All You Need to Know About Stays of Removal with Immigration Courts, ICE and Federal Courts

Immigrants in the United States with removal orders may apply for a stay of removal. These stays maybe automatic in some cases and for some need to be requested. In this post I will discuss all you need to know about stays of removal before the Executive Office of Immigration Review (EOIR), Immigration & Customs Enforcement, and the federal courts.

Why do You Need a Stay of Removal?

The answer is simple: Immigration & Customs Enforcement may remove you from the United States before a motion to reopen or an application for relief is adjudicated. Applying for a stay of removal prevents the execution of the removal order. This gives you more time with your family and gives you more time for the adjudication of your applications.

Where Should I apply for a Stay?

The agency with which you need to apply for a stay depends on the stage of the removal process. An immigrant who was ordered removed from the United States must apply for a stay with either the immigration court or the Board of Immigration Appeals. The appropriate agency depends on which of those agencies most recently had control over the administrative record. If you have exhausted administrative options and want to appeal to the federal court, then you must apply for the stay with the federal court with jurisdiction over your case.

During all these stages, where an automatic stay is not applicable, you may apply for a stay with Immigration & Customs Enforcement (ICE). Please understand that these stays are not automatic, and you may be removed while the application for a stay is pending. Read below for the form of application.

When is a Stay Automatic?

There are several instances when a stay is automatic. A stay is automatic in these situations:

• During the 30 days period to file an appeal on the merits of the case unless the right to appeal was waived.
• When an immigrant files a direct appeal of an immigration judge’s decision, an automatic stay is placed.
• When the immigration judge denies a motion to reopen an in-absentia order of removal
• When outcome of removal proceedings is pending before the immigration judge.

When Do I Have to Apply for a Stay?

As mentioned above, in all other circumstances an immigrant must file for a stay of removal with the appropriate court or administrative agency. These stays are highly discretionary and must include evidence supporting the stay of removal.

How Do I apply for a Stay?

The form of application depends on the agency or court to which the stay is requested. A Motion for a Stay should be filed to request a stay with the immigration court or the Board of Immigration Appeals. You must also file a motion for stay if you are appealing a decision by the Board of Immigration Appeals to the federal court.

An application for a stay with Immigration & Customs Enforcement must be filed using form I-246. There is a $155 filing fee and the application must be supported by evidence and a brief. You must file this application in person with the closest office to your residence if you are not detained. If detained, you must file this application with the main office with jurisdiction over your address. You should consult the instructions for the form to determine where to file the application.

Do I Need a Lawyer to File for a Stay of Removal?

I always say that you should hire an attorney to file any application with immigration authorities. Hiring a competent immigration attorney may make the difference when it comes to stays of removal. As always, call us at (888) 963-7326 to schedule a strategy session with Attorney Ahmad Yakzan to discuss your options.