Stay of Removal Motion (BIA and ICE)

MOTION FOR STAY OF REMOVAL

PART ONE: BIA STAY OF REMOVAL MOTION

CAPTION

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

In the Matter of:

[________________________________] (Respondent)

A#: [________________________________]

RESPONDENT'S MOTION FOR STAY OF REMOVAL PENDING [APPEAL / MOTION TO REOPEN / MOTION TO RECONSIDER]

I. INTRODUCTION AND PROCEDURAL POSTURE

Respondent, [________________________________] ("Respondent"), a native and citizen of [________________________________], by and through undersigned counsel, respectfully moves the Board of Immigration Appeals ("the Board") for a stay of removal pursuant to 8 C.F.R. § 1003.6, pending adjudication of Respondent's concurrently filed [appeal from the Immigration Judge's decision / motion to reopen / motion to reconsider].

Urgency Statement: [If removal is imminent, state:] Respondent's removal is scheduled for [__/__/____]. This motion is filed on an emergency basis. Respondent respectfully requests that the Board grant an immediate stay of removal to preserve jurisdiction and prevent irreparable harm. [If applicable:] Respondent has also [filed a stay request with ICE ERO / contacted the BIA Clerk's office to request emergency processing].

II. AUTOMATIC STAY RULES

Before addressing the discretionary stay standard, counsel notes the following regarding the automatic stay provisions under 8 C.F.R. § 1003.6(a):

A. Automatic Stay During Appeal Period

After an Immigration Judge issues a final decision on the merits, the order of removal is automatically stayed for the 30-day appeal period under 8 C.F.R. § 1003.6(a), provided the losing party has not waived the right to appeal.

☐ The 30-day appeal period has not expired. The IJ's decision was issued on [__/__/____], and the appeal deadline is [__/__/____]. The order is automatically stayed during this period.

☐ A timely appeal (EOIR-26) was filed on [__/__/____]. The order of removal is automatically stayed during the pendency of the appeal before the Board. 8 C.F.R. § 1003.6(a).

B. No Automatic Stay for Motions to Reopen or Reconsider

IMPORTANT: There is no automatic stay of removal upon the filing of a motion to reopen or motion to reconsider. 8 C.F.R. § 1003.6(a); see also 8 C.F.R. § 1003.23(b)(1). A discretionary stay must be requested and granted.

☐ This motion for stay is filed in connection with a motion to reopen or reconsider. A discretionary stay is required and is requested herein.

C. No Automatic Stay for Appeals from Denial of Motion to Reopen In Absentia Orders

Appeals from an Immigration Judge's denial of a motion to reopen removal proceedings conducted in absentia do not carry an automatic stay. 8 C.F.R. § 1003.6(a).

☐ This matter involves an in absentia order. No automatic stay applies.

III. LEGAL STANDARD FOR DISCRETIONARY STAY

The Board has discretion to stay removal pending adjudication of a motion or appeal. 8 C.F.R. § 1003.6(b). The standard for a discretionary stay is governed by the four-factor test set forth in Nken v. Holder, 556 U.S. 418 (2009):

(1) Likelihood of success on the merits of the underlying appeal or motion;
(2) Irreparable harm to the movant if the stay is not granted;
(3) Balance of the equities -- whether the stay would substantially injure other interested parties; and
(4) Public interest -- whether the stay serves the public interest.

The first two factors -- likelihood of success and irreparable harm -- are "the most critical." Nken, 556 U.S. at 434. The movant need not demonstrate a certainty of success but must show that there is a "substantial case on the merits" or that the questions presented are "serious" and "fairly debatable." Id. at 434-35.

IV. APPLICATION OF STAY FACTORS

A. Factor 1: Likelihood of Success on the Merits

Respondent has a substantial likelihood of success on the merits of the underlying [appeal / motion to reopen / motion to reconsider] because:

[Summarize the key arguments in the underlying appeal or motion. Demonstrate that the issues are meritorious and that there is at least a fair prospect of success.]

