Stay/Deferral of Removal Orders
Requests for deferral and stays in the Federal Court can be essential in certain circumstances to delay or prevent removal or deportation from Canada. If you’ve received a Removal Order and a removal date has been set, our Brampton team can help you understand whether a deferral request, a Federal Court stay, or an appeal is the right path for your situation.
Request for Deferral
If a removal date has been set, individuals can request a deferral of their deportation from the Canada Border Services Agency (CBSA). To be successful, they must demonstrate compelling or exigent personal circumstances that go beyond the typical hardships associated with removal. The officer’s discretionary authority to grant a deferral is limited.
Judicial Stay at the Federal Court
If unsuccessful in obtaining a deferral, or when there is a pending Federal Court proceeding, individuals can request a judicial stay to halt the execution of their removal order until the court matter is resolved. A judicial stay can only be granted when there is a specific issue in dispute before the court — this option allows for a legal challenge to the denial of a deferral request, often alongside a Judicial Review application.
Motion for Stay of Removal at the Federal Court
You can file a Motion to Stay removal if CBSA has issued a direction to report indicating your expected removal time. Typically, you first request a deferral of removal from CBSA — if this is denied, you can apply for Leave and Judicial Review of the refusal at the Federal Court, then apply for a Motion to Stay removal until the court’s decision. If you already have a matter before the Federal Court, you may bring this Motion within that existing case. The court primarily weighs three factors:
The seriousness of the issue in the underlying Leave and Judicial Review application
Whether the individual would suffer irreparable harm if not granted the stay and removed from Canada
Balancing the situation of both parties to determine whether granting the stay is appropriate
Enforceable Removal Order Becoming Unenforceable
When a removal order becomes enforceable, it means all conditions for a stay are no longer applicable. Conversely, an unenforceable removal order is one that has been stayed for any reason. Individuals subject to an unenforceable removal order may include: PRRA applicants awaiting an outcome; those granted a stay by the Federal Court; foreign nationals from a country under a temporary stay of removal by the Minister; and individuals CBSA cannot remove due to circumstances beyond their control, such as an inability to obtain a travel document. Merely lacking a travel document doesn’t on its own qualify someone for a work permit — the applicant must prove the inability is due to genuinely uncontrollable circumstances, such as a refused passport application, and cooperation with CBSA’s removal procedures.
FAQ’s
If the Canada Border Services Agency (CBSA) instructs you to appear on a specific date and time for removal from Canada, you have the option to request a deferral of removal. This entails asking the CBSA to postpone your removal for a certain period. If the CBSA denies your deferral request, you might have the opportunity to proceed to the Federal Court of Canada and file a motion for a stay of removal. In some cases, instead of seeking deferral directly from the officer, you may opt to pursue a motion for a stay of removal through an existing application for leave and judicial review already underway at the Federal Court of Canada. To be successful, individuals must demonstrate compelling or exigent personal circumstances that go beyond the typical hardships associated with removal. The CBSA officer has limited discretionary authority in granting a deferral, and the circumstances presented must be compelling. A Judicial Stay can be granted when there is a specific issue in dispute before the court, allowing for a halt to the execution of the removal order until the court matter is resolved. It provides individuals with an avenue for a legal challenge to the denial of a deferral request, ensuring a fair and thorough examination of their case by the Federal Court. If the Canada Border Services Agency (CBSA) instructs you to appear on a specific date and time for removal from Canada, you have the option to request a deferral of removal. This entails asking the CBSA to postpone your removal for a certain period. If the CBSA denies your deferral request, you might have the opportunity to proceed to the Federal Court of Canada and file a motion for a stay of removal. In some cases, instead of seeking deferral directly from the officer, you may opt to pursue a motion for a stay of removal through an existing application for leave and judicial review already underway at the Federal Court of Canada. To be successful, individuals must demonstrate compelling or exigent personal circumstances that go beyond the typical hardships associated with removal. The CBSA officer has limited discretionary authority in granting a deferral, and the circumstances presented must be compelling. A Judicial Stay can be granted when there is a specific issue in dispute before the court, allowing for a halt to the execution of the removal order until the court matter is resolved. It provides individuals with an avenue for a legal challenge to the denial of a deferral request, ensuring a fair and thorough examination of their case by the Federal Court. What is the option if CBSA has given me Direction to Report for removal?
What is the key requirement for a successful Request for Deferral?
What discretionary authority does the CBSA officer have in granting a deferral?
Under what conditions can a Judicial Stay be granted by the Federal Court?
What purpose does a Judicial Stay serve in the context of removal orders?
What is the option if CBSA has given me Direction to Report for removal?
What is the key requirement for a successful Request for Deferral?
What discretionary authority does the CBSA officer have in granting a deferral?
Under what conditions can a Judicial Stay be granted by the Federal Court?
What purpose does a Judicial Stay serve in the context of removal orders?
Note: “The information herein is provided for informational purposes only and should not be construed as legal advice. Read our complete Legal Disclaimer on Website”
Book a Consultation With a Brampton Stay of Removal Lawyer
Facing a removal date? Contact Batra Law Offices today to discuss a deferral request or a Federal Court stay. Call us at +1 905-533-0183 or WhatsApp us to get started.