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A Stay of Removal serves to prevent the Department of Homeland Security from executing an order of removal (as well as orders of deportation or exclusion as they previously were designated) against a foreign national. Various entities have the power to grant a stay if removal, including Immigration Judges, the Board of Immigration Appeals, U.S. Courts of Appeals, and the Department of Homeland Security. The effect of a stay of removal is that it prevents DHS from executing the removal order and removing the foreign national from the United States.

If you are facing removal from the United States, then you will want to take every step necessary to avoid this action from taking effect. A foreign national may have several reasons as to why they must postpone their deportation. The attorneys at The Law Office of George K. Gomez can help you prepare a Stay of Removal to allow you the time you need to remain within the United States.


Stays of Removal with DHS

Granting a stay of removal is entirely within the discretion of DHS. The Code of Federal Regulations refers to stays of removal granted by DHS as administrative stays of removal.


In order to apply for a stay of removal with DHS, an applicant must file Form I-246, Application for a Stay of Deportation or Removal. In addition, an applicant must submit the required filing fee at the time Form I-246 is filed. Currently, the filing fee is $155. Form I-246, and all supporting documentation, must be filed in person at a local ICE field office.

No legal argument is required to seek a stay of removal. However, because a stay of removal is a discretionary decision, it is important to provide sufficient reasons and supporting documentation to have the best chance of obtaining a favorable exercise of discretion in your particular case. An applicant will have a better chance of having their stay of removal granted if they are able to provide a need for the individual to remain in the U.S., as well as a potential date when the applicant can depart as a stay of removal is generally not meant to indefinitely stay a removal order.


ICE has the discretion to grant a stay of removal for up to a period of one year. However, a stay of removal may be renewed with the filing of a new Form I-246.


Stays of Removal with the Immigration Judge and with the Board of Immigration Appeals


Stays of Removal come in two flavors when dealing with the Immigration Judge and the Board of Immigration Appeals: Automatic Stays of Removal and Discretionary Stays of Removal.


Automatic Stays of Removal


Automatic stays of removal are stays that are automatically granted as a matter of law. No motion to stay removal or immigration forms need to be filed in order to receive a stay of removal.


Examples of when a stay of removal will automatically be granted include:


  • During the thirty (30) days following the entry of an order of removal, if the right to appeal is reserved and not waived;

  • If an appeal of an Immigration Judge’s decision is timely filed with the Board of Immigration Appeals, an order of removal will automatically be stayed until the BIA rules on the appeal; and

  • If an Immigration Judge asks the BIA to review his or her decision (a process known as certification), an order of removal will be stayed pending a decision by the BIA.


Discretionary Stays of Removal


In addition to the circumstances where a stay of removal is automatically granted, the Immigration Judge (or the Board of Immigration Appeals) can grant a stay of removal as a matter of discretion.


In order to obtain a discretionary stay of removal, a foreign national, through counsel or by pro se motion, needs to file a written motion to stay removal with the Court where then pending motion, appeal, or petition for review is pending. This motion should contain all relevant facts and evidence to support the granting of a stay of removal. Note that the filing of the motion, by itself, does not stay removal and DHS can remove a foreign national while a decision on the motion for stay is pending.


Examples of when a discretionary stay of removal may be sought include:


  • During the pendency of a Motion to Reopen an Immigration Judge or BIA decision

  • During the pendency of a Motion to Reconsider an Immigration Judge or BIA decision

  • During the pendency of a Petition for Review filed with a U.S. Court of Appeals


Stays of Removal with a U.S. Court of Appeals


At the federal level, a stay of removal can be sought with the U.S. Court of Appeals that has jurisdiction over a foreign national’s case. Such a stay of removal can only be sought after all administrative remedies are exhausted. In other words, the Board of Immigration Appeals must either affirm an Immigration Judge’s removal order or must deny a motion to reopen an Immigration Judge’s removal order.


A foreign national who petitions for review in federal court must file a motion to stay removal with the U.S. Court of Appeals. The filing of a petition for review, alone, does not stay execution of a removal order. In addition, in most U.S. Circuit Courts of Appeals the filing of a motion to stay the removal order does not automatically grant a stay. A decision on the motion must take place before a foreign national is protected from removal.


Let Us Help You with Your Stay of Removal!


Our South Florida immigration attorneys will perform a full evaluation of your case and determine all your available legal options, including pursuing a stay of removal if that is the best option for you.


Serving Miami-Dade, Broward, Monroe, and Palm Beach Counties as well as providing nationwide representation, The Law Offices of George K. Gomez, P.A. is solely focused on immigration law. We have comprehensive knowledge of state and federal laws involving these matters and our skilled immigration lawyers can evaluate your case and determine whether you have the basis for an appeal.


If you need an immigration lawyer or just need more information on the immigration-related legal services we can offer, our service areas, or wish to learn more about our managing attorney, contact us at (305) 539-0991, or use our online contact form.

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What Our Clients Say

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Kayla G.

I have worked with Attorney Gomez on two separate cases and I can’t recommend him enough. He is always available by phone or email, takes his time to ensure I understand what is happening in my case, and goes above and beyond for his clients. I will definitely reach out to Attorney Gomez for my future legal needs and recommend him to anyone looking for an honest and trustworthy attorney.

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