Is the alien in the physical custody of U.S. Citizenship and Immigration Services (USCIS)?
If an alien is detained by the USCIS and deportation/removal is imminent, the BIA will consider the stay request promptly. A stay will only be considered once the alien has actually reported and is in the physical custody of the USCIS. It is the responsibility of the attorney to call and inform the BIA when the alien is in the custody of the USCIS. 2. Is there an action pending before the BIA – does the BIA have jurisdiction? A motion to reopen or reconsider a prior Board decision, or an appeal from an Immigration Judge’s denial of a motion must have been filed with the BIA (Clerk’s Office Appeals Unit). Generally, there is an automatic stay when a direct appeal is filed from an Immigration Judge’s order. However, there is no automatic stay when (a) the alien clearly waived appeal at the hearing, then files an appeal, or (b) when a direct appeal is taken from an Immigration Judge’s order that was entered in absentia.