Basis of Underlying [Appeal / Motion]:

☐ Legal Error by the Immigration Judge: [________________________________]
[________________________________]
[________________________________]

☐ Factual Error by the Immigration Judge: [________________________________]
[________________________________]

☐ New Evidence Not Previously Available (Motion to Reopen): [________________________________]
[________________________________]

☐ Changed Country Conditions (Motion to Reopen): [________________________________]
[________________________________]

☐ Ineffective Assistance of Counsel (Motion to Reopen under Matter of Lozada): [________________________________]
[________________________________]

☐ In Absentia Order -- Lack of Notice or Exceptional Circumstances (Motion to Reopen): [________________________________]
[________________________________]

☐ Error of Law or Fact in Prior Decision (Motion to Reconsider): [________________________________]
[________________________________]

☐ Other Basis: [________________________________]
[________________________________]

Key Legal Arguments:

[________________________________]
[________________________________]
[________________________________]
[________________________________]

See Respondent's [Appeal Brief / Motion to Reopen / Motion to Reconsider], filed concurrently herewith.

B. Factor 2: Irreparable Harm

Respondent will suffer irreparable harm if removal is not stayed because:

IMPORTANT: The Supreme Court held in Nken that "the burden of removal alone" does not constitute irreparable harm. 556 U.S. at 435. The movant must demonstrate harm that is "specific to his or her case." Id. The following particularized harms apply to Respondent:

☐ Fear of Persecution or Torture: Respondent faces a well-founded fear of persecution and/or a likelihood of torture upon return to [________________________________]. Removal would expose Respondent to [describe specific, particularized harm]:
[________________________________]
[________________________________]

☐ Medical Emergency or Serious Medical Condition: Respondent suffers from [________________________________] and requires ongoing treatment that is not available or accessible in [________________________________]. Removal would interrupt critical medical care and endanger Respondent's life or health.
[________________________________]
[________________________________]

☐ Family Separation: Respondent has [U.S. citizen / LPR] family members, including [________________________________]. Removal would result in the separation of Respondent from [his/her/their] [spouse / minor children / dependent family members], causing severe and potentially irreversible harm to the family unit.
[________________________________]

☐ Pending Relief Before USCIS or Other Agency: Respondent has a pending [visa petition / adjustment application / TPS application / VAWA self-petition / U visa / other] (Receipt No.: [________________________________]) filed on [__/__/____]. Removal would moot this pending relief.
[________________________________]

☐ Inability to Effectively Pursue Appeal from Abroad: If removed, Respondent will be unable to effectively participate in [his/her/their] appeal or motion, gather evidence, communicate with counsel, or attend any future proceedings.
[________________________________]

☐ Country Conditions: Current conditions in [________________________________] present a specific and particularized risk to Respondent, including:
[________________________________]
[________________________________]

☐ Other Irreparable Harm: [________________________________]
[________________________________]

C. Factor 3: Balance of the Equities

The balance of the equities weighs in favor of granting the stay:

☐ The government will not be substantially harmed by a brief delay in removal pending adjudication of the [appeal / motion]. The case has been pending since [__/__/____], and a stay of [estimated duration] will not materially prejudice the government's interest in enforcement.

☐ Respondent has no criminal history that would weigh against a stay. [Or: Respondent's criminal history is limited to [________________________________], and [his/her/their] rehabilitation is demonstrated by [________________________________].]

☐ Respondent has strong ties to the United States, including:

• Family ties: [________________________________]
• Employment: [________________________________]
• Community involvement: [________________________________]
• Length of residence: [________________________________]
• Tax compliance: [________________________________]

☐ Respondent has complied with all conditions of release, including:

• ☐ Regular check-ins with ICE
• ☐ Compliance with order of supervision
• ☐ Attendance at all court hearings
• ☐ No new criminal offenses

☐ Other equitable factors: [________________________________]

D. Factor 4: Public Interest

The public interest is served by granting the stay:

☐ The public interest is served by ensuring that removal does not occur before the Board has had a full opportunity to review the merits of the underlying [appeal / motion]. The legal system benefits from orderly adjudication of immigration cases.

☐ The public interest is served by preventing the removal of an individual who may be entitled to relief under the immigration laws. Removal of a person who is subsequently found to be eligible for relief causes unnecessary hardship and may violate the United States' obligations under international law.

