Where Do You Ask for a Stay of Removal? ICE, the Immigration Judge or BIA, or the Court of Appeals

You can ask for a stay of removal in three places, and the right one depends on what is pending in your case. ICE decides a Form I-246 request from someone under a final order; an immigration judge or the Board of Immigration Appeals can stay removal in connection with a motion to reopen or reconsider; and a federal court of appeals can stay removal while it decides a petition for review. In most situations, filing the request or the underlying case does not stop removal. A granted stay does.

For the ICE request itself, use our Form I-246 guide and I-246 evidence checklist.

The stay follows what is pending

List every open matter—a final order with nothing pending, a motion before the judge or Board, a Board appeal or a petition for review. A timely Board appeal of the judge’s removal decision needs no stay request: under 8 C.F.R. § 1003.6(a), the decision is not carried out while the appeal period runs or the appeal is pending. After that, each body can pause removal only in connection with its own role.

• ICE (Form I-246): Needs a final order; an ICE official decides in its discretion.
• Immigration judge or BIA: Needs a motion to reopen or reconsider, or an appeal of a motion denial; the judge or Board decides in its discretion.
• Court of appeals: Needs a petition for review; the court applies the four-factor Nken test.

ICE: an administrative stay on Form I-246

Under 8 C.F.R. § 241.6(a), a person under a final order of deportation or removal asks ICE for a stay on Form I-246. Designated officials may grant it “for such time and under such conditions” as they consider appropriate. Neither the request nor the lack of a decision delays removal or excuses compliance with a notice to surrender.

Under § 241.6(b), a denial is unappealable but does not prevent an immigration judge or the Board from granting a stay tied to a motion to reopen or reconsider already filed. The current Form I-246 (10/24 edition) lists the $155 fee and in-person filing with the ERO field office. An approved stay comes with an Order of Supervision and can be revoked. An I-246 asks ICE for time; it does not reopen the case or challenge the order.

Immigration judge or BIA: a stay tied to a motion

If you ask the immigration court or the Board to reopen or reconsider, the stay request goes with that motion; our motion-to-reopen checklist covers the motion itself. Both 8 C.F.R. § 1003.2(f) for the Board and § 1003.23(b)(1)(v) for the immigration court say that filing the motion does not stay the decision. Execution proceeds unless a stay is “specifically granted” by the immigration judge, the Board or an authorized DHS officer.

Some in absentia motions differ. By statute, a motion to rescind an in absentia removal order filed within 180 days for exceptional circumstances, or at any time for lack of notice or because federal or state custody caused the missed hearing through no fault of the person, stays removal until the immigration judge decides it (8 U.S.C. § 1229a(b)(5)(C)). A changed-country-conditions motion for asylum or withholding has no automatic stay, but § 1003.23(b)(4)(i) lets you ask the judge for one.

If the judge denies the motion and you appeal, the appeal generally does not stay removal unless the judge’s order expressly grants a stay. Under § 1003.6(b), the Board may grant a stay in its discretion while that appeal is pending. Section 241.6(c) requires ICE to take reasonable steps to comply with a judge’s or the Board’s stay, but a stay granted or communicated after the person has boarded for removal and normal boarding is complete has no effect.

The 2024 EOIR rule that last amended §§ 1003.2(f) and 1003.23(b)(1)(v) was vacated in Texas v. Department of Justice, No. 7:26-cv-00070-O, ECF No. 5 (N.D. Tex. June 22, 2026). By our comparison, the earlier text says the same about stays but names “an authorized officer of the Service.”

Court of appeals: a stay pending the petition for review

A petition for review must be filed within 30 days of the final removal order. Under 8 U.S.C. § 1252(b)(3)(B), serving the petition “does not stay the removal of an alien pending the court’s decision on the petition, unless the court orders otherwise.”

In Nken v. Holder, 556 U.S. 418, 426, 434–35 (2009), the Supreme Court held that the traditional four stay factors govern: a strong showing of likely success, irreparable injury without a stay, injury to other parties and the public interest. The first two are “the most critical.” The Court also said removal is “not categorically irreparable,” because a person removed can continue the petition and, if successful, be helped to return. In our reading, the motion should show from the record why the petition is likely to succeed and what harm removal would cause this person, since “the burden of removal alone cannot constitute the requisite irreparable injury.” Our Nken analysis and petition-for-review guide cover that filing.

Using more than one route

The routes are not mutually exclusive, and they can follow one another: after the Board denied his third motion to reopen, Nken sought a stay in the court of appeals (556 U.S. at 423).

Sources

• 8 C.F.R. § 241.6 (eCFR, checked as of Nov. 3, 2026)
• 8 C.F.R. § 1003.2(f), § 1003.23(b)(1)(v), (b)(4)(i)–(ii) and § 1003.6(a)–(b) (eCFR)
• 8 U.S.C. § 1252(b)(1), (b)(3)(B) and § 1229a(b)(5)(C) (govinfo)
• Nken v. Holder, 556 U.S. 418 (2009) (U.S. Reports)
• ICE Form I-246, Application for a Stay of Deportation or Removal (10/24)
• Texas v. Department of Justice, No. 7:26-cv-00070-O, ECF No. 5 (N.D. Tex. June 22, 2026) (order and final judgment)