Staying Removal After A Final Order of Deportation

By Nancy E. Miller of Reeves Miller Zhang & Diza, A PLC

Listening to a judge order you removed from the United States is devastating.  But the full impact comes later, after the shock wears off.  Once the removal order becomes final, Immigration & Customs Enforcement “ICE” can take steps to execute the order. It may issue a “bag and baggage” letter instructing the noncitizen to report to ICE ready for their deportation.  Or, ICE agents may appear at the individual’s residence or place of employment and take the person into custody.  However, there is hope for individuals facing removal.  In the event that a non-citizen has an enforceable order of removal, execution of the order may be suspended through a request for an administrative stay with the Enforcement and Removal Operation “ERO” office of ICE.

The administrative stay allows the person who has been ordered removed to remain in the U.S for a specified period of time without fear of deportation.  Non-citizens already have an automatic stay of removal during the time allowed to file an appeal with the Board of Immigration Appeals and while that appeal is pending.  However, filing a petition for review in Federal court does not provide an automatic stay.   Moreover, where appeal rights have been exhausted and no other legal recourse exists, an administrative stay of removal may be the only option.

The administrative stay request is filed with the ERO office having jurisdiction over where the alien lives. It is granted in the ERO officer’s exercise of discretion. So, the basis must be persuasive and strongly documented.  It must show that the non-citizen’s (and family members) equities, hardship and ties to this country merit a stay of removal.  Any and all negative issues (including immigration and criminal violations) must be disclosed.  How that is disclosed may not make, but could certainly break, an application.  Additionally, the possibility of future relief under the Immigration and Nationality Act is relevant in establishing that removal from this country should be stayed.  A non-citizen with a pending motion to reopen a prior removal order may successfully convince ERO to administratively stay his removal until a decision is entered by a court.  An alien with an approved family petition whose priority date is not yet current may also warrant this discretionary relief pending eligibility to adjust.  All relevant factors specific to the applicant’s case are considered by the officer during the adjudication of the stay.  The absence of information that should have been included will also be considered by the officer.

The alien must appear in person at the ERO office in order to fee-in and file the application.  Next, the non-citizen may need to appear before an ERO officer before a decision is made on the administrative stay of removal.  If the stay is approved the ERO officer will place the non-citizen under an order of supervision.  The order of supervision will require the non-citizen to periodically appear before ERO.   Due to the discretionary nature of the stay, any missed appointments may result in the denial or revocation of the stay of removal.

The stay of removal and order of supervision allow the alien to apply for work authorization.  In fact, most ERO officers encourage the alien to apply for employment authorization because they want to see that the alien is a contributing member of society (working with authorization and paying taxes).  With that employment authorization, comes the right to apply for a social security card and a driver’s license.

Aside from the obvious reason to apply in order to avoid removal, there are many other good reasons to seek this protection.  During the pendency of the stay, the law may change to the alien’s benefit.  Additionally, the non-citizen may become eligible for the relief for which they were waiting.  Where the alien or family member has a serious medical condition, a stay of removal in certain cases may be the difference between life and death. Maintaining family unity, thus allowing spouses, parents and children to remain intact, is priceless.

The decision to file for an administrative stay is not one that should be made lightly or without all the relevant information.  Clearly the decision should only be made after a thorough consultation with an immigration lawyer who is well-versed in deportation-related matters.  Once the decision is made to apply, a well-prepared and comprehensive application for stay of removal filed by an experienced and knowledgeable immigration attorney is crucial.   Facing imminent execution of a removal order is terrifying but it may not be hopeless.  An administrative stay of removal may allow the non-citizen to remain in this country despite the removal order.