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IMMIGRATION DEFENSE, RELIEF FROM DEPORTATION, WAIVERS Crimes and Immigration Waivers

CANCELLATION OF REMOVAL & ADJUSTMENT OF STATUS: Non-citizens-with or without permanent resident status, who are deportable from the United States may still be able to remain if an immigration judge has canceled their departure.

There are four categories of cancellation of removal.

  1. Cancellation of removal for certain permanent residents;
  2. Cancellation of removal for certain nonpermanent residents.
  3. Battered spouse or child cancellation of removal; and
  4. Cancellation of removal for NACARA beneficiaries.

Cancellation and adjustment for Permanent residents

The Attorney General may cancel removal in the case of an alien who is
inadmissible or deportable from the United States if the alien -

(1) has been an alien lawfully admitted for permanent residence for not
less than 5 years,

(2) has resided in the United States continuously for 7 years (date of
offense stops time of lawful residence) after having been admitted in
any status, and

(3) has not been convicted of any aggravated felony.

Cancellation and adjustment for NonPermanent residents

The Attorney General may cancel removal of, and adjust to the status
of an alien lawfully admitted for permanent residence, an alien who is
inadmissible or deportable from the United States if the alien

(A) has been physically present in the United States for a continuous
period of not less than 10 years immediately preceding the date of such
application;

(B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under section 1182(a)(2),
1227(a)(2), or 1227(a)(3) of this title; and (D) establishes that
removal would result in exceptional and extremely unusual hardship to
the alien's spouse, parent, or child, who is a citizen of the United
States or an alien lawfully admitted for permanent residence.

Cancellation of removal (cancellation) is a process that confers lawful
permanent resident status on certain removable noncitizens who have been
in the United States a long time. Although removal is always a heavy
burden, its impact is most severe when the person being removed has
established deep roots in the United States. Therefore Congress
introduced measures by which noncitizens who face removal may have their
removal cancelled if they demonstrate lengthy physical presence and
substantial ties in the United States, and they have not committed
certain crimes. Application for this relief can be made only in
removal proceedings.

Cancellation of removal was introduced by the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRAIRA) to replace two
familiar forms of relief from deportation--relief under § 212(c) of
the Immigration and Nationality Act (INA) and suspension of deportation.
The IIRAIRA imposes substantially higher eligibility requirements than
those associated with the earlier forms of relief.

Cancellation of Removal for Certain Permanent Residents

Under former law, INA § 212(c) provided a waiver for grounds of
excludability, and those grounds of deportability for which there was a
comparable ground of excludability, for lawful permanent residents
returning to or maintaining a lawful unrelinquished U.S. domicile of
seven consecutive years.

Section 212(c) relief was severely restricted by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), which was enacted in April
1996. The AEDPA made a § 212(c) waiver unavailable to people convicted
of almost all crimes, including aggravated felonies, firearms offenses
and controlled substances offenses. The IIRAIRA repealed INA § 212(c),
effective April 1, 1997, and replaced it with a new form of relief,
cancellation of removal for certain permanent residents. In some cases
the new law is more favorable to noncitizens than the prior INA. Some
individuals who were not eligible for § 212(c) relief now are eligible
for § 240A(a) cancellation of removal. These include persons convicted
of a simple possessory drug or firearms offense. Because these crimes
are not aggravated felonies, cancellation is not precluded.

The INA provides that the Attorney General ''may'' cancel removal for an
inadmissible or deportable noncitizen who:

  1. has been an lawful permanent resident (LPR) for at least five years;
  2. has resided in the United States continuously for seven years after
    having been admitted in any status; and
  3. has not been convicted of an aggravated felony at any time.

Note that unlike cancellation of removal for certain nonpermanent
residents (INA § 240A(b), this form of relief does not require the
noncitizen to have been continuously physically present in the United
States. Nor does it require any showing of hardship. While there is no
requirement of a specific showing of hardship, the factors that guide
the judge's exercise of discretion are similar to the factors that guide
a determination of hardship.

