One of the first questions people ask after appealing an immigration judge’s removal decision is:
Can ICE deport me while my BIA appeal is pending?
For many people who timely appeal an immigration judge’s decision on the merits of a removal case, the answer is generally no. A qualifying removal order is ordinarily automatically stayed while the Board of Immigration Appeals reviews the appeal.
But there are important exceptions.
Not every BIA filing creates an automatic stay of removal, and the rules for direct appeals, bond appeals, motions to reopen, motions to reconsider, and other proceedings can be very different.
That distinction is critical for immigrants and families throughout Dallas-Fort Worth.
If you have already filed an appeal or recently received an immigration judge’s decision, a Dallas-Fort Worth BIA appeals attorney can review the exact procedural posture of your case and determine whether an automatic stay applies.
Quick Answer: Can ICE Deport You While a BIA Appeal Is Pending?
If you timely and properly appeal an immigration judge’s decision on the merits of your removal case, the removal order is generally automatically stayed while the BIA adjudicates the appeal.
That means DHS ordinarily cannot execute that removal order while the qualifying BIA appeal remains pending.
The stay generally continues until the BIA issues its decision.
However, an automatic stay should never be assumed simply because something was filed with the BIA.
Different rules apply to other types of filings.
What Does a “Stay of Removal” Mean?
A stay of removal temporarily prevents the Department of Homeland Security from executing a removal order.
In practical terms, if a removal order is stayed, DHS generally cannot physically remove the person from the United States while that stay remains effective.
A stay does not necessarily mean:
- The immigration case has been won
- The removal order has been permanently canceled
- The person has received lawful immigration status
- The person will automatically be released from ICE detention
- The BIA will ultimately grant the appeal
It simply prevents execution of the removal order during the period the stay remains in effect.
Is a Stay Automatic After an Immigration Judge’s Decision?
In many ordinary removal cases, yes—at least temporarily.
After an immigration judge issues a final decision on the merits of a case, the removal order is generally stayed during the period allowed for filing a BIA appeal.
That appeal period is ordinarily 30 calendar days.
However, there is an important exception:
If the losing party waives the right to appeal, the automatic stay associated with the appeal period generally does not apply.
This is why the question of whether appeal was reserved or waived at the end of the immigration court proceeding can be extremely important.
For more information about preserving an appeal, read How Long Do You Have to File a BIA Appeal?.
What Happens to the Stay After You File the BIA Appeal?
If a qualifying appeal from the immigration judge’s decision on the merits is timely filed with the Board, the automatic stay generally continues while the BIA adjudicates the appeal.
The stay ordinarily remains in place until the Board issues its final decision.
This gives the BIA an opportunity to review the immigration judge’s ruling before DHS executes the removal order.
For someone challenging an order of removal, that protection can be extremely important.
Does Filing Form EOIR-26 Automatically Stop Deportation?
It depends on what decision is being appealed.
Form EOIR-26 is used to appeal various immigration judge decisions to the Board.
But the mere fact that Form EOIR-26 was submitted does not mean every underlying order is automatically stayed.
A direct appeal from an immigration judge’s decision on the merits of a removal case is different from:
- A bond appeal
- An appeal from denial of certain motions to reopen
- A motion to reconsider
- A motion to reopen after a BIA decision
- Certain custody proceedings
- Certain fear-review proceedings
- Other specialized immigration matters
The type of decision being challenged matters.
What Counts as a Direct Appeal on the Merits?
A direct appeal on the merits typically challenges the immigration judge’s final ruling in the underlying removal proceeding.
For example, an immigration judge may have:
- Found the person removable
- Denied asylum
- Denied withholding of removal
- Denied protection under the Convention Against Torture
- Denied cancellation of removal
- Denied another application for relief
- Ordered the person removed from the United States
If appeal rights were preserved and a qualifying appeal is timely filed, the automatic-stay rule generally prevents execution of the removal order while the BIA reviews that direct appeal.
Our guide to appealing an immigration judge’s decision in Dallas explains the broader appellate process.
Does an Automatic Stay Mean You Can Be Released From ICE Detention?
No.
This is an important distinction.
A stay of removal prevents execution of a removal order.
It does not automatically require ICE to release someone from custody.
A person can therefore have a BIA appeal pending, be protected from removal by an automatic stay, and still remain detained by ICE.
Whether continued detention is lawful is a separate legal question.
Depending on the circumstances, options may involve:
- Immigration bond proceedings
- Custody review
- Requests for release
- Federal habeas corpus litigation
- Other detention-related remedies
The Piri Law Firm also handles immigration habeas corpus cases involving challenges to certain forms of immigration detention.
Are Bond Appeals Automatically Stayed?
Bond proceedings operate differently from the merits of a removal case.
