Can a Stay of Removal Stop a Deportation?

If you or a loved one is facing deportation, it’s natural to wonder whether you can, or should, request a stay of removal. After all, even temporary relief from deportation could give you some breathing room.

A stay of removal can be an effective way to buy some valuable time to figure out your next steps. It’s best to understand the related processes before submitting a request. For example, you must deliver your application for an administrative stay in person to an Immigration and Customs Enforcement (ICE) field office. This is just one type of stay, but it’s the most common.

In this article, we’ll explore these and other stays of removal. We’ll review timelines, eligibility, and considerations that can have a significant effect on your case.

It’s highly recommended that you discuss your situation confidentially with a qualified immigration attorney. Your conversations with them are protected, and they can help you understand your legal options as well as the benefits and risks associated with each. This helps you make informed decisions about the best way to proceed.

There’s a lot you need to know. Let’s start with the basics.

What Is a Stay of Removal?

A stay of removal is a temporary order that stops the Department of Homeland Security (DHS) from deporting a noncitizen from the United States. It gives the person more time to fix their immigration status, ask for help, or appeal their case.

The various types of stays are explained below.

Automatic Stays

An automatic stay of removal temporarily stops deportation without a special request process. Automatic stays are granted in limited legal situations during removal proceedings. These include:

• During an appeal period: When an immigration judge issues an order of removal, an automatic stay goes into effect for 30 days to allow time for an appeal to the Board of Immigration Appeals (BIA). You must use the Executive Office for Immigration Review Form EOIR-26 to appeal to the BIA.
• Pending an appeal: If someone files an appeal with the BIA, the removal order is automatically stayed until the BIA makes a final decision.
• Certified cases: When an immigration judge certifies a case to the BIA, the removal order is automatically stayed during the BIA’s review.
• In absentia removal orders: If someone files a motion to reopen a case that was decided without them present, the removal order is automatically stayed until the judge rules on the motion.
• Federal court remands: Sometimes, a federal court sends a case back to the BIA. In this case, the removal order is automatically stayed during the BIA’s reconsideration.

Automatic stays are immediately effective upon the triggering event. They remain in effect until there’s a final decision on the underlying legal matter.

Discretionary Stays

Discretionary stays are another type of stay. Some people refer to them as judicial stays. This is because adjudicators grant them on a case-by-case basis. These decision makers include:

• Immigration courts
• The Board of Immigration Appeals (BIA)
• Federal courts

Unlike automatic stays, you must request a discretionary stay by filing a written motion where your immigration case is pending. In immigration court or the BIA, this request must be tied to a pending motion to reopen or reconsider your case. Federal court stay requests require a pending petition for review or a rehearing.

These motions should be accompanied by supporting documentation and evidence. While the motion to request a stay doesn’t carry a fee, the underlying motion typically does.

When evaluating these requests, immigration courts and the BIA consider:

• Whether you have a pending green card or waiver
• If you qualify for cancellation of removal
• Unsafe conditions in your home country
• Any new evidence or changes in your situation

If an immigration judge denies the request, you can appeal to the BIA. If the BIA denies it, you can file a petition for review in a federal appellate court.

Federal courts reviewing a stay request focus on a legal test set by the U.S. Supreme Court in Nken v. Holder (2009). Accordingly, they base their decisions on the following factors:

• Likelihood of success on the merits
• Irreparable harm
• Harm to the government
• Public interest

If the appellate court denies the stay, you’re out of appeal options. However, the underlying petition for review continues. This means the court may still rule in your favor on the merits of your case.

If granted, a discretionary stay lasts until the adjudicator issues a final decision on the underlying matter.

Administrative Stays

U.S. Immigration and Customs Enforcement (ICE) also has the authority to grant stays. These are often referred to as administrative stays. You do not need to have an active case in court to apply for an administrative stay, but you must have a final order of deportation or removal.