LPR Status and Continuous Residence

To qualify for cancellation of removal under this section, the applicant
must show that she has been a lawful permanent resident for five years
and has accrued seven years of continuous physical residence in the
United States after admission in any status.

The INA defines admission as ''lawful entry into the United States after
inspection and authorization by an immigration officer.'' A noncitizen
who is paroled for humanitarian reasons or permitted to land temporarily
as an alien crewman is not considered to have been admitted. However,
the Board of Immigration Appeals (BIA or Board) has ruled that a
noncitizen who entered the United States without inspection but who
subsequently adjusted status is considered to have been admitted at the
time of adjustment.

The accrual of continuous residence ends upon the earlier of either of
two occurrences: when the noncitizen:

  1. is served a notice to appear (NTA); or
  2. ''has committed'' an offense referred to in INA § 212(a)(2) (criminal
    grounds of inadmissibility that renders the person inadmissible under
    INA § 212(a)(2) or removable under INA §§ 237(a)(2) (criminal grounds of
    deportability or 237(a)(4) (security grounds of deportability)

An important distinction must be made between the termination of
''continuous residence'' and the termination of status as a lawful
permanent resident. The statute governing the termination of continuous
residence concerns termination of the accrual of time as a resident. It
does not purport to terminate an LPR's status as a lawful resident.
Therefore, time as a lawful permanent resident continues to accrue even
after the individual commits an offense for which she is removable, and
after a notice to appear has been issued. A noncitizen may even file a
motion to reopen proceedings to apply for cancellation notwithstanding
an administratively final order, if he or she becomes eligible for that
relief within the 90 days following the entry of the final order.

A noncitizen who has served at least 24 months of active-duty in the
armed forces and was admitted to the military in the United States need
not fulfill the continuous residence requirement.

No Aggravated Felony Conviction

A noncitizen is ineligible for relief under this section if he or she
has been convicted of an aggravated felony at any time.

Exercise of Discretion

Cancellation of removal is a discretionary form of relief. There is,
therefore, no fixed standard that determines who merits relief. Rather,
the immigration judge ''must balance the adverse factors evidencing the
alien's undesirability as a permanent resident with the social and human
considerations presented on his (or her) behalf to determine whether the
granting of... relief appears in the best interest of this country.''

The BIA ruled in Matter of C-V-T- that the general standards developed
in case law regarding the exercise of discretion under INA § 212(c)
should also guide the exercise of discretion for cancellation of removal
under this section. However, the Board also noted that case law
pertaining to suspension of deportation (former INA § 244(a)(1)) should
not be applied to this kind of cancellation, finding ''it prudent to
avoid cross-application...of particular principles or standards for the
exercise of discretion.''

The Board cited the following factors as relevant to the favorable exercise of discretion:

  • family ties within the United States;
  • residence of long duration in this country (particularly when the
    inception of residence occurred at a young age);
  • evidence of hardship to the respondent and his or her family if
    deportation occurs;
  • service in this country's armed forces;
  • a history of employment;
  • the existence of property or business ties;
  • evidence of value and service to the community;
  • proof of genuine rehabilitation if a criminal record exists; and
  • other evidence attesting to the respondent's good character.

Factors that may be deemed adverse include:

  • the nature and underlying circumstances of the grounds removal that
    are at issue;
  • the presence of additional significant violations of this country's
    immigration laws;
  • the existence of a criminal record and, if so, its nature, recency,
    and seriousness; and
  • the presence of other evidence indicative of a respondent's bad
    character or undesirability as a permanent resident of this country.

The Board noted that ''[i]n some cases, the minimum equities required to
establish eligibility for relief under section 240A(a) (i.e., residence
of at least 7 years and status as a lawful permanent resident for not
less than 5 years) may be sufficient in and of themselves to warrant
favorable discretionary action... . However, as the negative factors
grow more serious, it becomes incumbent upon the alien to introduce
additional offsetting favorable evidence, which in some cases may have
to involve unusual or outstanding equities.'' The Board also
specifically noted that a respondent who has a criminal record will
ordinarily be required to present evidence of rehabilitation before
relief is granted.

