Emergency Stay of Removal: What It Is and How to Get One

Your Family Member Has a Deportation Date. There May Still Be a Way to Stop It.

You just found out that your husband, your mother, your son has a removal date scheduled for next week. Maybe ICE called. Maybe a deportation officer showed up. Maybe your lawyer told you there is nothing left to do. The panic is real. The terror of knowing that someone you love could be put on a plane and sent to a country where they face danger, or separated from their children, or torn from the only life they have built is one of the worst things a family can experience.

But a scheduled removal date is not always the final word. There is a legal tool called a stay of removal that can stop a deportation, sometimes within hours. It is not guaranteed, and it requires fast, precise legal work. But it exists, and it has saved families in situations that looked hopeless.

This guide explains what a stay of removal is, how to get one, and why every hour matters.

What Is a Stay of Removal?

A stay of removal is a legal order that temporarily prevents the Department of Homeland Security from executing a deportation. It puts a pause on the removal process while a court or the Board of Immigration Appeals reviews the case. A stay can be automatic, triggered by certain filings under federal regulations, or it can be discretionary, meaning a judge or the BIA grants it after reviewing a written request. Without a stay, ICE can and will carry out a removal order even if an appeal or motion is pending.

Emergency Stays at Bardavid Law

Bardavid Law files emergency stays of removal before the BIA and federal circuit courts, often within hours of receiving a case. Our office has handled emergency stay filings for clients in ICE detention facing imminent deportation flights, for families who learned of a removal date with only days to act, and for individuals whose prior attorneys failed to preserve their appeal rights. When a deportation is scheduled, we treat every case as what it is: an emergency that demands immediate legal action.

Two Types of Stays: BIA Administrative Stay vs. Federal Circuit Court Stay

There are two main paths to obtaining a stay of removal, and understanding the difference is critical because they apply in different situations and involve different legal standards.

BIA Administrative Stay

The Board of Immigration Appeals has the authority to grant a stay of removal under 8 CFR 1003.6. Some stays before the BIA are automatic. Under federal regulations, when an immigration judge issues a final decision on the merits of a case, the removal order is automatically stayed during the 30-day period for filing an appeal. If a party files an appeal within that window, the stay continues while the BIA adjudicates the case. This automatic stay remains in effect until the BIA renders a final decision. However, this automatic protection does not apply to appeals from in absentia orders, motions to reopen, or motions to reconsider a prior BIA decision. In those situations, you must request a discretionary stay, which the BIA may grant or deny based on the facts of your case.

Federal Circuit Court Stay

Once the BIA has issued a final order, the next level of review is a petition for review filed in the appropriate federal circuit court of appeals. Filing a petition for review does not automatically stay removal. ICE can deport someone the moment the BIA issues its decision, without waiting for the 30-day petition filing deadline to pass. To prevent removal while the federal court considers the case, you must file a separate motion for a stay of removal with the circuit court. The court will evaluate the motion under a four-factor legal test established by the Supreme Court in Nken v. Holder, 556 U.S. 418 (2009). Some circuits, including the Second Circuit, have a forbearance policy: once a petition for review and a stay motion are filed, the government will voluntarily refrain from removing the petitioner until the court rules on the stay or the mandate issues. But this forbearance is a matter of government policy, not legal right, and it can change.

How to Get an Emergency Stay of Removal

The process for obtaining an emergency stay depends on where your case stands and how much time you have. These are not steps you can handle alone. Each one requires legal knowledge, precise drafting, and coordination with the court or the BIA under extreme time pressure.

Step 1: Determine the Legal Basis

The first question is whether there is a legal basis for stopping the removal. This could be a pending appeal, a motion to reopen based on new evidence or changed country conditions, an ineffective assistance of counsel claim, or a constitutional challenge to the removal proceedings. Without an underlying legal claim, a stay motion has no foundation.

Step 2: Prepare the Written Motion

Requests to stay removal must be made in writing. The motion should contain a complete recitation of the relevant facts and case history, indicate the current status of the case, and include a copy of the existing immigration judge or BIA order. According to the Department of Justice, the BIA prefers that stay requests be submitted as a formal "Motion to Stay Removal." The motion must also include a Proof of Service confirming that the opposing party has been served. For circuit court stays, the motion must address each of the four Nken factors in detail, with supporting evidence and legal argument for each one.

