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Results 1 to 4 of 4

Thread: stay of removal.. ...who want to know

  1. #1
    Stay of deportation/Removal

    a. When an alien is detained, has an action pending before the Board of Immigration Appeals (BIA), and is in "danger" of being immediately deported or removed, the alien, or the alien's attorney or representative, may request a stay from the BIA.



    b. Once the BIA has received a stay request, the BIA is faced with an emergency situation in which the stay request must be given immediate attention and priority over other work.



    2. Conditions that Must Be Met for the BIA to Consider a Request for a Stay of Deportation/Removal



    a. Is the alien in the physical custody of the Immigration and Naturalization Service (INS)?


    (1) If an alien is detained by the INS and deportation/removal is imminent, the BIA will consider the stay request promptly.


    (2) An alien's receipt of a bag and baggage letter telling him to report is not sufficient for the BIA to consider a stay; a stay will only be considered once the alien has actually reported and is in the physical custody of the INS. It is the responsibility of the attorney to call and inform the BIA when the alien is in the custody of the INS.


    b. Is there an action pending before the BIA - does the BIA have jurisdiction?



    (1) A motion to reopen or reconsider a prior Board decision, or an appeal from an Immigration Judge's denial of a motion must have been filed with the BIA (Clerk's Office Appeals Unit).



    (2) Generally, there is an authomatic stay when a direct appeal is filed from an Immigration Judge's order. However, there is no automatic stay when (a) the alien clearly waived appeal at the hearing, then files an appeal, or (2) when a direct appeal is taken from an Immigration Judge's order that was entered in absentia.



    (3) If an appeal or motion is not in the BIA Processing system, the Clerk's Office should be contacted to verify the filing and/or obtain the appeal/motion/ROP.


    LAW IMPACTING REQUESTS FOR STAYS


    A. Matter of Rivera, Interim Decision 3266 (BIA 1996) -- IIRIRA specifies that the filing of a motion to reopen stays the removal of the alien "pending disposition of the motion by the Immigration Judge." Accordingly, there is no automtic stay of an in absentia removal order pending appeal at the BIA from the Immigration Judge's denial of a motion to reopen (this does not apply to MTR filed before April 1, 1997, effective date).



    B. Matter of Joseph, Interim Decision 3387 (BIA 1999) -- The regulation at 8 C.F.R. 3.19(i)(2), authorizing an automatic stay of an Immigration Judge's release order in certain case involving criminal alens who are subject to mandatory detention is automatically invoked when the INS files a Form EOIR-43 with the Immigration Court. The Immigration Judge has no discretion to reject the EOIR-43 and deny a stay, even where the Judge has determined that the alien is not removable under one of the mandatory detention grounds. The automatic stay, once invoked, remains in effect until there is an administratively final decision on the custody issue.

    PROCEDURES IN STAY REQUESTS


    A. An appeal or a motion must be properly filed with the Clerk's Office at the BIA. The BIA will accept filings in person only at the window of the Office of the Clerk, on the 13th Floor of Building 3 at EOIR's Skyline Office Complex in Falls Church, VA. This applies to the INS as well as the public. The 13th Floor window closes at 4:30 p.m. No stay request will be taken based on an anticipated filing being made the next morning.


    B. A stay request can be submitted to the BIA in writing or can be requested telephonically through a BIA secretary.


    C. FAX stay requests will be accepted ONLY:



    1. If necessary, i.e. because the alien's scheduled deportation does not allow enough time for the stay request to be delivered by other means.



    2. If there is an underlying motion pending at the BIA.



    3. If the BIA asks that the stay request be sent by FAX.



    D. For purposes of stay requests, the BIA's COB is 5:30 p.m. (Eastern time). The BIA will entertain stay requests submitted after that hour only at the discretion of such Board Members who happen to be present.



    E. The general BIA policy is that the BIA will not act on any request for a stay of deportation or removal until two conditions are met:



    1. The BIA must have jurisdiction over the matter.



    2. The alien must be in the physical custody of the INS, with deportation imminent.



    F. Written Stay Requests



    1. ROP at the BIA. A written request should be in the form of a letter or motion, outlining the history and advising the BIA when deportation is scheduled. Since the ROP is at the BIA, it is not necessary to send a copy of the motion or appeal. The BIA will consider the request based on the ROP before it.



    2. ROP not at the BIA. To determine Board jurisdiction over the matter, the motion that was denied by the Immigration Judge, the Immigration Judge's decision denying the motion, and the notice of appeal from the denial of the motion should be submitted, OR, if the BIA last had jurisdiction, a copy of the BIA's previous decision and the present motion should be submitted.



    3. If the alien has received a bag and baggage order, the alien must actually report to INS for deportation to be considered imminent. It is the attorney's responsibility to notify the BIA when the alien is taken into INS custody.





    G. Telephonic Stay Requests. If an attorney does not have time to submit a written request, because the INS is ready to deport the alien, the attorney may elect to telephonically inform the BIA, through a BIA secretary, of the request for a stay. Telephonic stays will only be taken when (1) the attorney does not have enough time to "overnight" a written request, (2) the Board has jurisdiction, and (3) deportation is imminent.

