United States Department of Justice Executive Office for Immigration Review EOIR Seal Board of Immigration Appeals Adjudicating Requests for Stays at the BIA I. TYPES OF STAYS II. PROCEDURES IN STAY REQUESTS III. LAW IMPACTING REQUESTS FOR STAYS I. TYPES OF STAYS There are four types of stays that come before the Board: 1. Stay of deportation/removal 2. Stay of execution of Immigration Judge order 3. Stay of execution of Board order 4. Stay of proceedings before Immigration Judge A. Stay of deportation/Removal 1. Background a. When an alien is detained, has an action pending before the Board of Immigration Appeals (BIA), and is in "danger" of being immediately deported or removed, the alien, or the alien's attorney or representative, may request a stay from the BIA. b. Once the BIA has received a stay request, the BIA is faced with an emergency situation in which the stay request must be given immediate attention and priority over other work. 2. Conditions that Must Be Met for the BIA to Consider a Request for a Stay of Deportation/Removal a. Is the alien in the physical custody of the Immigration and Naturalization Service (INS)? (1) If an alien is detained by the INS and deportation/removal is imminent, the BIA will consider the stay request promptly. (2) An alien's receipt of a bag and baggage letter telling him to report is not sufficient for the BIA to consider a stay; a stay will only be considered once the alien has actually reported and is in the physical custody of the INS. It is the responsibility of the attorney to call and inform the BIA when the alien is in the custody of the INS. b. Is there an action pending before the BIA - does the BIA have jurisdiction? (1) A motion to reopen or reconsider a prior Board decision, or an appeal from an Immigration Judge's denial of a motion must have been filed with the BIA (Clerk's Office Appeals Unit). (2) Generally, there is an authomatic stay when a direct appeal is filed from an Immigration Judge's order. However, there is no automatic stay when (a) the alien clearly waived appeal at the hearing, then files an appeal, or (2) when a direct appeal is taken from an Immigration Judge's order that was entered in absentia. (3) If an appeal or motion is not in the BIA Processing system, the Clerk's Office should be contacted to verify the filing and/or obtain the appeal/motion/ROP. return to top B. Stay of Execution of Immigration Judge's Order 1. Background a. This is a request by the INS or the alien for a stay of execution of an Immigration Judge's order. b. This is almost always in bond proceedings and is usually an INS request. c. On very rare occasions, such requests have been made in other proceedings, e.g. deportation proceedings, where the Immigration Judge allegedly lacked authority in issuing a decision. d. Unless the BIA grants the INS request, the alien can be released on the bond set by the Immigration Judge or on his own recognizance if the Immigration Judge so ordered. 2. Conditions That Must Be Met for BIA to Consider Request a. For the BIA to consider a stay of execution, the INS or the alien must file an appeal from the underlying order. b. In most case, there is no automatic stay of the Immigration Judge's order upon the filing of an appeal in bond proceedings. c. An automatic stay of an Immigration Judge's order authorizing an alien's release is authorized under the regulations only in a narrow class of cases involving criminal aliens who may present a danger to the community, and who are subject to mandatory detention under the Immigration and Nationality Act. See 8 C.F.R. §3.19(i)(2). d. In cases coming within this regulation, an automatic stay goes into effect upon the filing by the INS of a Form EOIR-43, "Notice of Service Intent to Appeal Custody Redetermination with the Immigration Court. The automatic stay remains in effect until the BIA decides the custody appeal. If the Service does not timely appeal the Immigration Judge's custody order, the stay will lapse. e. The Board has held that the Immigration Judge has no discretion to reject a timely filed EOIR-43, even where the Immigration Judge has determined that the alien is not removable under one of the mandatory detention grounds. Matter of Joseph, Interim Decision 3387 (BIA 1999). f. After the Service or alien files an appeal, the opposing party is immediately contacted and is advised of the request and asked if a response will be submitted. The response is submitted either by FAX or a statement is taken telephonically. If no one can be contacted immediately, or a statement cannot be obtained within a reasonable time, the Board Members may consider the request without a statement. return to top C. Stay of Execution of BIA's Order 1. This a request for a stay of execution of a decision of the BIA by the INS or the alien. For example, the INS may ask that the BIA stay an order for 30 days pending their filing of a motion. These are sometimes referred to as "deferred orders." Sometimes the alien will request that a BIA order be stayed. 