Stay of Removal: How to Pause a Deportation

What a stay of removal does — and does not do

Only the Department of Homeland Security (DHS) executes a removal order (INA § 241(a)(1), 8 U.S.C. § 1231(a)(1)). A stay tells DHS not to carry it out for now. Three points follow:

• A request is not a stay. Asking ICE for a stay does not delay removal while ICE decides (8 C.F.R. § 241.6(a)), and filing a stay motion with the immigration court or the BIA “does not prevent the execution of the order” (Board Practice Manual § 5.3). Only a granted stay — or one of the automatic stays below — protects you.
• A stay is temporary. A stay from the judge or the BIA lasts until the motion to reopen or reconsider is decided (Board Practice Manual § 5.3). If the motion is denied, the order can be carried out again.
• A stay is not release. It stops the removal, not detention. Whether someone held by ICE can be released is a separate question; see immigration detention and our explainer on detention after a removal order.

A stay also stops working at the airplane door: a stay granted or communicated after the person has been placed aboard the aircraft and normal boarding is complete “shall cease to have effect” (8 C.F.R. § 241.6(c)). Timing matters.

The ICE administrative stay (Form I-246)

Anyone with a final removal order may ask DHS for a stay at any time on ICE Form I-246, Application for a Stay of Deportation or Removal (8 C.F.R. § 241.6(a)). The form says it is filed in person at the local ICE Enforcement and Removal Operations (ERO) field office, with:

• the $155 fee, not refundable, paid by U.S. cash, money order or cashier's check — the amount in 8 C.F.R. § 103.7(d)(6), which also says DHS may waive it;
• the supporting information and documents the form asks for.

ICE decides in its discretion, considering the factors in 8 C.F.R. § 212.5 and INA § 241(c) (8 C.F.R. § 241.6(a)). There is no appeal from a denial (§ 241.6(b)) — but a denial does not stop an immigration judge or the BIA from granting a stay in connection with a motion to reopen or reconsider (8 C.F.R. § 1241.6(b)).

Since June 12, 2026, the I-246 is also the first step before a BIA stay request. In Matter of Herrera-Nunez, 29 I&N Dec. 691 (BIA 2026), the Board said a person with a final order “should first request a stay” from DHS, with enough time for DHS to respond, and should file proof of that request — and DHS's decision, if there is one — with the Board. Someone who could not go to DHS first should explain why. The rule applies to stay requests filed after that date. Our article on Herrera-Nunez walks through it.

Automatic stays: when the law pauses removal by itself

In a few situations no one has to grant anything:

• The appeal period and a pending appeal. An immigration judge's decision is not carried out during the time allowed to appeal to the BIA or while an appeal is pending (8 C.F.R. § 1003.6(a)). The appeal period is 30 days. The eCFR still prints a 10-day deadline in 8 C.F.R. § 1003.38 added by a February 2026 rule, but a court vacated that change and EOIR told judges it is not in effect (EOIR PM 26-02, effective March 13, 2026). See the BIA appeals guide.
• A motion to reopen an in absentia order. Filing a motion to rescind an order entered because the person missed a hearing — within 180 days for exceptional circumstances, or at any time for lack of notice or because the person was in federal or state custody — “shall stay the removal” until the immigration judge decides the motion (INA § 240(b)(5)(C), 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii)). Only one such motion is allowed.

What is not automatic: an ordinary motion to reopen or reconsider. “Except in cases involving in absentia orders,” filing one does not stay removal; execution proceeds unless the judge, the BIA or an authorized DHS officer grants a stay (8 C.F.R. § 1003.23(b)(1)(v); § 1003.2(f)). Nor is an appeal from a judge's denial of an in absentia motion, or a motion to reopen a BIA decision (Board Practice Manual § 5.2), or a motion to reopen for asylum based on changed country conditions (Immigration Court Practice Manual § 7.3). Our motions to reopen guide covers the motions themselves.

A stay from the immigration judge or the BIA

The judge and the BIA grant discretionary stays only when something is pending before them:

• Immigration judge: only while a motion to reopen or reconsider is pending before the immigration court (Immigration Court Practice Manual § 7.3; 8 C.F.R. § 1003.23(b)(1)(v)).
• BIA: only while an appeal from a judge's denial of a motion to reopen or reconsider, or a motion to reopen or reconsider a BIA decision, is pending (Board Practice Manual § 5.3; 8 C.F.R. § 1003.2(f); § 1003.6(b)).

The request is a written motion. The Board asks for a complete account of the facts and case history and a copy of the judge's or Board's order (Board Practice Manual § 5.3); after Herrera-Nunez, add proof of the I-246 request to ICE. A motion that asks only for a stay has no filing fee (8 C.F.R. § 1003.8) — but the motion to reopen it depends on usually does (see fees below).