☐ The public interest is served by preserving family unity, particularly where U.S. citizen children are involved.

☐ The public interest is not disserved because Respondent poses no threat to public safety or national security.

☐ Other public interest considerations: [________________________________]

V. EMERGENCY STAY REQUEST

[If removal is imminent, include the following section.]

☐ This is an emergency motion. Respondent's removal is scheduled for [__/__/____], which is [____] days from the date of this filing.

Respondent respectfully requests that the Board:

1. Immediately contact DHS/ICE to request a temporary administrative stay pending review of this motion;
2. Issue an emergency stay of removal;
3. Schedule expedited briefing on the stay motion if necessary.

Contact Information for Emergency Communications:

Attorney: [________________________________]
Telephone: [________________________________]
Cell Phone: [________________________________]
Email: [________________________________]

ICE ERO Contact Information:
ICE ERO Field Office: [________________________________]
Deportation Officer: [________________________________]
Telephone: [________________________________]

VI. CONCLUSION

For all of the foregoing reasons, Respondent respectfully requests that the Board grant this motion for stay of removal pending adjudication of the concurrently filed [appeal / motion to reopen / motion to reconsider].

Respectfully submitted,

_________________________________________
[________________________________]
Attorney for Respondent

[________________________________]
Firm Name

[________________________________]
Address

[________________________________]
City, State, ZIP

Telephone: [________________________________]

Facsimile: [________________________________]

Email: [________________________________]

Bar Number: [________________________________]

EOIR ID Number: [________________________________]

Date: [__/__/____]

CERTIFICATE OF SERVICE (BIA)

I, [________________________________], attorney for Respondent, hereby certify that on [__/__/____], I served a true and correct copy of this Motion for Stay of Removal, together with the concurrently filed [Appeal Brief / Motion to Reopen / Motion to Reconsider] and all supporting exhibits, upon:

Office of the Chief Counsel
U.S. Department of Homeland Security
Immigration and Customs Enforcement
[________________________________]
[________________________________]
[________________________________]

by the following method:

☐ Personal delivery / hand delivery
☐ U.S. Mail, postage prepaid
☐ Electronic filing (ECAS) per EOIR procedures
☐ Facsimile to: [________________________________]
☐ Email to: [________________________________]
☐ Other: [________________________________]

_________________________________________
Signature of Attorney

Date: [__/__/____]

---

PART TWO: ICE ERO STAY OF REMOVAL REQUEST (FORM I-246)

COVER LETTER TO ICE ERO

[__/__/____]

VIA [HAND DELIVERY / CERTIFIED MAIL / FACSIMILE / EMAIL]

ICE Enforcement and Removal Operations
[________________________________] Field Office
[________________________________]
[________________________________]
[________________________________]

Attn: [Deportation Officer / Supervisory Detention and Deportation Officer]

RE: Request for Stay of Removal -- Form I-246
Subject: [________________________________]
A-Number: [________________________________]
Final Order Date: [__/__/____]
Custody Status: ☐ Detained at [________________________________] / ☐ Non-detained
Removal Scheduled: ☐ Yes -- Date: [__/__/____] / ☐ No specific date

Dear [Officer / Sir or Madam]:

On behalf of [________________________________] ("Subject"), I respectfully submit the enclosed Form I-246, Application for Stay of Deportation or Removal, together with supporting documentation. A stay of removal is warranted based on the following grounds:

Basis for ICE Stay Request

☐ Pending BIA Appeal: Respondent has filed a timely appeal (EOIR-26) with the Board of Immigration Appeals on [__/__/____]. The appeal is currently pending.

☐ Pending Motion to Reopen or Reconsider Before BIA: Respondent has filed a motion to [reopen / reconsider] with the BIA on [__/__/____]. A stay motion has been filed concurrently with the BIA, but the BIA has not yet ruled.

