Relief From Deportability Outline

Relief from Deportability

1. Affirmative Defenses: Alien has burden of proof

2. Remedy Variables to Consider

   1. Deportability grounds to which provision supplies defense

   2. Prerequisites to obtaining relief

   3. Whether relief automatic or subject to someone’s discretion

   4. Once prerequisites are met

      1. How far reaching are the consequences

      2. Who decides whether to grant relief (IJ/BIA or USCIS)

3. Limitations of Relief from Removal

   1. Fail to appear or fail to leave on time: 10 year bar on relief for those who fail to appear in removal proceedings or fail to leave on time for voluntary departure § 240(B)(7) & 240B(d)

   2. Aggravated Felons: Expressly barred from

      1. Cancellation of removal § 240A(a)(3), 240A(b)(1)(c)

      2. Voluntary Departure § 240B(a)(1)

      3. Registry § 249

      4. Precluded to show good moral character

      5. Martinez v. Mukasey (10^th Cir. 2008): statutory bar on eligibility for waiver of inadmissibility, of any alien who had previously been admitted to the United States as lawful permanent resident (LPR), and who, since date of that admission, had been convicted of aggravated felony, was limited in its application to aliens who, at time of their admission, were admitted as LPRs, and did not apply to alien whose status was adjusted to that of LPR only several years after his admission.

   3. Terrorist Bar: Deportable on terrorist grounds barred from relief

      1. Cancellation of removal § 240A(a)(3), 240A(b)(1)(c)

      2. Voluntary Departure § 240B(a)(1)

      3. Registry § 249

   4. Background Checks: Applicants for relief subject to background checks for forms of relief conferring right to reside in US: DHS performs identity, law enforcement, national security background checks: Relief not granted until background checks are cleared

   5. Judicial Review: No judicial review for overwhelming majority of judgment denying discretionary relief § 242(a)(2)(B)

      1. Some judicial review of agency determinations that alien statutorily ineligible for discretionary relief

4. Cancellation of Removal

   1. Two Types of Lasting Removal

   2. Cancellation of Removal Part A § 240A(a): Available only to certain LPRs

   3. Cancellation Removal Part B § 240A(b): Available to certain non-permanent residents (can be undocumented) and LPRs

   4. Cancelling of Removal Part A

      1. Requirements

         1. First requirement: 5 years of LPR Status: Regulations hold that LPR status terminates upon entry of final administrative order of exclusion, deportation, or removal - 8 CFR Section 1.1(p)

         2. Timing: When does 5 years of LPR status end? Regs say that LPR status terminates upon entry of a final administrative order or exclusion, deportation, or removal. 8 CFR § 1.1(p)

         3. Second Requirement: 7 years of continuous residence in US after admission in any status –§ 240A(a)(2): Non-immigrant stays fully counted (Matter of Blancas 2002)

      2. Disqualifications

         1. Aggravated felons § 240A(a)(3)

         2. Discretion: Must show merits favorable exercise of discretion in addition to establishing statutory eligibility

         3. Limits on new Discretionary Relief: Deportable aliens no longer required to identify comparable inadmissibility ground: Do not have to leave US to qualify for relief: Available to inadmissible AND deportable resident aliens

   5. Cancellation of Removal Part B

      1. Principal Beneficiaries = Undocumented Immigrants

      2. Availability and Eligibility

         1. Available to inadmissible and deportable aliens

         2. 10 years of physical presence: Inadmissibility ground that it most often waives is presence without admission: Arriving aliens returning from temporary visits abroad after 10 years of presence in US can also apply

      3. Two Separate Branches: 1) General Branch; 2) Special branch for certain domestic violence victims

      4. Requirements

         1. 10 years continuous physical presence

         2. Good moral character

         3. Exceptional and Extreme Unusual Hardship

         4. Relaxed for Domestic Violence Victims: Shorter physical presence required, more lenient hardship standard, good moral character sustained if disqualifying conduct linked to Domestic Violence

         5. Extreme Cruelty for VAWA Relief: Court Split over whether establishment of extreme cruelty is reviewable: 9^th Reviewable v. 10^th Non-Reviewable

      5. Two hurdles to clear for relief

         1. Establish Statutory Eligibility

         2. Received favorable exercise of discretion (applicant must show that merits discretion)

            1. Numerical limits: Limited to 4000 grants per year: § 240A(e)(1): IJs and BIA can reserve decision on pending applications until quota again permits

         3. Continuous Physical Presence

            1. Extended from 7 years to 10 years § 240A(b)(1)(a)

            2. NTA service automatically ends continuous physical presence § 240A(d)(1)

            3. Bright Line rules for destruction for continuous physical presence § 240A(d)(2)

               • Single absence of more than 90 days OR

               • Cumulative absences of more than 180 days

            4. § 240A(d)(2) came from IRCA’s provision allowing that “brief, casual, and innocent” absences did not destroy continuous physical presence

         4. Hardship

            1. Must show “exceptional and extremely unusual hardship”

            2. Hardship has to be to qualifying family member, not to alien applicant §§ 240A(b)(1)(D), (b)(2)(E)

            3. VAWA prong exceptions: 1) Only extreme hardship; 2) Can be to alien applicant himself

            4. Hardship is discretionary in nature, so not directly judicially reviewable: § 242(a)(2)(B)(i)

            5. Motion to Reopen: BUT!! when circumstances change, alien can move to reopen removal proceedings with IJ or BIA, depending on where the case ended: INS v. Jong Ha Wang: petitioners must establish a prima facie case of eligibility

               • Decision to reopen is discretionary to IJ of BIA

               • If reopen the case the court must decide: 1) Whether applicant meets statutory prerequisites for removal; 2) Whether discretion should be favorably exercised

               • Reopen decision are reviewable: Denials of Re-Openings also reviewable!

               • Courts often exercise discretion to stay removal to at least glance at motions, any motion to reopen usually delays removal

         5. Congressional intention for exceptional and extremely unusual hardship: “Substantially beyond that which ordinarily would be expected to result from alien’s deportation”

         6. ...

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