  2. #2
    Stay of deportation/Removal

    a. When an alien is detained, has an action pending before the Board of Immigration Appeals (BIA), and is in "danger" of being immediately deported or removed, the alien, or the alien's attorney or representative, may request a stay from the BIA.



    b. Once the BIA has received a stay request, the BIA is faced with an emergency situation in which the stay request must be given immediate attention and priority over other work.



    2. Conditions that Must Be Met for the BIA to Consider a Request for a Stay of Deportation/Removal



    a. Is the alien in the physical custody of the Immigration and Naturalization Service (INS)?


    (1) If an alien is detained by the INS and deportation/removal is imminent, the BIA will consider the stay request promptly.


    (2) An alien's receipt of a bag and baggage letter telling him to report is not sufficient for the BIA to consider a stay; a stay will only be considered once the alien has actually reported and is in the physical custody of the INS. It is the responsibility of the attorney to call and inform the BIA when the alien is in the custody of the INS.


    b. Is there an action pending before the BIA - does the BIA have jurisdiction?



    (1) A motion to reopen or reconsider a prior Board decision, or an appeal from an Immigration Judge's denial of a motion must have been filed with the BIA (Clerk's Office Appeals Unit).



    (2) Generally, there is an authomatic stay when a direct appeal is filed from an Immigration Judge's order. However, there is no automatic stay when (a) the alien clearly waived appeal at the hearing, then files an appeal, or (2) when a direct appeal is taken from an Immigration Judge's order that was entered in absentia.



    (3) If an appeal or motion is not in the BIA Processing system, the Clerk's Office should be contacted to verify the filing and/or obtain the appeal/motion/ROP.


    LAW IMPACTING REQUESTS FOR STAYS


    A. Matter of Rivera, Interim Decision 3266 (BIA 1996) -- IIRIRA specifies that the filing of a motion to reopen stays the removal of the alien "pending disposition of the motion by the Immigration Judge." Accordingly, there is no automtic stay of an in absentia removal order pending appeal at the BIA from the Immigration Judge's denial of a motion to reopen (this does not apply to MTR filed before April 1, 1997, effective date).



    B. Matter of Joseph, Interim Decision 3387 (BIA 1999) -- The regulation at 8 C.F.R. 3.19(i)(2), authorizing an automatic stay of an Immigration Judge's release order in certain case involving criminal alens who are subject to mandatory detention is automatically invoked when the INS files a Form EOIR-43 with the Immigration Court. The Immigration Judge has no discretion to reject the EOIR-43 and deny a stay, even where the Judge has determined that the alien is not removable under one of the mandatory detention grounds. The automatic stay, once invoked, remains in effect until there is an administratively final decision on the custody issue.

    PROCEDURES IN STAY REQUESTS


    A. An appeal or a motion must be properly filed with the Clerk's Office at the BIA. The BIA will accept filings in person only at the window of the Office of the Clerk, on the 13th Floor of Building 3 at EOIR's Skyline Office Complex in Falls Church, VA. This applies to the INS as well as the public. The 13th Floor window closes at 4:30 p.m. No stay request will be taken based on an anticipated filing being made the next morning.


    B. A stay request can be submitted to the BIA in writing or can be requested telephonically through a BIA secretary.


    C. FAX stay requests will be accepted ONLY:



    1. If necessary, i.e. because the alien's scheduled deportation does not allow enough time for the stay request to be delivered by other means.



    2. If there is an underlying motion pending at the BIA.



    3. If the BIA asks that the stay request be sent by FAX.



    D. For purposes of stay requests, the BIA's COB is 5:30 p.m. (Eastern time). The BIA will entertain stay requests submitted after that hour only at the discretion of such Board Members who happen to be present.



    E. The general BIA policy is that the BIA will not act on any request for a stay of deportation or removal until two conditions are met:



    1. The BIA must have jurisdiction over the matter.



    2. The alien must be in the physical custody of the INS, with deportation imminent.



    F. Written Stay Requests



    1. ROP at the BIA. A written request should be in the form of a letter or motion, outlining the history and advising the BIA when deportation is scheduled. Since the ROP is at the BIA, it is not necessary to send a copy of the motion or appeal. The BIA will consider the request based on the ROP before it.



    2. ROP not at the BIA. To determine Board jurisdiction over the matter, the motion that was denied by the Immigration Judge, the Immigration Judge's decision denying the motion, and the notice of appeal from the denial of the motion should be submitted, OR, if the BIA last had jurisdiction, a copy of the BIA's previous decision and the present motion should be submitted.



    3. If the alien has received a bag and baggage order, the alien must actually report to INS for deportation to be considered imminent. It is the attorney's responsibility to notify the BIA when the alien is taken into INS custody.





    G. Telephonic Stay Requests. If an attorney does not have time to submit a written request, because the INS is ready to deport the alien, the attorney may elect to telephonically inform the BIA, through a BIA secretary, of the request for a stay. Telephonic stays will only be taken when (1) the attorney does not have enough time to "overnight" a written request, (2) the Board has jurisdiction, and (3) deportation is imminent.
    Its a discussion, not a legal advise..

  3. #3
    Great Info mohan!! Thank you very much!!!!!

    You should initiate another post with 'Cancelation of Removal' info

  4. #4
    Thanks a lot mohan ...

    U r a very kind human being ... you always answer to everyone whenever you are called. Even though post gets old u find it and answer.... very nice of you... Have a good day...Pasha

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