☐ Pending USCIS Application: Respondent has a pending application with USCIS, including:

• ☐ Form I-130, Petition for Alien Relative (Receipt: [________________________________])
• ☐ Form I-360, VAWA Self-Petition (Receipt: [________________________________])
• ☐ Form I-918, Petition for U Nonimmigrant Status (Receipt: [________________________________])
• ☐ Form I-914, Application for T Nonimmigrant Status (Receipt: [________________________________])
• ☐ Other: [________________________________] (Receipt: [________________________________])

☐ Pending Federal Court Litigation: Respondent has filed a [petition for review / habeas corpus petition / mandamus action / other] in [________________________________] Court, Case No. [________________________________], on [__/__/____]. [A stay of removal has been requested from the court / The court has issued a temporary stay.]

☐ Medical / Humanitarian Reasons:

• ☐ Respondent suffers from a serious medical condition: [________________________________]
• ☐ Respondent requires ongoing medical treatment not available in the country of removal
• ☐ Respondent is pregnant and near term
• ☐ Respondent is caring for a seriously ill family member
• ☐ Other humanitarian grounds: [________________________________]

☐ Travel Document Not Yet Obtained: ICE has been unable to obtain a travel document for Respondent from the consulate of [________________________________]. Removal is not currently feasible.

☐ Cooperating Witness / Law Enforcement: Respondent is cooperating with law enforcement in [________________________________]. Removal would disrupt ongoing law enforcement activities.

☐ Other Grounds: [________________________________]

Supporting Documentation Enclosed

☐ Form I-246 (signed by the Subject)
☐ Filing fee (money order in the amount of $[____]) or fee waiver request
☐ Copy of the final order of removal
☐ Copy of the NTA
☐ Proof of pending appeal, motion, or application (receipt notices, cover pages)
☐ Medical records and physician's letter (if medical basis)
☐ Evidence of family ties (marriage certificate, children's birth certificates, etc.)
☐ Evidence of community ties and rehabilitation (if criminal history)
☐ Criminal record dispositions and certificates of completion (if any)
☐ Country conditions evidence (if fear-based claim)
☐ Declaration of the Subject
☐ Form G-28, Notice of Entry of Appearance
☐ Identity documents (passport, ID)
☐ Additional evidence: [________________________________]

Request

I respectfully request that ICE ERO exercise its discretion to grant a stay of removal for [________________________________] pending [adjudication of the BIA appeal/motion / adjudication of the USCIS application / resolution of the federal court case / other]. Removal at this time would cause irreparable harm and would be premature in light of the pending [matter described above].

Please contact me at the information below to discuss this request or to schedule any required appointment.

Respectfully submitted,

_________________________________________
[________________________________]
Attorney for Subject

[________________________________]
Firm Name

[________________________________]
Address

[________________________________]
City, State, ZIP

Telephone: [________________________________]

Cell Phone: [________________________________]

Email: [________________________________]

PART THREE: FILING INSTRUCTIONS AND CHECKLISTS

A. BIA Stay Motion Filing Checklist

☐ Motion for Stay of Removal (this document, Part One), signed and dated
☐ Underlying [Appeal Brief / Motion to Reopen / Motion to Reconsider], filed concurrently or previously filed
☐ EOIR-26 (Notice of Appeal), if appeal -- with proof of timely filing
☐ EOIR-28 (Notice of Entry of Appearance), if not already on file
☐ Certificate of Service on DHS Chief Counsel, signed and dated
☐ Supporting exhibits, tabbed and indexed
☐ Declaration or affidavit of Respondent (if not included in underlying motion)
☐ Country conditions evidence (if fear-based claim)
☐ Medical evidence (if medical basis for irreparable harm)
☐ Evidence of family ties and equities
☐ Criminal record dispositions (if applicable, with rehabilitation evidence)
☐ Proposed order (if required by local practice)

B. BIA Filing Instructions

Filing Address:

Board of Immigration Appeals
5107 Leesburg Pike, Suite 2000
Falls Church, VA 22041

Filing Methods:

☐ ECAS (EOIR Courts and Appeals System): The Board accepts electronic filings through ECAS. This is the preferred filing method and provides immediate confirmation of receipt.

• ECAS Portal: https://portal.eoir.justice.gov/

☐ Mail: File by U.S. Mail or overnight delivery to the address above.

