Relief from Deportation INA §§ 240A, 240B
Cancellation
Cancels the removal order and reinstates you as LPR w/out a record
pre-1996: AG had authority to suspend deportation when there was serious economic detriment to immediate family. Congress could disapprove and mandate deportation.
1988: deleted Congressional participation available to all as long as the following were met: (1) Length of stay in US; (2) Good moral character; (3) Extreme hardship
1996: Congress has tightened eligibility for relief and restricted judicial review of decisions denying cancellation. 242(a)(2)(B)
240A(a): cancellation for LPR deemed inadmissible or deportable
LPR for 5 yrs.
Continuous residence for 7 yrs.
No aggravated felony convictions
240A(b): suspension of deportation for non-LPR
Physically present for 10 yrs.
Good moral character (for 10 yrs. preceding date of application for cancellation)
No conviction of offense under 212(a)(2) or 237(b)(2)
Exceptional and extremely unusual hardship to spouse, parent, child who is citizen/LPR
evidence of harm beyond that which ordinarily would be expected to result from alien’s deportation meant to refute Matter of OJO, which found that hardship resulting from removal of alien who was 24 and had lived here since age 13 was enough to support suspension.
Evidence that child would not do as well in country of origin is not enough
Residence v. Physical presence: way to protect interest of non-immigrants who are domiciled elsewhere requiring residence makes no sense for non-immigrants.
Matter of Perez: BIA held that period of continuous residence ends with commission of offense.
Domicile: Clock stops ticking once notice to appear is served for criminal offense rendering noncitizen removable harder to get the 7 yr. residence.
Numerical Limits on Cancellation: 1996 Act imposed ceiling of 4000/yr. for 240A(b) cancellation
Congress allowed thousands of Salvadorans/Guatemalans to get suspension under pre-1996 rules and exempted NACARA cases from cap, but in 1999 ceiling reverted to 4000.
Cancellation for Victims of Spouse Abuse: relaxed time and hardship standards 240A(b)(2), but provides relief only if batterer is citizen or LPR.
Discretion: after you establish eligibility, there must be favorable discretion
Wong Wing Hang: under APA, reviewing court shall overturn arbitrary, capricious, and abuse of discretion decisions. Review may only be precluded where discretion is not subject to obligation of reasoned decision, and this is not the case for AG’s discretion on suspensions
Balancing of conflicting factors: in Matter of CVT BIA held that exercise of discretion should be guided by standards and each case must be judged on its own merits.
Favorable factors: family ties, long residence, age of arrival, hardship, service in army, history of employment, property & business ties, service to community, rehab if criminal record exists, humanitarian considerations.
Adverse factors: criminal and immigration violation history, unemployment/ public charge, lack of community/family ties, lack of effort to integrate, ties to country of origin, general bad character
Are all factors of equal weight? Should objective ones be weightier?
Benefits of prioritizing factors & setting standards: (determinations are often made by lower officials who are not formally trained)s
Uniformity/consistency/objectivity
Certainty
Set amount of deference
Cons of adopting such a regulatory regime:
Impossible to foresee all factors
Individual consideration requires flexibility
Constrain ability of judges to apply their ‘judicial ability’
Suggestion: not afford discretion to certain classes of applicants; assign point values
212(h): authorizes waivers for criminal offenses. AG will not favorably exercise discretion for aliens inadmissible under 212(a)(2) in cases involving violent or dangerous crimes except in extraordinary circumstances, such as national security/foreign policy, or in case of exceptional and extremely unusual hardship. Such a showing might still be insufficient.
Criticism: limiting access to waiver where congress said it would be available
In 1996 Congress chose to eliminate review of most discretionary denials of relief.
Voluntary Departure: most common relief, available to those who entered illegally
Noncitizen agrees to waive a full removal hearing in exchange for lenience in the form of VD rather than removal order. Must find both eligibility and discretion.
Two types of VD proceedings:
240B(a)(1): before removal proceedings begin
Must request VD before proceedings or early on in proceedings
Must concede your removability
Can’t be deportable for aggravated felony or terrorism
Must depart w/in 120 days
Govt. has authority to impose additional conditions
240B(b): after removal proceedings.
