Stay of Removal (Form I-246 & Court Stays)
An administrative or judicial order halting the imminent physical deportation of an individual who has an administratively final order of removal.
1. Overview of the Process & Reasons to Pursue
A Stay of Removal is an urgent legal remedy that temporarily pauses or halts the Department of Homeland Security (ICE Enforcement and Removal Operations) from physically executing a final order of deportation against a noncitizen. A stay can be sought administratively through **Form I-246** submitted directly to the local ICE ERO Field Office (such as 26 Federal Plaza in NYC), or judicially through an **Emergency Motion for Stay of Removal** filed with an Immigration Judge, the Board of Immigration Appeals (BIA), or a U.S. Circuit Court of Appeals in conjunction with a pending Motion to Reopen or Petition for Review.
Why Someone Pursues This Process / How One Enters It
When ICE issues 'bag and baggage' surrender letters, places an individual on an ankle monitor, or detains them for imminent flight scheduling, a Stay of Removal is the only barrier standing between the immigrant and physical deportation. Securing a stay prevents physical expulsion, keeps families unified, and provides the necessary time window for courts or USCIS to adjudicate pending green card applications, U-visas, or motions to reopen.
2. How Long the Process Usually Takes
Adjudicated under extreme time pressure, ranging from 24 hours to 2 weeks depending on deportation proximity.
3. Forms That Need to Be Completed
Successfully completing this process involves preparing and submitting official government petitions and affidavits:
Form I-246
Application for a Stay of Deportation or Removal (filed with ICE ERO)
Emergency Judicial Stay Motion
Formal court motion filed with the Immigration Court, BIA, or Circuit Court of Appeals
Form I-765
Application for Employment Authorization (category (c)(18) for individuals under an Order of Supervision)
Form G-28 / EOIR-28 / EOIR-27
Notice of Entry of Appearance as Attorney
4. Supporting Evidence & Documentation Checklist
In immigration proceedings, the applicant carries the burden of proof. A complete evidentiary packet must include:
- Copy of the underlying administratively final order of removal
- Copy of pending affirmative petition or motion (e.g., pending Motion to Reopen before IJ/BIA, pending Form I-130, U-Visa, or T-Visa)
- Valid, unexpired passport or proof of efforts to obtain travel documents
- Comprehensive proof of severe humanitarian equities: critical medical records establishing life-threatening illness requiring U.S. treatment, citizen spouse/children hardship declarations, and proof of caretaking responsibilities
- Proof of steady employment, federal and state tax compliance, and community letters of support
- Proof of compliance with all previous ICE check-ins and Order of Supervision conditions
Before filing, you must audit your entire background for statutory bars, criminal inadmissibility, and prior immigration violations. Any of the following issues can lead to immediate denial, forfeiture of filing fees, or removal proceedings:
- Active Fugitive Status: Failing to report for a scheduled ICE surrender date or absconding from supervision.
- Serious Violent Felony Convictions: ICE ERO strictly denies discretionary stays to individuals classified as public safety threats.
- Repeated Frivolous Stay Requests: Submitting successive stay requests without demonstrating new, previously unavailable material facts.
- Lack of a Viable Underlying Pathway: Stays are rarely granted if there is no pending legal proceeding or viable path to status.
6. Government Filing Fees
Government filing fees are strictly non-refundable and set by federal regulation (USCIS, EOIR, and Department of State fee schedules):
Note: Government fees are subject to periodic regulatory updates. Fee waivers (Form I-912 or EOIR-26A) may be available for qualifying indigent applicants on select forms.
7. Possible Adjudication Outcomes
Upon review by the adjudicating agency, asylum office, or court, this process can lead to the following formal outcomes:
- Stay of Removal Granted: ICE halts removal for a defined period (usually 6 months to 1 year), issues an Order of Supervision (Form I-220B), and grants eligibility for an EAD work permit under category (c)(18).
- Judicial Stay Issued: Court enters formal injunction halting deportation pending appellate adjudication.
- Stay Denied: Individual remains immediately subject to physical deportation and detention.
8. What Can Be Done If Your Outcome Is Negative?
An ICE ERO denial of Form I-246 is completely discretionary and cannot be appealed administratively. However, counsel can immediately file an Emergency Motion for Stay of Removal with the Board of Immigration Appeals or U.S. Circuit Court of Appeals in conjunction with a Petition for Review. If constitutional or procedural due process violations exist, counsel can file a Petition for Writ of Habeas Corpus in U.S. District Court under 28 U.S.C. § 2241.
9. Range of Legal Fees Charged by Lawyers
$2,500 to $6,000 typical attorney legal fee (emergency 24/48-hour motion drafting, direct negotiation with ICE supervisory deportation officers, and habeas preparation).
At JBC Law Office, attorney Joseph B. Caraccio provides transparent flat-fee representation with written retainer agreements, personalized evidentiary assembly, and direct attorney communication at every step.