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

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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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. 

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.

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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