Can You Be Deported While Waiting for a Decision From the BIA?

Generally speaking, you cannot be deported while waiting for a decision from the Board of Immigration Appeals (BIA). However, the filing of an appeal with the Board of Immigration Appeals (BIA) only stays removal under limited circumstances. Sometimes, an additional, written request to the BIA for stay of removal is required.

Role of the Board of Immigration Appeals

The BIA is the highest administrative body for interpreting and applying immigration laws. It has jurisdiction to hear certain appeals by immigration judges and directors of the Department of Homeland Security (DHS). Unless overruled by the Attorney General or a federal court, BIA decisions are binding on immigration judges and DHS. If the immigration judge (IJ) denies an alien relief from removal, the alien has a right to appeal the decision. Direct appeals from an IJ’s order of removal automatically “stay” the alien’s deportation. Thus, aliens who appeal the lower court’s order cannot be deported while their appeal is pending before the BIA.

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Filing an Appeal to the BIA

Appeals to the BIA must be filed in a timely manner with the Clerk’s Office Appeals Unit on the 13th Floor of Building 3 at the Executive Office for Immigration Review’s Skyline Office Complex in Falls Church, VA. The BIA accepts filings by mail or in person at the clerk’s window from 9:00 a.m. to 5:30 p.m. Eastern time. There is no automatic stay of removal where the alien clearly waived appeal at the immigration court hearing or when the alien failed to appear at the scheduled hearing and therefore received a removal order in absentia.

The alien’s absence at the hearing bars his or her direct appeal to the BIA for a stay of removal. On the other hand, aliens who reserved and filed an appeal in a timely manner, after being ordered removed by the IJ, have a pending action before the BIA and cannot be deported while the appeal is pending. These aliens may only request a stay of removal if they are already detained by the INS and are in imminent danger of being deported.

Case Studies: Deportation and BIA Appeals

Case Study 1: Automatic Stay of Removal

Maria, an undocumented immigrant, received an order of removal from an immigration judge. She timely filed an appeal to the Board of Immigration Appeals (BIA).

As a result, Maria is protected by an automatic stay of removal, meaning she cannot be deported while her appeal is pending before the BIA. This allows her to remain in the United States until a decision is reached.

Case Study 2: Requesting a Stay of Removal

John, another undocumented immigrant, failed to appear at his scheduled immigration court hearing and received a removal order in absentia. However, John later reserved his right to appeal and filed a timely appeal with the BIA.

Although an automatic stay of removal does not apply in his case, John’s pending appeal prevents his deportation. To secure a stay of removal, John’s representative submits a written request to the BIA, emphasizing his health conditions that prevent him from leaving the United States.

Case Study 3: Emergency Medical Situation

Sarah, a noncitizen facing removal, has a serious medical condition that requires immediate and ongoing treatment in the United States. She filed an appeal to the BIA and also submitted a request for a stay of removal based on her emergency medical situation.

The BIA gives priority to such cases, considering the imminent danger of removing the individual who requires urgent medical care. Sarah’s stay of removal is granted, allowing her to stay in the country for medical treatment while her appeal is pending.

Special Circumstances for Appeals to the BIA

Although there is no estimated time for adjudicating stay requests, the BIA must give immediate attention to the emergency situation of removal and prioritize it above other work. Stays of removal may be granted for emergency medical situations in which the alien cannot travel. If health conditions or extraordinary circumstances prevent the alien from leaving the United States, the alien’s representative can submit a written request to stay her removal.

Motions for stays of removal are distinguished from direct appeals of an IJ order to the BIA, which triggers an automatic stay. Direct appeals to the BIA can take anywhere from three months to one year to adjudicate. While the action is pending, the alien cannot be removed. Certain exceptions for aggravated felons and flight risks apply.

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Case Studies: Deportation and BIA Appeals

Case Study 1: Automatic Stay of Removal

Maria, an undocumented immigrant, received an order of removal from an immigration judge. She timely filed an appeal to the Board of Immigration Appeals (BIA).

As a result, Maria is protected by an automatic stay of removal, meaning she cannot be deported while her appeal is pending before the BIA. This allows her to remain in the United States until a decision is reached.

Case Study 2: Requesting a Stay of Removal

John, another undocumented immigrant, failed to appear at his scheduled immigration court hearing and received a removal order in absentia. However, John later reserved his right to appeal and filed a timely appeal with the BIA.

Although an automatic stay of removal does not apply in his case, John’s pending appeal prevents his deportation. To secure a stay of removal, John’s representative submits a written request to the BIA, emphasizing his health conditions that prevent him from leaving the United States.

Case Study 3: Emergency Medical Situation

Sarah, a noncitizen facing removal, has a serious medical condition that requires immediate and ongoing treatment in the United States. She filed an appeal to the BIA and also submitted a request for a stay of removal based on her emergency medical situation.

The BIA gives priority to such cases, considering the imminent danger of removing the individual who requires urgent medical care. Sarah’s stay of removal is granted, allowing her to stay in the country for medical treatment while her appeal is pending.

Getting Help

Because the process of appealing an IJ decision, moving the court to reopen, and requesting a stay are often filed simultaneously, it is best to consult an immigration attorney before filing anything with the BIA. 

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