Appealing an immigration judge’s bond or custody decision does not automatically create the same stay of removal that generally applies to a direct merits appeal.
In addition, filing a bond appeal does not itself stop the underlying removal case from moving forward.
This distinction matters because people often use the phrase “immigration appeal” to refer to very different proceedings.
A bond appeal focuses primarily on custody.
A merits appeal focuses on the immigration judge’s substantive decision concerning removal and relief.
They should not be confused.
Does Filing a Motion to Reopen Automatically Stop Removal?
Usually, no.
This is one of the most dangerous assumptions someone with a final removal order can make.
In many circumstances, filing a motion to reopen does not automatically stay removal.
That means a person may have a motion to reopen pending and still potentially be removed unless:
- A specific automatic-stay rule applies, or
- A discretionary stay is granted by an authority that has jurisdiction to issue one.
There are limited statutory and regulatory exceptions.
For example, certain motions involving in absentia removal orders can receive different treatment.
But the general rule is important:
Do not assume that filing a motion to reopen prevents ICE from executing an existing final removal order.
Does a Motion to Reconsider Stop Deportation?
Generally, merely filing a motion to reconsider does not automatically stop execution of a final removal order.
A stay may need to be separately requested where legally available.
That makes the procedural posture of the case extremely important after the BIA has already issued its decision.
A direct appeal that automatically stayed removal can turn into a very different situation once the BIA dismisses that appeal.
What Is a Discretionary Stay of Removal?
When an automatic stay does not apply, a person may sometimes request a discretionary stay of removal.
A discretionary stay is not automatic.
The appropriate agency or adjudicative body must actually grant it.
Depending on the type of pending proceeding, potential stay authority may rest with:
- DHS
- The Board of Immigration Appeals
- An immigration judge
- A federal court
The correct place to request a stay depends on the case.
Simply filing the request does not necessarily stop removal while the request is being considered.
That is why emergency stay issues require prompt attention.
What If the BIA Appeal Was Filed Late?
A late appeal creates additional problems.
The automatic stay associated with a pending direct appeal generally depends on the appeal being timely and properly filed.
If the BIA determines that an appeal was untimely, the immigration judge’s order may already have become final.
In limited circumstances, a person may argue that equitable tolling should permit acceptance of a late appeal, but no one should rely on that possibility when a timely appeal can still be filed.
Read our guide to the BIA 30-day appeal deadline for a detailed explanation.
What If I Waived My Right to Appeal?
Waiving appeal can have immediate consequences.
When a person knowingly and validly waives the right to appeal the immigration judge’s decision, the ordinary automatic stay during the 30-day appeal period generally does not apply.
The immigration judge’s decision can become final much sooner.
Questions sometimes arise about whether a waiver was genuinely knowing and voluntary.
Possible issues can include:
- Language or interpretation problems
- Confusion about what was being waived
- Lack of understanding of the immigration consequences
- Procedural irregularities
- Other circumstances affecting the validity of the waiver
Those issues require individualized review.
Someone who believes they waived appeal without understanding what happened should contact immigration counsel immediately.
What Happens While the BIA Appeal Is Pending?
A pending BIA appeal generally moves through several stages.
After the Notice of Appeal is processed, the case can involve:
- Obtaining the immigration court record
- Preparing a transcript where appropriate
- Issuing a briefing schedule
- Reviewing the immigration judge’s decision
- Identifying appellate errors
- Preparing an appellate brief
- Reviewing the opposing party’s arguments
- BIA consideration of the appeal
- Issuance of a BIA decision
For a full explanation, see What Happens After You File a BIA Appeal?.
How Long Does the Automatic Stay Last?
For a qualifying direct BIA appeal, the automatic stay generally continues while the Board adjudicates the appeal.
It ordinarily ends when the BIA issues its final decision.
That makes the Board’s decision date extremely important.
If the BIA sustains the appeal or sends the case back to immigration court, the procedural situation changes according to the Board’s ruling.
If the BIA dismisses the appeal and the removal order becomes administratively final, the automatic stay associated with the BIA appeal generally ends.
At that point, any next step needs to be evaluated immediately.
What Happens If the BIA Denies the Appeal?
If the Board dismisses the appeal, additional legal remedies may sometimes remain.
Depending on the case, those could include:
- Filing a petition for review in federal court
- Seeking a federal court stay of removal
- Filing a motion to reopen
- Filing a motion to reconsider
- Pursuing other available immigration relief
For immigration cases arising in Texas, a petition for review commonly falls within the jurisdiction of the U.S. Court of Appeals for the Fifth Circuit.
But this creates another critical distinction.
Does Filing a Federal Petition for Review Automatically Stay Removal?
No.
A petition for review in a federal court of appeals generally does not automatically stay removal merely because it has been filed.
If a stay is needed, the petitioner may need to request one from the federal court.
