Emergency Stay of Removal and Form I-246: How Stay Requests Work

Someone you love has a removal date. Maybe a deportation officer said it out loud at a check-in. Maybe a letter came. Maybe a lawyer told you there was nothing left to do. Before anything else, here is the short answer you came for. A stay of removal is an order or decision that temporarily delays a physical removal. There is more than one place to ask for one, and which one fits depends on where the case sits right now. Filing the ICE form by itself does not stop a removal, because the regulation says so in as many words.

This guide walks through three possible paths, what each one requires, and what the law says about how these requests are decided.

Three paths

The first is ICE itself. You can ask the agency carrying out the removal to hold off, using a form called the I-246. It is a discretionary administrative request, decided by the Enforcement and Removal Operations field office director, not by a judge.

The second is immigration court and the Board of Immigration Appeals. Some filings here pause a removal automatically, by operation of the rules. Others have to be granted specifically.

The third is the federal court of appeals, on a petition for review. Filing that petition does not pause anything by itself.

These are not interchangeable, and the one that fits depends on the posture of the case.

Path one: asking ICE, on Form I-246

The regulation is 8 C.F.R. section 241.6, and the form is ICE Form I-246, Application for a Stay of Deportation or Removal, currently the 10/24 edition.

What it costs. The filing fee is $155.00. The form directs that payment be made out to either the Department of Homeland Security or Immigration and Customs Enforcement, and lists cash, money order, or cashier's check as accepted methods. The $155 figure appears both on the form and in the fee regulation at 8 C.F.R. section 103.7(d)(6), which also provides that the fee may be waived. DHS has proposed raising it to $755, published in May 2026 with a comment period that closed in July. As of September 7, 2026 no final rule has been published and the fee remains $155. Anyone filing should confirm the current amount first, because this one is actively in motion.

Where it goes. In person, at the ICE Enforcement and Removal Operations field office with jurisdiction. If the person is detained, that is the office holding them. If not, it is the office nearest their residence. The form lists filing at the wrong office and failing to submit in person as grounds for rejection. Mail may be permitted as a case by case exception if that field office agrees, and the current form identifies no general electronic filing channel.

What goes with it. A passport valid at least six months past the period being requested, or a copy of the passport plus a birth certificate or other identity documents, or, if there is no valid passport, proof that an application for one has been made. Police reports and dispositions for every arrest. Judgment, conviction, and sentencing documents for every conviction. Medical documentation where a medical condition is the basis for the request. And a written statement of the reasons for the request. ICE retains submitted documents pending final disposition of the request, which is worth knowing before handing over an original passport.

What a grant produces. An Order of Supervision. It may also require an OSUP bond, with a minimum of $1,500. Each family member needs a separate application.

The part the regulation is blunt about

Filing does not pause anything. Section 241.6 states that neither the request, nor the failure to receive a decision on it, delays a removal or relieves anyone of strict compliance with an outstanding notice to surrender. The form repeats the point and adds that no advance notice is required before a final order is carried out.

It goes further. Even a granted stay may be revoked at the field office director's discretion, including for any reason, without advance notice.

None of that makes the I-246 pointless. It makes it a discretionary request rather than a protection, and it means filing and waiting is not by itself a plan.

Path two: the stays that operate by rule

Some filings pause a removal without anyone granting anything. These are narrow, and the differences between them decide real cases.

A timely appeal to the Board. Under 8 C.F.R. section 1003.6, an immigration judge's decision cannot be executed during the time allowed for filing an appeal, and cannot be executed while the appeal is pending, unless the right to appeal was waived. This stay operates by rule rather than by a separate grant.

That protection has a limit. Section 1003.6(b) carves out an order denying a motion to reopen, reconsider, or stay. Appealing the denial of a motion does not carry the same automatic effect, subject to the exception noted below.

A motion to reopen a removal order entered in absentia. If someone was ordered removed because they were not at their hearing, the statute itself supplies the pause. INA section 240(b)(5)(C), 8 U.S.C. section 1229a(b)(5)(C), provides that filing a qualifying motion to reopen stays the removal pending the immigration judge's disposition of the motion. The regulation at 8 C.F.R. section 1003.23(b)(4)(ii) says the same thing.

