Stays of Removal: How to Stop a Deportation in Progress

What Is a Stay of Removal?

A stay of removal is a temporary order that prevents the federal government from deporting someone from the United States. When a person has a final removal order, ICE can ordinarily execute that order at any time. A stay pauses that authority, giving the immigrant time to pursue further legal remedies, such as an appeal, a motion to reopen, or a petition for review in federal court.

Stays come from several different sources. Some are automatic and require no formal request. Others must be specifically asked for, with a careful written motion and supporting evidence. Each type has its own rules, deadlines, and standards. Knowing which kind of stay applies to your situation can be the difference between a loved one staying with their family in Massachusetts or being placed on a deportation flight tomorrow.

This guide walks through every major form of stay available under current federal immigration law, explains how each one works, and offers practical steps for families facing imminent removal. As always, the analysis below is general legal information, not advice for any particular case. Each situation is different, and timing matters enormously. If you or a loved one is in danger of deportation, please consult an immigration attorney immediately.

The Automatic Stay During an Appeal: 8 CFR 1003.6

The most powerful stay in immigration law is also one of the least understood. Under 8 CFR 1003.6(a), when an immigration judge issues a final order of removal, that order is automatically stayed for the 30-day period in which the noncitizen has the right to file an appeal with the Board of Immigration Appeals. If the noncitizen files a timely Notice of Appeal (Form EOIR-26) during that 30-day window, the automatic stay continues throughout the entire BIA appeal.

This automatic stay applies to merits decisions by an immigration judge. It does not apply to bond decisions, custody decisions, credible fear determinations, claimed status review, or reasonable fear determinations. Those have their own separate procedures.

The practical lesson is clear: filing a timely Notice of Appeal protects against immediate removal while the BIA considers the case. Missing the 30-day deadline forfeits this automatic protection and shifts the burden to the noncitizen to request a discretionary stay.

Discretionary Stays from the Board of Immigration Appeals

Once the appeal period has run, or once the BIA has issued a decision, the automatic stay no longer protects the noncitizen. At that point, ICE can theoretically remove the person at any time. To stop a removal during this later phase, the noncitizen must request a discretionary stay.

A motion for a discretionary stay before the BIA is most often filed in connection with a motion to reopen or a motion to reconsider. The noncitizen asks the BIA to pause the removal order while the underlying motion is considered. There is no specific form for this request. It is filed as a written motion with the BIA, supported by evidence of the strength of the underlying claim and the harm the noncitizen would suffer if removed before the BIA rules.

Critically, filing a motion to reopen or to reconsider does not automatically stay removal. This rule appears in 8 CFR 1003.2(f) for motions filed with the BIA and in 8 CFR 1003.23(b)(1)(v) for motions filed with the immigration court. Without a granted stay, ICE can deport the person while the motion is still being decided. This is one of the most painful realities of removal defense and one of the most important reasons to file a stay request alongside the motion itself.

The Critical Exception: Automatic Stay for In Absentia Motions to Reopen

There is one important exception to the rule that motions to reopen do not automatically stay removal. Under 8 CFR 1003.23(b)(4)(iii), when a noncitizen files a motion to reopen to rescind an in absentia removal order, the removal is automatically stayed while the immigration judge decides the motion. The same automatic stay applies to in absentia motions filed at the BIA under 8 CFR 1003.2(f).

This exception exists because in absentia orders are issued when the noncitizen failed to appear at a hearing, and federal law recognizes that there are legitimate reasons people miss hearings, such as defective notice, exceptional circumstances, or being in federal or state custody. The automatic stay protects against removal while the judge or BIA evaluates whether the in absentia order should be rescinded.

Two important deadlines apply. A motion to reopen based on exceptional circumstances must be filed within 180 days of the in absentia order. A motion to reopen based on lack of proper notice or being in custody at the time of the hearing may be filed at any time. Both types of motions trigger the automatic stay.

Federal Court Stays: The Nken v. Holder Standard

When the BIA dismisses an appeal or denies a motion, the next step is often a petition for review in the appropriate U.S. Court of Appeals. For Massachusetts residents, that means the United States Court of Appeals for the First Circuit in Boston. The petition for review must generally be filed within 30 days of the BIA's final order under 8 U.S.C. 1252(b)(1).

Filing a petition for review does not automatically stop a deportation. The noncitizen must file a separate motion asking the court of appeals for a stay of removal pending review. The standard for granting that stay was set by the U.S. Supreme Court in Nken v. Holder, 556 U.S. 418 (2009).

The Nken Court held that the traditional four-factor test governs stay requests in immigration cases. A court considers:

1. Whether the applicant has made a strong showing of likely success on the merits of the petition for review
2. Whether the applicant will suffer irreparable injury without a stay
3. Whether a stay would substantially injure the other parties
4. Where the public interest lies

The Supreme Court was clear that not every removal can be stopped just because a petition for review has been filed. The Court emphasized that there is always a public interest in the prompt execution of removal orders. To win a stay, the noncitizen must persuade the court that the legal arguments are strong, that real and serious harm will result from removal, and that the balance of equities favors waiting for review.

