BIA: Ask DHS for a Stay of Removal First
In a new precedential decision, Matter of Herrera-Nunez, 29 I&N Dec. 691 (BIA 2026) (decided June 12, 2026), the Board of Immigration Appeals changed the order of operations for anyone trying to stop their removal while a motion to reopen or reconsider is pending. The short version: ask the Department of Homeland Security (DHS) for a stay first — then come to the Board.
If you have a final removal order and a pending (or planned) motion, this affects how you protect yourself from being deported while the motion is decided. This is general legal information, not legal advice; stays are time-sensitive and fact-specific, so talk to an immigration attorney immediately. (For background on the motions themselves, see our guide to motions to reopen and reconsider before the BIA.)
What the Board decided
The respondent, a citizen of Mexico whose removal order became final in 2015, filed an untimely motion to reopen in 2025 (after marrying a U.S. citizen and having a U.S. citizen child) and asked the Board to stay his removal while it considered the motion. Rather than rule on his stay immediately, the Board used the case to announce a general policy going forward:
> An alien subject to a final removal order should first request a stay from DHS before the Board considers a stay request filed in connection with a motion to reopen or reconsider.
Why DHS first?
The Board's reasoning is about authority and efficiency:
- DHS — not the immigration court — actually carries out removals. Under INA § 241(a)(1), DHS has the exclusive authority to execute a removal order, and a noncitizen may request a discretionary stay from DHS at any time under 8 C.F.R. § 241.6.
- Because a person could ask both DHS and EOIR (the immigration courts/Board) for a stay, the agencies were doing duplicative work on an already "overburdened" docket.
- DHS, which often has physical custody and the sole power to execute the order, is "best situated to entertain stay requests initially."
What you should do now (the new procedure)
Going forward, if you want a stay in connection with a motion to reopen or reconsider, the Board expects you to:
- Request a stay from DHS first, giving DHS an adequate amount of time to respond.
- File proof that you requested the DHS stay — and a copy of DHS's decision, if you have it — as part of your stay request to the Board.
- If you did not go to DHS first (or didn't allow enough time), explain why in your filing.
Important protections that did NOT change
This decision changes the order of requests — it does not strip the Board of its power. Keep these points in mind:
- A DHS denial does not block the Board. Under 8 C.F.R. § 1241.6(b), DHS denying a stay does not preclude the Board or an immigration judge from granting one. The Board "maintains the discretionary authority to consider a stay request in connection with any pending motion."
- True emergencies are recognized. A stay is an "emergency" only when the person is in DHS custody and removal is imminent. The Board acknowledged there may be situations where there isn't time to go to DHS first.
- In absentia motions auto-stay. Filing a motion to reopen and rescind an in absentia removal order automatically stays the order under 8 C.F.R. § 1003.23(b)(4)(ii).
- A motion alone does not stop removal. Outside that in absentia exception, filing a motion does not automatically stay removal — you must affirmatively request a stay.
- The rule is prospective only. It applies to stay requests filed after June 12, 2026.
One practical note: DHS charges a fee for stay requests (8 C.F.R. § 103.7(d)(6)), though it may waive the fee.
Why this matters
Timing is everything when removal is on the table. After Herrera-Nunez, a stay request to the Board that does not show you first asked DHS (or explain why you couldn't) may be slowed down or viewed unfavorably. Building the DHS request into your plan — early, with proof — is now part of doing it right.
How we can help
As a firm led by a former U.S. Immigration Judge, we understand how the Board and DHS each handle stays and how to sequence them under the new rule — quickly, because deadlines here are measured in days. If you or a loved one is facing removal with a motion pending or planned, contact us right away.
Frequently asked questions
What did Matter of Herrera-Nunez decide?
That a noncitizen with a final removal order should first request a stay of removal from DHS before asking the Board of Immigration Appeals to stay removal in connection with a motion to reopen or reconsider. It is a precedential decision dated June 12, 2026.
Does this mean the Board won't grant a stay anymore?
No. The Board still has full discretion to grant a stay, and a DHS denial does not preclude the Board or an immigration judge from granting one. You simply should ask DHS first and show proof when you come to the Board.
Does filing a motion to reopen stop my deportation?
Generally no — except a motion to reopen and rescind an in absentia order, which automatically stays removal. In other cases you must specifically request a stay; the motion alone does not pause removal.
What if my situation is a true emergency?
The Board recognized that when a person is in DHS custody and removal is imminent, there may not be time to go to DHS first. Explain the emergency and why you could not request the DHS stay with adequate time.
When does the new rule take effect?
It applies prospectively, to stay requests filed after the June 12, 2026 decision.
This article is general legal information, not legal advice, and does not create an attorney–client relationship. It does not guarantee any outcome. Read the full decision and consult a qualified immigration attorney about your specific situation without delay.