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Stay of Removal

If you are a non-citizen and are presently facing deportation or have just been ordered deported, you may want to postpone your physical removal while you attempt to get your case reopened or reconsidered.

A stay of removal (deportation) is an order that tells the Department of Homeland Security to not remove an immigrant from the United States. This stay can be granted either through ICE, the Board of Immigration Appeals (BIA) or from federal court. In California, this court would be the 9th Circuit.

One can request a stay of removal with ICE (Immigration and Customs Enforcement) with a form application. This is called an “Administrative I-246 Stay of Removal.” The form for this can be found here. Typically, these must be filed in person at a local ICE office and is used when an individual is in ICE’s custody (such as at a detainment center). ICE will take approximately 90 days to decide on the I-246 Stay of Removal request.

If ICE grants the stay, the individual can stay in the United States for up to one year. Yet, it must be renewed every year by filing a new I-246 application where the immigrant must show his or her eligibility for the stay of removal.

In order to succeed for a stay of removal claim, one should refer to the Supreme Court’s case, Nken v. Holder 556 U.S. 418 (2009).

The criteria outlined by the Supreme Court stated that, in order to grant a stay of removal pending Circuit Court review (yet, please note that the BIA and ICE will also consider this criteria) the immigrant must show:

  1. A likelihood of success on the merits and facts of his or her case;
  2. That the immigrant will suffer irreparable harm if the stay is not granted;
  3. He or she must show that the potential harm to the immigrant will outweigh the harm to the government if the stay is not granted, and;
  4. The stay of removal will serve the public’s interest.

Everyone’s facts are different. Thus, do not disregard some of your hardships as they may be relevant to your case.

Need Counsel for Immigration? Call Today!

Immigration law can be complicated and this article does not exhaust all the circumstances surrounding stays of removal. These issues can be extremely complex, and a single misstep could potentially lead to a deportation or other immigration penalties. If you have any questions regarding this matter, please do not hesitate to contact our office

Call our law firm for a free consultation today at: (949) 478-4936.