#9143 - Relief From Deportability - Immigration Law

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. Matter of Recinas: Undocumented alien, single Mexican mother of 6, found to demonstrate exceptional and extremely unusual hardship to her 4 US Citizen children

            1. In this case cumulative factors pushing to hardship well beyond norm in most removal cases (Cumulative Factor Test)

               • Heavy financial and familial burden on respondent (single mother of 6 children)

               • Lack of support from children’s father

               • US Citizens children’s lack of Spanish

               • Lawful US residence of all immediate family and concomitant lack of family in Mexico

               • Key that there is no family in Mexico and all her family is in the U.S.

      6. Other Hurdles to Cancellation of Removal B

         1. Good Moral Character: For 10 years preceding application § 240A(b)(1)(b)

            1. Not Good Moral Character under § 101(e) = Alcoholics, False obtaining of benefits

         2. Disqualifying Grounds § 240A(c): Includes crew members, certain exchange visitors, most are inadmissible or deportable on national security or political grounds

         3. Discretion: AG (immigration court) may cancel removal of alien satisfying statutory prerequisites § 240A(a), (b)

   6. NACARA – Nicaraguan and Central American Relief Act of 1997: Relief for Nicaraguan and Guatemalan nationals in the US, many of whom are victims of prolonged Civil Wars

   7. Registry: § 249: AG Discretionary authority to award LPR status to certain aliens who entered before a certain date: Current date is Jan 1, 1972

      1. Requirements: 1) Cant fall within more serious inadmissibility grounds; 2) Maintained continuous residence; 3) Good moral character; 4) Unavailable to aliens who failed to comply with voluntary departure or appear at removal hearing §§ 240(b)(7), 240B(d)

   8. Legalization and Adjustment of Status

      1. Legalization: Last Big Scale was in 1986 through IRCA

      2. Adjustment of Status: § 245: Dual Function (in deportability context): 1) Affirmative relief from removal; 2) Means of attaining LPR status without leaving US

         1. Establishing admissibility: Like consular processing LPR applicants, can apply for various waivers of inadmissibility grounds

         2. Continuous Lawful Presence requirement: Excludes many potential out of status applicants

         3. Unavailable as remedy for 10 years to those failing to show at removal hearing or comply with voluntary departure order §§ 240(b)(7), 240B(d)

         4. In removal proceedings, once initiated, application for adjustment of status is filed with IJ

   9. Private Bills: Congress Passed 2 private bills in 2010; First passed in 5 years

      1. No Automatic because stays of removal pending Congressional Consideration: In practice, agencies stay removal when they receive subcommittee chair’s requests for reports: Therefore, introducing a private bill can suspend removal, even if bill never passed

5. Limited Relief from Removal

   1. Deferred Action: Usually in unusually sympathetic cases: prosecutorial discretion, non-priority status

      1. Former INS Memo on Deferred Action

         1. Greater use of prosecutorial discretion needed to balance IIRAIRA harshness

         2. Overriding criterion for initiating removal = relative importance of federal government interest

         3. Specific Factors to be considered

            1. Is person an LPR

            2. Duration of Residence

            3. Criminal History

            4. Humanitarian Concerns

            5. Past Immigration Violations

            6. Likelihood of Ultimate Removal

            7. Availability of Alternative Courses of Action

            8. Length of Bar to Future Return

            9. Past Cooperation with authorities

            10. Military Service

            11. Role in Community

            12. Availability of Detention Space

         4. Deferred Action does not create any right or benefit

         5. Today’s decision to commence removal proceedings is non-reviewable § 242(g)

         6. Current ICE Guidelines

            1. Likelihood of future eligibility for permanent...