Tooby's California Post-Conviction Relief for Immigrants

(A)

Automatic Stay Regulations.  Even if a bond is issued, the DHS can invoke an automatic stay of any release order by filing an appeal.  New regulations have been issued,[45] expanding DHS authority to obtain an automatic stay of the immigration judge’s order releasing a respondent from detention.  Where the ICE 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, the new regulations provide the DHS can obtain a temporary automatic stay of release, by filing a Notice of Service Intent to appeal Custody Redetermination (Form EOIR-43) within one day of the issuance of the IJ’s order.  On filing, release is automatically stayed until the BIA decides the case.  If the DHS fails to file an appeal with the BIA within 10 days of the IJ’s decision, as required under 8 C.F.R. § 3.38, the automatic stay expires.  If the BIA authorizes release, that order is stayed automatically for five business days.  Within that period, the Commissioner can certify the Board's custody order to the Attorney General, and then release is further stayed until the Attorney General makes a decision. 

            The balance of the regulation remains unchanged.  These provisions govern situations in which the DHS denied bond or set a bond greater than $10,000, except there was formerly no provision staying release after the BIA decided the case.  The new regulation expands the number of respondents who fall under the automatic stay provision, and leaves it to the discretion of the DHS, rather than the IJ, because there is no limitation of the new automatic stay regulation to those falling within INA § 242(a)(2).  The new regulation also continues the stay in effect, under certain circumstances, until after the Attorney General makes a decision on the case.

[45] 8 C.F.R. § 3.19(i).