Three limits define it. The motion has to be a qualifying one, meaning it argues exceptional circumstances within 180 days, or lack of proper notice, or federal or state custody through no fault of the person. The pause runs only until the immigration judge rules, not through an appeal of a denial. And only one motion of this kind may be filed.

A motion to reopen an in absentia deportation or exclusion order. This provision is broader than the one above. Under 8 C.F.R. section 1003.23(b)(4)(iii)(C), a qualifying motion to reopen an in absentia deportation order stays the deportation pending decision on the motion and through the adjudication of any properly filed administrative appeal. Whether a case sits under this provision or the removal provision changes how long the pause lasts.

Outside provisions like these, the rules are explicit that filing a motion does not stop a removal. Whether the motion is before the immigration judge under 8 C.F.R. section 1003.23(b)(1)(v), which excepts in absentia cases, or before the Board under 8 C.F.R. section 1003.2(f), a stay has to be granted specifically.

Path three: asking a court

When a stay must be requested rather than assumed, the framework comes from Nken v. Holder, 556 U.S. 418 (2009). The Supreme Court set out four considerations: whether the applicant has made a strong showing of likely success on the merits, whether the applicant will be irreparably injured absent a stay, whether a stay would substantially injure the other parties, and where the public interest lies.

The Court was specific about weight. "The first two factors of the traditional standard are the most critical," and on the first, it is "not enough that the chance of success on the merits be 'better than negligible.'" The Court also said the third and fourth factors "merge when the Government is the opposing party."

Two points require clarification.

First, this is not a sliding scale. Older Second Circuit language suggested the showing required on one factor could rise or fall with the others, but that approach predates Nken. The Second Circuit now applies the factors directly. In Sarr v. Garland, 50 F.4th 326 (2d Cir. 2022), the court denied a stay where the applicant had shown neither likely success nor irreparable injury, with no offsetting between the two.

Second, the hardship of deportation is not by itself the injury the standard asks about. Nken says the burden of removal alone cannot constitute the requisite irreparable injury. Removal itself, without a separate showing of irreparable injury, is not enough.

Filing a petition for review does not pause anything. 8 U.S.C. section 1252(b)(3)(B) provides that service of the petition does not stay removal unless the court orders otherwise. A separate stay motion is required.

One point specific to New York. In 2012, the Second Circuit described a government forbearance policy under which removal would not occur while a petition for review was pending, in In re Immigration Petitions for Review Pending in the U.S. Court of Appeals for the Second Circuit, 702 F.3d 160 (2d Cir. 2012). The court described it as an assumption, and said that if a petitioner is advised the assumption is unwarranted, the petitioner may promptly apply for a stay. It was a practice rather than a right when the court described it, and anyone relying on it today should confirm it still holds.

The line about boarding

Section 241.6(c) contains a sentence that shapes how this work is done. A stay granted by an immigration judge or the Board ceases to have effect if it is granted, or communicated, after the person has been placed aboard an aircraft or other conveyance for removal and normal boarding has been completed.

That rule is written about stays from the immigration judge or the Board, and it does not speak to every order that might exist in a case. Within its terms, though, the cutoff is fixed: once normal boarding is complete, such a stay no longer operates.

What the numbers show about the pace

Some figures on the current scale of removal operations. According to Human Rights First's ICE Flight Monitor, ICE conducted 2,253 removal flights between January 20, 2025 and January 20, 2026, a 46 percent increase over the 1,544 removal flights in the preceding year. In February 2026, ICE ran 1,630 immigration enforcement flights. Of those, 183 were removal flights and 1,170 were domestic transfer flights.

ICE's own detention statistics show 65,765 people in detention as of July 11, 2026. By the agency's own counts, 46,436 of them, just over seventy percent, had no criminal conviction.

Where to start

If a removal date is known or suspected, a few things are worth doing immediately.

Establish where the case actually stands. Whether there is a pending appeal, a final Board order, an order entered in absentia, or nothing pending at all determines which path is available. Review the documents the family already has to work out the posture.

