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Introduction To Representing Noncitizens In Removal Proceedings: Part 4 of 5

by Michael J. Boyle

If so, will the BCIS exercise its prosecutorial discretion?

In extremely rare instances DHS will exercise its prosecutorial discretion to not charge someone with removability or to terminate or agree to indefinite administrative closure of proceedings. Usually, these cases involve extraordinary, heartbreaking circumstances. A well-organized attorney and family members would present the case in a compelling way to the DHS, with the specter of significant press interest if the DHS makes the wrong decision.

If not, is any relief available to your client?

Although AEDPA and IIRIRA drastically restricted the availability of relief from removal, relief remains available in some cases depending on the type of case and the non-citizen's immigration and family status and tenure in the United States. Descriptions of the major forms of relief from removal, beginning with the forms that are most easily available but convey the least substantive benefit, follow. Immigration Law and Crimes and Kurzban's Immigration Law Sourcebook, supra, provide good general introductions to most forms of relief. Additional resources for specific areas are cited below.

Voluntary departure

A grant of voluntary departure under INA 240B(a) or (b) permits a non-citizen a fixed period of time to depart the United States, normally at his or her own expense, in lieu of being removed. Voluntary departure allows a non-citizen to depart without the stigma or harsh conditions attendant to removal. Voluntary departure has additional value for a non-citizen with a conviction for a firearms offense or a minor offense who will have a legal method to immigrate in the future, typically through a relative who plans to become a citizen.

Voluntary departure is discretionary. It is liberally granted in non-criminal cases. In criminal cases, likelihood of a grant declines based on the seriousness of the crime, and aggravated felons and terrorists are ineligible for voluntary departure. INA 240B(a)(1). Up to 120 days of voluntary departure can be granted based on a request at a master calendar hearing, and the Immigration Judge can require that the non-citizen post a bond. INA 240B(a), 8 U.S.C. 1229c(a). Different judges have different thresholds and informal standards for evaluating voluntary departure. Generally, a noncitizen who has no convictions or major blemishes on his immigration record, who appears for his hearing timely and appears to understand the commitment to leave during the voluntary departure period will likely be granted voluntary departure.

Voluntary departure is often requested as an alternate form of relief in tandem with a request for cancellation of removal or adjustment of status. In such a case, the voluntary departure request is only ruled on if the other forms of relief are denied. Eligibility for end-of-hearing voluntary departure requires a showing that the non-citizen is not deportable as an aggravated felon or terrorist, is willing and has the financial ability to depart at his or her own expense, was present in the United States for at least a year prior to being served with a Notice to Appear, and is and has been a person of good moral character during the last five years. INA 240B(b), 8 U.S.C. 1229c(b). Most non-citizens who are deportable on criminal grounds are precluded from showing good moral character, as are non-citizens who have served 180 days or more in jail during the five year period, "habitual drunkards," and others. INA 101(f), 8 U.S.C. 1101(f). The maximum grant at the conclusion of proceedings is sixty days. INA 240B(b), 8 U.S.C. 1229c(b).

Cancellation of removal for permanent residents

Cancellation of removal, INA 240A(a), 8 U.S.C. 1229b(a), allows the Immigration Judge to not remove some long-time legal permanent residents (LPRs). An LPR must have been resident in the United States in a legal status for at least seven years and have been an LPR for at least five years prior to the earlier of: a) service of the Notice to Appear; or b) the date the non-citizen committed any deportable offense. INA 240A(d), 8 U.S.C. 1229b(d). LPRs convicted of aggravated felonies are ineligible for cancellation. As part of IIRIRA, Congress limited the total number of cases that can be approved each year.

Cancellation is discretionary relief. The Immigration Judge balances favorable and unfavorable factors in deciding whether the non-citizen can remain in the United States. Positive factors include: close family ties and long residence here; steady employment, home or business ownership; rehabilitation after conviction; good moral character references; community service; and hardship if removed. Matter of Marin, 16 I&N 581 (BIA 1978); Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998). The grounds of deportability are the most obvious negative factors, but other criminal problems, past immigration violations and lack of remorse or rehabilitation are also considered.

Cancellation took the place of relief under former INA 212(c). Section 212(c) allowed relief for a much broader spectrum of crimes, including many drug trafficking offenses. The Supreme Court's decision in INS v St. Cyr, 533 U.S. 289 (2001) restored eligibility for this relief for noncitizens whose convictions predated enactment of AEDPA and IIRIRA in 1996.

