If an Immigration Judge orders the release of a non-citizen or lowers the bond required for release, can ICE stay that order during an appeal to the BIA?
An Immigration Judge”s order authorizing release may be automatically stayed in any case where ICE had originally: 1) determined that the non-citizen should not be released; or 2) set a bond of $10,000 or more In order for the automatic stay to kick in, however, ICE must file an EOIR-43 Notice of Service Intent to Appeal Custody Determination within one business day of the Immigration Judge”s order. Moreover, the automatic stay ends if ICE does not file a notice of appeal within ten business days of the Immigration Judge”s order. Several courts have found the automatic stay provision unconstitutional as applied in the cases before them. Even if the Immigration Judge”s order is not automatically stayed, the BIA may stay the Immigration Judge”s order pending the outcome of ICE’s appeal, if ICE requests the Board to stay the Immigration Judge”s order when ICE appeals. ICE can request an emergency stay from the Board at any time.
Related Questions
- Can a non-citizen request the Immigration Court to redetermine custody and/or bond even though ICE has not filed a Notice to Appear with the Immigration Court?
- If an Immigration Judge orders the release of a non-citizen or lowers the bond required for release, can ICE stay that order during an appeal to the BIA?
- Can a non-citizen appeal an Immigration Judge’s custody and/or bond redetermination?