The process requires you to complete ICE Form I-246 (Application for Stay of Deportation or Removal) and pay a $155 fee. Fee waivers may be available in some cases. You must bring your application in person to a local ICE Enforcement and Removal Operations (ERO) office.

You’ll need to include proper identification. Depending on the circumstances, this may include:

• Valid passport (or proof of application)
• Birth certificate

If you’re not currently detained, you’ll file your application with the ERO field office closest to your residence.

For detainees, an attorney or family member can deliver the application to the ERO field office with jurisdiction over their custody. In some cases, ICE may allow submission at the detention facility.

Eligibility for Administrative Stays

To be eligible for an administrative stay of removal, you must be present in the United States. You must also have a final order of deportation or a final order of removal.

Your application should present compelling reasons why ICE should grant the stay instead of proceeding with deportation. These might include:

• Serious medical conditions (yours or a family member’s)
• Primary caregiver responsibilities for a U.S. citizen or lawful permanent resident (LPR) dependents
• Pending applications with U.S. Citizenship and Immigration Services (USCIS) that may affect removability, like a U visa or asylum
• Cooperation with law enforcement or prosecutors for victim/witness applicants
• Humanitarian concerns, like threats in your home country
• Strong family/community ties in the United States

You’ll need to include strong evidence to support the reason(s) you’re requesting a stay. Legal representation can be critical here. Immigration lawyers regularly prepare these submissions and can be instrumental in compiling powerful documentation and evidence.

ICE Considerations for Administrative Stays

ICE may examine several factors when evaluating Form I-246s. Some factors that might influence their decisions include:

Immigration Status

You don’t need lawful immigration status to apply. However, ICE may consider your immigration history, including prior violations or attempts to evade removal.

Criminal Convictions

ICE will review your entire criminal history. Aggravated felonies or crimes posing a public safety risk can lead to a denial.

Orders of Supervision

If you’re currently under an Order of Supervision (OSUP), your compliance with it could support your application. Violating an OSUP can lead to a denial. If ICE grants your stay, it will typically issue an OSUP.

In some cases, ICE may conduct an interview or request additional evidence. Ultimately, it will either grant or deny the stay. ICE’s decision is not appealable.

Processing Timelines for Stay Requests

ICE may take several weeks to a few months to decide on an administrative stay application.

Timelines for discretionary stays can vary by court docket and other considerations. They may take anywhere from a few weeks to several months. Certain cases can last for years.

Emergency Stay Requests

These regular processing timelines can be problematic for people facing medical emergencies, imminent removal, or other time-sensitive circumstances. In these situations, you may be able to request an emergency stay. We review some key emergency request requirements for each decision maker below.

• Immigration courts: You must be facing imminent removal within three business days and have a pending motion to reopen/reconsider.
• The BIA: DHS must confirm your specific and imminent removal date. You must have a pending motion to reopen/reconsider or appeal, and you must contact the BIA Emergency Stay Unit directly.
• Federal courts of appeal: Only licensed attorneys can file emergency stay requests. You must have a pending petition for review or rehearing.
• ICE: You must be under a final order of removal

Emergency requests with any of these decision-making bodies should include a clear explanation of urgency.

Determinations are typically made within hours or a few days, depending on jurisdiction, case complexity, and urgency.

Legal Help Is Available if You’re Facing Deportation

If either you or a loved one is weighing the pros and cons of pursuing a stay request, talk to an attorney. Immigration law is incredibly complex, and federal policy can change rapidly. A dedicated attorney who’s skilled at removal defense and stays abreast of recent legal developments can assess potential risks in your specific situation.

You’ll want someone local to help you understand your options and protect your interests. This is an important ally, and choosing wisely is important.

Use credible resources like Findlaw’s directory of immigration attorneys to get started. You can review all sorts of background information about lawyers in your area if you click on your state/city. You may want to meet with more than one to ensure you’re comfortable with your choice.

Whatever you do, give yourself some peace of mind. Enlist the help of a skilled advocate to help you navigate this uncertain time.