An important practical rule comes from the Federal Rules of Appellate Procedure. Rule 18 generally requires that an applicant first seek a stay from the agency itself (the BIA or ICE) before asking the court of appeals, unless doing so would be impracticable. Most stay motions in the courts of appeals therefore include either evidence that the agency was asked first, or an explanation of why the situation was too urgent to wait.

Form I-246: Administrative Stays from ICE

A separate kind of stay is available directly from U.S. Immigration and Customs Enforcement. This is requested using Form I-246, Application for a Stay of Deportation or Removal. Unlike the automatic and judicial stays described above, an I-246 is a discretionary administrative request to ICE itself.

The current filing fee for Form I-246 is $155, payable to the Department of Homeland Security. The fee is non-refundable, which means that if ICE denies the request or cancels the appointment, the money is not returned. Filing procedures vary by ICE Enforcement and Removal Operations (ERO) field office. Some offices require an in-person appointment to submit the form, while others have transitioned to electronic payment systems. The Boston ERO field office, which has jurisdiction over Massachusetts cases, sets its own scheduling and submission rules.

An I-246 stay is appropriate when there is a genuine humanitarian reason to delay a removal that has already been ordered final. Common grounds include serious medical issues, the need to complete a treatment regimen, the death of a close family member, the pending birth of a child, or the need to wind up urgent affairs in the United States. ICE also sometimes grants stays based on a pending immigration petition with USCIS or pending litigation that may directly affect removability.

Approval is entirely at ICE's discretion. There is no right to a stay under Form I-246. Even strong cases can be denied, and the standard for approval has been narrow under recent enforcement priorities. When granted, an I-246 stay is typically valid for up to one year, subject to conditions of supervision, and can be revoked at any time at ICE's discretion.

Putting It All Together: Which Stay Applies to Your Case?

The right stay procedure depends entirely on where the case stands. Below is a general guide, although every case requires individualized analysis from a qualified attorney.

If the immigration judge just ruled and the 30-day appeal window is open

File a timely Notice of Appeal on Form EOIR-26 with the BIA. The automatic stay under 8 CFR 1003.6(a) protects against removal during the 30-day window and throughout the BIA appeal.

If there is an in absentia removal order

File a motion to reopen with the immigration court or, if appropriate, with the BIA. The motion automatically stays removal under 8 CFR 1003.23(b)(4)(iii) or 8 CFR 1003.2(f). Carefully assess which deadline applies. Motions based on exceptional circumstances must be filed within 180 days, while motions based on lack of notice or custody at the time of the hearing may be filed at any time.

If the BIA has denied the appeal

Consider a petition for review in the appropriate U.S. Court of Appeals (the First Circuit for Massachusetts cases). File a separate motion for a stay of removal pending review under the Nken v. Holder standard. Be prepared to satisfy the four-factor test and to explain why the BIA was asked first or why doing so was impracticable.

If the time for appeals has passed and there is no pending litigation

Consider filing Form I-246 with the local ICE ERO field office. Be prepared to document the humanitarian basis for the request. Understand that the request is discretionary and is unlikely to succeed without strong supporting evidence and, in many cases, the assistance of an attorney.

If a motion to reopen is being filed without an in absentia order

The motion does not automatically stay removal. File a separate request for a stay alongside the motion. Provide evidence of the strength of the underlying claim, the harm of removal during pendency, and any humanitarian factors that weigh in favor of a stay.

Practical Considerations for Massachusetts Families

Stays of removal are time-sensitive. ICE does not always provide advance notice of a removal flight. In some cases, families learn that a loved one is being deported only hours before the plane departs. The most effective preparation is to retain counsel before a crisis develops, so that motions and evidence are ready to file the moment they are needed.

For people who are detained, the situation is even more urgent. Stay motions must be coordinated with detention center counsel, ICE deportation officers, and the relevant court. Documentation, declarations from family members, medical records, and proof of pending applications all need to be assembled quickly. An experienced removal defense attorney will know which arguments are most likely to persuade a particular adjudicator.

Massachusetts has its own specific context. The Boston Immigration Court and the Boston ERO field office handle removal cases for the entire state. The First Circuit Court of Appeals reviews petitions for review for Massachusetts, New Hampshire, Maine, Rhode Island, and Puerto Rico. Each of these institutions has its own filing requirements, local rules, and practical norms. Local knowledge can save critical hours when time is short.

Frequently Asked Questions About Stays of Removal

Final Thoughts

A stay of removal is one of the most consequential tools in immigration practice. It can mean the difference between a family staying together and a parent being separated from their children. The rules are technical, the deadlines are strict, and the standards vary depending on which court or agency is being asked to grant the stay.

For families in Massachusetts and across New England, knowing the basic landscape of stays, the automatic protections under 8 CFR 1003.6 and 8 CFR 1003.23, the discretionary stays from the BIA, the federal court standard from Nken v. Holder, and the administrative stay through Form I-246, is the first step in preparing for a crisis. The next step is having a relationship with an experienced removal defense attorney who can act when minutes matter.

If you or someone you love is facing deportation, do not wait. Time is the single most important factor in this kind of case. The earlier the legal team is engaged, the more options remain on the table.