Identify the deportation officer and the ERO field office with jurisdiction. ICE executes removals and decides I-246 requests, so that office matters for both.

Gather documents. A passport, records for every arrest and every conviction, and medical records where a medical condition is part of the request. Those are what the I-246 requires.

Then speak with a lawyer who handles this work. The Board's Emergency Stay Unit, reachable at 703-306-0093, is closed on federal holidays and considers emergency stay requests only on non-holiday weekdays between 8:30 a.m. and 5:00 p.m. Eastern, according to EOIR's Policy Manual.

Delay does not just cost time. It removes options, because several of the paths above depend on deadlines that have not yet passed.

Frequently asked questions

How do I file a stay of removal with ICE?

You file ICE Form I-246 in person at the Enforcement and Removal Operations field office with jurisdiction over the case, which is the office holding the person if they are detained, or the office nearest their residence if they are not. The fee is $155.00, made out to either the Department of Homeland Security or Immigration and Customs Enforcement, by cash, money order, or cashier's check. Filing at the wrong office and failing to submit in person are listed grounds for rejection, and the current form identifies no general electronic filing channel.

What is the filing fee for Form I-246?

$155.00. That figure appears on the current 10/24 edition of the form and in the fee regulation at 8 C.F.R. section 103.7(d)(6), which also provides that the fee may be waived. DHS published a proposed rule in May 2026 that would raise it to $755, and the comment period closed in July 2026. As of September 7, 2026 no final rule has been published. Confirm the current amount before filing.

Does filing Form I-246 stop a deportation?

No. Section 241.6 states that neither the request nor the failure to receive a decision on it delays removal or relieves anyone of strict compliance with an outstanding notice to surrender. The form adds that a pending application does not preclude execution of a final order and that no advance notice is required. A granted stay may also be revoked at the field office director's discretion, without advance notice.

What is the difference between a stay of removal and cancellation of removal?

A stay is temporary. It delays a physical removal and does not by itself resolve the underlying case. Cancellation of removal is a form of relief under 8 U.S.C. section 1229b, which sets out separate provisions for certain permanent residents and certain nonpermanent residents. Which one is relevant depends on the posture of the case.

Does filing an appeal automatically stop a deportation?

Sometimes. A timely appeal to the Board suspends execution under 8 C.F.R. section 1003.6, unless the right to appeal was waived. A qualifying motion to reopen a removal order entered in absentia stays removal under INA section 240(b)(5)(C) until the immigration judge rules, and only one such motion may be filed. A qualifying motion to reopen an in absentia deportation or exclusion order under 8 C.F.R. section 1003.23(b)(4)(iii)(C) is broader, running through any properly filed administrative appeal. Outside provisions like these, filing a motion does not stop a removal, and neither does filing a petition for review.

What standard does a court apply to an emergency stay motion?

The four factors from Nken v. Holder. The Supreme Court said the first two, likelihood of success and irreparable injury, are the most critical, that it is not enough for the chance of success to be better than negligible, and that the third and fourth factors merge when the government is the opposing party. It is not a sliding scale, and the burden of removal alone does not constitute the requisite irreparable injury.

What happens if someone is deported before the court rules on the petition for review?

Nken addressed this. The Court wrote that people who are removed may continue to pursue their petitions for review, and that those who prevail can be afforded effective relief by facilitation of their return along with restoration of the status they held at removal. The Court cited the government's brief for that, meaning it was describing the government's own representation about its practice rather than announcing a remedy a removed person can demand.

What we do

Our practice includes federal court litigation in the circuit courts and federal district courts, habeas corpus petitions, and deportation defense before the immigration courts and the Board.

We cannot promise a stay, and you should be cautious with anyone who does. Section 241.6 leaves the decision to a field office director's discretion, a granted stay may be revoked without advance notice, and courts apply the demanding standard Nken describes. What we can commit to is careful, timely preparation on the record available, filed where it belongs.

If someone you love has a removal date, call us at (212) 219-3244. The consultation is free, and we work in English, Spanish, French, Haitian Creole, and Mandarin. Bring whatever paperwork exists, even if it seems like nothing, so we can review it and identify which path remains open.