Understanding the Stay of Removal

For immigrants who have been issued an order of deportation and those who are unable to reopen their case, the Stay of Removal offers one more chance to stay in the United States a little longer. A stay order temporarily stops the deportation from taking place during which time the immigrant is allowed to remain in the country legally.

The Automatic Stay of Removal

A Stay of Removal can be issued automatically in some situations and can be requested and granted in others. Automatic Stays of Removal are granted during the 30-day time period in which a person who is set to be removed can appeal the immigration judge’s decision. This does not apply, however, if the person has waived or given up the right to appeal.

If the immigrant directly appeals the immigration judge’s decision on the facts of the case (also known as “on the merits”), the immigration judge’s deportation order will automatically be suspended while the appeal is pending. Similarly, in the time during which the immigration judge is making the final decision on the case, the deportation order will be suspended.

An Alternate: The Stay of Removal with the ERO

In situations where the immigrant’s case cannot be re-opened or there is no appeal pending or possible, there is the option of filing a Stay of Removal petition with the Enforcement and Removal Office (ERO). Immigrants with a removal order who are in a detention center as well as out on an Order of Supervision are eligible to file a Stay of Removal with the ERO. This includes immigrants who are out on an Order of Supervision where the ERO has already decided that their case is a low priority due to humanitarian factors.

Stays of Removal filed with ERO must contain substantial information and facts to allow the ERO to make a decision. The ERO will look at positive factors such as the amount of time the immigrant has been in the United States, whether they have a spouse or children who are U.S. citizens or permanent residents, if the immigrant is the primary caretaker for someone who is disabled or old, the age and education of the immigrant, and the immigrant’s ties to their native country. Negative factors that are weighed include if the immigrant has a criminal history, if there has been fraud in the application, and if the immigrant would pose a threat to national security or the safety of the public.

The documentation that must be submitted in support of the Stay of Removal should include birth certificates, passports, marriage licenses, children’s school records, and affidavits from the immigrant and members of their local community in the United States speaking to their fitness to remain in the country.

If the stay of removal is granted, it is valid from three months up to one year during which time the immigrant must continue to report to the ERO. At the end of the year period, the immigrant can file a new request to further stay the deportation order.

Contact Us

If you or a loved one are facing a deportation order, there is still hope! Contact the attorneys at Rotella & Hernandez today to find out about your options and to get started. Call us at 786-571-8472.

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