§ 6.46 F. Automatic Stay on Appeal
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Even if the IJ issues a bond, the DHS can invoke an automatic stay of any release order by filing an appeal. New regulations have been issued expanding the DHS authority to obtain an automatic stay of the immigration judge’s order releasing a respondent from detention. The new regulations provide, in cases where the District Director determined a noncitizen should not be released on bond or where bond is set higher than $10,000 and the IJ authorizes release of the noncitizen, on bond or otherwise, that the DHS can obtain a temporary automatic stay of release by filing a Notice of Service Intent to Appeal Custody Redetermination within one day of the issuance of the IJ’s order. If the DHS fails to file an appeal within 10 days of the IJ’s decision, as required under 8 C.F.R. § 1003.38, the automatic stay expires. Even if an appeal is filed, the stay will lapse within 90 days from the day the notice of appeal is filed unless the BIA grants a discretionary stay extending the period. A number of cases held that the interim automatic stay regulations, which did not include the 90-day lapse provision, violated due process. It is not clear whether the final regulation will be found constitutional.
 8 C.F.R. § 1003.19(i), amended by 71 Fed. Reg. 57873 (Oct. 2, 2006) (effective Nov. 1, 2006).
 Form EOIR-43.
 See, e.g., Zavala v. Ridge, 310 F.Supp.2d 1071 (N.D.Cal. 2004) (the automatic stay at 8 C.F.R. § 1003.19(i)(2) is ultra vires to the statute, and facially violates substantive and procedural due process); Ashley v. Ridge, 288 F.Supp.2d 662 (D.N.J. 2003) (8 C.F.R. § 1003.19(i)(2) violates Fifth Amendment substantive right to bail and due process by allowing government to maintain custody without showing likelihood of success on appeal or harm to government), distinguishing Demore v. Kim, 538 U.S. 510 (2003) (which dealt with INA § 236(c), 8 U.S.C. § 1226(c), not INA § 236(a), 8 U.S.C. § 1226(a), or 8 C.F.R. § 1003.19(i)(2)).