The hardship factors relevant in evaluating whether deportation would
result in exceptional and extremely unusual hardship to the qualified
relatives, are the following:

1) The age of the alien, both at the time of entry to the U.S. and at
the time of applying for suspension; 2) The age, number, and immigration
status of the applicant's children and their ability to speak the native
language and adjust to life in another country; 3) The health condition
of the alien or the alien's child, spouse, or parent, and the
availability of any required medical treatment in the country to which
the alien would be returned; 4) The alien's ability to obtain employment
in the country to which the alien would be returned; 5) The length of
residence in the U.S. 6) The existence of other family members who will
be legally residing in the U.S. 7) The financial impact of the alien's
departure; 8) The impact of a disruption of educational opportunities;
9) The psychological impact of the alien's deportation or removal; 10)
The current political and economic conditions in the country to which
the alien would be returned; 11) Family and other ties to the country to
which the alien would be returned; 12) Contributions to and ties to a
community in the U.S., including the degree of integration into American
society; 13) Immigration history, including authorized residence in the
U.S.; 14) The availability of other means of adjusting to permanent
resident status.

Cancellation cases are not easily won. BIA decisions construe extreme
hardship narrowly. Matter of Ngai, 19 I & N Dec. 245 (BIA 1984).
Immigration Judges typically undertake the type of balancing analysis
which weighs the positive factors in your record against the adverse or
negative factors. An alien facing sentencing for a recent crime
involving moral turpitude or an aggravated felony could not establish
the good moral character required for relief. In this regard, it should
be noted that 8 U.S.C. § 1101(f)(8) expressly precludes a finding of
good moral character for an alien convicted of an aggravated felony.

An applicant for cancellation of removal under section 240A(a) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (Supp. V 1999),
need not meet a threshold test requiring a showing of “unusual or
outstanding equities” before a balancing of the favorable and adverse
factors of record will be made to determine whether relief should be
granted in the exercise of discretion. Matter of C-V-T-, Interim
Decision 3342 (BIA 1998), clarified. Javier Sotelo-Sotelo, 23 I&N Dec.
201 (BIA 2001) Interim Decision #3460, October 25, 2001.

FALLS CHURCH, Va, August 13, 2002: Rule Published to Implement Supreme Court's St. Cyr Decision.
St. Cyr Rule Rule Implements Procedures for Certain Criminal Aliens Seeking Section 212(c) Relief from Deportation or Removal.
(Printable pdf version)

The Executive Office for Immigration Review published a proposed rule in
the Federal Register establishing procedures for eligible lawful
permanent residents (LPRs) with certain criminal convictions, prior to
April 1, 1997, to apply for relief from deportation or removal under
former section 212(c) of the Immigration and Nationality Act. This
relief is available to eligible individuals who are currently in
immigration proceedings, who may be placed in removal proceedings, or
who have completed immigration proceedings and are under final orders of
deportation or removal. It does not apply to those who have already been
deported from the United States. This proposed rule implements the U.S.
Supreme Court's decision in INS v. St. Cyr, 121 S.Ct. 2271 (2001). It
sets forth procedures for certain lawful permanent residents to apply
for discretionary relief from deportation or removal under former
section 212(c) of the Immigration and Nationality Act (INA)

Until 1996, under section 212(c) certain LPRs, who resided in the United
States for at least seven years and had committed a crime, could seek
relief to avoid deportation on criminal grounds. In considering a grant
of relief under section 212(c), an Immigration Judge would weigh
negative factors, such as the severity of the crime, against positive
factors, such as the individual's rehabilitation and ties to the
community.

Congress sharply curtailed section 212(c) relief through provisions of
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and
then eliminated this relief in the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA).

On June 25, 2001, the Supreme Court decided in INS v. St. Cyr that LPRs
– whose criminal convictions were obtained through plea agreements prior
to April 1, 1997 – would be eligible for section 212(c) relief if they
would have been eligible for this relief at the time they were convicted
by plea agreement. The decision provides the broadest form of section
212(c) relief to those with criminal convictions prior to April 24, 1996
(the effective date of the AEDPA legislation). More limited section
212(c) relief is available to those with criminal convictions entered
after April 24, 1996, and March 31, 1997 (the period immediately
preceding the effective date of the IIRIRA legislation).

