RAICES Bulletin: BIA Covertly Establishes New Policy For Seeking Stay of Removal

By RAICES Public Affairs Director Javier Hidalgo, Esq.

TL;DR The Board of Immigration Appeals (BIA) has established a new policy requiring individuals with a final removal order to seek a discretionary stay of removal from the Department of Homeland Security (DHS) before the BIA, or the lower immigration court at the Executive Office of Immigration Review (EOIR) will consider their stay request. This ruling quietly introduces a heavy bureaucratic hurdle for those facing imminent deportation and who might have otherwise had a valid reason to remain.

WHAT TO KNOW

• Issue:  In its June 12, 2026, decision in Matter of Felipe De Jesus HERRERA-NUNEZ, 29 I&N Dec. 691 (BIA 2026), the BIA established a new general policy: individuals subject to a final removal order must first request a discretionary stay of removal from the DHS before the BIA or EOIR will consider a stay request filed with a motion to reopen or reconsider.  

• Rationale: According to the BIA, this policy avoids duplicative agency efforts and relieves strain on the Immigration Court’s docket by making DHS the initial reviewer. The Board emphasized that this requirement does not deny individuals a fair review, as a prior DHS denial does not prevent the BIA or an Immigration Judge from later granting a stay.  

• RAICES Impact: RAICES’ legal services include Motions to Reopen. Legal representatives should review their strategies to consider whether this new policy would apply to their case. Filing an emergency stay directly with the BIA or Immigration Court without a prior DHS request now carries a high risk of denial. Legal teams should act swiftly to submit DHS requests, allow adequate response time, and compile proof of submission for subsequent EOIR or BIA filings. If imminent removal leaves insufficient time for DHS to act, representatives should check for exceptions and provide a written explanation to the BIA detailing why the request could not be safely delayed.  

• Community Impact: This ruling adds a heavy bureaucratic hurdle for individuals facing imminent deportation, forcing them to navigate a multi-layered agency process under intense time constraints. Unrepresented individuals are likely to face confusion when denied because of this new policy, which has only been referenced in an individual case to date. The DHS application fee also creates an immediate financial barrier for low-income community members, though fee waivers remain theoretically available. Furthermore, individuals face potential prejudice if the BIA factors a DHS denial as a negative equity against them. 

• Related Legal Battles: While the BIA cites legal authority to establish its own procedural rules, legal advocates are actively reviewing this decision and the manner the BIA purports to issue a new policy for potential court challenges on procedural grounds.   

• Broader Immigration Strategy: This decision reflects an ongoing trend of the administration implementing restrictive policies through individual case decisions rather than formal rulemaking. It will likely increase removals of individuals while their motions to reopen are still pending before the BIA or EOIR. Practitioners should prioritize filing and documenting DHS stay requests as early as possible to ensure an adequate response window.