How to obtain stay of removal after final order of removal

What’s Up, Attorney?

Is there relief available after an appellate court has denied an alien’s application for immigration relief and issued its final mandate for deportation or removal or the immigration court has ordered deportation or removal, and no appeal was taken so that the order has become final?

Yes. An Application for a Stay of Deportation or Removal may be filed with the U.S. Immigration and Customs Enforcement (ICE) by an alien who has been ordered deported or removed from the United States while the alien is still in the United States in accordance with 8 C.F.R. 241.6, Administrative Stay of Removal.

ICE Form I-246 should be filled up with the reasons for requesting a stay of deportation or removal. The factors for granting parole to aliens in 8 CFR 212.5 and stay of removal under INA Section 241(c) may be given as reasons, such as “urgent humanitarian reasons” or “significant public health benefit” or that the “immediate removal of the alien is not practicable or proper” or that the alien is needed to testify in the prosecution of a person for violation of law.

For example, an alien may claim extreme hardship to the alien or a close family member if the alien is deported; serious illness of the alien; serious illness of the alien’s close family member requiring the alien’s presence and assistance because the alien is the sole caregiver; serious illness of the alien’s close family member, such as a child, that cannot be effectively cured in the alien’s home country or lack of financial means of the alien to have the illness cured in the alien’s home country; breaking up of the alien’s family without any one to take care of the alien’s young children who were born in the United States, with the result that they will become a public charge at taxpayer’s expense, and that they will suffer extreme hardship resulting from their separation from their parent or parents. The alien may also claim that such alien has a petition for alien relative filed by an immediate relative that has been approved and that the alien will file an application for adjustment of status. The alien might also claim that such alien as a pending application under the Deferred Action for Parental Accountability (DAPA). The alien must make truthful responses to the questions and make truthful narration of facts in the supporting documents since all statements are made under penalty of perjury.

The alien should submit evidence to show that he or she is of good moral character and has no arrests or convictions if such is the case. The alien must attach a detailed narrative about the background of the alien’s case, the status of the alien’s case, and explain in detail the reasons for requesting a stay.

Additional documents or evidence that are required to be submitted with the ICE Form I-246 are: (1) original of current and valid passport with an expiration date of at least 6 months, (2) copy of the alien’s birth certificate, (3) police reports, disposition of all arrests, court disposition, and related criminal records of the alien.

The Application for Stay must be supported by evidence, such as (1) medical documentation from the alien’s doctor, (2) evidence that the alien cannot depart from the United States as ordered by the court, (3) evidence that the alien should not be deported/removed from the United States, (4) evidence that the alien plans to comply with the order of removal, including a plane ticket, departure itinerary, and other evidence, and (5) any additional documentation, evidence or brief in support of the alien’s claim. The alien should also submit financial records, affidavits, and country conditions in the alien’s home country. These exhibits must be attached to the Application for Stay.

The alien ordered deported or removed must file the Application for Stay in person at the local Enforcement and Removal Operations (ERO) office. For the nearest ERO office, see http://www.ice.gov/contact/ero/index.htm. An ICE officer will preliminarily review the application, and if the officer believes that it is worthy of consideration and not frivolous, ICE will accept the application and collect the fee which at this writing is $155, which must be paid in cash, cashier’s check, or money order. Payments must be made out to “Department of Homeland Security” or “Immigration and Customs Enforcement”. Ask the ICE officer for the current fee.

There are no specific guidelines in determining whether to approve or deny an application for stay. A stay of deportation or removal is within the sole discretion of the Secretary of Homeland Security or his designee, the Field Office Director. The regulations provide that the denial of a request for a stay is not appealable.

A separate application must be filed for each alien individual and family member seeking a stay of removal.

The alien should hire an imaginative and experienced lawyer who knows what plausible reasons will be acceptable to ICE. It would be good if the lawyer knows the ICE officials and can talk with them and get their insight and what else might be needed to improve the chances that the application for stay will be granted.

Upon filing the application, the alien applicant will be fingerprinted, have the alien’s photograph taken, and a criminal background check conducted.

BASES FOR REJECTION OF APPLICATION

An application for stay of deportation or removal may be rejected, without being reviewed on the merits, if the fee is incorrect, but the erroneous fee will not be refunded, there are multiple applicants on the same petition, failure to submit the application in person, or lack of or incorrect current physical address.

BASES FOR DENIAL OF APPLICATION

An application for stay of deportation or removal may be denied for any of the following reasons: failure to submit current or valid passport, failure to submit copies of birth certificates or identity documents, lack of medical evidence to support the claim, if the claim is for medical reasons, lack of or insufficient evidence or documentation in support of the alien’s claim, failure to provide evidence that the alien will comply with the order of deportation or removal, threat to oneself or others, or inaccurate or untruthful information.

EFFECT OF APPROVAL OF APPLICATION

In the event an application for stay of deportation or removal is granted, the alien will be issued an order of supervision (OSUP) and be required to comply with the conditions specified, the alien may be granted employment authorization, the alien may be required to post a delivery or order of supervision bond of at least $1,500, the alien will be required to comply with other conditions set forth by the Field Office Director, and the alien will be required to update his/her address every time it is changed.

CAUTION

A pending application does not preclude the execution of a final order of deportation or removal. The Field Office Director may at his or her discretion revoke an approved application and execute the order of removal at any date and time. Among the grounds for revocation are arrest or conviction of any crime, violation of an Order of Supervision, violation of the terms of an Immigration Bond, safety or security concerns, any reason at the discretion of the Field Office Director.

(Atty. Tipon has a Master of Laws degree from Yale Law School where he specialized in Constitutional Law. He also has a Bachelor of Laws degree from the University of the Philippines. He placed third in the Philippine Bar Examination in 1956. His current practice focuses on immigration law and criminal defense. He writes law books for the world’s largest law book publishing company and writes legal articles for newspapers. He has a radio show, The Tipon Report, in Honolulu, Hawaii with his son Noel, senior partner of the Bilecki & Tipon law firm. Office: American Savings Bank Tower, 1001 Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.bileckilawgroup.com. He was born in Laoag City, Philippines. He served as a U.S. Immigration Officer. He is a co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)

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