In some cases, an application for a stay of deportation can help aliens delay their removal proceedings from the United States.
If you are facing deportation from the country, you should not be alarmed. Our experienced New Jersey immigration lawyers at Curbelo Law will be able to help you deal with this scenario. Call us today, as time is of the essence in these cases.
Stay of Deportation Application In The United States In 2023
When an alien is ordered to be removed from the US, makes sense that they may want to request more time to remain in the country. This can be useful to settle their affairs before they leave. They may also be able to appeal the decision on their immigration case and perhaps be able to stay permanently.
- To get this time, an alien needs to apply for a stay of deportation.
- In some cases, a stay of removal is automatic, so you do not need to apply.
- Stay of deportation does not necessarily prevent eventual deportation, it only delays it or gives the alien time to file an appeal.
Who Can File This Application For Withholding Of Removal?
Pursuant to 8 CFR § 241.6, any individual who has been ordered removal from the United States may apply for a stay of deportation.
It is also possible to complete a separate application with the required documentation for each family member and other individuals who also wish to apply for stay of deportation.
Stay of deportation should not be confused with cancellation of removal. In our blog, you can find an article where we detail this immigration relief.
What Evidence Or Documents Must Be Submitted With A Request For Stay of deportation?
- Arrests. They can be arrest or police reports.
- Medical reports. If the request is based on medical condition, documentation issued by the physician regarding the medical condition, prognosis, treatment, and any assistance related to the condition must be submitted.
- Convictions. Sentencing or conviction documents
It is essential that you submit all of the reasons for which the stay of deportation is requested and provide any additional documentation that supports the basis for this request.
Have you been convicted in the US? You may be eligible to vacate your conviction or adjust your sentence. Check our post-conviction immigration relief article for an in-depth look at this topic.
Automatic Stay of removal
An alien does not need to apply for a stay of deportation to gain more time in the US under the following scenarios:
1# Your Appeal Is Pending A Decision From The BIA
After an immigration judge has issued a deportation order against the alien, the foreign national can request an appeal of the removal order. Doing this will result in an automatic suspension of this order.
This will remain in effect until the Board of Immigration Appeals (BIA) makes a decision on the appeal.
Not sure if you have a removal order in the US? Find the answer to this question in our post on how to know if I have a deportation order in the United States.
2# Filed A Motion To Reopen A Removal Order In Absentia
If aliens do not attend their immigration hearing, they will likely be ordered removed due to their absence. However, depending on the reasons for their absence, they may be able to ask the judge to reverse their removal order and reopen their case.
If the alien files a motion to reopen their immigration case for this reason, they are granted an automatic stay of removal while the immigration judge makes a decision on their motion.
4# Reserved The Right To Appeal An Immigration Judge’s Order Of Removal
At the end of a hearing, the immigration judge asks the alien or the government if they want to appeal the decision. If the judge orders removal and the aliens say they want to appeal, they will receive an automatic stay of removal for 30 days.
This allows time for the aliens to file their appeal. However, if the foreign national has waived the right to appeal, there will be no suspension of removal.
5# Filed A Motion To Reopen As A Battered Spouse, Child, Or Parent
When an alien files a motion to reopen as a battered spouse, child, or parent, they will receive a stay of deportation while the immigration judge who issued the order makes a decision on their case.
Foreign nationals who are victims of abuse or mistreatment in the US have several forms of immigration relief they may be eligible for. We invite you to read about the VAWA visa and find out what is the U visa to learn more about these topics.
Discretionary Stay of removal
Discretionary stay of removal is a stay of deportation that an alien does not automatically receive. In order to obtain it, aliens must show why they should be approved for one.
Requesting a discretionary stay of removal depends on the status of the immigrant’s case. Among the most common are:
1# Request a stay of deportation Before BIA
If the immigrant’s case is pending before the BIA, but they were not eligible for an automatic stay of removal, they can apply for a stay of deportation with the BIA.
If this motion is submitted in writing, it must include:
- Case history.
- Current status of the case.
- A copy of the removal order.
- Relevant facts.
- An explanation of why you need and are making the request for a stay of deportation.
For these cases, all the instructions in the BIA practice manual must be followed .
2# Application For stay of deportation Before The Immigration Judge
An alien will not receive an automatic stay of removal if they file a motion to reopen with the immigration judge for a reason other than to request:
- A relief as a battered parent, spouse or child, or
- The deportation order in absentia.
However, the immigrant can file an additional motion to ask the immigration judge to stay the removal while the motion to reopen is pending. That is, while waiting for a decision.
When filing a motion for stay of deportation with the judge, several procedures must be followed as outlined in the immigration court practice manual.
3# Request For Stay Of deportation Before ICE
An alien can file a stay of deportation with Immigration and Customs Enforcement (ICE) if:
- You were previously ordered deported and ICE is reinstating the deportation order.
- An immigration judge ordered removal and the immigrant does not wish to appeal to the BIA, or
- You will file a motion to reopen with the immigration judge.
When requesting a stay of removal with ICE, the immigrant must file Form I-246, Application for Deferral of Deportation or Removal. You will do this at your local Removal Enforcement Operations (ERO) office.
Documentation To Submit To ICE
The request for stay of deportation before ICE implies submitting one of the following documents:
- Original passport: Must be valid for 6 months beyond the requested time period.
