What to Do After an Immigration Judge Denies Your Motion to Reopen

The immigration judge denied your motion to reopen. ICE just told you they’re removing you in 48 hours. When the judge denied your MTR and the removal order remains in effect, you need an emergency stay before the BIA, and you need it now.

Understanding what qualifies as an emergency and how to request emergency relief can mean the difference between staying and being removed before your appeal is heard.

Why MTR Denials Are Different From Other Immigration Appeals

When an immigration judge denies most appeals, filing a Notice of Appeal automatically stays your removal. But motions to reopen follow different rules that leave you vulnerable to immediate removal.

If the immigration judge denied your motion to reopen, filing Form EOIR-26 to appeal that denial does not stop ICE from removing you. Under 8 CFR § 1003.6(b), you must request a discretionary stay from the BIA, and if removal is imminent, you need emergency procedures.

The exception: If you filed a motion to reopen an in absentia removal or deportation order, the filing automatically stays your removal under 8 CFR § 1003.23(b)(4)(ii) and (iii). Appeals of denials of these MTRs also maintain the automatic stay.

What Qualifies as an Emergency After Your MTR Is Denied

The BIA considers a stay request an “emergency” in specific situations:

True emergencies that trigger emergency BIA procedures:

• ICE has confirmed a specific removal date and time
• The removal is scheduled within three business days or less
• You’re in ICE physical custody awaiting removal
• You have a pending appeal or motion before the BIA

What doesn’t qualify as an emergency:

• You just received the immigration judge’s MTR denial (file a regular stay request with your appeal)
• ICE might remove you soon, but hasn’t given you a specific date
• Your removal is scheduled more than three business days away

The BIA Emergency Stay Unit only handles truly imminent removals. If your situation doesn’t meet these criteria, file a regular appeal with a standard stay motion.

The BIA Emergency Stay Unit and How to Get Immediate Relief

When removal is imminent after the judge denied your MTR, the BIA’s Emergency Stay Unit is your only option for immediate relief.

Contact information for emergency stay requests:

• Phone: 703-306-0093
• Hours: 8:30 AM to 5:00 PM Eastern Time, weekdays only
• Closed on federal holidays and weekends

What to have ready when you call:

• Your A-number
• Date of the immigration judge’s MTR denial
• Your scheduled removal date and time
• Information about where you’re being held
• Whether you’ve already filed Form EOIR-26
• Copy of your removal notification from ICE

The ESU will give you specific instructions for filing your emergency stay motion. You’ll typically need to fax or email your motion immediately.

What Your Emergency Stay Motion Must Include

Your emergency stay motion needs specific information:

Proof of imminent removal:

• Copy of ICE’s removal notification showing date and time
• Statement that you’re in ICE custody awaiting removal
• Documentation of your scheduled removal

Proof of pending BIA case:

• Copy of your Form EOIR-26 showing you filed an appeal within 30 days
• BIA case number if you’ve received one
• Copy of the immigration judge’s order denying your MTR

Legal basis for granting the stay using the four-factor test:

• Likelihood of success on appeal: Explain specific errors the immigration judge made in denying the MTR
• Irreparable harm: Explain what harm you’ll suffer if removed before the BIA decides your appeal
• Harm to others: Address whether granting the stay would harm ICE or public safety
• Public interest: Explain why granting the stay serves the public interest

Certificate of service:

• Proof you served the motion on ICE’s Office of the Principal Legal Advisor
• ICE’s address and confirmation of service method

The motion should be concise but complete. Focus on the strongest arguments for why the immigration judge erred in denying your motion to reopen.

What Happens After You File Your Emergency Stay Request

Filing the emergency stay motion does not automatically stop your removal. ICE can still remove you while the BIA considers your request.

Possible outcomes:

• Stay granted: The BIA issues an order staying your removal. The stay remains in effect until the BIA decides your appeal.
• Stay denied: ICE can proceed with removal. Your appeal continues, but you may be removed before it’s decided.
• Request for more information: Respond immediately.

If your removal is scheduled for later today, file the emergency stay request as early in the day as possible.

Filing Your Appeal and Standard Stay Motion When You Have Time

If ICE hasn’t scheduled your removal yet or removal is more than three business days away, file a regular appeal with a standard motion for stay of removal.

When you file Form EOIR-26 appealing an MTR denial, the appeal does NOT automatically stay your removal under 8 CFR § 1003.6(b). You must also file a motion requesting a discretionary stay, explaining why the stay should be granted under the four-factor test.

The 30-Day Deadline to Appeal

The 30-day deadline to file Form EOIR-26 is absolute under 8 CFR § 1003.38. The deadline is calculated from the date the immigration judge issued an oral decision or the date the written decision was mailed to you.

What to file within 30 days:

• Form EOIR-26 (Notice of Appeal)
• Filing fee of $1,035 or Form EOIR-26A requesting a fee waiver
• Copy of the immigration judge’s order denying your MTR
• Motion for stay of removal
• Form EOIR-27 if you have an attorney entering an appearance

If you miss this deadline, you lose your right to appeal. The immigration judge’s decision becomes final.

If ICE schedules your removal before the 30-day deadline expires, file your Form EOIR-26 and stay motion immediately. If removal is scheduled within three business days, also contact the Emergency Stay Unit.

When the BIA Denies Your Stay Request

If the BIA denies your stay request and removal is still imminent, you generally cannot file a petition for review with the federal Court of Appeals until after the BIA has decided your appeal.

Your remaining options if the BIA denies your stay:

• File a habeas corpus petition in a federal district court if you’re in detention
• Seek prosecutorial discretion from ICE to delay removal
• Comply with removal and pursue your BIA appeal from outside the United States

Common Reasons Immigration Judges Deny Motions to Reopen

Understanding why your MTR was denied helps you build a stronger appeal under 8 CFR § 1003.23(b).

Procedural defects:

• Filed outside the 90-day deadline without showing an exception applies
• Failed to demonstrate due diligence in discovering new evidence
• Previously filed and denied on an MTR

Substantive problems:

• Failed to present truly “new” evidence unavailable at the original hearing
• New evidence wouldn’t likely change the outcome
• Failed to establish prima facie eligibility for the relief sought

Changed country conditions claims:

• Didn’t prove a material change in country conditions
• Evidence doesn’t show conditions changed since the hearing
• Change isn’t relevant to your particular claim

Your appeal should directly address why the immigration judge’s reasoning was legally incorrect.

Get Emergency Legal Help After Your MTR Denial

When the judge denied your motion to reopen and removal is imminent, an emergency stay request before the BIA is your fastest option to stop removal. But emergency procedures have strict requirements, tight deadlines, and no room for error.

At the Law Office of Lina Baroudi, we handle emergency stay requests and BIA appeals for denied motions to reopen. We know how to prepare emergency motions that meet ESU requirements and how to build appeals that address why the immigration judge erred.

The immigration system makes it unnecessarily difficult to challenge MTR denials while facing removal. The lack of automatic stays under 8 CFR § 1003.6(b) means you’re vulnerable to removal even when the immigration judge made clear legal errors.

Contact us immediately if an immigration judge denied your motion to reopen. The sooner you act, the better your chances of stopping removal and protecting your appeal rights.