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Stay of Removal

A stay of removal is a temporary postponement, which prevents the Department of Homeland Security (DHS) from carrying out an order of removal. A removal is executed by officers from Immigration and Customs Enforcement (ICE). It results in the forcible return of a foreign person or noncitizen to their home country. An alien may attempt to use several forms of relief from removal during this process.

In some cases, a stay of removal may be automatic, while in others, it may be discretionary. It is different from a voluntary departure because it is executed against a noncitizen's or foreign person's will.

In any situation where you are facing removal, it's important to work with an immigration lawyer as you navigate any U.S. immigration process. Such attorneys are integral to any dealings in which a U.S. immigrant engages with U.S. Citizenship and Immigration Services (USCIS), ICE, or EOIR. The Executive Office for Immigration Review (EOIR) reviews requests for stays of removal.

Automatic Stays of Removal

An automatic stay of removal will only go into effect if an appeal is filed correctly within the time frame specified by immigration law. Appeals of an immigration judge's decision are made to the Board of Immigration Appeals (BIA). The BIA is the highest administrative body that interprets and applies immigration laws. The BIA typically does not conduct courtroom proceedings. Instead, it does a "paper review" for most cases. If an automatic stay of removal is granted, it will expire when the BIA gives a final decision on a given case.

There are a few narrow circumstances when an order of removal is automatically stayed, including:

  1. During the 30-day period for filing a direct appeal of an immigration judge's decision on the merits of a case, unless a waiver has been put into effect for the right to appeal.
  2. If an alien files a direct appeal of an immigration judge's decision on the merits of a case. The decision being appealed cannot be based on bond or custody determinations.
  3. Suppose an appeal is filed because an immigration judge denies a motion to re-open deportation proceedings conducted in absentia. The term "in absentia" refers to a deportation proceeding where the alien, for some reason, is not present.
  4. When a final outcome or decision is pending on a case before an immigration judge. This is also true for certain appeals of motions to re-open from battered spouses, children, and parents.

Discretionary Stays of Removal

The BIA can grant stays at its discretion for matters within the board's jurisdiction and authority. The BIA will only consider granting a discretionary stay of removal when an appeal, a motion to reopen, or a motion to reconsider is pending before the board.

The Process for Requesting a Stay of Removal

A request for a discretionary stay of removal should generally be made in the form of a written motion. If the circumstances are urgent and immediate attention is needed, the BIA may, at its discretion, allow an oral stay request to be made by telephone.

It is important to note that a motion to request a discretionary stay of removal does not by itself postpone the execution of an order. The BIA must grant the motion request for the stay to go into effect and for the previous removal order to be suspended. A discretionary stay of removal is issued in a written order. The discretionary stay of removal expires when the BIA announces a final decision on a case.

Deferred Enforced Departure

As part of the President's power with foreign relations, he can use a process known as Deferred Enforced Departure (DED). Aliens covered by DED are not subject to removal from the United States for a designated period. The DED is not a specific immigration status but is at the President's discretion. Now, only certain countries are eligible for this process. Those who are eligible may benefit from the ability to continue working in the United States, an extension of an Employment Authorization Document, and even travel outside the United States.

Grounds for Removal

There are many grounds for removal under the Immigration and Nationality Act, even if you have a green card, pending change of status, or pending naturalization. These include criminal convictions for any of the following, which this list is not exhaustive:

  • Domestic violence
  • Any aggravated felony
  • Posing a threat to national security

While criminal convictions will always be handed down in criminal courts, if an immigrant or lawful permanent resident is facing removal for any of the reasons above, these reasons will be brought up in an immigration court for purposes of reviewing whether a removal order is merited.

Stages of Removal Proceedings

Removal proceedings tend to involve several hearings. It starts with a Notice to Appear (NTA). Each hearing may be different in what is handled by the court. In your first hearing, the immigration judge will review the charging document, which covers why U.S. authorities seek your removal. Being able to prove good moral character, with witnesses that can include family members, can bode in your favor. You will be identified in court documents as the respondent. Affidavits will be drafted and compiled before the hearing. At the hearing, these affidavits will be evidence.

During the proceedings, your master calendar hearing will be referenced. Your master calendar hearing is the first hearing you ever underwent for deportation. In these proceedings, an immigration judge will decide whether you are eligible for a stay of removal and whether such a stay of removal should be granted. Also, the judge may rule on whether cancellation of removal is also merited. Your eligibility depends on various factors, including whether you have a criminal history.

Get Professional Help With Your Stay of Removal Request

Immigration laws fall under the Immigration and Nationality Act (INA). You'll need to apply the law to your circumstances to know how best to proceed. This is particularly true when someone has an outstanding order of removal. There is a lot at stake, so it's important to seek an experienced immigration attorney to learn how they can help you navigate this difficult area of law. Their legal advice is a very important part of navigating immigration processes.

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