This is one reason the period immediately after a BIA denial can be extremely important.
The protection that existed during the administrative BIA appeal should not simply be assumed to continue after the Board dismisses the case.
Can You Continue Working While the BIA Appeal Is Pending?
The fact that a BIA appeal is pending does not by itself create employment authorization.
Whether someone can lawfully continue working depends on whether they have a separate basis for employment authorization and whether that authorization remains valid.
For example, employment authorization may be connected to:
- A pending asylum application
- A particular immigration status
- A separate application for relief
- Another category authorized under immigration regulations
A stay of removal and a work permit are two different things.
Can You Travel Outside the United States During a BIA Appeal?
International travel during removal proceedings or while an immigration appeal is pending can carry serious consequences.
Departure from the United States may affect:
- The removal order
- Pending immigration applications
- Jurisdiction
- Eligibility for relief
- Future admissibility
- Bars to returning to the United States
Do not assume that a pending BIA appeal makes international travel safe.
A person considering leaving the United States while an immigration appeal is pending should obtain case-specific legal advice before departing.
Can ICE Arrest You While the BIA Appeal Is Pending?
An automatic stay of removal does not necessarily prevent ICE from detaining a person.
The stay addresses execution of the removal order.
Custody is a separate issue.
Depending on the applicable detention statute and the person’s immigration and criminal history, ICE may continue detention or take someone into custody even while the underlying merits appeal is pending.
Again, protection from removal and entitlement to release are not the same thing.
Why Checking the Status of the Appeal Matters
People with pending immigration appeals should keep careful track of their cases.
The status can affect:
- Whether an automatic stay remains in effect
- Briefing deadlines
- Attorney filing deadlines
- Address-change requirements
- Whether the Board has issued a decision
- Whether another deadline has begun
EOIR provides an automated case information system for certain cases, but official documents issued by the immigration court or BIA remain the authoritative source regarding case decisions.
Keeping contact information current is also essential.
Missing a BIA decision can mean missing a subsequent federal court deadline.
BIA Appeals and Stays of Removal in Dallas-Fort Worth
The Piri Law Firm represents immigrants throughout Dallas and Fort Worth in appeals before the Board of Immigration Appeals.
For clients in Tarrant County, learn more about working with a Fort Worth BIA appeals attorney.
Dallas-area clients can also find BIA appeal resources for the firm’s Downtown Dallas, Oak Cliff, East Dallas, and Northwest Dallas locations.
Each of these resources connects with the firm’s central BIA Appeals practice.
Frequently Asked Questions About Staying in the U.S. During a BIA Appeal
Can I stay in the United States while my BIA appeal is pending?
If you filed a timely qualifying appeal from an immigration judge’s decision on the merits of your removal case, the removal order is generally automatically stayed while the BIA adjudicates the appeal.
Can ICE deport me during a BIA appeal?
Generally not while a qualifying automatic stay remains in effect. However, automatic stays do not apply identically to every type of BIA proceeding.
Do I need to separately file for a stay during a direct BIA appeal?
For a qualifying direct appeal on the merits that receives an automatic stay, a separate discretionary stay request generally is not necessary merely to obtain that automatic protection.
Does a BIA appeal automatically get me released from ICE detention?
No. A stay of removal and release from immigration detention are separate legal issues.
Does a bond appeal stop deportation?
A bond appeal is different from a direct appeal of the removal decision and does not provide the same automatic stay simply because the custody ruling has been appealed.
Does a motion to reopen automatically stop ICE from removing me?
Usually not. Important exceptions exist, but many motions to reopen do not automatically stay removal.
Does a motion to reconsider automatically stop removal?
Generally, no. A discretionary stay may need to be requested where legally available.
What happens to the stay if the BIA denies my appeal?
The automatic stay associated with the BIA appeal generally ends when the Board issues its final decision. Other remedies, including federal court review and a request for a federal court stay, may need to be considered immediately.
Does filing a Fifth Circuit petition automatically stop removal?
No. Filing a federal petition for review generally does not itself automatically stay removal. A separate stay request may be necessary.
Talk to a Dallas-Fort Worth BIA Appeals Attorney
Whether ICE can remove someone while an immigration appeal is pending depends on what was appealed, whether the appeal was timely, and what stage the case has reached.
Those distinctions can make the difference between an automatic stay and a situation requiring immediate emergency action.
The Piri Law Firm represents immigrants throughout Dallas-Fort Worth in BIA appeals, removal defense, and related federal immigration matters.
Learn more about working with a BIA appeals attorney at The Piri Law Firm or call (833) 600-0029 to discuss your case.
This article is for general informational purposes only and does not constitute legal advice. Automatic stays, discretionary stays, detention, and federal court review depend on the particular immigration proceeding and procedural history.
