Stay of Removal
A stay of removal is a temporary postponement, which prevents the Department of Homeland Security (DHS) from carrying out an order of removal. There are several forms of relief from removal that an alien may attempt to use during this process. In some cases, a stay of removal may be automatic, while in others, it may be discretionary.
Automatic Stays of Removal
An automatic stay of removal will only go into effect if an appeal is filed properly within the time frame specified by the immigration laws. Appeals of an immigration judge's decision are made to the Board of Immigration Appeals (BIA). The BIA is the highest administrative body which interprets and applies the immigration laws. The BIA typically does not conduct courtroom proceedings. Instead, they do a "paper review" for most cases. If an automatic stay of removal is granted, it will expire when the BIA gives a final decision on a given case.
There are a few narrow circumstances when an order of removal will be automatically stayed including:
During the 30-day period for filing a direct appeal of an immigration judge's decision on the merits of a case, unless the right to appeal has been waived.
If an alien files a direct appeal of an immigration judge's decision on the merits of a case. The decision that is being appealed cannot be based on bond or custody determinations.
If an appeal is filed because of an immigration judge's denial of a motion to re-open deportation proceedings that were conducted in absentia. The term "in absentia" refers to a deportation proceeding where the alien for some reason is not present.
When a final outcome or decision is pending on a case before an immigration judge. This is also true for certain appeals of motions to re-open from battered spouses, children, and parents.
Discretionary Stays of Removal
The BIA is allowed to grant stays at its discretion for matters that are within the board's jurisdiction and authority. The BIA will only consider granting a discretionary stay of removal when an appeal, a motion to reopen, or a motion to reconsider is pending before the board.
The Process for Requesting a Stay of Removal
A request for a discretionary stay of removal should generally be made in the form of a written motion. If the circumstances are urgent and immediate attention is needed, the BIA may at its discretion allow an oral stay request to be made by telephone.
It is important to note that a motion to request a discretionary stay of removal does not by itself postpone execution of an order. The BIA must grant the motion request for the stay to go into effect and for the previous removal order to be suspended. A discretionary stay of removal is issued in a written order. The discretionary stay of removal expires when the BIA announces a final decision on a case.
Deferred Enforced Departure
As part of the President's power with foreign relations, he can use a process known as Deferred Enforced Departure (DED). Aliens covered by DED are not subject to removal from the United States for a designated period of time. The DED is not a specific immigration status, but rather is used at the President's discretion. Currently, only certain countries are eligible to benefit from this process. Those who are eligible may benefit by the ability to continue working in the United States, an extension of an Employment Authorization Document, and even travel outside of the United States.
Get a Free Initial Case Assessment
Immigration laws are subject to extraordinarily complex and you'll need to apply the law to your specific circumstances to know how best to proceed. This is particularly true when someone has an outstanding order of removal. Contact an attorney for a free initial case assessment to get some professional assistance to learn how they can help you navigate this difficult area of law.