Understanding the Stay of Removal

Understanding the Stay of Removal

If an immigration court has issued you an order of deportation, then you will soon be told when you must leave the United States. But what happens if you don’t agree with the order or if you now have a valid reason that allows you stay in the country? In these situations, it may be possible to get a stay of removal, or a temporary postponement. You can do this by filing an appeal with the Board of Immigration Appeals (or BIA)—the highest administrative body that interprets and applies the country’s immigration laws, by filing a motion for stay along with a petition for review in the circuit courts of appeals, or by filing a form ICE-246 directly with the ICE officer overseeing your case. B.I.A. Stay of Removal You always have 30 days after the immigration judge’s deportation order in which to file an appeal with the B.I.A. Unless you waive that right, you can’t be deported during this 30-day period. If you do appeal, you can’t be deported while your case is being decided by the B.I.A. either. After you have filed an appeal, the stay will either go into effect automatically or will need to be granted while the judge determines the outcome of your case. If your appeal is based on the merits of the case, then it is likely that your stay will be automatically granted. When an automatic stay of removal is in effect, it will not expire until the B.I.A. gives a final decision on a given case. Another example is when your order of deportation is based on the fact that you didn’t show up to your hearing (i.e. an “in absentia” order of deportation). When this happens, you will automatically and immediately get a stay of deportation by filing a motion asking the judge to reopen the case. This kind of postponement will last at least as long as it takes the judge to decide whether to reopen your case. And, if the judge grants your motion to reopen, you can’t be deported while the case is going on. If you ask the judge to reopen your case for any reason other than an in absentia order, your deportation is not automatically stayed. Instead, you’ll need to file a motion convincing the judge to stay your deportation. If your reasons for having the case reopened appear legitimate on the surface, the judge will probably grant you a stay for at least as long as it takes to decide whether to reopen your case. If your case gets reopened, the stay will also remain in effect until the judge decides whether you should be deported. Seeking a Stay of Removal in Federal Court If the B.I.A. denies your appeal, your next step is to file an appeal with your local federal court of appeals. When you file for review of your case in a federal court, your stay of removal is not automatically granted. Here, you will file a motion for a stay of removal while your case is pending with the court. Courts consider several things in deciding stays of removal such as whether you are likely to succeed based on the facts of your case, if you or other people (e.g. family members) would be irreparably harmed if you were deported, and if issuing your stay of removal would benefit the public. In this situation, it is essential to have an experienced attorney to help you because the Department of Homeland Security (DHS) can execute a deportation order even while your motion is being decided upon. However, if you are successful in receiving a stay of deportation, then you are protected from the DHS and cannot be deported while a decision in your case is pending. What Happens When Your Appeals Fail If you fail with the B.I.A. or in court there may be other reasons to postpone your departure date. Examples include medical emergencies, scheduled surgeries, your family needs more time to find work because you are the only one making money, or a child is getting married. You can make this request by filing a Form I-246 (i.e. an application for a stay of deportation or removal) with Immigration and Customs Enforcement (ICE). You specify how long and pay a fee. Again, it is beneficial to have a lawyer’s help with this because you can include anything that might help your case. If you or someone you love is facing deportation, Landerholm Immigration is here to help. Contact us today at (510) 756-4468 to speak to our representative and to book your legal consultation.
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