2. This request is usually submitted in writing with reasons (usually no formal motion is filed) and is circulated to the original Panel Members. return to top D. Stay of Proceeding 1. This is a request, usually by the alien or the alien's representative, for a stay of a proceeding before an Immigration Judge. 2. When a request is received by the BIA for a stay of proceeding, an interlocutory appeal is usually filed and the hearing usually has already been scheduled by the Immigration Court. 3. If there is not enough time for the BIA to adjudicate the interlocutory appeal before the hearing date, the stay request is circulated to Board Members. 4. Sometimes a telephonic or written request only will be made for a stay of proceeding, e.g., the attorney does not want to go before a particular judge, or has not had the opportunity to confer with his client, etc. If no interlocutory appeal is filed, the Chairman, Vice-Chairman, or senior Panel Member should be advised of the request. 5. The Board does not usually consider these requests. The party is advised that the issue can be addressed on direct appeal, if an appeal is filed. return to top II. PROCEDURES IN STAY REQUESTS A. An appeal or a motion must be properly filed with the Clerk's Office at the BIA. The BIA will accept filings in person only at the window of the Office of the Clerk, on the 13th Floor of Building 3 at EOIR's Skyline Office Complex in Falls Church, VA. This applies to the INS as well as the public. The 13th Floor window closes at 4:30 p.m. No stay request will be taken based on an anticipated filing being made the next morning. B. A stay request can be submitted to the BIA in writing or can be requested telephonically through a BIA secretary. C. FAX stay requests will be accepted ONLY: 1. If necessary, i.e. because the alien's scheduled deportation does not allow enough time for the stay request to be delivered by other means. 2. If there is an underlying motion pending at the BIA. 3. If the BIA asks that the stay request be sent by FAX. D. For purposes of stay requests, the BIA's COB is 5:30 p.m. (Eastern time). The BIA will entertain stay requests submitted after that hour only at the discretion of such Board Members who happen to be present. E. The general BIA policy is that the BIA will not act on any request for a stay of deportation or removal until two conditions are met: 1. The BIA must have jurisdiction over the matter. 2. The alien must be in the physical custody of the INS, with deportation imminent. F. Written Stay Requests 1. ROP at the BIA. A written request should be in the form of a letter or motion, outlining the history and advising the BIA when deportation is scheduled. Since the ROP is at the BIA, it is not necessary to send a copy of the motion or appeal. The BIA will consider the request based on the ROP before it. 2. ROP not at the BIA. To determine Board jurisdiction over the matter, the motion that was denied by the Immigration Judge, the Immigration Judge's decision denying the motion, and the notice of appeal from the denial of the motion should be submitted, OR, if the BIA last had jurisdiction, a copy of the BIA's previous decision and the present motion should be submitted. 3. If the alien has received a bag and baggage order, the alien must actually report to INS for deportation to be considered imminent. It is the attorney's responsibility to notify the BIA when the alien is taken into INS custody. G. Telephonic Stay Requests. If an attorney does not have time to submit a written request, because the INS is ready to deport the alien, the attorney may elect to telephonically inform the BIA, through a BIA secretary, of the request for a stay. Telephonic stays will only be taken when (1) the attorney does not have enough time to "overnight" a written request, (2) the Board has jurisdiction, and (3) deportation is imminent. return to top III. LAW IMPACTING REQUESTS FOR STAYS A. Matter of Rivera, Interim Decision 3266 (BIA 1996) -- IIRIRA specifies that the filing of a motion to reopen stays the removal of the alien "pending disposition of the motion by the Immigration Judge." Accordingly, there is no automtic stay of an in absentia removal order pending appeal at the BIA from the Immigration Judge's denial of a motion to reopen (this does not apply to MTR filed before April 1, 1997, effective date). B. Matter of Joseph, Interim Decision 3387 (BIA 1999) -- The regulation at 8 C.F.R. §3.19(i)(2), authorizing an automatic stay of an Immigration Judge's release order in certain case involving criminal alens who are subject to mandatory detention is automatically invoked when the INS files a Form EOIR-43 with the Immigration Court. The Immigration Judge has no discretion to reject the EOIR-43 and deny a stay, even where the Judge has determined that the alien is not removable under one of the mandatory detention grounds. The automatic stay, once invoked, remains in effect until there is an administratively final decision on the custody issue. return to top