Alien must have been in US for at least 1 yr. before getting notice to appear
Good moral character for 5 yrs.
Can’t be deportable for aggravated felony or terrorism
Must establish you have means to depart and you have intent to depart
60 days to depart
Pre-1996, aliens often had months to leave-new statute meant to eliminate delay
Alternate order of removal sets out date by which alien must VD, if alien does not comply, the removal order automatically kicks in.
240B(b) meant to create incentive to waive right to removal hearing from the start docket clearing device [terms of 240B(b) are less favorable than 240B(a)]
Advantage of VD to alien:
don’t get the 10 yr. bar that normally accompanies removal order
if removed, alien is subject to felony prosecution for clandestine reentry VD gives you chance to enter legally (or try again illegally)
avoid detention during removal proceeding
Advantage of VD to govt.:
cheaper and faster than removal proceedings
removal proceeding often requires detention-expensive
deals w/ backlog
Waiver: 212(h) provides waiver for some criminal inadmissibility grounds for long-term LPR. May apply at application for: (1) visa; (2) admission; (3) adjustment of status.
Noncitizens may seek adjustment of status as relief in removing proceedings.
Deportation: can seek waiver for criminal offenses that would be waivable in application for admission.
Matter of Sanchez: long term LPR convicted of crime of moral turpitude. After arrest but before conviction he returned to MX and re-entered US. At time of re-admission waiver under 212(h) was available, therefore BIA held that he should be able to assert waiver in deportation proceedings.
Matter of Parodi: LPR did not leave but BIA permitted waiver to be raised in adjustment of status application filed during deportation proceeding.
Po Shing Yueng: LPR convicted and asserted eligibility for 212(h) on ground that it was irrational to deny him opportunity (was not seeking admission or adjustment of status). BIA held that waiver was one for inadmissibility not deportability, but Circuit Ct. reversed.
Definitions:
Removal encompasses both denial of admission (incl. EWIs) and deportation for those legally admitted.
For an LPR, you want the court to erase the deportability and restore permanent residency.
For non-LPRs, when you get cancellation or a waiver, you also gain a green card.
Relief: Regularization of Status (you win a green card)
Cancellation of Removal – § 240A
240A(a) – for LPRs who have resided continuously for 7 years, been LPRs for 5, and are not aggravated felons. No specific need to demonstrate hardship, but that’s part of the discretionary decision to grant. (This is the old 212(c))
240A(b) – For everyone, not just LPRs, who have had 10 years of continuous physical presence. Replaces old suspension of deportation.
Must show “exceptional and extremely unusual hardship” to a close relative citizen or LPR – hardship to you doesn’t count.
Single mother of 6 children under 16, incl. 4 U.S. citizens, showed enough hardship to the children if they had to live in Mexico to qualify.
Must show good moral character for the previous 19 years. No real definition except criminal activities tend to disqualify (AFs always do)
No more than 4K grants a year under 240A(b)(1). (This is the old 244.)
Special form of relief in 240A(b)(2) for battered spouses and children when the batterer is a citizen or LPR – not subject to the cap, more relaxed time and hardship standards
The stop-clock provision: For both sections, time accrued during the deportation proceedings does NOT count toward the continuous presence requirement. The clock stops when the Notice to Appear is served or when the criminal offense rendering the alien removable is committed (not when the conviction happens). § 240A(d).
Waiver of a Ground of Inadmissibility – § 212(h)
Can be used in deportation proceedings nunc pro tunc – with retroactive effect to say you should have been admissible in the first place.
Why use this in a deportation proceeding? First BIA allowed it for LPRs who had left and returned, been inadmissible on return because of a criminal conviction, and later put in deportation proceedings. Sanchez, 1980.
Then they allowed it for someone who’d never left and returned, but was filing an app for adjustment of status in his deportation proceeding, since there’s a requirement applicants be admissible at the time of applying for adjustment. Matter of Parodi, 1980.
Then they said, it’s an EPC violation for it to be available just because you left and came back, so everyone gets it in deportation too. Po Shing Yeung, 1995
May not apply if you’re charged with something that’s a deportability but not inadmissibility ground.
