Q: If the IJ closed the case in absentia (no NTA) and I file an appeal with BIA, is it a granted auto-stay of removal?
If the immigration judge closed the case in absentia, the respondent didn't attend because he/she didn't receive any NTA (old address). The respondent is going to file a motion to reopen, but the judge will deny it, and the respondent will file an appeal with the Board of Immigration Appeals (BIA). Does filing with the BIA for a judge's decision automatically grant a stay of removal during the appeal time or not? In the case of the respondent didn't receive any notice. Thank you for the advice!
A: If the respondent did not attend the hearing, then most likely the judge ordered the respondent removed in absentia. If the respondent qualifies for a motion to reopen based on lack of notice, there would be an automatic stay when the motion to reopen is filed with the immigration court. However, if the judge denies the motion and the respondent appeals the denial of the motion to reopen to the Board of Immigration Appeals, there is no automatic stay in place during the pendency of that appeal. See 8 C.F.R. § 1003.23(b)(4)(ii) (“The filing of a motion under this paragraph shall stay the removal of the [noncitizen] pending disposition of the motion by the Immigration Judge.”)
I agree with my colleague. You must first determine whether you can argue that you did what was necessary to sustain a motion to re-open. Some are disqualified even if they missed their hearing date.
The automatic stay only applies when the motion to re-open awaits review at the Immigration Court (EOIR). Have you been denied the motion to re-open at the immigration court? That is, denied at EOIR?
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