Your call came because something concrete happened: a letter, a check-in that went wrong, or a flight ICE already booked. If you are reading this with hours or days left before a scheduled removal, you do not have time for background on immigration law in general. You need to know whether a stay of removal is still possible in your situation, and what has to happen today for anyone to ask a court or agency to pause that flight. We take these calls after hours because the deadline does not wait for business hours either.
A stay of removal is a court or agency order that pauses a deportation while another remedy, like an appeal or motion to reopen, is decided. Options include an automatic stay under 8 C.F.R. § 1003.6, an emergency FRAP 18(a) motion, or Form I-246 filed with ICE ERO.
The Hard Truth
Filing a petition for review with the Fourth Circuit does not, by itself, stop your deportation. Before the REAL ID Act of 2005, it did. Now you must separately ask the court for a stay under Federal Rule of Appellate Procedure 18(a), and the court applies the four-factor standard from Nken v. Holder, 556 U.S. 418 (2009): likelihood of success on the merits, irreparable harm, the balance of equities, and the public interest. A thin motion filed the night before a flight, with no record citations and no declaration behind it, is the kind of request that gets denied. The automatic stay under 8 C.F.R. § 1003.6 only covers you while a Board of Immigration Appeals (BIA) appeal from an immigration judge's decision is still pending. Once the BIA rules against you, that automatic protection ends immediately, not on some later date.
What Happens If You Wait
If no stay is filed and you board that flight, the removal order executes. Under INA § 212(a)(9)(A), a person removed from the United States can face a bar of five, ten, or twenty years before lawfully returning, depending on the specifics of the immigration history involved. A pending motion to reopen or appeal does not disappear once you are removed, but pursuing it from outside the country is slower and harder. You cannot attend hearings in person, mail and filings take longer to reach you, and some forms of relief become unavailable once you have departed. Waiting until the morning of the flight to call a lawyer removes options that still existed the week before.
Step-by-Step Process
Confirm where your case actually stands. Call the Charlotte Immigration Court (EOIR) at 5701 Executive Center Dr, Charlotte, NC, or check the EOIR automated case status line, to find out whether you have a final order, a pending BIA appeal, or a denied BIA appeal already heading to the Fourth Circuit.
If a BIA appeal is still pending, verify the automatic stay under 8 C.F.R. § 1003.6(b). Filing the Notice of Appeal from the immigration judge's order generally stops removal automatically while the BIA decides the case. Confirm with ICE Enforcement and Removal Operations (ERO), Charlotte Field Office, that this stay is noted before any transport is scheduled.
If the BIA has already denied the appeal and a petition for review is being filed or has been filed, prepare an emergency stay motion under FRAP 18(a) for the U.S. Court of Appeals for the Fourth Circuit in Richmond, VA. FRAP 18(a) generally calls for asking the BIA first when there is time to do so; if there is no time, the motion goes directly to the Fourth Circuit with an explanation of the urgency.
File the motion under Fourth Circuit Local Rule 27(f), which governs emergency motion procedure, including a supporting declaration, excerpts from the administrative record, and proof the motion was served on the government.
In parallel, file Form I-246, Application for Stay of Deportation or Removal, with ICE ERO, asking the agency itself to postpone the flight while the court motion is pending.
If you are already in ICE custody and a flight is imminent, a habeas corpus petition filed in the U.S. District Court for the Eastern District of North Carolina, Raleigh Division, may be the fastest way to get a judge's attention on the removal itself.
After filing, call the assigned ERO deportation officer directly to confirm the stay request is logged against the travel document before the scheduled flight.
A Real-World Example
Consider a composite case we will call Elena's. Elena had a final order of removal from an in absentia hearing years earlier and learned of a scheduled flight only when ICE ERO called to confirm travel documents. The intake call covered three things: the exact flight date, whether a motion to reopen had ever been filed, and whether the window to appeal to the BIA under 8 C.F.R. § 1003.38 had already closed. Because that appeal window had expired, the remaining paths were a motion to reopen before the immigration judge and an emergency motion under FRAP 18(a) to the Fourth Circuit. Within hours, our team filed Form I-246 with ICE ERO Charlotte Field Office and prepared the FRAP 18(a) motion, including a declaration describing the basis for the motion to reopen and copies of the administrative record. The Fourth Circuit docketed the emergency motion and set an expedited briefing schedule, and ERO acknowledged the Form I-246 filing in writing. From there, the case moved into the ordinary review process that every emergency stay request goes through, regardless of the details underneath it.
