Automatic Stays in the United States

Automatic Stays in relation to Immigration Courts

(information based on the DoJ Manual)

Removal proceedings

There are limited circumstances in which an order of removal is automatically stayed:

• during the 30-day period for filing the direct appeal of an Immigration Judge’s decision on the merits, unless the right to appeal has been waived
• during the direct appeal of an Immigration Judge’s decision on the merits of the case (not including bond and custody determinations)
• during the period in which a case is certified to the Board of Immigration Appeals
• during the period between the filing of a motion to reopen to rescind an in absentia order and the Immigration Judge’s ruling on that motion
• pending the final disposition, including appeal, of certain motions to reopen by battered spouses, children, and parents.

An appeal or motion must be timely and properly filed for an automatic stay to take effect. When a stay is automatic, the Immigration Judge does not issue an order staying removal.

Deportation and exclusion proceedings

There are important differences between the automatic stay provisions in deportation and exclusion proceedings and the automatic stay provisions in removal proceedings. Those differences are not covered in this legal Encyclopedia. Accordingly, parties in deportation or exclusion proceedings should carefully review the controlling law and regulations.