Step 3: File and Contact the Emergency Stay Unit

For BIA emergency stays, you must contact the BIA Emergency Stay Unit by calling 703-306-0093. This unit operates on non-holiday weekdays from 9:00 a.m. to 5:30 p.m. Eastern Time. You must call to confirm receipt of the motion and provide the name and contact information of the deportation officer handling the case. Filing alone is not enough. The BIA has stated clearly that the filing of an emergency stay request does not, by itself, stop a respondent from being removed. The stay must be affirmatively granted.

Step 4: Obtain the Stay Order and Serve It on ICE

If the BIA or the circuit court grants the stay, you must immediately ensure that ICE Enforcement and Removal Operations receives the order. A granted stay is only effective if the officers responsible for carrying out the removal know about it and have a copy of the order in hand. In emergency situations, this means making phone calls, sending faxes, emailing the deportation officer, and following up until you have confirmation that the removal has been halted. A stay order sitting in a court file does nothing if the plane is already on the tarmac.

What Courts Consider: The Four-Factor Test

When you request a discretionary stay of removal, whether from the BIA or a federal circuit court, the adjudicator applies a version of the four-factor balancing test that the Supreme Court established in Nken v. Holder, 556 U.S. 418 (2009). Understanding these factors is essential because a weak showing on any one of them can result in denial.

The first factor is whether you have made a strong showing that you are likely to succeed on the merits. This is the most important factor. The court needs to see that your underlying legal claim, whether it is an appeal, a motion to reopen, or a petition for review, has a genuine chance of success. A bare assertion that the immigration judge got it wrong is not enough. You need to identify specific legal errors, point to evidence that was overlooked, or demonstrate that the law has changed in your favor. The Supreme Court clarified in Nken that this requires "more than a mere possibility that relief will be granted."

The second factor is whether you will be irreparably injured without a stay. In immigration cases, this often means showing that removal would expose you to persecution, torture, or death in the country of removal, that you would be separated from U.S. citizen children or a spouse, that you have serious medical conditions that cannot be treated in the removal country, or that other circumstances make removal effectively permanent and devastating. The court wants specifics, not generalities.

The third factor is whether granting the stay will substantially injure the opposing party, which in immigration cases is the government. The fourth factor is where the public interest lies. The Supreme Court noted in Nken that these two factors merge when the government is the opposing party, and that there is always a public interest in prompt execution of removal orders. However, there is also a strong public interest in ensuring that people with valid legal claims are not deported before those claims can be heard. Courts apply a sliding-scale approach: a particularly strong showing of irreparable harm can offset a somewhat weaker showing on the merits, and vice versa.

Time Is Everything

In emergency stay cases, the difference between saving someone from deportation and losing them forever can come down to hours. This is not an exaggeration. ICE removal flights operate on fixed schedules. Once a person is placed on a deportation flight manifest, the timeline becomes extremely compressed. According to Human Rights First, ICE conducted over 2,253 deportation flights in the first year of the current administration, a 46 percent increase over the prior year. In February 2026 alone, ICE carried out approximately 1,630 immigration enforcement flights. Removal operations are running at a pace and scale that leaves almost no margin for delay.

The practical reality is that if you learn on a Tuesday that your family member has a removal date on Friday, you do not have three days. You have hours. The motion must be drafted, reviewed, filed, and served. The BIA Emergency Stay Unit must be contacted during business hours. The deportation officer must be identified and reached. If the BIA denies the stay or if the case is past the BIA stage, a circuit court motion must be prepared and filed, potentially the same day. Attorneys who handle emergency stays regularly know that this work often happens late at night, early in the morning, and on weekends when BIA staff are not available, which means filing with the circuit court instead.

The single most common reason emergency stays fail is not that the legal arguments were weak. It is that the family waited too long to contact an attorney. Every day you spend hoping the situation will resolve itself, or trying to figure out what to do on your own, or calling lawyers who do not handle emergency immigration matters, is a day you cannot get back. If removal is imminent, the time to act is now.