The St. Cyr decision affects thousands of pending cases in federal and
Immigration Courts, as well as a potentially large number of individuals
who have not yet come before an Immigration Court. This proposed rule
establishes a fair and efficient process to restore section 212(c)
relief to those who are eligible. It is important to note that eligible
individuals under final orders of deportation or removal who are still
in the United States must apply for this relief within 180 days after
the publication of the final rule.

The proposed rule is available on the Internet at
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2002_register&
docid=02-20403-filed.pdf
.

VOLUNTARY DEPARTURE

Voluntary departure is a process by which an illegal alien who would
otherwise be removed (formerly referred to as deported) or granted
other forms of relief agrees to leave the country voluntarily. A
voluntary departure grant enables aliens to avoid the penalties and
stigma of removal while potentially saving the U.S. Government
detention and removal costs. When an alien has been ordered removed,
that alien may not legally enter the United States or receive any
other immigration benefit for 10 years,
without special permission
from the Attorney General.

Voluntary departure allows aliens to avoid the 10-year ban on
re-entry and receiving benefits by agreeing to depart the United
States voluntarily, thus carrying no impediment to legally returning
to the United States. Immigration law includes no limit on the
number of times that an alien may receive voluntary departure, as
long as the alien actually leaves the United States within the
specified time frame. However, any alien who receives a voluntary
departure grant and fails to depart within the specified time frame
is ineligible for a period of 10 years for certain forms of relief,
including another grant of voluntary departure, cancellation of
removal, and adjustment of status.

Aliens who receive voluntary departure either entered the United
States illegally, or in some other way violated their immigration
status. Many entered the United States by crossing the Mexican or
Canadian border, on foot or in vehicles, and avoiding inspection by
an immigration inspector. A smaller number entered illegally by
ship. Some of those who entered illegally by land or sea may have
paid alien smugglers for their passage into the United States. Other
aliens who receive voluntary departure entered the country legally
with a visa, usually by air, but remained past the date on which
they were required to leave; INS calls these aliens "visa
overstays." Aliens may also fail to comply with the conditions of
their immigration status (e.g., conditions regarding their right to
employment). Regardless of how they entered the country, all aliens
receiving voluntary departure are illegally in the United States and
could be removed.

Voluntary departure is available both during and prior to removal
proceedings. If voluntary departure is granted before removal
proceedings, the individual will have up to 120 days to leave the
country. If voluntary departure is granted after removal proceedings,
however, the individual will have only 60 days to leave the country.
Arriving aliens, aggravated felons and terrorists are not eligible
for voluntary removal. The decision whether to grant voluntary
departure to an eligible alien is made by an INS officer or by an
immigration judge based on humanitarian concerns, prior immigration
law violations and other discretionary factors.

Who Grants Voluntary Departure?

EOIR immigration judges and INS district officers grant voluntary
departure to illegal aliens. Immigration judges grant voluntary
departure in EOIR removal proceedings. During removal proceedings,
aliens often appear before an immigration judge to request voluntary
departure, asylum, or some other form of relief from removal
In each removal proceeding case, an INS trial attorney, who
represents the U.S. Government, and the alien or the alien's
attorney make arguments and present evidence. Immigration judges
make their decisions to order aliens removed or grant them some form
of relief by weighing the charges, facts, and issues of law
presented to them by the attorneys. A voluntary departure grant from
an immigration judge includes a specific date by which the alien
must leave the United States. Unless the alien has been detained by
INS during the removal proceedings, the alien must depart unescorted
and at his or her own expense by the voluntary departure date.

In removal proceedings, an Immigration Judge may grant voluntary
departure either at the master calendar stage of proceedings or at
their completion. 8 C.F.R. § 240.26 (1999). The Immigration Judge
may also grant voluntary departure at any time prior to the
completion of proceedings if the Service stipulates to a grant.
8 C.F.R. § 240.26(b)(2).

