Stay of Removal and Deferred Action

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Previously, I have offered some further information on How to Stop Deportation and Removal as well as Risk Factors for Deportation. Today we continue the conversation on stays of removal and deferred action.

If a person has been ordered deported or removed from the United States, it may be possible to get the execution of the removal order postponed. For example, a court may order a temporary stay of removal when an appeal, a motion to reopen, or a motion to reconsider is pending before it. In the executive branch, the Department of Homeland Security (DHS) grants requests, at its discretion, for an administrative stay of removal or deferred action. Such DHS decisions are based on:

  • Sympathetic family, social, health and economic factors
  • Its civil enforcement priorities

The civil enforcement priorities were promulgated in 2011 in policy memoranda by Director John Morton of U.S. Immigration and Customs Enforcement (ICE).  The priorities became necessary because ICE lacks the resources to remove more than 400,000 non-citizens per year, which is less than 4 percent of those estimated to be illegally present in the United States.  These priorities are designed to optimally promote “our national security, public safety, and the integrity of our border and immigration controls.”

  1. The number one priority is those “who pose a danger to national security or a risk to the public safety,” which includes terrorists and violent criminals
  2. The second highest priority concerns recent illegal entrants who have violated immigration controls at the border or cunningly “gamed” the visa and visa waiver programs
  3. The third highest priority is assigned to non-citizens who are fugitives; those have reentered the country illegally after removal; and those who obtain admission or status by visa, identification, or immigration fraud.

Being classified in one of the three top categories does not absolutely foreclose the possibility of an administrative stay of removal or deferred action.  Moreover, not all non-citizens with low-priority cases will automatically receive prosecutorial discretion.  As a practical matter, the chances of getting an administrative stay of removal or deferred action will vary from case to case depending on some combination of sympathetic factors, enforcement priority classification, and the subjective inclinations of the DHS decision-maker.

Although administrative stays of removal and deferred action requests involve similar supporting documents and evaluative factors, there are significant differences.  A request for an administrative stay of removal requires the filing of an official form (I-246) and a filing fee of $155, whereas a deferred action request simply requires a letter.  An administrative stay of removal usually has a duration lasting up to a year, while deferred action can be granted for up to two years.  Finally, an administrative stay of removal is normally filed as a last ditch effort to forestall the execution of a removal order after a deportation officer and field office director have ruled out the possibility of deferred action.

This blog series is intended to give a basic introduction on how to stop removal and deportation.  In light of the technicalities and complexities of this subject, noncitizens facing deportation and removal proceedings should seek and retain expert legal advice and representation throughout the proceedings.

Published In: Civil Procedure Updates, Immigration Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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