By Attorneys Nancy E Miller and Michael Bhotiwihok
During the Obama Administration, noncitizens with deportation or removal orders (referred to hereafter as deportation orders) were often allowed to stay in the United States through the grant of an administrative stay and Order of Supervision (“OSUP”). Provided that they appeared for regularly scheduled appointments with Immigration and Customs Enforcement (“ICE”), noncitizens lived with their families and worked in the United States without the fear of deportation.
Under the Trump Administration’s new immigration policies, noncitizens with deportation orders have become prime targets for arrest, detention, and removal from the United States when they appear for their scheduled check-ins. Individuals with existing deportation orders can be more quickly removed from the United States than noncitizens who have never been placed in removal proceedings.
Under the Obama Administration, administrative stays were generally granted for one year to individuals who were not enforcement priorities. Under the current policy, ICE is only granting administrative stays for a limited time and only when there is a clear end game or purpose, for example the noncitizen is attempting to reopen his removal case or is applying for legal status in a third country or can show concrete plans to return home.
While ICE still considers requests for an administrative stay on an individual basis, it appears that efforts are being increased for noncitizens to produce travel documentation to return them to their home countries. This is especially evident when considering the Trump Administration’s desire to increase deportations to fulfill promises made during the 2016 Presidential Election.
ICE has the authority to decide, upon request, not to execute a final order of removal and to instead issue an Order of Supervision requiring noncitizens to appear at check-ins with ICE on a monthly or yearly basis. The administrative stay allows the noncitizen with an order of deportation to remain in the United States for a specified period without fear of deportation. While noncitizens have an automatic stay during the pendency of an appeal with the Board of Immigration Appeals, the filing of a petition for review in Federal Court does not provide the same automatic stay. An administrative stay is often necessary when appeal rights have been exhausted and no other legal recourse is available to the noncitizen.
Administrative stays must be filed in person with the local office of Enforcement and Removal Operation (“ERO”) with ICE having jurisdiction over where the noncitizen lives. If the administrative stay is approved, the noncitizen will be placed under an Order of Supervision and required to appear for check-ins with ICE.
Administrative stays are granted at the discretion of the ERO officer. Therefore, administrative stays must be properly prepared with strong supporting documentary evidence. Positive equites like the noncitizen’s familial ties to the United States, employment, prior payment of income taxes, contributions to community, any hardship, and future forms of relief from removal must be demonstrated. A noncitizen with a pending motion to reopen and rescind a prior order of deportation or removal may convince an ERO officer to grant an administrative stay. In addition, a noncitizen with an approved family based petition whose priority date is not current, dependent on eligibility to adjust status to that of a lawful permanent resident, may also merit the positive exercise of discretion with the granting of an administrative stay. As in other cases where a non-citizen is seeking a benefit, the burden of proof is on that non-citizen to show that she merits a favorable decision.
Apart from not being removed from the United States, an administrative stay offers other benefits to noncitizens with deportation orders. With an approved administrative stay, noncitizens can obtain work authorization and the ability to apply for a social security card and driver’s license. Also, while the administrative stay is in effect, the noncitizen may be able to avail to any change in the law or become eligible for relief from removal.
This seismic shift in immigration policy has created fear and anxiety for noncitizens with orders of deportation or removal, because of the very real possibility of their being detained and removed from the United States. However, individuals with Orders of Supervision must continue to report to ICE for their regular check-ins. Failure to do so can result in ICE going to get them at home or place of employment.
The prospect of a noncitizen’s deportation is terrifying. Given the recent change in immigration policy and developments, , it is strongly advised that noncitizens consult with an experienced and knowledgeable immigration attorney for representation at Order of Supervision appointments and to determine if filing an administrative stay of deportation or removal with ICE’s local ERO office in in their best interests.
