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.


Home | Welcome | What's New

Revised: 02/10/2002
Copyright 1999 Perry & Baker
All rights reserved

www.callyourlawyers.com