or reconsider. That point comes from 8 CFR 1241.6(b).

Under 8 CFR 1241.6(c), a stay ceases to have effect if it is granted or communicated after the alien has been placed aboard an aircraft or other conveyance for removal and the normal boarding has been completed.

Stays From the Federal Courts and Petitions for Review

After the BIA issues its final decision, judicial review usually moves to a federal court of appeals. Under 8 U.S.C. § 1252, a petition for review filed with the appropriate court of appeals is the exclusive means for judicial review of a removal order.

The deadline is strict. The petition must be filed no later than 30 days after the date of the final order of removal, as stated in the same statute.

Briefing has its own clock. The alien’s brief is due 40 days after the administrative record is available, and the court may not extend that deadline except on motion for good cause shown. If the brief is not filed within that time, the court shall dismiss the appeal unless a manifest injustice would result.

The petition for review is filed with the federal appeals court for the circuit in which the immigration judge completed the proceedings, which for cases heard in Florida is the Eleventh Circuit. Reading published opinions can show how a federal appeals court has analyzed a particular issue.

Federal review is a separate proceeding from the BIA appeal. It has its own rules and its own timing, so a person should not assume the BIA stay carries over.

A petition for review can also affect voluntary departure. Under 8 CFR 1240.26(i), if an alien files a petition for review or other judicial challenge to the administratively final order before departing the United States, any grant of voluntary departure terminates automatically upon that filing, and the alternate order of removal takes effect immediately. The exception is that an alien granted voluntary departure under 8 CFR 1240.26(c) will not be deemed to have departed under an order of removal if he or she departs the United States no later than 30 days following the filing of the petition for review, provides DHS the departure evidence the ICE Field Office Director may require, and provides evidence DHS deems sufficient that he or she remains outside the United States.

How Long an Appeal Takes and What Happens If the BIA Dismisses It

The BIA does not follow one fixed timeline. A person should not assume how long an appeal will take, because each case moves on its own schedule.

Briefing follows a set pattern.

The Board can dismiss an appeal early. Under 8 CFR 1003.3(b), the Notice of Appeal must identify the findings or conclusions being challenged. A vague statement of reasons can lead to summary dismissal.

The Board also does not find facts on appeal. Under 8 CFR 1003.1, a party who says the Board cannot resolve the appeal without more facts must file a motion for remand.

Once the Board decides the appeal, that pause no longer applies on its own.

After a dismissal, a person may still have other options. These can include a petition for review, a motion, or a stay request. Each has its own deadline, so the dates must be checked right away.

Deadlines and Your Next Step With Our Team

Deadlines for BIA appeals, stay requests, and federal court petitions are strict. They can run from different dates, so one missed date can change everything.

If you’re helping a relative or friend, gather the removal order, the hearing record, and every notice you received. Those papers show the dates and the type of order.

If you have a removal order and want to know whether an appeal or stay fits your facts, you can book a paid consultation with AG Immigration Law P.A. Reach out through the contact form, by phone, or on WhatsApp. You can also read more about our BIA appeals work.