The American Immigration Council does not endorse or oppose candidates for elected office. We aim to provide analysis regarding the implications of the election on the U.S. immigration system.
The Trump administration’s aggressive enforcement tactics have made immigrants with final removal orders more vulnerable. That’s why it is more important than ever to have basic due process safeguards and to understand how they are implemented. A stay of removal (temporary reprieve from deportation) is one such safeguard in the deportation process. It helps ensure immigrants are not wrongfully deported to a country where they may face danger or permanent separation from loved ones.
To better understand how the Board of Immigration Appeals (BIA)—the highest administrative body in the immigration court system which interprets immigration law—decides stays of removal, groups filed a Freedom of Information Act (FOIA) lawsuit on Wednesday. This information could help noncitizens and their attorneys when they seek to pause deportation while they ask an immigration court to reopen a case.
When individuals with deportation orders are arrested by immigration authorities, they face swift removal from the United States without much time for a court to consider reopening their case. In order to avoid such quick removal, individuals can ask for a temporary reprieve while a court considers whether to reopen their case.
Once someone is deported, getting their case reopened and returning to the United States for court becomes difficult for a variety of reasons: lack of access to counsel, difficulties in communicating with loved ones or the court, and increasingly, living in a country with dangerous conditions.
Given these daunting obstacles, it is essential for an individual to remain in the United States while seeking to reopen a case. Just as fundamental is the need to understand the policies and procedures that the BIA has adopted in deciding how these motions are decided and granted. This is an area often shrouded in mystery and it is more important than ever to shed a light on how noncitizens can navigate this process, and importantly, to determine trends surrounding this decisive procedural safeguard.
In July and November 2018, these same groups filed FOIA requests that sought statistics on how many stays have been granted or denied between 2008 and 2018, as well as information on the timing for ruling on these motions (given the importance of having these motions sometimes decided on an emergency basis).
To date, the government has failed to release the comprehensive information requested. The lawsuit seeks to change that. Because of the high stakes for noncitizens—swift and potentially permanent deportation—we must ensure they receive a meaningful chance to be heard in court.