Cancellation of removal for non-permanent residents; VAWA cancellation

INA 240A(b)(1) provides relief from removal for a noncitizen with ten years' continuous presence and good moral character in the United States who can show that her removal would cause "exceptional and extremely unusual hardship" to her U.S. citizen or permanent resident spouse, parent or child. Applicants who have suffered battering or extreme cruelty by a U.S. citizen spouse need demonstrate only three years of continuous presence and good moral character to qualify for cancellation. INA 240A(b)(2).

Adjustment of status, INA 212(h) waiver

Adjustment of status, INA 245, 8 U.S.C. 1255, is the formal name for stateside processing of a non-citizen's application for permanent residence. In categories where a visa is immediately available, most notably for spouses or parents of adult United States citizens, a deportable LPR can readjust status in removal proceedings if he is not inadmissible or if the Immigration Judge concurrently approves a waiver of inadmissibility. In addition to the general immigration law source materials discussed above, Immigration Law and the Family by Sarah Ignatius and Elizabeth Stickney (West, $160, annual update service about $100) is a good one-volume introduction to family cases, including those where a waiver is required.

INA 212(h) waives many criminal grounds. However, it does not waive drug crimes, except for a single offense for possession of thirty grams or less of marijuana, INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II) and it does not waive lawful permanent residents' aggravated felony convictions. INA 212(h), 8 U.S.C. 1182(h). To be eligible for the waiver for an offense committed in the last fifteen years, the non-citizen must be the spouse, parent, son, or daughter of an LPR or U.S.C., and demonstrate that their LPR or citizen relative would suffer extreme hardship in the event of the applicant's removal. LPRs seeking INA 212(h) relief must have seven years of lawful residence in the United States prior to the commencement of removal proceedings. INA 212(h), 8 U.S.C. 1182(h). BIA decisions construe extreme hardship narrowly. Matter of Ngai, 19 I&N Dec. 245 (BIA 1984). The waiver is discretionary, and Immigration Judges typically undertake the type of balancing analysis described in the section on cancellation of removal, above.

Asylum, withholding, torture convention

Non-citizens who fear persecution or torture in their home countries may be able to avoid being removed. Asylum brings with it eligibility for permanent residence. A non-citizen convicted of an aggravated felony or a particularly serious non-political crime will be ineligible for asylum, INA 208(b)(2), 8 U.S.C. 1158(b)(2). Withholding of removal allows staying the removal of non-citizens whose life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. INA 241(b)(3), 8 U.S.C. 1231(b)(3). Non-citizens who have persecuted others, are terrorists or have committed particularly serious crimes, including aggravated felonies for which they received a sentence of five years or more, are ineligible for withholding. INA 241(b)(3)(B), 8 U.S.C. 1231(b)(3)(B).

Removal can be withheld or deferred under Article 3 of the U.N. Convention Against Torture "[w]here there are substantial grounds for believing that [the applicant] would be in danger of being subjected to torture." Relief from removal under CAT differs from asylum and withholding of removal under INA 241(b)(3) in that the torture need not be inflicted "on account of" the traditional bases for asylum - religious belief, political opinion, etc. Deferral is available even where the alien would otherwise be barred from withholding of removal based on conviction of a particularly serious crime. 8 C.F.R. 208.17(a). CAT relief is mandatory. There is no exception to eligibility for protection based on having committed serious crimes, having persecuted others, etc. Matter of H-M-V-, 22 I&N Dec. 256 (BIA 1998).

Although all these forms of relief are closely scrutinized and very difficult to win, practitioners can take advantage of a wealth of specialized literature in this area. Deborah Anker's Law of Asylum in the United States ($99, ) is a comprehensive treatment of U.S. law, and includes useful background and suggestions for integrating developing international law norms. AILA's Asylum Primer by Regina Germain ($96, 800 982-2839) and the ILRC's Winning Asylum Cases by Mark Silverman, Robert Jobe, and Larry Katzman ($67, see ILRC information, supra) are good introductory guides. The internet is an invaluable tool for doing human rights research.,, includes many valuable search tools, including a search engine that searches fifteen major government human rights information or case law archives simultaneously.

Next week: If no relief is available, does your client want to be removed quickly?: Part 5 of 5

About The Author

Michael J. Boyle practices immigration law with the Law Offices of Michael Boyle, a four-attorney immigration law firm in North Haven, CT. Mr. Boyle is also Chair of the Connecticut chapter of the American Immigration Lawyers Association. He is also Staff Attorney for the unions at Yale University and advises the immigration committee of the Hotel Employees and Restaurant Employees International Union. He is a graduate of Yale, the University of London School of Oriental and African Studies, and the University of Connecticut School of Law. Michael Boyle may be contacted at:

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.