Is
there relief available after an appellate
court has denied an alien’s application for immigration relief and issued its
final mandate for deportation or removal or the immigration court has ordered
deportation or removal and no appeal was taken so that the order has become
final?
Yes. An Application for a
Stay of Deportation or Removal may be filed with the U.S. Immigration and
Customs Enforcement (ICE) by an alien who has been ordered deported or removed
from the United States while the alien is still in the United States in
accordance with 8 C.F.R. 241.6, Administrative Stay of Removal.
ICE Form I-246 should be
filled up with the reasons for requesting a stay of deportation or removal. The
factors for granting parole to aliens in 8 CFR 212.5 and stay of removal under
INA Section 241(c) may be given as reasons, such as “urgent humanitarian
reasons” or “significant public health benefit” or that the “immediate removal
of the alien is not practicable or proper” or that the alien is needed to
testify in the prosecution of a person for violation of law.
For example, an alien may
claim extreme hardship to the alien or a close family member if the alien is
deported; serious illness of the alien; serious illness of the alien’s close
family member requiring the alien’s presence and assistance because the alien
is the sole caregiver; serious illness of the alien’s close family member, such
as a child, that cannot be effectively cured in the alien’s home country or
lack of financial means of the alien to have the illness cured in the alien’s
home country; breaking up of the alien’s family without any one to take care of
the alien’s young children who were born in the United States, with the result
that they will become a public charge at taxpayer’s expense, and that they will
suffer extreme hardship resulting from their separation from their parent or
parents. The alien may also claim that such alien has a petition for alien relative
filed by an immediate relative that has been approved and that the alien will
file an application for adjustment of status. The alien might also claim that
such alien as a pending application under the Deferred Action for Parental
Accountability (DAPA). The alien must make truthful responses to the questions
and make truthful narration of facts in the supporting documents, since all
statements are made under penalty of perjury.
The alien should submit
evidence to show that he or she is of good moral character and has no arrests
or convictions, if such is the case. The alien must attach a detailed narrative
about the background of the alien’s case, the status of the alien’s case, and
explain in detail the reasons for requesting a stay.
Additional documents or
evidence that are required to be submitted with the ICE Form I-246 are: (1)
original of current and valid passport with an expiration date of at least 6
months, (2) copy of the alien’s birth certificate, (3) police reports,
disposition of all arrests, court disposition, and related criminal records of
the alien.
The Application for Stay must
be supported by evidence, such as (1) medical documentation from the alien’s
doctor, (2) evidence that the alien cannot depart from the United States as ordered
by the court, (3) evidence that the alien should not be deported/removed from
the United States, (4) evidence that the alien plans to comply with the order
of removal, including a plane ticket, departure itinerary, and other evidence,
and (5) any additional documentation, evidence or brief in support of the
alien’s claim. The alien should also submit financial records, affidavits, and
country conditions in the alien’s home country. These exhibits must be attached
to the Application for Stay.
The alien ordered deported or
removed must file the Application for Stay in person at the local Enforcement
and Removal Operations (ERO) office. For the nearest ERO office, see
http://www.ice.gov/contact/ero/index.htm. An ICE officer will preliminarily
review the application and if the officer believes that it is worthy of
consideration and not frivolous, ICE will accept the application and collect
the fee which at this writing is $155, which must be paid in cash, cashier’s
check, or money order. Payments must be
made out to “Department of Homeland Security” or “Immigration and Customs
Enforcement”. Ask the ICE officer for the current fee.
There are no specific
guidelines in determining whether to approve or deny an application for stay. A
stay of deportation or removal is within the sole discretion of the Secretary
of Homeland Security or his designee, the Field Office Director. The regulations
provide that the denial of a request for a stay is not appealable.
A separate application must
be filed for each alien individual and family member seeking a stay of removal.
The alien should hire an
imaginative and experienced lawyer who knows what plausible reasons will be
acceptable to ICE. It would be good if the lawyer knows the ICE officials and
can talk with them and get their insight and what else might be needed to
improve the chances that the application for stay will be granted.
Upon filing the application,
the alien applicant will be fingerprinted, have the alien’s photograph taken,
and a criminal background check conducted.
Bases for rejection of application
An application for stay of deportation or removal may be
rejected, without being reviewed on the merits, if the fee is incorrect, but
the erroneous fee will not be refunded, there are multiple applicants on the
same petition, failure to submit the application in person, or lack of or
incorrect current physical address.
Bases for denial of application
An application for stay of deportation or removal may be
denied for any of the following reasons: failure to submit current or valid
passport, failure to submit copies of birth certificates or identity documents,
lack of medical evidence to support the claim, if the claim is for medical
reasons, lack of or insufficient evidence or documentation in support of the
alien’s claim, failure to provide evidence that the alien will comply with the
order of deportation or removal, threat to oneself or others, or inaccurate or
untruthful information.
Effect of approval of application
In the event an application for stay of deportation or
removal is granted, the alien will be issued an order of supervision (OSUP) and
be required to comply with the conditions specified, the alien may be granted
employment authorization, the alien may be required to post a delivery or order
of supervision bond of at least $1,500, the alien will be required to
comply with other conditions set forth
by the Field Office Director, and the alien will be required to update his/her
address every time it is changed.
Caution
A pending application does not preclude the execution of a
final order of deportation or removal. The Field Office Director may at his or
her discretion revoke an approved application and execute the order of removal
at any date and time. Among the grounds for revocation are: arrest or
conviction of any crime, violation of an Order of Supervision, violation of the
terms of an Immigration Bond, safety or security concerns, any reason at the
discretion of the Field Office Director.
(Atty. Tipon has a Master of Laws degree from Yale Law
School where he specialized in Constitutional Law. He has also a Bachelor of
Laws degree from the University of the Philippines. He placed third in the
Philippine Bar Examination in1956. His current practice focuses on immigration
law and criminal defense. He writes law books for the world’s largest law book
publishing company and writes legal articles for newspapers. He has a radio
show, The Tipon Report, in Honolulu, Hawaii with his son Noel, senior partner
of the Bilecki & Tipon law firm. Office: American Savings Bank Tower, 1001
Bishop Street, Suite 2305, Honolulu, Hawaii, U.S.A. 96813. Tel. (808) 225-2645.
E-Mail: filamlaw@yahoo.com. Website: www.bileckilawgroup.com. He was born in
Laoag City, Philippines. He served as a U.S. Immigration Officer. He is a
co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for
immigration officers and lawyers. This article is a general overview of the
subject matter discussed and is not intended as legal advice. No warranty is
made by the writer or publisher as to its completeness or correctness at the
time of publication. No attorney-client relationship is established between the
writer and readers relying upon and/or acting pursuant to the contents of this
article.)
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