Administrative Stay of Removal

Legal Framework

8 CFR § 241.6(a)

This section of the Code of Federal Regulations establishes the process for requesting an administrative stay of removal. It states that any alien under a final order of deportation or removal must submit a request for a stay on Form I-246, Stay of Removal, to the district director with jurisdiction over the alien’s location. The decision to grant or deny the stay lies with various authorities within the Department of Homeland Security (DHS), including the Commissioner, Deputy Commissioner, regional directors, and district director. These officials exercise their discretion “in consideration of factors listed in 8 CFR 212.5 and section 241(c) of the Act.” These factors, while not explicitly listed in 8 CFR 241.6(a), are found in 8 CFR 212.5, which deals with applications for parole. It’s crucial to understand that the request for a stay, or the absence of a decision on the request, does not postpone removal or excuse the alien from complying with any outstanding notice to surrender for deportation or removal.

8 CFR § 1241.6(a)

This section, located in Chapter V of 8 CFR, which pertains to the Executive Office for Immigration Review (EOIR) within the Department of Justice, addresses administrative stays of removal from a different angle. It specifies that an alien facing a final order of deportation or removal may request a stay from DHS according to the provisions of 8 CFR 241.6. Furthermore, it clarifies that if DHS denies a stay, an immigration judge or the Board of Immigration Appeals (BIA) may still grant a stay in connection with a previously filed motion to reopen or reconsider, as outlined in 8 CFR part 1003.

From 8 CFR §212.5:

1. Aliens who have serious medical conditions in which continued detention would not be appropriate;
2. Women who have been medically certified as pregnant;
3. Aliens who are defined as minors in § 236.3(b) of this chapter and are in DHS custody. The Executive Assistant Director, Enforcement and Removal Operations; directors of field operations; field office directors, deputy field office directors; or chief patrol agents shall follow the guidelines set forth in § 236.3(j) of this chapter and paragraphs (b)(3)(i) through (ii) of this section in determining under what conditions a minor should be paroled from detention:
   • Minors may be released to a parent, legal guardian, or adult relative (brother, sister, aunt, uncle, or grandparent) not in detention.
   • Minors may be released with an accompanying parent or legal guardian who is in detention.
   • If the Service cannot locate a relative in or out of detention to sponsor the minor, but the minor has identified a non-relative in detention who accompanied him or her on arrival, the question of releasing the minor and the accompanying non-relative adult shall be addressed on a case-by-case basis;
4. Aliens who will be witnesses in proceedings being, or to be, conducted by judicial, administrative, or legislative bodies in the United States; or
5. Aliens whose continued detention is not in the public interest as determined by those officials identified in paragraph (a) of this section.

Discretion of DHS Officials

The authority to grant or deny a stay rests with DHS officials, who exercise their discretion based on a variety of factors^^. These factors are not exhaustively defined in the regulations, allowing for flexibility in considering individual circumstances.** **

Humanitarian and Personal Circumstances

• Humanitarian Concerns: Humanitarian factors, such as medical emergencies, family-related concerns, or the potential hardship the alien might face if removed, may be considered. For example, an alien with a serious medical condition requiring treatment not available in their home country might be granted a stay.
• Medical Conditions: Documentation from a doctor regarding an existing medical condition, including prognosis, treatment, and necessary assistance, can be a significant factor. This is particularly relevant if the condition requires specialized care unavailable in the alien’s home country.
• Country Conditions: Documentation of conditions in the alien’s native country, particularly if they pose a threat to the alien’s safety or well-being, may be considered. This could include evidence of political instability, persecution, or lack of access to essential services.

Legal Proceedings and Compliance

• Pending Legal Proceedings: The existence of pending appeals, motions to reopen, or other applications before immigration courts, the BIA, or federal courts can be a strong factor in favor of granting a stay^^. This allows individuals to pursue legal remedies and potentially avoid removal while their case is under review. A stay can also be granted to allow individuals to pursue other forms of relief, such as adjustment of status or a U-visa.
• Compliance with Orders of Supervision: Aliens who are under an order of supervision and are complying with ICE requirements may have a stronger case for a stay. This demonstrates their willingness to cooperate with authorities and abide by the terms of their release.

Character and Equities

• Evidence of Good Moral Character: Evidence of good moral character, such as community involvement, employment records, and letters of support, can contribute to a favorable decision. This suggests that the alien is a contributing member of society and poses no threat to public safety.
• Criminal History: While a criminal history may negatively impact an application, providing documentation of any prior arrests and evidence of rehabilitation can mitigate concerns. This demonstrates that the alien has taken steps to address past mistakes and is committed to lawful behavior.
• Positive Equities: Evidence of positive equities, such as family ties in the U.S., employment, payment of taxes, and a lengthy stay in the country, can strengthen the case for a stay. These factors suggest that the alien has established roots in the U.S. and would face significant hardship if removed.

Application Process

To request an administrative stay of removal, an alien must file Form I-246 with the appropriate ICE field office^^. The application should include a detailed explanation of the reasons for the request, along with supporting documentation. The following table outlines the types of documents that may be included:** **

Document Type	Description
Birth Certificate	A translated birth certificate to verify identity.
Marriage License	If applicable, to demonstrate family ties in the U.S.
Birth Certificates of Children	If applicable, to demonstrate family ties in the U.S.
Proof of Legal Status of Family Members	To demonstrate family ties and potential hardship if removed.
Documentation of Medical Illness	To support claims based on medical conditions.
School Records	To demonstrate ties to the community and potential hardship if removed.
Letters of Good Moral Character	To demonstrate good standing in the community.
Documentation of Conditions in Native Country	To support claims based on potential dangers in the home country.
Documentation of Entry into the U.S.	To provide context for the immigration history.
Documentation of Criminal Record	To address any criminal history and demonstrate rehabilitation.
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ICE may request an interview or additional information as part of the review process.

Challenges and Considerations

It’s crucial to understand that an administrative stay is not guaranteed. ICE has broad discretion in adjudicating these requests, and denials are not subject to appeal^^. Moreover, it’s important to remember that providing false information on the application can lead to criminal penalties^^. Even if a stay is granted, it is typically temporary, lasting for a maximum of one year^^. ICE may also revoke a stay at any time if the alien violates the terms of their order of supervision or engages in criminal activity^^. Additionally, it’s important to be aware that filing a motion for a stay might prompt ICE to initiate the removal process.

Conclusion

An administrative stay of removal can be a vital lifeline for non-citizens facing deportation. By understanding the factors considered in the decision-making process and submitting a comprehensive and well-supported application, individuals can improve their chances of obtaining this critical relief. Key factors include humanitarian concerns, medical conditions, pending legal proceedings, compliance with orders of supervision, evidence of good moral character, and positive equities. However, it is essential to remember that stays are discretionary and temporary, and seeking legal assistance is often crucial in navigating this complex area of immigration law.