A stay of removal is an order that pauses the government’s ability to carry out a deportation, and in many cases it can be requested from ICE, the immigration court, the Board of Immigration Appeals, or a federal court. The hard part is that asking for a stay usually does not stop removal by itself. Unless a specific rule applies or someone with authority grants the request, ICE can still carry out the order. This post explains the four places a stay can come from, the deadlines that matter, and what a family should do when a removal date is close.
The short version
A pending request for a stay does not automatically halt a deportation. The big exceptions are an appeal to the Board within the appeal period and certain motions to reopen an order entered in your absence. For everything else, the stay has to be granted. The best results come from filing early, with strong evidence, in the right place, and from knowing what each filing does and does not do.
Key Takeaways
- There are four main sources of a stay: ICE, the immigration judge, the Board of Immigration Appeals, and a federal court. Each has different rules and standards.
- Filing a motion to reopen or a petition for review does not automatically stop removal in most cases, so a separate stay request is usually needed.
- Time matters more than anything. The earlier a stay request is filed with proof, the more room there is to act if it is denied.
What is a stay of removal?
A stay of removal temporarily stops the government from carrying out a removal order. It does not cancel the order or give you status, and it can be limited in time or tied to a pending case. People seek a stay for many reasons: a motion to reopen is pending, new evidence has come up, a family member is gravely ill, or a federal court is reviewing the order. Depending on your situation, it can be the thing that buys time to pursue a real path to stay. Our overview of deportation defense and forms of relief explains what those paths might be.
Does filing a motion automatically stop deportation?
Usually not. The rule for motions to reopen at the immigration court is in 8 CFR 1003.23(b)(1): a motion to reopen must generally be filed within 90 days of the final order, and filing it “shall not stay the execution” of the decision unless the judge or Board grants a stay. There are two important exceptions. A motion to reopen based on changed country conditions for asylum or withholding has no 90-day limit, though a stay is still something you must request. And a timely motion to reopen an in absentia order, meaning an order entered when you did not appear, does automatically stay removal while the motion is pending, under the same regulation.
The same is true in federal court. Under INA 242(b)(3)(B), filing a petition for review of a removal order does not stay removal unless the court orders it. This is why a family that has “filed everything” can still face a flight, and why we separate the question of what has been filed from the question of what is actually protecting the client.
Where can a stay come from?
There are four main routes. Which one fits depends on where your case is.
- ICE (administrative stay). Under 8 CFR 241.6, you may ask ICE for a stay on Form I-246. ICE decides in its discretion, and the regulation says the denial cannot be appealed. It also says that neither the request nor the lack of a decision delays removal or excuses you from following any notice to surrender for removal. So you should not assume that waiting for an answer is safe.
- The immigration judge. A judge can grant a stay with a motion to reopen or reconsider. The judge looks at the likelihood of success on the motion and the harm from removal.
- The Board of Immigration Appeals. When you appeal a judge’s decision to the Board within the appeal period, the decision generally is not carried out while the appeal is pending, under 8 CFR 1003.6. After the Board rules, a new motion usually does not carry an automatic stay, and a stay request must be made separately. Our guide to the BIA appeal process covers the timeline.
- A federal court. A court of appeals or district court can issue a stay in a case before it. The standard comes from the Supreme Court’s decision in Nken v. Holder, which looks at whether the person made a strong showing of likely success, whether they would be irreparably injured, whether a stay would harm others, and where the public interest lies.
What does ICE look at in a stay request?
Each request is judged on its own facts, and ICE has broad discretion. The kinds of things that tend to matter are the strength of the underlying case (is there a real claim that the order was wrong or that the person qualifies for relief now), serious humanitarian circumstances such as a medical condition, strong family ties and community ties, a clean record, and a history of following court and check-in rules. The documents should be organized and specific. A generic letter asking for mercy rarely helps. We prepare a package with the pending filing, proof of the facts, and a clear request for the date range we need.
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What can a stay of removal not do?
- It does not give you status. You do not become lawful, and you may remain subject to the underlying order and to detention rules.
- It is not permanent. A stay can be lifted when the case is decided or when conditions change.
- It does not guarantee release from detention. A stay and a bond are different requests. See our guide on how a judge decides bond for the custody side.
- It does not replace a real case. A stay buys time for a motion, an appeal, or a petition to succeed. Without a strong underlying filing, a stay is hard to get and does not last.
What other options exist when removal is close?
The other tools depend on the facts, and a lawyer should decide which fit.
- A motion to reopen based on new evidence, changed country conditions, or a defect in the original proceedings.
- An appeal or petition for review if deadlines have not passed.
- Humanitarian options that may pause enforcement, such as deferred action or other discretionary requests, where an agency’s policy allows them. Our post on whether a state pardon can stop deportation covers one such argument.
- Federal habeas corpus to challenge unlawful detention. Our habeas corpus page explains when this may apply.
- Protection claims such as withholding of removal or protection under the Convention Against Torture, which we describe in our guide to protection under the Convention Against Torture.
One more point matters when a person may be sent to a country other than their own. We discuss recent developments in our post on third-country removals and pretermission.
What should a family do right now if removal is scheduled?
Move fast and keep a record. Call a lawyer today, collect the order, the A-Number, any notice to report, and the removal date if you know it. Do not miss any ICE check-in without advice, because a missed appointment can make matters worse. Prepare evidence that shows why the case deserves a stay, and prepare the family for a worst-case plan, including who will care for children and who will hold the documents. Our guide to supporting a loved one in ICE detention can help if the person has already been taken into custody.
Frequently Asked Questions
Does a pending motion to reopen stop my deportation?
Generally no. Filing a motion to reopen does not by itself stay removal, except for a timely motion to reopen an in absentia order. In most cases you must also ask the judge or the Board for a stay.
What is Form I-246?
It is the form used to request an administrative stay of removal from ICE. ICE decides in its discretion, the denial cannot be appealed, and a pending request does not delay removal.
How long does a stay of removal last?
It depends on who grants it and why. Some last until a motion or appeal is decided, and others are for a set period. A stay can end if the underlying case is denied.
Can a federal court stop my deportation?
Yes, in some cases. A court of appeals can grant a stay while it reviews your case, but it does not happen automatically, and the court applies a demanding standard.
How We Can Help
We act quickly when removal is near. At Ilabaca Law, PLLC, we review the order and the record, identify the strongest stay route, prepare the motion or request with the evidence the decision-maker needs, and work on custody options if the person is detained. If you or a family member has a final order or a removal date, call us right away at (407) 917-2087 or use the intake form to start a free pre-evaluation.
Our founding attorney Denisse Ilabaca is Board Certified in Immigration and Nationality Law by The Florida Bar, a distinction held by fewer than two percent of Florida attorneys.
This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship with Ilabaca Law, PLLC. Immigration law and agency policy change often, and the right step for you depends on your individual facts. Prior results do not guarantee a similar outcome. This may be considered an attorney advertisement.