- Copy of passport: Must be valid for 6 months after the requested period of time and delivered along with a copy of the birth certificate or other identity documents.
- If you do not have a valid passport: If the country of origin requires a passport for entry and the alien does not have a valid passport, you must provide proof that you applied for a passport or similar travel document. This includes:
- Copy of the application.
- Proof of payment of the fee.
- Copy of all the documents sent.
- If you have received a response that the application has been received, a copy of this response must also be included.
Where To File The Request For stay of deportation?
To file an application for stay of removal, an application must be submitted in person to the local ERO office. You can find the location at the following link.
- If you are arrested. The alien must apply at the local ERO office that will have custody jurisdiction.
- If you are not arrested. The foreign national must apply to the nearest local ERO office. If you have trouble doing so, you can contact your local office to see if you can deliver it by mail or another service.
What Fees Must Be Submitted With The Application?
The fee to process the application for stay of deportation is $155. There is no reimbursement for these fees, regardless of the decision made.
Additionally, all payments must be made payable to the Department of Homeland Security or Immigration and Customs Enforcement.
The accepted payment methods are:
- Money order.
- Cashier’s check.
- US cash.
Can ICE Deny My Application For stay of deportation?
ICE may deny these requests if:
- The application is not signed.
- Rate is incorrect (incorrect amounts will not be refunded).
- The required identity documents are not submitted.
- You are currently classified as a fugitive by ICE or have made any attempt to hinder your removal from the country.
- You do not apply in person.
- The application submitted to the local ERO office was incorrect.
- The residential address on the application is incorrect.
- There are multiple applicants listed on the same application.
- The section numbered “information if the form was prepared by someone other than the applicant” was not completed.
In addition, ICE can also deny these requests if:
- The information is inaccurate, false or incomplete.
- Threatens yourself or other individuals.
- You do not submit medical documentation supporting the reason for the request.
- There is a record of criminal activity.
- You are not currently under any final order of removal.
- The statement or summary explaining the reason for the request is not sent.
- It is the decision of the field office director or designee.
Why Did ICE Revoke My Stay Of Deportation After It Was Approved?
ICE can revoke this application even after it is approved if the alien:
- Is arrested by any law enforcement officer.
- Has a conviction for any crime.
- Has violated an Order of Supervision (OSUP)
- Violated the terms of OSUP.
- For any decision made by the field office director or designee.
Immigration law often intersects with criminal law in the US, This is known as “Crimmigration”. We invite you to learn about this topic in depth.
What Happens If I Give False Information?
Under 18 USC 1546, providing false information can subject the alien or the petition preparer to civil and criminal penalties.
What Happens After I Receive A Decision On The Application For stay of deportation?
If the alien is denied their request for suspension of removal, they will be required to leave the US.
If the immigrant’s application for stay of deportation is approved, it will be approved for a specified period of time. Nevertheless:
- The national foreigner will be allowed to remain in the country during this period of time, but may be required to wear an ankle monitor or report to regular check-ins with ICE.
- Before the end of the time period, the alien may need to apply for an extension of their stay of removal if the original reason for the stay remains.
- After the entire set period of time has passed, the foreign national will be required to leave the US.
If the aliens are not detained, they will receive a letter from ICE requiring them to appear before ICE to start their removal process. Instead, if the alien is detained, they may continue to be detained until ICE completes the removal process.
Other Factors To Consider
After the application is submitted, the alien must take into account the following elements:
- It can be photographed.
- Your information will be entered into the DHS database.
- You may be fingerprinted (if you are 14 years of age or older).
- Your criminal record will be checked (if you have one).
What Happens If The Stay Of Deportation Request Is Approved?
- The alien will be issued an OSUP and will have to comply with all the conditions stated in the OSUP.
- Other conditions may have to be met as established by the field office director or designee.
- An OSUP bond may have to be posted, the minimum amount of which is $1,500.
Tips For Completing Form I-246
- Leave the top section of the I-246 form blank, labeled “For Internal Use Only.”
- Date: Leave blank when first filling out the form. The date can be filled in later by hand.
- File Number: Enter the A Number that can be found on the visa receipt.
- Passport: Must be valid and not be within 6 months of expiration. If you do not have it, you can place a proof that one has been requested.
- Address: It is recommended to leave this space blank. It can be filled by hand later.
- Duration of requested suspension: “Other” can be checked.
- Sections of law for which removal was ordered: May be left blank at first. If you have access to the ICE charging documents, you can fill out the section or write “unknown” if you don’t have the information.
- Arrest by Police or Other Law Enforcement: If you have ever been arrested, you must check “Yes” and include the required documents.
- Evidence Submitted: May be left blank at first and completed later with a brief summary if I-246 is submitted later.
- Signatures: The corresponding signatures must be placed on the form.
Curbelo Law Helps You With Your stay of deportation And Beyond
Requesting stay of deportation does not free the immigrant from being deported from the US, it only delays this scenario. This process can be complex to do on your own, so it is essential to have the help of a good immigration attorney by your side.
Our attorney has more than 10 years of experience dealing with these immigration matters, so you will be in good hands during this process. Call us today so we can begin to examine your situation and determine her best options.