Stay of Removal

A stay of removal is one of the last forms of relief before an immigrant is deported from the United States to their home country. After the Department of Homeland Security (DHS) issues a final order of removal, a stay can prevent DHS from removing the individual from the country.

There are a few options to get a stay of removal and avoid deportation, including a court-ordered stay and an administrative stay. Immigration laws can change at any time, and an immigration attorney can keep you up-to-date on the latest changes. If you or a loved one is in removal proceedings, talk to an immigration lawyer about how you can get a stay of removal​.

How To Obtain a 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 DHS submits a Notice to Appear.

Once an NTA has been filed, it is 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. The two options for a stay of removal include:

• Administrative stay of removal
• Judicial stay of removal

Generally, you can request an administrative stay of removal from DHS. You can request a federal court-ordered stay of removal from an immigration judge, the Board of Immigration Appeals (BIA), or a U.S. Court of Appeals.

Receiving an Automatic Stay of Removal

There are some circumstances in which an administrative stay of removal will be granted automatically. An automatic stay is not guaranteed simply because there are pending administrative proceedings before the Executive Office of Immigration Review (EOIR). Automatic stays of removal may also be granted:

• Direct appeal of an immigration court decision during the first 30 days for filing a Notice of Appeal
• After filing an appeal, pending adjudication by the BIA
• Motion to reopen and rescind an in absentia (not in person) order
• The case is certified to the BIA
• If an appeal is filed in a case where the immigrant was unable to be present at the hearing
• When a decision is pending
• When the immigrant files an appeal in a case questioning its merit

Receiving Discretionary Stays of Removal

The Board of Immigration Appeals and an immigration judge may also grant stays of removal based on their own discretion. Discretionary stays include emergency and non-emergency stays of removal. There are several factors the Board or IJ can consider when deciding a discretionary motion to stay removal. Factors include:

• Likelihood of success on the merits
• Irreparable injury without a stay
• Injury to other parties
• Public interest

A discretionary stay 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.

How To Submit a Request for a Stay of Removal

To obtain a stay of removal, the first step is often to file an appeal with the BIA. Immigrants generally have 30 days after the deportation order to file this appeal. Filing a timely appeal of a removal order with the BIA automatically stops DHS from deporting the person while the BIA reviews the case.

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.

You can also file an application for a stay of removal with the Enforcement and Removal Operations (ERO). File Form I-246, Application for a Stay of Deportation or Removal.

Provide any necessary documentation with your application, including:

• Birth certificate or a valid passport
• Marriage license
• Birth certificates for your children
• Family member’s legal status
• Medical condition records
• School records
• Criminal history
• Information about your home country’s conditions
• Documented entry to the U.S.

If the application is approved, U.S. Immigration and Customs Enforcement (ICE) will not remove you from the country.

In some cases, judges may cancel the order for removal, allowing the immigrant to remain in the country. If a person does not qualify for an automatic stay (like the one from a timely BIA appeal), they must ask the judge for a “discretionary stay.” This means the approval is not automatic, and the judge decides whether or not to grant it.

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 their family. Social events, such as a family wedding or graduation, are generally not valid grounds for a stay of removal.

Legal Help Getting a Stay of Removal

A stay of removal may be your last option before you are taken from your friends and family members and deported to your home country. An immigration attorney can review your immigration case and explain your legal options. Contact a local immigration lawyer for legal advice on getting a stay of removal​.