____________________________

PRIOR TO COMPLETION OF REMOVAL PROCEEDINGS

Prior to the conclusion of removal proceedings, an alien must
concede removability, withdraw all claims to other forms of relief,
and waive all appeals. 8 C.F.R. § 240.26(b)(1)(i). Voluntary
departure may be granted for up to 120 days in lieu of, or prior to
the conclusion of, a removal proceeding.

AT THE CONCLUSION OF THE HEARING

At the conclusion of removal proceedings, aliens do not need to meet
the above criteria. Instead, they must demonstrate good moral
character, means and intention to depart, and one year's physical
presence in the United States. If voluntary departure is granted
after removal proceedings, the individual will have only 60 days to
leave the country.

Some persons are not eligible for voluntary departure, possibly
because they have been convicted of a serious crime, or cannot
demonstrate that they have good moral character. For example,
spending an actual 180 days or more in custody will preclude a
noncitizen from showing "good moral character," a common requirement
for an undocumented immigrant to receive lawful status, or for a
lawful resident to become a U.S. citizen through naturalization from
the INS. (8 U.S.C. Sec. 1101(f)(7).

___________________________________

Aliens requesting departure must show they have the financial means
to depart; they will not be eligible to apply for work authorization
based upon being granted voluntary departure.

To ensure an alien's timely departure, INS may require a bond,
evidence of travel documents, detention of the alien until departure
and/or removal under safeguards. Aliens who fail to depart will be
ineligible for 10 years for voluntary departure, change of status,
adjustment of status and cancellation of removal. Aliens who fail to
depart may also be assessed civil or criminal penalties.

How Do I Post Bond?

If voluntary departure is granted at the conclusion of removal
proceedings, the alien must leave within 60 days and must post a
bond of $500 or more. In addition, only aliens who have been present
in the United States for one year before being placed in removal
proceedings may be granted voluntary departure at the conclusion of
proceedings. If the bond is not posted within five business days,
the voluntary departure order will be canceled and an alternate
order of removal will take effect. An immigration judge may also
impose additional conditions.

ASYLUM, 8 U.S.C. §§ 1158(a), 1101(a)(42)

The “Real ID Act of 2005" was signed into law (Pub. Law No. 109-13) on
May 11, 2005, as Division B of the Emergency Supplemental Appropriations
Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, and
became effective on the date of enactment.

(Sec. 101) Amends Immigration and Nationality Act (INA) provisions
concerning asylum to: (1) authorize the Secretary of Homeland Security,
in addition to the Attorney General, to grant asylum (retroactive to
March 1, 2003); (2) require asylum applicants to prove that race,
religion, nationality, membership in a particular social group, or
political opinion was or will be (if removed) the central reason for
their persecution; and (3) provide that an applicant's testimony may be
sufficient to sustain this burden of proof only if the trier of fact
determines that it is credible, persuasive, and fact-specific. Requires
corroborating evidence where requested by the trier of fact unless the
applicant does not have the evidence and cannot reasonably obtain it
without departing the United States. States that the inability to obtain
corroborating evidence does not excuse the applicant from meeting his or
her burden of proof.

Lists factors relevant to credibility determinations in asylum cases,
including (but not limited to) the: (1) demeanor, candor, or
responsiveness of the applicant or witness; (2) inherent plausibility of
the applicant's or witness' account; (3) consistency between the
applicant's or witness' written and oral statements; (4) internal
consistency of each such statement; (5) consistency of such statements
with other evidence of record (including the Department of State's
reports on country conditions); and (6) any inaccuracies or falsehoods
in such statements regardless of whether they go to the heart of the
applicant's claim. States that there is no presumption of credibility.

Makes this Act's provisions regarding proof requirements and credibility
determinations in asylum proceedings applicable to other requests from
relief for removal.

Limits judicial review of determinations regarding the availability of
corroborating evidence.

Removes the numerical limit on the number of aliens granted asylum who
may become lawful permanent residents in any fiscal year (currently set
at 10,000).

