Immigration & Naturalization Law
Stay of Removal
The legal process by which an undocumented immigrant is required to leave the United States is known as deportation or removal. Immigrants are typically removed after the Department of Homeland Security submits a Notice to Appear (NTA), requiring that they appear at a scheduled hearing. Once an NTA has been filed, it is often possible to request a stay of removal. A stay simply means that the immigrant is granted relief on either an automatic or discretionary basis and is allowed to remain in the country for a temporary period.
There are some circumstances in which a stay of removal will be granted automatically. The first is during the 30-day period after a deportation order is handed down. During this time an immigrant may file an appeal on a judge’s decision. Automatic stays of removal may also be granted:
- if an appeal is filed in a case where the immigrant was unable to be present at the hearing,
- when a decision is pending, and
- when the immigrant files an appeal in a case questioning its merit.
The Board of Immigration Appeals may also grant stays of removal based on its own discretion. This typically occurs if there is another motion to consider and it would be unfair to force someone to return to their country of origin without a resolution.
To obtain a stay of removal, the first step is to file an appeal with the Board of Immigration Appeals. This should be written but in some urgent cases appeals may be made orally via telephone. Immigrants have 30 days after the deportation order to file the appeal. During this time period, they receive an automatic stay of removal, meaning they cannot be deported while the case is pending.
In situations where the immigrant is unable to appear at an immigration hearing, a stay can be obtained automatically by filing a motion asking the judge to reopen the case. This stay remains in effect until the judge comes to a decision. During that time no action may be taken to deport the immigrant.
In some cases, judges may choose to offer a permanent stay of removal or cancel the order for removal, allowing the immigrant to remain in the country and begin the process of obtaining permanent status. If the immigrant chooses to request a stay of removal for any reason other than in absentia status, the approval is left up to the judge’s discretion and does not occur automatically.
Even if a motion to appeal an order of removal fails, it is still possible to obtain a stay of removal. Medical emergencies can result in a temporary stay of removal. A stay may be granted if the immigrant is ill, requires surgery, or must care for a sick relative. In other cases, a stay may be granted if the immigrant is the sole provider for his or her family Some social events such as a family wedding or graduation can also be grounds for a stay of removal.
Deferred enforced departure or deferred action occurs when non-resident children are found to be in the United States without documentation. The Department of Homeland Security issues a period of deferred action, which allows children who qualify under DHS guidelines to remain in the country without proper documentation for a period of two years.
If the children become eligible to work in the United States after that period, they may be able to stay. If they are still not old enough for work authorization, the Department of Homeland Security may extend the deferred action for another two-year period.
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