I am often contacted by potential clients worried because they are under an order of removal and might be deported from the United States. The first thing I do is check to see whether the removal order is final and unappealable. Sometimes there is still time to file an appeal – either to the Board of Immigration Appeals or to the court of appeals – to challenge the removal order. In many cases, however, it is too late to file an appeal. In such cases, where the removal order is final and unappealable, the question becomes whether the person is eligible for some type of collateral relief.
Many immigrants have lived in the United States under a final order of removal because for one reason or another Immigration and Customs Enforcement (ICE) decides not to enforce the order. Sometimes people are in the United Status living under a final removal order for many years, in some cases 20 years or more. During this time things can change. People get married and have children. Some people become the victim of a crime. Sometimes conditions in the home country change and the person becomes eligible for asylum. Over time individuals living under a final removal order become eligible for “collateral” immigration benefits – i.e., benefits that were not available in the removal proceedings before the immigration court. For example, a person may become eligible for one or more of the following collateral benefits:
- adjustment of status based on marriage to a U.S. citizen
- U-visa
- T-visa
- a “provisional waiver”
- temporary protected status
- DACA
- asylum or withholding of removal based on changed country conditions
If ICE takes steps to remove the person before they can apply or before a decision is issued, can they obtain a stay of removal from the court? The issue is complex, and courts have not given a consistent answer.
At first glance, there are two potential problems with obtaining a stay of removal from the courts. First, INA section 242(g) states that no court has jurisdiction to hear a claim “arising from” ICE’s decision to execute removal orders against noncitizens. And second, sections 242(a)(5) and (b)(9) in combination provide that the sole and exclusive means for judicial review of all questions of law and fact “arising from” any action taken to remove a noncitizen from the United States is in the court of appeals in the context of an appeal from the final order of removal. Some district courts, relying on these provisions, have held that there is no jurisdiction to issue a stay of removal while a nonimmigrant pursues collateral relief. These decisions allow ICE to remove a noncitizen from the United States even though the person is eligible for a collateral immigration benefit that, if granted, would give that person status in the United States. Such an interpretation of the statute is, however, mistaken.
In filing a lawsuit to protect a client’s right to apply for a collateral immigration benefit, it is important not to present the claim as a challenge to ICE’s decision to execute the removal order. Rather, frame the complaint as based on the right to apply for and obtain the benefit. The claim in such a complaint “arises from” the plaintiff’s right to apply for the benefit, not from ICE’s decision to execute a removal order. That is most obvious if there is no removal order at play. In such a case, if the plaintiff files a complaint challenging the agency’s refusal to adjudicate the application or the agency’s decision to deny the application, because there is no removal order it is clear that the claim does not “arise from” ICE’s decision to execute a removal order. The complaint is precluded neither by 242(g) nor by 242(a)(5) and (b)(9). The fact that an order of removal is later issued – or was previously issued – should make no difference. The court still has jurisdiction because the claim in the complaint as written “arises from” the plaintiff’s right to apply for and/or obtain the collateral immigration benefit.
Where a district court has jurisdiction over the claim presented, the court also has the power to preserve the status quo. Under section 705 of the Administrative Procedure Act, the court can issue any order necessary to “postpone the effective date of an agency action or to preserve status or rights” of the plaintiff pending conclusion of the lawsuit. Thus, where the complaint is properly formulated and the court has jurisdiction, the court is not precluded from granting a stay of removal.
Cases in which ICE takes steps to remove a person who is eligible for collateral immigration benefits can be difficult and complicated. Because courts have not been consistent in their rulings, before filing a complaint seeking a stay of removal counsel should review the case law on section 242 in the jurisdiction in which the complaint is to be filed. But in appropriate cases, a properly framed complaint should be a basis for obtaining a stay of removal allowing the client to obtain the immigration benefits to which they are entitled.
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For those looking for more information about options their clients may have, Robert Pauw’s latest edition of Litigating in Federal Court is available for pre-order now and will be shipping later this week!