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Post-Deportation Order: Obtaining a Stay of Removal

As I have previously written, immigrants with a prior deportation order, even those who are unable to reopen their case, may have hope for temporarily stopping their removal from the United States.  If you are in this situation, you can file a Stay of Removal with the Enforcement and Removal Operations (“ERO”) or the deportation office.  The Stay of Removal must be well-documented and you will need an experienced lawyer for this process, but this is a brief overview of the process.

1.   Who can apply for a Stay of Removal?

A Stay of Removal is available to immigrants who currently are detained, as well as those that were released on an Order of Supervision.  This also includes the detainees who recently were released across the country pursuant to an Order of Supervision due to the sequester.  Immigrants who are reporting on an Order of Supervision have a much higher chance of being granted a Stay of Removal, because ERO already made the decision that their case is low priority and that they should be released due to the humanitarian factors in their cases.

2.   If my Stay of Removal is granted, how long will it last?

If the Stay of Removal is granted, the removal will temporarily be suspended for a period of three months to one year.  Most of the time, the stay is granted for one year.  When the stay expires, the immigrant will have the opportunity to make another request to stay his/her removal.  While the stay is in effect, the immigrant will continue to report to ERO, but the reporting times will usually be less frequent.  The immigrant will continue to be eligible for work authorization throughout this period of time.

3.  Am I eligible for a Stay of Removal?

ERO does a balancing test between the positive factors in your case, and the negative factors, in order to decide whether to grant a Stay of Removal.  Positive factors include, but are not limited to, the length of time living in the United States, whether you have a U.S. Citizen or Legal Permanent Resident spouse, parent, or child, whether you are the primary caretaker for a disabled or sick person or a child, your educational background in the U.S., your age, with special consideration to children and the elderly, your ties to your native country and the conditions in that country, whether you or a family member suffers from a mental or physical illness, and whether you or your spouse is pregnant or nursing.  Negative factors include criminal history, whether you pose a danger to national security or public safety, border entry, and immigration history, including evidence of fraud.

4.  How much does a Stay of Removal cost?

The immigration fee for a Stay of Removal is $155, which must be paid in person at the local ERO office along with the Stay and all the required paperwork.

5.  How do I file a Stay of Removal?

A Stay of Removal is filed in person at the local ERO office.  You or your attorney must complete Form I-246, Stay of Removal.  If ERO does not have your original passport on file, you must submit the application with your original, valid passport.

The stay should include identification documents, including a translated birth certificate, your marriage license and birth certificates of children, if any, proof of legal status of family members, documentation of medical illness, your and your children’s school records, church letter, letters of good moral character from members of the community, documentation of country conditions in your native country, documentation of your entry, documentation of your criminal record, if any.

The Stay of Removal should also include affidavits from you and immediate family members.  When we prepare the application for our clients, I also prepare a brief that outlines the equities and argues why the case should be approved.

6. How is the decision made?

ERO must decide a Stay of Removal only after receiving the written motion, they should not be allowed to orally deny the application.  When your deportation officer receives the Stay of Removal, he will make a recommendation to his supervisor about whether the stay should be approved or denied.  He may tell you what he plans to do, or ask you additional questions if he is unsure whether to recommend an approval. The ultimate decision rests with the ERO Field Office Director.

7. Do I need an attorney for this?

Yes, you absolutely need an attorney for this process.  First, your attorney needs to review your case and tell you whether there are any other options, besides a Stay of Removal.  If there are no other options and you have good equities in your case, your attorney should prepare the Stay of Removal, take declarations and tell you what evidence to obtain, and attend your appointment at ERO with you to submit the stay personally.  ERO will then communicate with your attorney regarding your case.

I strongly advise against filing a Stay of Removal without an attorney.  This is a post-deportation order relief, it is essentially your last chance to stop your deportation for a temporary period of time.  It is extremely important that it is done properly.  Appearing before the deportation office can be a very frightening and confusing experience.  This short guide is here for the purpose of explaining the general process so that you can be better informed about your case.

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