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Stay of Removal from Circuit Court

If you or someone you know has gone through the Immigration Court and were denied for whatever was requested from the Immigration Judge and then appealed the case to the Board of Immigration Appeals and again were denied, one may appeal their case to the Circuit Court covering your geographic location.

At this point, Immigration and Customs Enforcement (ICE) can remove you from the United States. If you would like to remain in the United States while you fight your case at the Circuit Court, you must file separately for a Motion for Stay of Removal. For many years, the requirements for Stay of Removal varied from Circuit to Circuit. In 2009, the Supreme Court made a decision that set forth the criteria for everyone throughout the United States.

The Supreme Court in Nken v. Holder, 129 S. Ct. 1749, 1756-57 (2009) set forth four (4) criteria for the Court of Appeals to use to determine if one should be granted a stay of removal. The four (4) criteria are: (1) a likelihood of success on the merits; (2) that irreparable harm would occur if the stay is not granted; (3) that the potential harm to the movant outweighs the harm to the opposing party if a stay is not granted; and (4) that the granting of a stay would serve the public interest. The Supreme Court further commented that the two most critical criteria were likelihood of success and irreparable harm and that when the respondent is the government, the harm to the government and public interest merge. Nken v. Holder, 129 S. Ct. 1749.

When you made a Motion for Stay from the Removal Court, one must show that they meet the criteria set forth by the Supreme Court. So long as one gives notice to ICE that they are requesting a Stay of Removal from the Circuit Court, ICE cannot remove you until the Circuit Court decides on your Motion for Stay of Removal. If your Motion for Stay of Removal is granted, then ICE cannot remove you from the United States until the Circuit Court lifts or removes the Stay of Removal.

If your Board of Immigration Appeal was dismissed or denied, you should contact an Immigration Attorney as soon as possible because strict time frames exist to appeal that decision which must be done to be able to request a Stay of Removal.

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