CANCELLATION OF REMOVAL & ADJUSTMENT OF STATUS (Sec. 1229b.) 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. 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 (1) 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 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. For example, favorable considerations include such factors as 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 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 a respondent's good character.  Matter of Marin. Among the factors deemed adverse to an alien are the nature and underlying circumstances of the grounds of exclusion or deportation (now 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 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. 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) 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. 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.