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 If a respondent was not given proper notice of the court hearing, a deportation order entered in absentia can be rescinded by filing a Motion to Reopen.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 or reconsidered.

A 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 here.

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 is adjudicated.

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:

  1. A likelihood of success of the merit;
  2. Irreparable harm if the stay is not granted;
  3. The potential harm to the movant outweigh the harm to the opposing party if the stay is not granted, and;
  4. The stay of removal would serve public interest

The 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, contact a criminal immigration lawyer as soon as possible to get a stay of deportation.

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