Emergency and non-emergency stays

The Board treats a stay as an emergency only when the person is in DHS physical custody and removal is imminent; those may be ruled on at once. Everything else is decided in the normal course (Board Practice Manual § 5.3). For an emergency stay the party must call the Board's Emergency Stay Unit at 703-306-0093, weekdays 8:30 a.m. to 5:00 p.m. Eastern, except holidays. For an emergency stay from an immigration court, call the court that issued the removal order (Immigration Court Practice Manual § 7.3). When a stay is granted, the parties are promptly notified.

Federal court stays: petitions for review and Nken v. Holder

A final removal order can be challenged in the federal court of appeals for the circuit where the immigration judge completed the case, by a petition for review filed within 30 days of the final order (INA § 242(b)(1), 8 U.S.C. § 1252(b)(1)). Filing the petition does not stop removal “unless the court orders otherwise” (§ 1252(b)(3)(B)), so a separate stay motion is filed with the court.

In Nken v. Holder, 556 U.S. 418 (2009), the Supreme Court held that these stays are governed by the traditional four factors, not by the stricter “clear and convincing evidence” test that § 1252(f)(2) sets for injunctions: (1) whether the applicant has made a strong showing of likely success on the merits; (2) whether the applicant will be irreparably injured without a stay; (3) whether a stay will substantially injure the other parties; and (4) where the public interest lies. The first two are “the most critical,” and the Court said removal alone is not categorically irreparable harm.

Circuit procedures differ. In the Ninth Circuit, for example, filing an initial stay motion temporarily stays removal until the court rules (Ninth Circuit General Order 6.4(c)(1)). Check the rules of your own circuit before relying on any temporary stay.

What decision-makers weigh, and the evidence that helps

Every stay is discretionary, and each forum looks at something different:

• ICE weighs the factors its rule names — those of the parole regulation, 8 C.F.R. § 212.5, and of INA § 241(c) — and the form says the decision is within the sole discretion of DHS.
• The judge and the BIA rule in the context of the pending motion or appeal, so the strength of that filing is central. A stay request tied to a weak or late motion is hard to win.
• A court of appeals applies the four Nken factors.

Evidence that usually matters: the removal order and the pending filing; proof of the I-246 request and ICE's answer; proof of any pending USCIS petition or application; medical records; evidence of U.S. citizen or permanent resident family and the harm removal would cause them; evidence of fear of return; and, for an emergency, proof of custody and the scheduled removal date. The immigration-court angle is often decisive: a well-built motion to reopen is what makes a judge or the BIA willing to pause the case.

Fees and 2025–2026 changes

• I-246 fee: still $155. ICE proposed raising it to $755, noting it had not changed since 1989 (91 FR 24739, May 7, 2026). Comments closed July 6, 2026; as of September 27, 2026 no final rule had been published, so $155 applies. H.R. 1 of 2025 (Pub. L. 119-21) set no I-246 fee.
• Motion fees at EOIR rose sharply. H.R. 1 created a fee for motions to reopen or reconsider, and EOIR's June 11, 2026 interim rule (91 FR 35369) added it to the old fees. Through September 30, 2026 a motion before an immigration judge costs $1,065 and before the BIA $1,030; from October 1, 2026 they are $1,095 and $1,060 (8 C.F.R. § 1103.7(b)(2); 91 FR 54211, Aug. 21, 2026). A motion to reopen an in absentia order for lack of notice or custody is exempt from the H.R. 1 part of the fee; a motion based on exceptional circumstances is not. A stay-only motion remains free.
• DHS first, since June 12, 2026 — Matter of Herrera-Nunez, above.
• The 30-day appeal period stands despite the 10-day text in the eCFR — EOIR PM 26-02, above.

When removal is imminent: what to do first

1. Get the papers. The removal order, any BIA decision, the A-number and the detention location. The immigration court directory has every court's address and status.
2. Find the basis. A stay protects a pending filing. Decide whether there is a motion to reopen (an in absentia order may carry an automatic stay), an appeal, or a petition for review still within its 30 days.
3. File the I-246 with ICE and keep proof — the BIA will ask for it.
4. File the motion and the stay request together with the judge or the BIA, and use the emergency line if the person is in custody and removal is imminent.
5. Consider federal court if the BIA has ruled and the 30 days have not run.

Other options may fit better than a stay — for example voluntary departure or a new form of relief in reopened proceedings; see removal defense and removal proceedings. Carlos Maury, a former U.S. Immigration Judge, leads Carlos Maury Law; to talk about a stay of removal, a motion to reopen or an emergency before the BIA, call (213) 769-0050. We speak Spanish.

If a family member is detained or about to be removed, see what to do first on our deportation defense lawyer page. For the appeal or motion to reopen that a stay request usually goes with, see our immigration appeals lawyer page.