Ignoring the Court's Order: The Automatic Stay in Immigration Detention Cases

Raha Jorjani
Date of Publication: 
December, 2012
Source Organization: 

Immigration laws governing the detention of noncitizens are rife with statutes and regulations that raise due process concerns. The Automatic Stay provision found at 8 C.F.R. § 1003.19(i)(2) is one such regulation. This regulation allows the Department of Homeland Security (DHS), in effect, to ignore an immigration court's order of release on bond simply by filing a notice with the court stating their intention to invoke the Automatic Stay. This means that even where an immigration judge has determined that an individual should be released on bond, DHS can choose to nullify that order by invoking the Automatic Stay. Once invoked, the immigration judge's order of release is stayed pending final resolution from the Board of Immigration Appeals - a process that can take up to 177 days.  

This article first provides a historical context for the Automatic Stay provision and compares the October 2001 regulations with the November 2006 regulations currently in place. The article argues that the 2001 regulations failed to cure the constitutional concerns raised by the previous ones. The article then examines the operation of the Automatic Stay in detail, exploring the way in which DHS derives an unfair legal advantage from the stay that impacts the outcome of any deportation case. Contextualizing the discussion in an exploration of the significance of human incarceration, the article also compares bail procedures in the federal criminal context to bond procedures in the civil immigration context, arguing that there are fewer due process protections in the latter. Finally, the author argues that the Automatic Stay provision is unconstitutional and recommends that it be immediately repealed.

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Jorjani, R. (2012). "Ignoring the Court's Order: The Automatic Stay in Immigration Detention Cases." Intercultural Human Rights Law Review, Vol. 5, 2010; UC Davis Legal Studies Research Paper No. 321. Available at SSRN: https://www.ssrn.com/abstract=2191782