When a non-citizen has a final order of removal or deportation, many times ICE does not deport them immediately. Often, a non-citizen with a final order may report to ICE on an Order of Supervision (OSUP) for years without being removed. However, anyone with a final order runs the risk of being detained and deported at any appointment with ICE or if they happen to get arrested by law enforcement for almost any crime.
One way to obtain piece of mind when you have a final order is to request that ICE grant you a stay of removal. Anyone with a final order of removal or deportation can apply for a stay of removal on a Form I-246 and pay a $155.00 application fee. (http://www.ice.gov/sites/default/files/documents/Document/2014/ice_form_i_246.pdf). The applicant has to provide a current travel document to their home country (passport) with the application, but there are some exceptions for detained individuals or when ICE or CBP has already taken their passport.
Convincing ICE to grant a Stay Application is not as simple as filling out and filing the I-246 application. ICE has guidelines they follow to determine who should receive a stay of removal and who should not. Right now, ICE is following the guidelines set out in the November, 2014 Memorandum by DHS Secretary Jeh Johnson.
According to the Johnson Memo, the Secretary laid out a list of factors that the Department should consider when deciding whether a stay applicant merits a favorable exercise of discretion. In this case, these factors guide whether ICE should grant the I-246 application. This memo directs ICE personnel to prioritize the use of enforcement personnel, detention space and removal assets according to the priorities established in the Memo. The Johnson Memo is intended to guide ICE decisions regarding whether to grant a stay of removal to individuals and advises to exercise such discretion as early in the removal process as possible to save valuable resources.
The Johnson Memo states that in making judgments in the exercise of prosecutorial discretion, ICE personnel should consider the following factors:
extenuating circumstances involving the offense of conviction; extended length of time since the offense of conviction; length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative. These factors are not intended to be dispositive nor is this list intended to be exhaustive. Decisions should be based on the totality of the circumstances.
The I-246 must be filed in person at a local ICE Office; the application cannot be mailed, faxed or emailed to ICE. ICE will take about 90 days to make a decision on the Stay request. If they grant the stay, the applicant will be allowed to remain in the U.S. for up to one year and so long as they continue to report as required to ICE and do not commit any new crimes, ICE should not attempt to detain or deport the applicant. If the applicant does not already have a work permit (EAD card) through the Order of Supervision, once the Stay is granted, the applicant can also seek employment authorization. If the stay is denied however, the applicant must be prepared that at the next or any subsequent appointment, ICE will require them to either depart the United States on their own, or they may be detained and deported. It is important to remember that if ICE grants a stay request, the stay must be renewed every year by filing a new I-246 application.
John Gihon is Board Certified in Immigration and Nationality Law by the Florida Bar. John is a partner with the law offices of Shorstein, Lasnetski & Gihon and passionate about crimmigration law.