If an Immigration Judge has ordered you deported, you will soon be told when you must leave the United States. If you need more time, however, it may be possible to get a "stay" (a temporary postponement) of your deportation date.
You might reasonably need more time if, for example, you don’t agree with the Immigration Judge’s decision in your case, or if you have a new reason for being allowed to remain in the country.
How Filing an Appeal Postpones Deportation
You always have 30 days after the Immigration Judge’s deportation order in which to file an appeal with the Board of Immigration Appeals (BIA), unless you waive (give up) that right. You can’t be deported during that 30-day period. If you do appeal, you can’t be deported while your case is being decided by the BIA.
How Asking the Judge to Reopen Your Case Postpones Deportation
A motion to reopen is different than an appeal. It is appropriate only in cases where new facts have emerged that might change the judge's decision to deport you.
If the Immigration Judge ordered you deported because you didn’t show up to your hearing (called an in absentiaorder of deportation), you can get a stay of your deportation, automatically and immediately, just by filing the motion asking the judge to reopen the case. This stay of your deportation will last at least as long as it takes the judge to decide whether to reopen your case. Of course, if the judge grants your motion to reopen, you can’t be deported while the case is going on. You might even convince the judge not to deport you after all.
If you ask the judge to reopen your case for any reason other than an in absentia order, your deportation is notautomatically stayed. Instead you’ll need to file a motion convincing the judge to stay your deportation. If your reasons for having the case reopened look good on the surface, the judge will probably grant you a stay for at least as long as it takes him or her to decide whether to reopen your case. If your case gets reopened, the stay will remain in effect until the judge decides whether you should be deported.
If All Your Appeals and Motions Have Failed
When you’ve had no success challenging the deportation order in court, or if you didn’t challenge it at all, the government will start making arrangements for you to leave the United States. Most of the time it will tell you the exact date to turn yourself in, with bags packed.
If you’ve got a good reason, however, you might be able to convince the government to postpone your departure date.
A medical emergency would be a convincing reason not to leave on the specified day. You might have surgery scheduled around that time, or you might be the only person who can take care of a sick relative. Maybe you were the only person making money for your family, and your spouse needs more time to find a job. Maybe your child’s wedding is happening the week after you are supposed to leave.
You can ask to remain in the United States longer for any reason, but it better be a good one. The government can deny your request if it thinks you are a danger to the community, or on any other grounds.
You make the request to postpone your deportation date by filing Form I-246 with Immigration and Customs Enforcement (ICE). This form is called “Application for a Stay of Deportation or Removal.” You’re asking ICE to "stay" (postpone) your “removal” (deportation). You can ask for a few more weeks, a few months, or even a year. There’s a fee you have to pay in order to file the form.
The Form I-246 comes with instructions, but preparing your application is probably something you want an immigration lawyer’s help with. You have to submit certain documents and a convincing story when you make your request. You don’t file the application with the Immigration Judge -- instead, you file it in person with your local ICE Enforcement and Removal Operations (ERO) office. Your lawyer can be with you during your appointment at the ERO office.
If ICE decides to grant your application, it will tell you how much longer you can remain in the United States. You will be placed under an “order of supervision,” and there may be certain conditions you have to comply with. If you need permission to work, you might even get that.
You should be on your best behavior during your extra time in the United States. ICE can change its mind at any time, and tell you to report for deportation on any date, even if it has previously granted your application for a stay of removal.