☐ Emergency Fax: For emergency stay motions where removal is imminent, the BIA Clerk's office may accept filings by fax. Contact the Clerk's office to confirm:

• BIA Clerk's Office: (703) 605-1007
• Fax (verify current): [________________________________]

Page Limits: Check the BIA Practice Manual for any applicable page limits on stay motions. Generally, stay motions should be concise and focused on the four Nken factors.

Service Requirement: The motion must be served on the DHS Chief Counsel. Proof of service must be included with the filing.

C. ICE ERO Stay Request Filing Checklist

☐ Form I-246 (Application for Stay of Deportation or Removal), signed by the Subject
☐ Cover letter (this document, Part Two)
☐ Filing fee (money order or cashier's check; verify current amount) or fee waiver documentation
☐ Form G-28, Notice of Entry of Appearance
☐ Copy of the final order of removal
☐ Copy of the NTA
☐ Proof of pending legal matter (BIA appeal receipt, USCIS receipt, court docket)
☐ Supporting evidence (medical records, family evidence, country conditions, etc.)
☐ Identity documents (passport, ID)
☐ Criminal record dispositions (if applicable)

D. ICE ERO Filing Instructions

Filing Procedures: Filing procedures vary by ICE ERO field office. Contact the local field office for specific instructions regarding:

☐ Filing method (in person, by mail, by fax, by email)
☐ Filing fee amount (verify current amount; some offices may not require a fee for certain categories)
☐ Appointment requirements
☐ Biometrics requirements
☐ Processing times

ICE ERO Field Office: [________________________________]
Address: [________________________________]
Telephone: [________________________________]
Fax: [________________________________]
Email (if accepted): [________________________________]

PART FOUR: EVIDENCE INDEX

PART FIVE: PRACTITIONER TIPS AND COMMON PITFALLS

Timing and Urgency

1. File the Stay Motion Immediately. If there is no automatic stay (e.g., motion to reopen or reconsider), file the stay motion as soon as possible -- ideally concurrently with the underlying motion. There is no automatic grace period.

2. Monitor Removal Scheduling. If the client is detained, contact the deportation officer to determine whether removal has been scheduled. If removal is imminent, file an emergency stay motion and contact the BIA Clerk's office directly. Also consider filing a stay request with ICE ERO and, if necessary, an emergency stay motion with the circuit court.

3. File in Multiple Forums if Necessary. A stay motion filed with the BIA does not automatically prevent ICE from executing a removal order. Consider filing simultaneously with the BIA, ICE ERO (Form I-246), and, if warranted, the circuit court of appeals (petition for review with motion for stay).

4. Know the Automatic Stay Rules. A timely appeal from an IJ's merits decision carries an automatic stay during the 30-day appeal period and during the pendency of the appeal before the BIA. 8 C.F.R. § 1003.6(a). However, there is no automatic stay for motions to reopen, motions to reconsider, or appeals from denial of a motion to reopen an in absentia order.

Substantive Tips

5. Address All Four Nken Factors. Do not focus exclusively on likelihood of success. All four factors are considered, and the "irreparable harm" and "likelihood of success" factors are the most critical. Nken v. Holder, 556 U.S. 418, 434 (2009).

6. Irreparable Harm Must Be Particularized. The Supreme Court held that "the burden of removal alone" is not irreparable harm. Nken, 556 U.S. at 435. You must identify harm specific to the respondent's case -- fear of persecution or torture, medical needs, family separation affecting U.S. citizen children, pending relief that would be mooted, inability to participate in proceedings from abroad.

7. Likelihood of Success Need Not Be a Certainty. The movant need not show certain success, only that the case raises "serious legal questions" or that there is a "substantial case on the merits." Nken, 556 U.S. at 434. Even a "possibility of success" may suffice when irreparable harm is severe.

8. Concurrently Filed Motion Must Be Meritorious. The stay motion is only as strong as the underlying motion or appeal. Ensure that the motion to reopen, motion to reconsider, or appeal raises genuinely meritorious issues. A frivolous underlying motion will doom the stay request.

9. Criminal History Must Be Addressed. If the respondent has a criminal record, address it directly. Provide dispositions, certificates of completion, evidence of rehabilitation, and letters of support. Explain why the criminal history does not outweigh the equities and public interest in granting a stay.