New 212 (h) language after 1996 – not available without 7 years continuous presence or an LPR with an AF. Kind of tracks 240A(a) relief. But if you’re a non-LPR with an AF, you CAN try it. Weird.
Registry – § 249 – Form of amnesty to grant LPR to those who have been in the U.S. a long time, pre-1972. Discretionary, but here the presumption is for granting it.
Adjustment of status – § 249. This is rare, but if you married a citizen during removal proceedings, the judge could grant adjustment on a discretionary basis and waive the grounds
Private Bills – your buddy in Congress can bail you out.
Relief Short of LPR Status
Voluntary Departure – § 240B(a) +(b)
The immigration version of plea bargain, you agree waive a full removal hearing, return wherever you want, and you won’t have a formal removal on your record (won’t come under “if you’ve ever been removed” provisions in the future)
Extended voluntary departure or deferred mandatory departure – an old thing that let people stick around for years ‘making arrangements.’ 240B has tighter restrictions now, because Congress got mad. CIS’s answer – they invented “deferred enforcement voluntary departure,” which has no statutory basis.
§ 240B(a) – for requests either in lieu of removal proceedings or before the conclusion of them. You must withdraw any other requests for relief, concede removability, waive appeal, and not be an AF or deportable on nat’l security grounds. VD period limited to 120 days total (to leave.)
§ 240 (b) – for requests at the conclusion of removal proceedings. You must have been physically present in the U.S for 1 year, have good moral character for 5 years, and show by CACE that you have the means to depart and intend to do so. VD period is 60 days max and a bond must be posted.
If you get VD but don’t leave, an alternate order of removal kicks in and they formally deport you.
Prosecutorial Discretion – also no statutory basis, but inevitable in crime and immigration
Deferred Action
A status that says the whole office isn’t taking action on your case (yet, they aren’t promising they never will). Usually for humanitarian considerations.
More official than pros. discretion, no statutory basis, but comes from internal INS/ICE regulation.
No application, but can be requested, along with work authorization. (This makes you PRUCOL – person residing under color of law)
Stay of Removal – similar to deferred status, but for persons who already have an order of removal. Court can also issue a stay pending the outcome of a motion to reopen.
Ordinary Removal Procedures
In most removal hearings, eligibility for removal isn’t actually contested, and it’s about whether the alien should get the discretionary relief.
Due Process
Immigrants are due process in removal, just not very much, as people who are “part of our population.” The Japanese Immigrant Case (Yamataya v. Fisher) 1903.
The Administrative Procedure Act does NOT cover removal hearings (notice and common rule yes, hearing requirements no). The relevant regulations are in the CFR from EOIR.
Deportation IS punishment and a deprivation of liberty for 5th Amendment due process purposes.
Hearing rights: an independent decisionmaker and right to counsel of choice
Role of the immigration judge to help alien understand his rights, have access to list of legal aid counsel. Alien who doesn’t understand procedural and counsel rights didn’t have a full and fair hearing. Jacinto v. INS (2000)
Right to counsel of choice, but not free counsel, as deportation is not punishment for 6th Amendment purposes. Aguilera-Enriquez v. INS
This is true even for asylum seekers and unaccompanied minors. Crap.
Bizarre that there is no right to counsel, but many courts allow an ineffective assistance of counsel defense as a due process violation.
Circuit split currently: Some say there’s no right to a fair hearing for discretionary relief; others say there is because it’s a deportation hearing
Evidentiary Rules
Federal Rules of Evidence do not apply in removal hearings – issue is just what’s material, relevant, or unfair.
Burden and standard of proof – § 240(c).
Admission: Alien must either establish by CACE that she is lawfully present in the U.S. pursuant to a prior admission or “clearly and beyond doubt” that she is entitled to be admitted and not inadmissible under 212 – bizarrely strict standard
Deportation: Gov must show deportability by CACE
Govt has burden of proof that the individual is an alien
Fifth Amendment self-incrimination privileges
No 5th Amendment right regarding statements about your deportability, though involuntary and coerced statements are excludable as DP violations, as are statements where gov’s behavior violated fundamental fairmess
Aliens and witnesses still can’t be forced to testify they’ve committed crimes, but that only affects potential criminal prosecutions, not deportation. (Note: Unlawful entry is a criminal offense as well as a deportation ground.)