Common Situations Where Emergency Stays Apply

Emergency stays are not limited to one type of case. They come up across the full range of deportation defense. One of the most common situations involves a person who was ordered removed in absentia, meaning they were not present at their immigration court hearing. Under INA section 240(b)(5)(C), a motion to reopen an in absentia removal order is automatically stayed pending the immigration judge's decision on that motion. But that automatic protection only applies if the motion is properly filed with the correct legal basis, either that the person did not receive proper notice of the hearing, that they were in federal or state custody through no fault of their own, or that exceptional circumstances prevented their appearance.

Another common scenario is when the BIA denies an appeal and ICE moves immediately to execute the removal order. Because filing a petition for review in circuit court does not automatically stay removal, the person can be deported before their federal court case is even docketed. In these cases, filing an emergency stay motion with the circuit court is the only way to preserve the right to judicial review. Families of people with pending asylum claims, withholding of removal applications, or Convention Against Torture claims face particularly high stakes, because removal to a country where they face persecution or torture creates the exact irreparable harm that stay law is designed to prevent.

Emergency stays also arise when there are new developments in a case after a final order has been entered. A change in country conditions, newly discovered evidence, or a change in the law can all provide the basis for a motion to reopen, accompanied by a stay request. The key in every situation is that the legal basis must be identified and the filing must happen before the removal is carried out.

Frequently Asked Questions

Can I stop a deportation that is already scheduled?

Yes, but only through immediate legal action. A stay of removal can halt a scheduled deportation if filed and granted before the removal is carried out. The BIA Emergency Stay Unit can be reached at 703-306-0093 during business hours, and federal circuit courts can receive emergency stay motions at any time. The critical factor is speed. Once a person is physically on a deportation flight, it becomes extraordinarily difficult to reverse the removal.

Does filing an appeal automatically stop deportation?

It depends on the type of appeal. Filing a timely appeal of an immigration judge's merits decision to the BIA does trigger an automatic stay under 8 CFR 1003.6. However, filing a petition for review in federal circuit court does not automatically stay removal. You must file a separate stay motion with the circuit court. Motions to reopen and motions to reconsider also do not come with automatic stays, with the limited exception of motions to reopen in absentia removal orders.

What happens if someone is deported before the court rules on the stay?

If a person is removed before a stay is granted, the legal case does not necessarily end. Federal courts have held that a petition for review can proceed even after deportation, and the government may be ordered to facilitate the person's return to the United States if the petition is successful. However, the practical difficulties are enormous. Obtaining return from a foreign country, especially one with limited infrastructure or ongoing conflict, can take months or years. In cases involving persecution or torture claims, the person may face immediate danger upon arrival. This is why obtaining a stay before removal is so critical.

How much does an emergency stay cost?

The cost varies depending on the complexity of the case, the forum where the stay is filed, and how much time is available. Emergency stay work is among the most demanding work in immigration law because it requires immediate legal research, rapid drafting, and around-the-clock availability. Federal circuit court filings also involve court filing fees. At Bardavid Law, we provide honest assessments of what emergency work will require and work with families to make representation accessible when deportation is imminent. The cost of not filing is almost always greater.

Can I file an emergency stay myself without a lawyer?

Technically, yes. There is no legal requirement that a stay motion be filed by an attorney. But in practice, pro se emergency stay motions rarely succeed. The motion must address specific legal standards, cite relevant case law, present evidence in the correct format, and be filed in the correct forum under extreme time constraints. The Nken four-factor test requires sophisticated legal argument. A motion that fails to adequately address even one factor will likely be denied, and a denial means the deportation proceeds. If you are considering filing on your own, understand that the stakes could not be higher and that this is an area where legal expertise makes a measurable difference in outcomes.

If Deportation Is Imminent, Call Now

When removal is days or hours away, there is no time to research, no time to compare options, no time to wait and see. The legal system provides a narrow window to stop a deportation, but that window closes fast. If someone you love is facing imminent removal, contact Bardavid Law immediately. We handle emergency stay filings before the BIA and federal circuit courts, and we understand that when a family calls us in crisis, the work begins that same hour. Call (212) 219-3244 or reach us through our website at bardavidlaw.com. Your case is not hopeless. But the clock is running.