For many immigrants in the United States being ordered removed is one of the most alarming events they will ever undergo. When an immigration judge issues a removal order, Immigration Customs Enforcement “ICE” has the authority to enforce that order. ICE may issue a written notice referred to a “bag and baggage” letter instructing the non-citizen to appear before ICE ready for their deportation to their country of citizenship. Where the non-citizen fails to show up to their appointment, ICE agents may appear at the individual’s residence or place of employment and compel the removal.
However, there is hope for those individuals that are faced with deportation. In the event that a non-citizen has an enforceable order of removal such removal may be stopped through a request for an administrative stay of removal with ICE.
An administrative stay of removal grants a person with a final order of removal the ability to remain in the U.S for a specified period of time before the removal, deportation or exclusion order is enforced. Through an administrative stay, ICE has the authority to exercise discretion in deciding who to remove from the country. In some cases, the non-citizen may already have an automatic stay of removal during the time allowed to file an appeal or while an appeal is pending before the Board of Immigration Appeals. However, filing a petition for review in Federal court or an “in absentia” removal order where the non-citizen failed to attend his immigration hearing do not provide automatic stays. Moreover, where appeal rights have been exhausted and no more legal recourse exists with the courts, an administrative stay of removal is the best option.
An administrative stay of removal is filed by submitting form I-246 with the Enforcement and Removal Operation “ERO” office having jurisdiction over the place where the alien is at the time of filing. A request for a stay of removal must include supplemental documentation showing that the non-citizens equities, hardships and ties to this country merit the individual’s stay of removal from the country. Additionally, the showing of future relief under the immigration and nationality act is relevant in establishing that removal from the country is not warranted. For example, a non-citizen with a pending motion to reopen a prior removal order may successfully yield ICE to administratively stay his removal until a decision is entered by a court. Another typical example is where a non-citizen is the beneficiary of an approved I-130 family petition that is not yet current under the visa bulletin waiting times, but that in the future will be eligible for adjustment of status. Many other factors specific to the applicant’s case will be considered during the adjudication of the stay including but not limited to their criminal and immigration history.
After a stay of removal application is paid for and filed with the appropriate ERO office, the non-citizen will be scheduled to appear before an ERO supervisor where a decision will be made on the administrative stay of removal. During the scheduled appearance, the supervisor may interview the applicant and ask additional questions. If the stay is approved the ERO supervisor will place the applicant under an order of supervision. The order of supervision will require the non-citizen to periodically appear before ERO. Due to the discretionary nature of the stay, any missed appointments may result in the denial of the stay of removal.
Filing an administrative stay of removal must be done with an experienced immigration attorney. An administrative stay of removal may be denied for failing to submit the requisite documentation, errors on the application, filing location or submitting incorrect fees. A mistake in filing the stay of removal may result in your removal from the country. Additionally, the periodic meetings with ERO should be in the company of your attorney due to the legal issues that may arise regarding the applicant’s immigration case and other intricacies in the law. Certain benefits accompany the approval of an administrative stay of removal. Where the non-citizen can show financial need, employment authorization may be requested during the pendancy of the stay. Also, since stays are approved for a period of no more than one year, the passage of time allows for changes in the law or policy that may be applicable to the individual’s particular case. Moreover, the non-citizen may now be eligible for the relief they were waiting to apply for. A stay of removal in certain cases may be the difference between life and death if a medical concern is involved. Of utmost importance to certain non-citizens is family unity where the ability to continue to stay close their children, spouses or parents is priceless. A well-prepared and comprehensive application for stay of removal filed by an experienced attorney is crucial when faced with an imminent threat of deportation under a final order of removal.