If I Appeal My Deportation Order, Can I Remain in the U.S.?

A recent, pointed dispute among federal judges over how one circuit has been handling stay requests shows that even the rules around the second stage are more unsettled right now than most people realize.

Key Statutes

• Automatic stay during a timely BIA appeal: 8 CFR § 1003.6
• Deadline to file a Notice of Appeal with the BIA: 8 CFR § 1003.38(b)
• Judicial review of a final removal order: INA § 242; 8 U.S.C. § 1252
• Standard governing a judicial stay of removal: Nken v. Holder, 556 U.S. 418 (2009)
• Current dispute over informal stay practices: Gonzalez-Manzo v. Blanche, No. 25-4687 (9th Cir. June 10, 2026) (VanDyke, J., concurring)

Two Separate Appeals, Two Separate Rules

An immigration case doesn't end with one appeal. If an immigration judge orders you removed, the first step is typically an appeal to the Board of Immigration Appeals, filed on a Notice of Appeal within 30 days of the judge's decision. If the Board denies that appeal, the next step is a petition for review filed with the federal court of appeals for the circuit where your case arose.

These two appeals are governed by completely different rules on whether you can stay in the country while they're pending, and that difference is the whole answer to this question.

While Your BIA Appeal Is Pending

Under 8 CFR § 1003.6, a timely appeal to the BIA generally triggers an automatic stay of removal. That means ICE cannot physically remove you while the Board is actively reviewing your case. This protection exists without you having to ask for it separately; filing the appeal itself, on time and in proper form, is what triggers it.

This automatic stay has real exceptions, and they matter. It does not apply if you've already waived your right to appeal. It does not apply to an appeal from an in absentia removal order, meaning an order entered because you missed a hearing. It does not apply if your appeal is filed late or is otherwise defective. And it doesn't cover bond or custody determinations, only the underlying removal order itself.

If none of those exceptions apply to you, filing a timely, properly completed BIA appeal is, practically speaking, the more reliable way to remain in the United States while your case continues. That reliability is exactly why getting the appeal filed correctly and on time matters so much.

While Your Petition for Review Is Pending

This is where people get caught off guard. If the BIA denies your appeal and you file a petition for review with a federal circuit court under INA § 242, that filing does not automatically stay your removal. Unlike the BIA stage, nothing about simply filing the petition keeps you in the country.

To actually stay in the United States while a circuit court considers your case, you generally need to file a separate motion asking the court for a stay of removal, and the court has to actually grant it. Courts evaluate that request under the standard set out in Nken v. Holder, a 2009 Supreme Court decision, which looks at whether you're likely to succeed on the merits of your petition, whether you'd suffer irreparable harm without a stay, how a stay would affect the other side, and where the public interest lies. This is a real, substantive legal standard, not a formality, and simply asking isn't enough to get one granted.

The Part That's Genuinely Unsettled Right Now

Here's where it gets more complicated, and more current. In practice, two circuits, the Second and the Ninth, have historically treated the filing of a stay motion itself as triggering a temporary stay while the court decides the actual motion. That practice has given people in those circuits meaningful extra time in the country even before a judge formally rules on whether a full stay is warranted.

That informal practice is now under direct, public attack from within the judiciary itself. In a June 10, 2026 decision, Gonzalez-Manzo v. Blanche, a Ninth Circuit panel denied a stay motion outright, and Judge VanDyke wrote separately to argue that the court's longstanding, unwritten practice of automatically granting these temporary stays, without individualized review by an actual judge, is unlawful under Nken and needs to be permanently scrapped. He pointed to a pattern in that specific case: petitioners whose claims had already been found meritless multiple times still received close to a year of additional time in the United States simply by filing a conclusory stay motion that, in his view, should have been denied immediately.

This dispute connects to a broader, ongoing fight within the Ninth Circuit over the same issue, referenced in the concurrence as Rojas-Espinoza v. Bondi, which the full court agreed to rehear en banc in 2026. Whether that informal practice of near-automatic temporary stays survives in its current form is genuinely an open question right now, not a settled one.

What This Means Practically

If you're relying on a BIA appeal, the automatic stay under 8 CFR § 1003.6 remains solid ground, assuming none of the exceptions apply to your case and your appeal is filed correctly and on time.

If you're at the petition for review stage, you should not assume that simply filing the petition, or even filing a stay motion, guarantees you additional time in the country. In circuits where courts have informally granted temporary protection just from the stay motion being filed, that practice is being actively challenged from inside the judiciary, and it may not be something you can count on remaining available in its current form. The only way to know your case actually has protection at this stage is to have a properly supported stay motion filed and specifically ruled on, built around the real Nken factors rather than a bare assertion that you're likely to win.

What to Do If You're Facing This Decision

If you're still within your 30-day window to appeal an immigration judge's decision to the BIA, get that appeal filed correctly and on time; this is the single most reliable protection available at this stage of a removal case.

If your BIA appeal has already been denied and you're considering a petition for review, don't treat the filing of the petition itself as protection. Talk to an attorney immediately about whether a stay motion is realistically supportable in your specific case, and understand that the strength of that motion, not just the act of filing it, is what actually matters now.

If you're facing a removal order and need to understand your real options for staying in the country while you appeal, contact the Law Offices of Shawn S. Sedaghat at (818) 382-3333.

FAQ

Does appealing to the BIA automatically stop my deportation?

Generally yes, if the appeal is timely and properly filed and none of the exceptions apply, such as a waived appeal right or an in absentia order. The automatic stay under 8 CFR § 1003.6 lasts while the Board reviews your case.

Does filing a petition for review with a federal court automatically stop my deportation?

No. Unlike a BIA appeal, filing a petition for review does not by itself create a stay. You generally need to file a separate stay motion and have a court actually grant it.

What do courts look at when deciding whether to grant a stay of removal?

The Nken v. Holder factors: likelihood of success on the merits, irreparable harm without the stay, the effect on the other party, and the public interest.

Is it true that some circuits grant temporary protection just from filing a stay motion?

Historically, yes, in the Second and Ninth Circuits specifically. That informal practice is currently being challenged within the judiciary itself and its future is uncertain.

What happens if my appeal to the BIA was filed late?

A late or defective appeal does not trigger the automatic stay, which means you could be removed even while that appeal is technically pending.

Can I get a stay if my removal order was entered in absentia?

The automatic stay under 8 CFR § 1003.6 does not apply to appeals from in absentia orders. A separate motion to reopen, and potentially a separate stay request, would generally be needed instead.

This article discusses general legal principles. It does not describe any specific client or matter. Nothing here constitutes legal advice or creates an attorney-client relationship. Case law governing stays of removal is actively developing; confirm current law in your specific circuit before relying on this article.

Shawn S. Sedaghat is an immigration attorney at Law Offices of Shawn S. Sedaghat focused on deportation defense, immigration appeals, asylum, family-based immigration, and employment-based immigration. He is the firm's founder and principal attorney and has more than 30 years of experience handling U.S. immigration matters.