Removal proceedings involve a process wherein an immigrant may be forced to leave (i.e., deported) from the United States. A “stay” halts or postpones the order for removal from the U.S. It is important to note that stays are temporary, not permanent.
Stays of removal are sometimes automatic, and others are discretionary. This means that the Judge (or, in certain circumstances, an immigration officer) can choose whether or not to grant a stay of removal. A stay of removal is not a means to avoid deportation or removal. It is simply a procedural benefit that you can use as you move through the removal process.
Automatic Stays of Removal
You will generally have an automatic 30-day stay of removal after the removal order is entered by an Immigration Judge. This is the amount of time that you have to appeal the Judge’s ruling. There are, however, circumstances when the right to appeal is waived. In those situations, there is no automatic stay of removal.
If you timely file an appeal of the removal order, a stay will automatically go into effect if you meet certain conditions. You must appeal an Immigration Judge’s decision to the Board of Immigration Appeals (“BIA”), which is the highest level for an administrative immigration appeal. An appeal to the BIA is usually only in paper form, which means that you likely will not have to appear in court again at this level. The stay of removal will remain in effect until the BIA makes its final decision.
An automatic stay of removal may also come up in other circumstances as well. Generally, a stay will be in effect while you are waiting for a final decision from an Immigration Judge.
Discretionary Stays of Removal
Where an automatic stay doesn’t apply, there are situations where the BIA has been given discretionary authority to grant a stay. For example, the BIA may grant a stay pending a decision regarding a motion to reconsider or a motion to reopen.
Whether a stay will be granted will depend on the individual situation and the unique facts of your case. You must normally request a discretionary stay through a written motion. Your immigration attorney can help you with this process.
How Long with a Stay of Removal Last?
A stay of removal will only last as long as it takes for the decision-maker to issue a final decision. Then, removal will either proceed or you will be permitted to remain in the United States while you fight your case.
For more information about the removal process, visit our removal page. You can also contact us to ask our experienced team questions directly.
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