How is an Emergency Stay Request Made?

When an order of removal has been put into action, there are only a few responses available. One of these is a temporary postponement known as a stay-of-removal. When a stay of removal is in place, The Department of Homeland Security (DHS) is no longer able to proceed with the removal. When pursuing an immigration appeal, there are essentially two ways that a stay can be put into place. One is an automatic stay and the second is a discretionary stay, which must be requested as an emergency stay.

A discretionary stay occurs when the Board of Immigration Appeals (BIA) receives a written motion requesting a halt to either a removal or deportation from the United States or the release of a respondent on bond. If the situation is emergent because the action is about to happen, the request is considered an “emergency stay.”

To make a request for an emergency stay, there are two required elements: one is that the request be made in writing (though in certain situations the request for an emergency stay and can be communicated via telephone.) The other is the presence of one of the following conditions:

  • There is a motion pending before the BIA
  • There is an appeal pending before the BIA for an immigration judge motion to be reopened
  • There is an appeal pending before the BIA for an appeal of an immigration judge bond decision
  • There is a case that has been remanded from a U.S. Circuit or that is pending before the BIA
  • The BIA has decided to grant a stay on its own discretion

It is important to note that filing a request for an emergency stay does not result in an automatic provision of that stay. The Board of Immigration Appeals must grant the stay in order for it to be considered in effect. It is also essential that all involved understand that the stay is only in place until an appeal or motion that is being considered by the Board of Appeals is decided. A decision lifts the stay.

If you or someone you love is facing an immigration action, you need experienced, compassionate legal representation to ensure that all possibilities are being exercised for you to achieve your goal. For assistance with immigration appeals, emergency stays or any other immigration issue, contact our office today to set up an appointment.