Emergency Stays Guide

Filing a Petition for Review (PFR) does NOT automatically stay the execution of a removal order. The government retains full statutory authority to physically deport a noncitizen while the federal appeal remains pending. To prevent imminent deportation, you must secure an emergency judicial stay of removal.

Critical Warning

Without an emergency stay, ICE can deport you while your federal appeal is pending.

This renders litigation practically moot or exceedingly difficult to pursue from abroad. Securing an emergency stay is often the most critical step in federal immigration appeals.

The Nken Standard

Four-Factor Test

The Supreme Court's Nken v. Holder (2009) established the standard for obtaining an emergency stay. The court evaluates:

Factor	Question
1. Likelihood of Success	Has the applicant made a strong showing they are likely to succeed on the merits of the PFR?
2. Irreparable Harm	Will the applicant be irreparably injured absent a stay?
3. Harm to Others	Will issuing the stay substantially injure the government or other parties?
4. Public Interest	Where does the public interest lie?

Applying the Factors

Factor 1 - Likelihood of Success:

Must show more than just arguable issues
Need to demonstrate substantial question for review
Legal errors more compelling than factual challenges
Constitutional claims given significant weight

Factor 2 - Irreparable Harm:

Risk of persecution or torture upon return
Separation from U.S. citizen family members
Loss of pending immigration benefits
Destruction of asylum claim (cannot pursue from abroad)
Medical harm if treatment unavailable abroad

Factor 3 - Harm to Government:

Government interest in enforcing immigration laws
Generally found to be minimal if stay granted
Temporary delay in removal execution

Factor 4 - Public Interest:

Interest in fair adjudication
Interest in preventing erroneous deportations
Interest in protecting refugees and torture victims

The Critical Circuit Split

Geographic Disparities

The procedures for obtaining emergency stays diverge dramatically between circuits, creating profound geographic disparity in due process access.

Circuit	Automatic Admin Stay	Emergency Consideration	Approach
Ninth Circuit	YES	Broad equitable review	Protective
Fifth Circuit	NO	Requires custody + scheduled removal	Restrictive
Second Circuit	Partial	Case-by-case	Moderate
Seventh Circuit	NO	Must show emergency	Moderate

Ninth Circuit Procedures

Under Ninth Circuit General Order 6.4(c):

Filing PFR + motion for stay automatically triggers temporary administrative stay
This stay remains in effect while court adjudicates stay motion
Noncitizen protected from deportation pending decision
Sliding-scale approach to Nken factors favors due process

Practical effect: In the Ninth Circuit, filing triggers immediate protection.

Fifth Circuit Procedures

Under Fifth Circuit Local Rules 27.3 and 27.4:

No automatic administrative stay
Emergency consideration requires:
- Physical ICE custody, AND
- Imminent, scheduled removal date
If non-detained, court routinely refuses emergency intervention
ICE can execute sudden removals before judicial review

Practical effect: Non-detained individuals in Fifth Circuit face severe disadvantage.

Filing Procedures

Simultaneous Filing

When filing a PFR, simultaneously file:

Petition for Review
Emergency Motion for Stay of Removal
Supporting declaration/affidavit
Legal memorandum

Required Documentation

Document	Contents
Motion	Request for emergency stay; procedural posture
Declaration	Facts supporting irreparable harm
Memorandum	Legal argument applying Nken factors
BIA Decision	Copy of order being appealed
Evidence	Country conditions, medical records, family ties

Emergency Timeline Requests

If removal is imminent:

Request emergency treatment
Call clerk's office to alert of urgency
File motion for temporary stay pending full briefing
Provide specific removal date if known

Step-by-Step Process

1. Immediately After BIA Decision

Calendar 30-day PFR deadline
Assess likelihood of success
Gather evidence of irreparable harm
Prepare emergency stay motion

2. Prepare Stay Motion

Include in memorandum:

Strong statement of likelihood of success
Specific harms if deported (persecution, torture, family separation)
Minimize government's interest in immediate removal
Public interest in fair adjudication

3. File Simultaneously

File PFR in proper circuit
File emergency stay motion with PFR
Serve all required parties
Request expedited consideration

4. Monitor and Respond

Check docket for court orders
Respond to any government opposition
Be prepared for emergency hearing
Have counsel available by phone

What If Removal Is Imminent?

Emergency Procedures

If ICE has scheduled removal:

File immediately - do not wait for perfect documents
Call clerk's office - explain emergency
Request telephonic emergency hearing
File motion for temporary administrative stay pending full briefing
Contact ICE counsel - request they delay pending court ruling

After-Hours Emergencies

Many circuits have emergency judge procedures:

Call clerk's office emergency line
Follow circuit-specific after-hours procedures
Document all attempts to reach court

If Removed Despite Pending Stay

Appeal becomes extremely difficult but not impossible
Some circuits allow continued litigation
Habeas corpus may be available if returned
Document everything about removal circumstances

Ninth Circuit Specifics

General Order 6.4(c)

Filing a PFR with a stay motion triggers automatic administrative stay:

Automatic protection upon proper filing
Stays removal while motion for stay is adjudicated
No additional emergency motion needed for initial protection
Government must wait for court ruling

Sliding Scale Approach

Ninth Circuit uses sliding scale for Nken factors:

Stronger showing on one factor can compensate for weaker showing on another
Very strong irreparable harm can offset marginal likelihood of success
More flexible than rigid factor-by-factor analysis

Fifth Circuit Specifics

Local Rules 27.3 and 27.4

Strict prerequisites for emergency consideration:

Requirement	Must Show
Custody	Physically in ICE detention
Imminent Removal	Scheduled removal date
Prejudice	Why regular briefing insufficient

Practical Challenges

Non-detained petitioners struggle to get emergency review
"Sudden" removals can occur before filing
Must demonstrate specific scheduled removal date
Court may deny emergency treatment absent showing

Strategy in Fifth Circuit

File PFR and stay motion as early as possible
Include all evidence in initial filing
Document any scheduled removal
If not detained, argue inability to pursue appeal if deported

Common Mistakes

Mistake	Consequence
Not filing stay motion with PFR	ICE can deport immediately
Generic harm allegations	Insufficient for emergency treatment
Missing circuit-specific requirements	Motion rejected
Late filing	Reduces likelihood of stay
Incomplete documentation	Court cannot evaluate harm

Evidence for Stay Motions

Irreparable Harm Evidence

Type	Examples
Country Conditions	State Dept reports, human rights documentation
Personal Threats	Letters, screenshots, police reports
Medical	Treatment needs unavailable abroad
Family	U.S. citizen children, dependent relatives
Psychological	Expert evaluations of trauma

Declarations

Include declarations from:

Petitioner detailing specific fears
Family members describing hardship
Medical providers if applicable
Country conditions experts if available

After Stay Granted

Temporary vs. Full Stay

Type	Duration
Temporary Administrative Stay	Pending briefing on full stay motion
Stay Pending Appeal	Duration of federal court proceedings

Obligations While Stayed

Comply with all court deadlines
Maintain valid address with court
Report any change in circumstances
Do not violate terms of release

If Stay Denied

Consider motion for reconsideration
Prepare for expedited removal
Explore other remedies (habeas if detained)
Document for any future proceedings

Related Resources

Last updated: March 24, 2026