Facing deportation is overwhelming, filled with uncertainty and fear of separation from family. While a stay of removal won’t solve your immigration status, it can give you time to fight your case, gather evidence, or wait for a pending appeal.
This guide covers stays of removal: what they are, who qualifies, the types, and how to apply. If you or someone you love faces removal, understanding this tool matters.
What Is a Stay of Removal?
A stay of removal is a legal order that temporarily stops the government from deporting you from the United States. It does not grant you legal immigration status or cancel your deportation order. Instead, it pauses the process temporarily while you try to resolve your case through other legal steps.
The legal basis for stays of removal comes from several sources, including the Immigration and Nationality Act (INA) and 8 C.F.R. § 241.6. Immigration courts, the Board of Immigration Appeals (BIA), federal circuit courts, and Immigration and Customs Enforcement (ICE) all have authority to grant stays, depending on the circumstances.
For many immigrants, a stay of removal is a support—a chance to remain in the U.S. while exhausting every available legal avenue.
Why People Request a Stay of Removal
No two immigration cases are identical, and the reasons for requesting a stay are just as varied. That said, certain grounds recur in successful petitions.
Pending Appeals or Motions
Pending appeals or motions often justify a stay request. Deporting someone with an ongoing legal challenge would defeat the purpose of the appeal, so agencies usually grant stays in such cases.
Humanitarian Grounds
Humanitarian matters carry real weight in stay requests. These may include:
- Serious medical conditions needing ongoing U.S.-based treatment
- Risk of persecution, torture, or violence in the country of removal
- Family separation, particularly when U.S. citizen children would be affected
- Severe hardship to qualifying family members
Under rules called the Convention Against Torture (CAT), the U.S. cannot send someone to a country where they are likely to be tortured. If you have a strong CAT claim, it can be a very good reason to request a stay.
Errors in the Original Proceedings
If there was a legal error in the first immigration proceedings—an ineffective assistance of counsel claim, a procedural mistake, or newly discovered evidence—this can justify a stay while the case is reconsidered.
Types of Stays of Removal
Understanding which type of stay applies to your situation is essential for choosing the right strategy.
Automatic Stays
Some stays are automatic. For example, filing a timely BIA appeal or certain motions often halts removal while the matter is pending. Whether this applies depends on the motion type and timing.
Discretionary Stays
Discretionary stays require an application and proof that one is warranted. ICE may grant these using Form I-246.
Judicial Stays
Federal appeals courts can issue stays of removal when a person appeals a removal order. Courts consider: likelihood of success, risk of harm, government or public impact, and balance of equities.
- Likelihood of success on the merits
- Whether the petitioner will suffer irreparable harm without the stay
- Whether the stay would harm the government or public interest
- The balance of equities
A judicial stay is often the last chance to pause removal when options with immigration agencies have run out.
How to Apply for a Stay of Removal
The process varies by agency. Most often, people request a stay from ICE using Form I-246. Here’s how.
Step 1: Understand Your Deadline
Timing is everything. If you have a deportation date, you need to act immediately. Gather your information and consult an immigration attorney as soon as possible.
Step 2: Complete Form I-246
Form I-246, the Application for a Stay of Deportation or Removal, is the official form used to request a stay of deportation or removal from ICE. It asks for basic biographical information, your alien registration number (A-number), the reason for the stay request, and supporting documentation.
Be thorough. Incomplete or vague applications are far more likely to be denied.
Step 3: Gather Supporting Documentation
Support your request with clear evidence. Depending on your case, include:
- Medical records and letters from treating physicians
- Evidence of family ties (birth certificates, marriage certificates)
- Country condition reports documenting persecution or danger.
- Proof of pending legal proceedings (appeal notices, court filings)
- Letters of support from community members, employers, or clergy
Step 4: Submit to Your Local ICE Field Office
Submit Form I-246 and documents to the ICE field office with jurisdiction over your case. Use the ICE field office locator to find yours.
Step 5: Pay the Filing Fee
According to the most recent guidance, the filing fee for Form I-246 is $155. Fee waiver requests may be possible in cases of financial hardship.
Step 6: Await a Decision
ICE decides these requests at its discretion. No timeline is guaranteed. Filing early with strong documentation is important.
The Role of ICE and Prosecutorial Discretion
ICE officers use prosecutorial discretion, weighing all factors when considering your Form I-246 request. Relevant factors include long-term U.S. residence, minimal or no criminal history, family relationships, rehabilitation, and community support.
- No criminal record or only minor offenses
- U.S. citizen or lawful permanent resident family members
- Evidence of rehabilitation or community contributions
- Active cooperation with law enforcement
Enforcement priorities shift with each administration, directly affecting how ICE applies discretion. Stay updated on current priorities.
Impact of Current Immigration Policies
Whether a stay is granted depends on the law and current policy. Priorities shift between administrations, changing ICE’s approach to removals and discretionary stays.
Tougher enforcement can mean more scrutiny for humanitarian requests. Strong documentation and quality legal help are essential. Monitor DHS and advocacy groups for policy updates.
Frequently Asked Questions
Does a stay of removal give me legal status?
No. A stay only suspends removal and does not grant lawful status or work authorization.
Can I apply for a stay if I’ve already been ordered removed?
Yes. People with final orders of removal can still apply for a stay, particularly if new evidence has emerged, an appeal is pending, or humanitarian grounds exist.
How long does a stay of removal last?
Stays last for specific periods, usually the length of pending proceedings. Extensions are available if needed.
Do I need a lawyer to apply?
While you are not legally required to have an attorney, the complexity of immigration law makes legal representation strongly advisable. An experienced immigration attorney can significantly improve the quality of your application and your chances of success. Organizations like RAICES and CLINIC offer low-cost or free legal assistance to eligible individuals.
What happens if my stay is denied?
If ICE denies your stay, you may still seek a stay from a judge, the BIA, or a federal court.
Your Next Step Starts Now
A stay of removal isn’t permanent but gives time to appeal, gather evidence, and make your case.
If you or your family member faces removal, act quickly. Contact an immigration attorney early for help. Organizations like the National Immigration Law Center can connect you to legal resources in your area. The earlier you act, the more options you’ll have.
