Does filing a petition for review stop my deportation?

The most dangerous misunderstanding in this area

A timely BIA appeal automatically stays removal. A petition for review does not. Congress removed the automatic stay in 1996: under 8 U.S.C. § 1252(b)(3)(B), the petition "does not stay the removal of an alien pending the court's decision... unless the court orders otherwise." ICE can lawfully put someone on a plane while their petition sits fully briefed at the court of appeals — unless a stay has been granted.

The motion that fills the gap

The protection comes from a Motion for Stay of Removal, filed under Federal Rule of Appellate Procedure 18 inside the same court-of-appeals case. It is a supporting motion — it cannot exist without the petition — and it asks the court to freeze deportation while the petition is decided.

The Supreme Court set the standard in ***Nken v. Holder* (2009)**. Four factors:

1. Likelihood of success on the merits — the most important; the motion must preview why the agency's decision is legally vulnerable.
2. Irreparable harm to the applicant without a stay — removal itself is not automatically irreparable, so the motion documents the specific harm: persecution risk, medical needs, family separation.
3. Injury to the other party — the government's interest in prompt execution.
4. The public interest — which includes the public's interest in removal orders being legally correct.

The first two factors carry the weight. A stay motion is effectively a compressed merits brief filed early — often the single most consequential document in the case.

Timing and interim protection

The stay motion can be filed the same day as the petition, and in urgent cases should be. In the Ninth Circuit, filing a stay motion triggers a temporary stay under the court's general orders while the motion is considered — a significant regional protection. Most other circuits have no equivalent automatic mechanism, so counsel requests an emergency ruling where removal is imminent.

What a granted stay does and does not do

A granted stay bars physical removal while the petition is pending. It does not confer status, work authorization, or release from detention — detention questions run on their own track. And if the petition is ultimately denied, the stay dissolves with it. The stay buys the time the court needs to decide whether the order was lawful; it is a shield for the case, not a remedy in itself.