William J. Vasquez is admitted to practice before the U.S. Court of Appeals for the Fourth Circuit and focuses on federal immigration matters, including removal defense before EOIR, appeals to the BIA, and emergency motion practice at the Fourth Circuit. He has filed stay motions on short notice, including matters where ICE had already scheduled a flight before the motion went to court. Our team prepares these filings together; the facts, the record, and the legal basis for every stay request get reviewed before anything is filed.
Key Terms Explained
Stay of removal: a court or agency order that pauses enforcement of a deportation order while another legal process, such as an appeal or motion to reopen, is pending.
Automatic stay (8 C.F.R. § 1003.6): a stay that takes effect by operation of law, without a separate request, generally when a Notice of Appeal is filed with the BIA from an immigration judge's removal order. It ends once the BIA issues its decision.
FRAP 18(a): Federal Rule of Appellate Procedure 18(a), the rule governing how to ask a federal court of appeals, such as the Fourth Circuit, to stay an agency order, including a BIA removal order, while the court reviews it.
Nken standard: the four-factor test from Nken v. Holder, 556 U.S. 418 (2009), courts use to decide whether to grant a stay: likelihood of success on the merits, irreparable harm without the stay, the balance of harms, and the public interest.
Form I-246: the form filed with ICE Enforcement and Removal Operations (ERO) asking the agency, rather than a court, to postpone a scheduled removal.
Petition for review: the filing that asks a federal circuit court of appeals to review a final BIA decision. Since the REAL ID Act of 2005, filing it does not automatically stop removal; a separate stay motion is required.
Habeas corpus petition: a civil filing asking a federal district court, such as the Eastern District of North Carolina, to review the legality of a person's detention or an imminent removal.
Frequently Asked Questions
Q: Can a lawyer stop a deportation flight that ICE has already scheduled? A: Sometimes, if a legal avenue is still open, such as a pending motion to reopen, an undecided BIA appeal, or a petition for review that qualifies for an emergency stay under FRAP 18(a). No filing can stop a flight once every avenue of review has already closed.
Q: Does filing a petition for review with the Fourth Circuit automatically stop my removal? A: No. Since the REAL ID Act of 2005, a petition for review does not carry an automatic stay. A separate emergency motion under FRAP 18(a) has to be filed, and the court decides whether to grant it using the Nken standard.
Q: What is the difference between Form I-246 and a court stay motion? A: Form I-246 asks ICE Enforcement and Removal Operations to postpone the flight administratively. A court stay motion under FRAP 18(a) asks a federal judge to order the postponement. Filing both at the same time is common when a flight date is close.
Q: What happens if someone is already in ICE custody and the flight leaves tomorrow? A: A habeas corpus petition filed in federal district court, such as the Eastern District of North Carolina, can sometimes reach a judge faster than an agency filing. Whether that is the right step depends on how the case reached this point and what, if anything, is still pending.
Clients who call during an emergency tend to say the same thing afterward: they needed someone who would answer that night and explain exactly what was being filed and why. Our reviews reflect communication during the hours that matter most, not a prediction about how any individual case will end. We handle emergency stay requests and removal defense matters for people across North Carolina and describe our work by what we filed and when, not by a percentage.
An emergency stay motion is not something to draft alone at midnight from a phone in a detention center, and it is not something we draft without talking to you first. Before anything goes to the Fourth Circuit, ICE ERO, or a district court, we need the flight date, the current status of the case, and copies of whatever notices you have on hand.
If you have a flight date, a final order, or a family member in ICE custody awaiting transport, call our office now for an emergency stay of removal consultation. Our team takes after-hours calls for exactly this situation and can begin preparing a Form I-246 filing or a FRAP 18(a) emergency motion the same day you call.
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