10. Country Conditions Evidence for Fear-Based Claims. If irreparable harm is based on fear of persecution or torture, include current country conditions evidence. Highlight specific risks to the respondent based on profile.

ICE ERO-Specific Tips

11. Local Practice Varies Widely. ICE ERO field offices have different procedures for I-246 filings. Some require appointments; others accept mail or fax filings. Some charge a filing fee; others do not. Contact the field office in advance.

12. ICE Discretion Is Broad. ICE's decision on a stay request under the I-246 is discretionary and generally unreviewable. Focus on presenting a compelling package of evidence demonstrating equities and pending legal matters.

13. Coordinate with BIA Filing. If filing both a BIA stay motion and an ICE I-246, include proof of the BIA filing (receipt or cover page) in the ICE submission. ICE may be more inclined to grant an administrative stay if the BIA is actively considering the matter.

14. Detained Clients -- Act Quickly. For detained clients, removal can occur rapidly. File the I-246 with the local field office and contact the deportation officer directly. If removal is imminent and ICE declines to grant a stay, consider emergency relief from the circuit court.

Circuit Court Considerations

15. Petition for Review and Stay. If the BIA denies the stay or if removal is imminent despite pending proceedings, consider filing a petition for review with the circuit court of appeals and a motion for stay pending judicial review. The Nken standard applies in the circuit courts as well.

16. Statutory Deadlines. A petition for review of a final order of removal must generally be filed within 30 days of the BIA's final order. INA § 242(b)(1); 8 U.S.C. § 1252(b)(1). For criminal aliens, the deadline is 30 days. Missing this deadline is jurisdictional and cannot be excused.

17. Automatic Stay from Petition for Review (Limited). Filing a petition for review does not automatically stay removal. An alien must separately seek a stay from the court. Some circuits have local rules or procedures for emergency stays.

PART SIX: SAMPLE BIA STAY MOTION BODY (SHORT FORM)

IN THE MATTER OF [________________________________], A# [________________________________]

MOTION FOR STAY OF REMOVAL

Respondent, through counsel, moves the Board for a stay of removal pending adjudication of the concurrently filed [motion to reopen / motion to reconsider / appeal]. In support thereof, Respondent states:

1. Likelihood of Success on the Merits. The underlying [motion/appeal] presents meritorious claims. [Briefly summarize: e.g., "The Immigration Judge committed reversible error by failing to consider Respondent's claim under the Convention Against Torture. The motion to reopen is based on previously unavailable evidence of changed country conditions establishing that Respondent would face torture upon return to [country]. See attached motion at pp. [____]-[____]."]

[________________________________]
[________________________________]
[________________________________]

2. Irreparable Harm. If removed to [________________________________], Respondent faces [describe specific, particularized harm: persecution, torture, medical emergency, family separation affecting U.S. citizen children, mooting of pending USCIS application, etc.]. This harm is irreparable because [________________________________].

[________________________________]
[________________________________]

3. Balance of Equities. The government will not be prejudiced by a temporary stay. Respondent has [describe equities: no criminal history / rehabilitation from prior offenses, strong family ties, community involvement, compliance with supervision, etc.]. The case has been pending since [____], and a brief additional period will not materially harm the government.

[________________________________]

4. Public Interest. The public interest is served by ensuring that the Board has a full opportunity to review the merits before removal is executed. [If applicable: The public interest is also served by preventing the removal of an individual who faces persecution or torture, consistent with the United States' obligations under international law.]

[________________________________]

WHEREFORE, Respondent respectfully requests that the Board grant this motion and stay Respondent's removal pending adjudication of the concurrently filed [motion to reopen / motion to reconsider / appeal].

_________________________________________
[________________________________]
Attorney for Respondent

Date: [__/__/____]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I served a copy of the foregoing Motion for Stay of Removal upon the DHS Chief Counsel at:

[________________________________]
[________________________________]

by ☐ ECAS / ☐ U.S. Mail / ☐ Personal delivery / ☐ Other: [________________________________].

_________________________________________
Signature

This template is provided for informational purposes only and does not constitute legal advice. You must have this template reviewed and customized by a qualified attorney licensed in your jurisdiction before use.