Stay of Removal

A Stay of Removal is a temporary halt to the deportation or removal process issued by the immigration court or U.S. Immigration and Customs Enforcement (ICE). This measure is often pursued when the individual facing deportation has other legal options they want to explore or when they can demonstrate that removal would result in significant hardship.

Who Is Eligible for a Stay of Removal?

Eligibility for a stay of removal typically depends on the individual’s circumstances and the specifics of their immigration case. Generally, those with ongoing immigration law proceedings, those who’ve filed for certain types of relief, such as cancellation of removal due to hardships, or those with compelling humanitarian issues, like serious health problems, might be eligible.

Ongoing Immigration Proceedings

For example, let’s say an individual is in the process of applying for an adjustment of status to become a lawful permanent resident, but they’ve received a removal order. They might apply for a stay of removal to halt the deportation process while their adjustment of status application is still being reviewed.

Filed for Certain Types of Relief

An individual who has filed for a cancellation of removal due to hardships could also be eligible. For instance, a person might show that their U.S. citizen spouse, parent, or child would face extreme hardship if they were removed.

This could involve showing that the U.S. relative has a severe medical condition and depends on the individual for care or that the U.S. relative would face extreme economic hardship without the individual’s support.

Compelling Humanitarian Issues

In cases where someone has severe health problems, they might qualify for a stay of removal. For example, if an individual suffers from a serious medical condition that requires specialized treatment unavailable in their home country, they might apply for a stay of removal based on humanitarian grounds.

How to Apply for a Stay of Removal?

Applying for a stay of removal usually involves submitting a written application to the immigration court or ICE, along with supporting documents to establish eligibility. The application should explain the reasons for the request, including evidence of ongoing immigration proceedings, hardship, or other relevant issues. The applicant may also need to show that they pose no danger to the community and aren’t a flight risk.

Applying for a Stay of Removal involves a few steps:

Determine Where to File

This can either be with the Immigration and Customs Enforcement (ICE) or the Board of Immigration Appeals (BIA), depending on the stage of the deportation process.

Fill Out the Appropriate Form

If you’re filing with ICE, you would use Form I-246, Application for a Stay of Deportation or Removal. If filing with the BIA, the stay request is usually included as part of an appeal on Form EOIR-40, Notice of Appeal from a Decision of an Immigration Judge.

Compile Supporting Documents

This is a crucial part of the application. These documents should demonstrate why you believe a Stay of Removal is warranted. This could include:

• Proof of your ongoing immigration proceedings, such as a receipt notice for a pending application for adjustment of status.
• Evidence of hardship to you or a qualifying relative if you were to be removed. This could be letters from doctors, teachers, or social workers, medical records, school records, or evidence of financial dependence.
• If you’re applying on humanitarian grounds, medical reports, or other documents that provide details of your health condition.
• Documents showing you’re not a danger to the community or a flight risk could include criminal background checks, letters of support from community members, or evidence of steady employment.

Prepare a Detailed Letter or Statement

This should explain your circumstances and why you request a Stay of Removal. It should tie together all the evidence you’re submitting and make a compelling case for why you should be allowed to remain in the country temporarily.

Submit the Application

Send the application and all supporting documents to the appropriate ICE or the BIA office.

Pay the Fee

If you’re filing with ICE, there is a fee for the Form I-246. As of 2023, the fee is $155, but verifying current fees is always wise.

Attend an Interview

If you’re filing with ICE, you may be called in for an interview.

Remember that each case is unique, and the requirements and processes vary. Consult with an immigration attorney for personalized advice. LegalMatch can help connect you with a qualified immigration attorney in your area.

How Long Does a Stay of Removal Last?

The duration of a stay of removal can vary. It’s often granted for a specific period, which might be until the conclusion of certain legal proceedings, or for a set period, such as six months to one year. The specific length is usually determined on a case-by-case basis, considering the reasons for the request and other factors.

What Happens If a Stay of Removal Is Denied?

If a stay of removal is denied, the individual can be deported or removed from the United States. However, they may have other options depending on their circumstances. They might be able to appeal the removal proceeding decision, pursue other forms of relief, or reopen their immigration case. It’s important to consult an immigration attorney to understand all possible options.

Appeal the Decision

If a Stay of Removal request is denied, the individual might have the option to appeal this decision to a higher authority, such as the Board of Immigration Appeals or a federal appellate court. An appeal would involve arguing that denying the stay was a legal error.

For example, if the immigration judge failed to consider important evidence or applied the law incorrectly, these could be grounds for an appeal. The appeals process can be complex and requires strict adherence to deadlines, so legal representation is crucial.

Pursue Other Forms of Relief

Other forms of relief might be available that can halt or prevent deportation. These could include applying for asylum if the individual fears persecution in their home country, applying for an adjustment of status to become a lawful permanent resident, or seeking a U or T visa if the person is a victim of certain crimes or human trafficking.

Each form of relief has its own eligibility requirements and application process. In many cases, these applications can be pursued simultaneously with a stay of removal.

Motion to Reopen or Reconsider the Immigration Case

In certain situations, it might be possible to ask the immigration court to reopen the case or reconsider its decision. A motion to reopen is typically based on new facts or evidence that wasn’t available at the original hearing. On the other hand, a motion to reconsider argues that the judge made a mistake in applying the law.

Both motions have strict deadlines and specific requirements, so it’s important to have an attorney’s assistance when pursuing these options.

Do I Need a Lawyer for Help with a Stay of Removal?

Given the complexity of immigration law proceedings, it’s highly recommended that individuals facing removal seek legal counsel. An experienced deportation attorney can help you understand your options, guide you through the process, and advocate for your rights.

To find an immigration lawyer who can assist you, consider using the services of LegalMatch, which can match you with a qualified attorney in your area.