Asylum is strictly a discretionary form of relief. To qualify for
asylum, an alien must demonstrate a well grounded fear of persecution
upon return to the country of such person's nationality on account of
race, religion, nationality, membership in a particular social group, or
political opinion. An application for asylum is deemed also to
constitute an application for withholding of deportation (discussed
below). An alien who has been convicted of an aggravated felony may not
apply for or be granted asylum. 8 U.S.C. § 1158(d). Moreover, an asylum
application must be denied if the alien having been convicted by a final
judgment of a particularly serious crime in the United States,
constitutes a danger to the community. 8 C.F.R. § 208.14.

To be successful on an asylum claim, the alien must prove: (1) that he
or she has a well-founded fear of persecution or has suffered past
persecution; (2) that such persecution is because of race, religion,
nationality, membership in a particular social group or political
opinion; and (3) that asylum should be granted in the exercise of
discretion.

WITHHOLDING OF REMOVAL, 8 U.S.C. § 1253(h)

To qualify for withholding of removal, an alien must demonstrate that
his or her life or freedom would be threatened upon return to the
proposed country of deportation, for one of the five reasons that would
provide a basis for an asylum claim. Unlike asylum, which is strictly a
discretionary form of relief, withholding of deportation is a mandatory
form of relief for qualified applicants. Moreover, the asylum and
withholding statutes have different eligibility standards. Under the
"well founded fear" standard for asylum, a demonstration that a
reasonable person in the applicant's circumstances would fear
persecution will suffice. However, withholding of removal requires a
"clear probability" that one's life or freedom would be threatened. An
alien is ineligible for this form of relief if it is determined that
such alien, having been convicted by a final judgment of a particularly
serious crime, constitutes a danger to the community of the United
States. An alien who has been convicted of an aggravated felony with a
sentence of 5 years jail or more shall be considered to have committed a
particularly serious crime. 8 U.S.C. § 1253(h)(2).

CONVENTION AGAINST TORTURE

Effective on March 22, 1999, an interim regulation, implementing the
obligations under Article 3 of the United Nations Convention Against
Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or
Punishment as defined in 8 C.F.R. § 208.16 (c)(1) (hereinafter cited
"Convention Against Torture") was published in the Federal Register.
Article 3 of the Convention Against Torture states as follows:

1. No State party shall expel, return, ('refouler') or extradite a
person to another state where there are substantial grounds for
believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds,
the competent authorities shall take into account all relevant
considerations including, where applicable, the existence in the
State concerned of a consistent pattern of gross, flagrant, or mass
violations of human rights.

A Convention Against Torture claim is triggered if the alien either:

(1) requests consideration under the Convention Against Torture; or

(2) presents evidence, including his or her testimony and information
contained in a Form I-589, which indicates that he or she may be
tortured in the country of removal. See 8 C.F.R. 208.13 (c)(1).
Convention Against Torture claims must be asserted by filing Form
I-589, Application for Asylum or Withholding of Removal. Question 7
in part C of Form I-589 asks: "Do you fear being subject to torture
in your home country?" There are supplemental instructions attached
to Form I-589 which discuss Convention Against Torture claims.
Convention Against Torture claim will be adjudicated in conjunction
with all claims for relief in the removal/deportation/exclusion
proceedings.

Deciding a Convention Against Torture Claim

There is no separate hearing to consider a torture claim. It must be
noted, however, that the 180-day clock does not apply to
applications for withholding of removal under section 241(b)(3) of
the INA or the Torture Convention. A finding that the alien filed a
frivolous asylum application does not preclude an alien from being
granted withholding of removal under section 241(b)(3) of the INA or
the Torture Convention. See 8 C.F.R. § 208.19.

The Immigration Judge must first determine whether the alien has
established that it is more likely than not that he or she would be
tortured if removed to the proposed country of removal. See 8 C.F.R.
§ 208.16(c)(4). The "more likely than not" standard is the same
standard as withholding of removal under section 241 (b)(3) of the
INA and withholding of deportation under the former section 243(h)
of the INA.

