LAC Issues Updated Practice Advisory on Stays of Removal in the Courts of Appeals

Released on Fri, Jan 24, 2014

The American Immigration Council’s Legal Action Center (LAC) announces the release of an updated practice advisory, Seeking a Judicial Stay of Removal in the Court of Appeals. 

Filing a petition for review of a removal order does not automatically stay an individual’s removal from the United States. A court of appeals, however, may issue a judicial stay of removal to prevent the government from deporting a person while his or her petition for review is pending before the court. In Nken v. Holder, 556 U.S. 418, 434 (2009), the Supreme Court instructed courts to adjudicate stay motions by applying the “traditional” standard for a stay. Under this standard, the courts must consider the likelihood of success on the merits, the harm to the applicant absent a stay, whether the issuance of the stay will substantially injure the other parties interested in the proceeding, and where the public interest lies.

This Practice Advisory provides background information about requesting stays of removal from the courts of appeals, discusses the legal standard for obtaining a stay, and addresses the implications of the government’s policy with respect to return of individuals who are successful on their appeals. A sample stay motion, a sample declaration in support of a stay motion, and sample guidelines to assist families, friends and community members in writing letters in support of stay requests are attached to the advisory.

The LAC issued this advisory jointly with the National Immigration Project of the National Lawyers Guild, the Boston College Post Deportation Human Rights Project and the Immigrant Rights Clinic, Washington Square Legal Services, New York University School of Law.

For a complete list of all LAC Practice Advisories, please visit our website.

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For more information, please contact [email protected] or 202-507-7516.

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