Stay of Deportation
Criminal Immigration Lawyer
Deportation is usually referred to as removal and is the process of expelling
a foreigner from the country. Deportation for criminal offenses occurs
when the Federal Government removes an immigrant from the U.S. for violations
of immigration or criminal laws. The deported immigrant may lose the right
to return to the United States, even as a visitor. Naturalized citizens
cannot be deported for actions taken, including criminal activity. Though,
the U.S. government may discover that a naturalized citizen committed
a crime before naturalizing and can deport him/her but only after taking
away U.S. citizenship, a process called “denaturalization”.
Between 2009 and 2015, deportations under Obama have been more than 2.5
million. The number doesn’t include the number of people who “self-deported”
or were turned away and/or returned to their home country at the border
by U.S. Customs and Border Protection (CBP). Deportation of criminals
has been an issue at the forefront of the 2016 presidential campaign,
with Republican candidate Donald Trump making it a focal point of his
campaign. He has vowed to deport all of the estimated 11.3 million unauthorized
immigrants living in the U.S.
The process of deportation of illegal immigrants starts by the notification
of Form I-862, Notice to Appear, by the Department of Homeland Security
(DHS). The notice to appear contains the reason of removability from the
United States. The notice is filed with the immigration court having jurisdiction
to the immigrant’s place of residence and must be properly served
on the immigrant. The notice to appear must be properly served on the
immigrant. If a respondent was not given proper notice of the court hearing,
a deportation order entered in absentia can be rescinded by filing a Motion
to Reopen. At the bottom of the notice to appear, it may list the date,
time, and location of the initial Master Calendar Hearing.
As a non-citizen facing
deportation, you may want to postpone removal while you attempt to get your case reopened
stay of deportation is an order directly the Department of Homeland Security to refrain from
removing an immigrant from the United States. It can be granted from the
Board of Immigration Appeals (BIA) or from a Federal Court. In the alternative, an alien can apply with
ICE for an administrative I-246 stay of removal. The I-246 stay of removal
form can be found
Anyone with a final order of removal or deportation can apply for an ICE
stay of removal and pay a $155.00 application fee. The ice stay of removal
must be filed in person at a local ICE Office and cannot be mailed or
faxed to ICE. ICE will take about 90 days to make a decision on the stay
of removal request. If ICE grants the stay, the alien will be allowed
to stay in the U.S. for up to one year. The stay must be renewed every
year by filing a new I-246 application. So long as the alien continues
to report as required to ICE and does not commit any new crimes, ICE should
not attempt to detain or deport him/her. On the contrary, if the stay
is denied, the alien must be prepared that at the next or any subsequent
appointment, ICE will require him/her to either depart the U.S. on his/her
own, or he/she may be detained and deported.
BIA Stay of Removal
Pursuant to 8 CFR § 1003.6(a), an automatic stay of removal is granted
when a timely appeal to the BIA is filed against an immigration judge’s
decision. The BIA may also grant a stay of removal when a change in law
affects an individual’s removability.
On the other hand, there is no automatic stay of deportation is an appeal
is taken against the denial of a motion to reopen, motion to reconsider,
or a motion seeking stay of deportation.
The filing of a motion to reopen or to reconsider does not trigger an automatic
stay of removal, unless the motion to reopen is against a deportation
order entered in absentia. 8 CFR § 1003.2(f).
If you have been detained, you have an action pending before the BIA, or
you are in danger of being immediately deported, your attorney may request an
emergency stay of removal from the BIA. Once the courts have received the stay request, they are
faced with an emergency situation in which the stay request must be given
immediate attention and priority over other work. An emergency stay of
removal can only be sought if you are in physical custody of DHS and you
are facing immediate removal. The BIA entertains motions for stay of removal
during business hours. In extreme situations, your immigration attorney
can seek a stay of removal by telephone.
Federal Court Stay of Removal
Pursuant to INA § 242(b)(3) and 8 U.S.C. § 1252(b)(3), filing
a petition for review of a removal order does not automatically stay the
petitioner’ removal from the United States. However, the Courts
of Appeals may issue a judicial stay of removal to prevent U.S. Immigration
and Customs Enforcement (ICE) officers from deporting a person while his/her
petition for review is pending before the court.
A stay motion is filed with the Court of Appeals with jurisdiction over
the petition for review of the removal order. An emergency stay motion
is a motion that is presented in the Court without the normal “five
business days notice” requisite. It is a special motion used for
considering a decision quickly in order to avoid irreparable harm. An
emergency motion provides immediate relief as the response is delivered
quickly than a normal one by the court.
In the Third Circuit Court of Appeals (Pennsylvania, New Jersey, and Delaware),
an Emergency Stay response will be due within 7 days, with 3 days for
a reply, if the motion requires expedited consideration. To the extent
possible, clerk must be given advance notice by phone that an emergency
motion will be filed.
In the Second Circuit Court of Appeals (Connecticut, Vermont, and New York),
emergency motion must:
- be preceded by as much advance notice as possible to the clerk and opposing counsel;
- be labeled “Emergency Motion”;
- state the nature of the emergency and the harm that will be suffered if
the motion is not granted; and
- state the date by which the court must act.
The Second Circuit has entered into an informal and unwritten agreement
with DHS, known as the “Forbearance Policy”, by which the
government agrees that once it is informed by the court that a stay motion
has been filed, the non-citizen will not be removed until the stay motion
The criteria for granting a stay of removal pending Circuit Court review
are set forth in
Nken v. Holder, 556 U.S. 418 (2009).
These criteria are:
- A likelihood of success of the merit;
- Irreparable harm if the stay is not granted;
- The potential harm to the movant outweigh the harm to the opposing party
if the stay is not granted, and;
- The stay of removal would serve public interest
Federal Rules of Appellate Procedure require that a stay of removal must have been previously sought with the
BIA, unless it can be shown that it would be impracticable.
If you of a loved one are at imminent risk of removal from the United States,
criminal immigration lawyer as soon as possible to get a stay of deportation.