Once the Immigration Judge determines that the alien is entitled to
Convention Against Torture protection, he or she must then decide
whether the alien is subject to mandatory denial under one of the
bars contained in section 241(b)(3)(B) of the INA. See 8 C.F.R. §§
208.16(c)(4); 208.16(d)(2).

If an Immigration Judge decides that the alien has met his or her
burden of proof and that the alien is not subject to the bars
contained in section 241(b)(3)(B) of the INA, the Immigration Judge
must grant the alien withholding of removal. A grant of withholding
of removal under the Convention Against Torture has the same
consequences as a grant of withholding of removal under section
241(b)(3) of the INA, i.e., the alien may not be removed to a
country where it has been determined that it is more likely than not
that he or she would be tortured. The INS or the alien may appeal
the Immigration Judge's decision to the Board of Immigration Appeals
(BIA).

If an Immigration Judge decides that the alien has met his or her
burden of proof for Convention Against Torture protection, but is
subject to the bars contained in section 241(b)(3)(B) of the INA,
i.e., the alien is a persecutor of others, a security threat, or has
been convicted for a particularly serious crime, the Immigration
Judge must deny the alien of withholding of removal under the
Convention Against Torture and grant the alien deferral of removal
under 8 C.F.R. § 208.17. See 8 C.FR. § 208.16(c)(4).

If an Immigration Judge grants deferral of removal under the
Convention Against Torture, he or she must inform the alien that:

  1. Deferral of removal does not confer any lawful or permanent
    immigration status on the alien;
  2. If the alien is detained, he or she may not necessarily be
    released by the INS;
  3. Deferral of removal is effective only until terminated;
  4. Deferral of removal maybe terminated based upon the alien's
    request or a motion from the INS;
  5. Deferral of removal only precludes the INS from removing the
    alien to a particular country or countries in which it has been
    determined that the alien is likely to be tortured; the alien may be
    removed at any time to another country.
    See 8 C.F.R. § 208.17(b).

The Effect of a Grant of Deferral of Removal under CAT

The INS may not remove an alien who has been granted deferral of
removal to a country in which it is more likely than not that he or
she would be tortured. A grant of deferral of removal is similar to
a grant of withholding of removal, in that it precludes the INS from
removing the alien to a specific country. See 8 C.F.R. § 208.17(a).
The INS may, however, detain an alien granted deferral of removal
and may request the Immigration Court, at any time, based on
relevant evidence that was not presented at the previous hearing, to
review whether the alien should continue to have protection under
the Convention Against Torture. See 8 C.F.R. §§ 208.17(c);
208.17(d); part VII of this OPPM. The INS or the alien may appeal
the Immigration Judge's decision to the BIA.

REGISTRY

The registry date has been part of immigration law since 1929,
granting the opportunity for people who have resided continuously in
the U.S. since the registry date to become permanent residents.
Eligible people must prove that they have resided in the U.S. for
every year since the registry date, (January 1, 1972) that they have
a good moral character, that they are not ineligible for
citizenship, and that they are not inadmissible as criminals,
“procurers,” subversives, narcotic law violators or aliens
smugglers.

TEMPORARY PROTECTED STATUS, 8 U.S.C. § 1254a

An eligible deportable alien may be granted temporary protected
status in the United States if the alien's country of nationality
has been designated by the Attorney General as a place where
extraordinary and temporary conditions, such as armed conflict and
natural disasters, exist. An alien convicted of any felony in the
United States would be ineligible for this relief.

BIA: Procedural Reform to Imporve case management.; Final Rule (8-26-02)

The new regulations go into effect on September 25, 2002.
These regulations reduce the size of the Board to 11 members, mandating
review by single Board members instead of panels of three; impose very
tight briefing schedules (detained persons must submit their appeal
briefs within 21 days, simultaneously with the government’s brief and
without the chance to see the government’s arguments), and severely
circumscribe the discretion of BIA Members to review the facts of the
case before them. (Printable pdf version)

From 1939 Appendix I -- Relief From Deportation, Department of Justice > USAM > Title 9 > Criminal Resource Manual, October 1997, Criminal Resource Manual 1939, with edits to reflect changes in the law.

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