An IJ’s order authorizing release may be stayed in any case where ICE had originally:
1. Determined that the non-citizen should not be released; or
2. Set a bond of $ 1 0,000 or more.
In order for the automatic stay to kick in, however, ICE must file an EOIR-43 Nonce of Service Intent to Appeal Custody Determination within one day of the IR’s order. Some have found the automatic stay provision unconstitutional as applied in cases before them.
Even if the IJ’s order is not automatically stayed, the BIA may stay the IJ’s order pending the outcome of ICE’s appeal, if ICE requests the Board to stay the IJ’s order when ICE appeals. ICE can request an emergency stay from the Board at any time.