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 C.F.R. § 241.6 Full Statute 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. § 241.6 Administrative stay of removal. (a) Any request of an alien under a final order of deportation or removal for a stay of deportation or removal shall be filed on Form I-246, Stay of Removal, with the district director having jurisdiction over the place where the alien is at the time of filing. The Commissioner, Deputy Commissioner, Executive Associate Commissioner for Field Operations, Deputy Executive Associate Commissioner for Detention and Removal, the Director of the Office of Juvenile Affairs, regional directors, or district director, in his or her discretion and in consideration of factors listed in 8 CFR 212.5 and section 241(c) of the Act, may grant a stay of removal or deportation for such time and under such conditions as he or she may deem appropriate. Neither the request nor failure to receive notice of disposition of the request shall delay removal or relieve the alien from strict compliance with any outstanding notice to surrender for deportation or removal. (b) Denial by the Commissioner, Deputy Commissioner, Executive Associate Commissioner for Field Operations, Deputy Executive Associate Commissioner for Detention and Removal, Director of the Office of Juvenile Affairs, regional director, or district director of a request for a stay is not appealable, but such denial shall not preclude an immigration judge or the Board from granting a stay in connection with a previously filed motion to reopen or a motion to reconsider as provided in 8 CFR part 3. (c) The Service shall take all reasonable steps to comply with a stay granted by an immigration judge or the Board. However, such a stay shall cease to have effect if granted (or communicated) after the alien has been placed aboard an aircraft or other conveyance for removal and the normal boarding has been completed. [65 FR 80298, Dec. 21, 2000, as amended at 67 FR 39259, June 7, 2002] Factors Considered for Granting a Stay While the regulations provide a framework for requesting a stay, they do not explicitly enumerate the specific factors considered in the decision-making process. However, various sources offer insights into the criteria that may influence the outcome. 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. From 8 CFR §212.5: 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 Legal Proceedings and Compliance Character and Equities 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. — ⋆ 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

An in absentia order is an order that is entered by the Judge in your absence (in absentia). If you are not present in Court the Judge may enter an order against you if she believes that you were given proper notice of the hearing and should have been there. If this happens you can file a motion to reopen the case. Typically such a motion much be filed within 180 days according to the regulations but there is an exception if it was an in absentia order and the reason you were not there was because you did not receive notice of the hearing i.e. no one informed you that you had a hearing that day. If you missed your hearing and you are trying to file a motion to reopen pro se (without a lawyer) then you should read this article about filing a motion to reopen pro se and take a look at the EOIR template MTRO for non-represented respondents. You should also read the blog post, What if I Missed my Hearing and Was Ordered Removed. This article contains the Regulations, Statutes, Court Rules, and Case Law relating to Motions to Reopen In Absentia Orders. REGULATIONS 8 CFR § 1003.23 8 CFR § 1003.23 – Reopening or reconsideration before the immigration court 8 CFR §1003.23(b)(4)(iii) (iii) Order entered in absentia in deportation or exclusion proceedings. (A) An order entered in absentia in deportation proceedings may be rescinded only upon a motion to reopen filed: (1) Within 180 days after the date of the order of deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances beyond the control of the alien (e.g., serious illness of the alien or serious illness or death of an immediate relative of the alien, but not including less compelling circumstances); or (2) At any time if the alien demonstrates that he or she did not receive notice or if the alien demonstrates that he or she was in federal or state custody and the failure to appear was through no fault of the alien. STATUTES 8 U.S.C. §1229a(b)(5)(C)(i) In absentia removal order may be rescinded upon a motion to reopen if the noncitizen demonstrates that the failure to appear at the removal hearing was because of “exceptional circumstances.” 8 U.S.C. §1229a(b)(5)(C)(i). That term refers to circumstances beyond the noncitizen’s control, such as “serious illness or death” of the noncitizen’s spouse, child, or parent, but does not include “less compelling circumstances.” 8 U.S.C. §1229a(e)(1). The panel explained that, in making the exceptional circumstances determination, the IJ and BIA must look to the totality of the circumstances and must consider certain relevant factors. INA §240(e)(1) INA §240(e)(1) Exceptional Circumstances beyond the alien’s control INA §240(b)(5)(C)(ii) INA §240(b)(5)(C)(ii) Lack of Notice EOIR Practice Manual https://www.justice.gov/eoir/reference-materials/ic/chapter-5/9 (a) In General — A motion to reopen requesting that an in absentia order be rescinded asks the immigration judge to consider the reasons why the respondent did not appear at the respondent’s scheduled hearing.  See Chapter 4.17 (In Absentia Hearing). … **(1) Content — A motion to reopen to rescind an in absentia order must demonstrate that: the failure to appear was because of exceptional circumstances; the failure to appear was because the respondent did not receive proper notice; or the failure to appear was because the respondent was in federal or state custody and the failure to appear was through no fault of the respondent. INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii).  The term “exceptional circumstances” refers to exceptional circumstances beyond the control of the respondent (such as battery or extreme cruelty to the respondent or any child or parent of the respondent, serious illness of the respondent or serious illness or death of the spouse, child, or parent of the respondent, but not including less compelling circumstances).  INA § 240(e)(1). **(2) Time limits — (A) Within 180 days — If the motion to reopen to rescind an in absentia order is based on an allegation that the failure to appear was because of exceptional circumstances, the motion must be filed within 180 days after the in absentia order.  See INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii). (B) At any time — If the motion to reopen to rescind an in absentia order is based on an allegation that the respondent did not receive proper notice of the hearing, or that the respondent was in federal or state custody and the failure to appear was through no fault of the respondent, the motion may be filed at any time.  See INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii). (C) Responses — Responses to motions to reopen to rescind in absentia orders are due within ten (10) days after the motion was received by the immigration court, unless otherwise specified by the immigration judge. **(3) Number limits — The respondent is permitted to file only one motion to reopen to rescind an in absentia order.  8 C.F.R. § 1003.23(b)(4)(ii). **(4) Automatic stay — The removal of the respondent is automatically stayed pending disposition by the immigration judge of the motion to reopen to rescind an in absentia order in removal proceedings.  See INA § 240(b)(5)(C), 8 C.F.R. § 1003.23(b)(4)(ii) BIA CASE LAW Matter of Haim, 19 I&N Dec. 641, 642 (BIA 1988) Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008) Matter of C-R-C-, 24 I&N Dec. 677 (BIA 2008). In determining whether the respondent has overcome this presumption, the immigration judge must consider both circumstantial and corroborating evidence, and may consider a variety of factors, including (but not limited) to: CIRCUIT COURT CASE LAW MONTEJO-GONZALEZ V. GARLAND, No. 21-304 (9th Cir. 2024) A mother and her two minor children, who entered the United States seeking asylum, were scheduled for an initial hearing before an immigration judge (IJ) in Seattle, Washington. On their way to the hearing, they encountered two major car accidents, causing them to be two hours late. Upon arrival, they attempted to have their case heard but were unsuccessful. The IJ ordered them removed in absentia. They promptly moved to reopen the case, arguing that exceptional circumstances justified their late arrival. The Ninth Circuit reviewed the case. The court held that the IJ and BIA abused