Especially in light of President Trump’s impending announcement on the fate of DACA, many people without status often ask what can they do in the worst-case scenario. Recent statistics bear out the reality that people are not being paranoid: according to some reports, ICE arrests have skyrocketed more than 30%, with no signs of abating.
If an individual is not subject to expedited removal, he or she will ordinarily be entitled to a hearing before an Immigration Judge. During a Removal Hearing, the individual will be expected to plead to the allegations as set forth in the Notice to Appear and apply for any applicable relief. However, if an individual has already had his removal or deportation hearing and been ordered removed or deported, he or she will not normally appear before a judge a second time. In other words, if there is already an outstanding order, and the person has been apprehended by an immigration agent, ICE will take steps to execute that order. Similarly, if the person has already been served with a final order and is currently in custody or detained by ICE, steps will be taken to carry out that order and execute his/her physical expulsion.
An individual subject to imminent removal will literally be racing against the clock to forestall any removal efforts. In order to explore or sustain any viable hope of remaining in the United States, it is imperative that the removal/deportation order be suspended. One mechanism to accomplish this is through the filing of a Stay of Removal on Form I-246.
For administrative stay of removals (as opposed to judicial stay of removals, which beyond the scope of this discussion), the individual must file the I-246 with the local Enforcement and Removal Operations Field Office (also called “ERO”). Currently, the filing fee is $155 and the form must ordinarily be submitted with an original passport. The form itself is seemingly simple enough: it is a mere one page. However, filing the form without a compelling reason or strong documentation is likely to result in a summary denial, as decisions are highly discretionary. Moreover, in this conservative climate, applicants carry an arguably higher burden to persuade the Department of Homeland Security why a final order of removal should be temporarily stayed. If, for instance, there are exigent medical circumstances that warrant a stay, it is critical that the application be accompanied by cogent evidence corroborating the medical situation and demonstrating why the removal order should be stayed.
Possible Criteria/Factors Considered by ICE
Although many of the memoranda issued under the Obama Administration have since been rescinded under President Trump, the following factors may nevertheless still be relevant to ICE in the adjudication of an I-246, although it is clear that no one factor will be determinative or dispositive. They include but are not limited to:
· Military service
· Length of time in the US
· Family or community ties in the United States
· Status as a victim, witness or plaintiff in civil or criminal proceedings
· Compelling humanitarian factors such as
o Poor health
o A young child
o Seriously ill relative
Some of these factors may not hold as much weight as they may have in the past, due to a moratorium on standardized prosecutorial discretion requests. Nevertheless, contrary to popular opinion, prosecutorial discretion is not extinct. While there is no longer a formalized protocol for such requests, the government is still vested with the authority to exercise its discretion and often does so on a “case-by case” basis depending on the applicant’s personal circumstances and how the argument is adduced.
It should be understood that seeking and getting a Stay of Removal is only a temporary solution. Stays are not permanent and last anywhere from three months to one year in duration, although the applicant may seek to renew. However, that may be enough time for an individual to possibly reopen his/her case or redress some issue that enables him/her to possibly seek further relief.
For more information on stopping removal, please contact our office. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.