In a civil proceeding, you can draw adverse inferences from invoking the 5th.
No Miranda right: if in custody and not Mirandized, admissions cannot be used in subsequent criminal proceedings, but aren’t excluded from removal proceeding
Fourth Amendment search and seizure protection
LPRs get it, undocumented aliens may not. But there is NO exclusionary rule in removal proceedings. Lopez-Mendoza, 1984 (a 5-4 decision about the lesser deterrent effect in removal and a balancing test)
There is an immigration law exclusionary rule for the BIA for extreme 4th Am. violations. See Verdugo.
The 4th Am. does not apply to non-resident aliens in a search outside the U.S. because to be “the people” under the language of the 4th Am., you must be a member of the U.S. national community or have a sufficient relationship to it. Verdugo-Urquidez. (DEA agents searched in Mexico without warrant)
Immigration officers have the authority to stop and question anyone as to their right to be in the U.S.
Motions to Reopen or Reconsider
Motion to reopen generally used to offer previously unavailable material evidence. § 240(c) (6). See below for use for in absentia orders.
Ineffective assistance of counsel
Should be an available ground for a motion to reopen, because it’s DP (requirements in Matter of Lozada, 1988)
But courts don’t always comply, because some think that where there’s no right to counsel, there’s no constitutional basis for a claim of ineffective assistance of counsel.
Some require assistance to be so ineffective as to impinge on fund. fairness. (Magallanes-Damian, 1986)
Grounds for denying a motion to reopen:
the movant hasn’t established a prima facie case for the substantive relief sought
the movant hasn’t introduced previously unavailable, material evidence
in an asylum application, the movant hasn’t reasonably explained his failure to apply for asylum initially
Also, in cases where the ultimate grant of relief is discretionary, the BIA can leap those grounds and just determine that the movant wouldn’t be entitled to the discretionary grant. Appropriate standard of review for denial of motion to reopen is abuse of discretion.
Motion to reconsider is a regular appeal, asking for review of errors in earlier decisions of law or fact.
You only generally get one of each. See § 240(c)(6) for deadlines for each. You don’t automatically get a stay of removal, but district directors, BIA, and IJs have discretion to do that.
Reinstatement of removal orders – if you’re removed and you return, ICE can reinstate the old removal order without having to start over (though in the 9th Circuit, through a new IJ hearing).
Extraordinary Removal Procedures
In Absentia Removal
If you can’t be located, court can issue order and then remove you if they ever locate you. Major notice problems, so there’s a procedure to reopen. § 240(b)(5)(C)
In absentia order may be reviewed if it was your counsel’s fault you didn’t appear, Saakian, 2001 (non-accredited rep), but you should still check on your own case as much as you can. Anin v. Reno, 1999
Removals Based on Criminal Convictions
Must be a final conviction, and not on appeal or under a habeas challenge.
Generally, removal happens only after the noncitizen is released from prison, § 241(a)(4). Exception for removal of nonviolent offenders before they complete their sentences if officials say it’s in the gov’s interest
Institutional Removal Program – conducted under § 239 (d), it’s removal hearings for convicted noncitizens while still in prison so they can be removed as soon as the sentence ends.
Administrative removal – § 238 (b) Non-LPRs or conditional LPRs based on marriage who are aggravated felons can be ordered deported without a hearing before an IJ, because they’re conclusively presumed deportable. Order can’t be executed for 14 days so respondent can seek the (limited) review available. Courts all reject that this is a PDP violation.
Judicial removal – Some power by fed dist courts to order removal when sentencing noncitizens for a deportable crime, and basically have a separate removal proceeding there in that court. See § 238 and p. 692-93 for more.
Expedited Removal – §235 (b)(1)
If inspector thinks you’re removable for fraud or bad documents (§ 212(a)(6)(C) or (7), he can put you in expedited removal instead of a § 240 inadmissibility hearing.
Expedited removal makes you inadmissible for 5 years, subject to waiver.
Immigration officers have discretion to allow arriving aliens to withdraw their applications for admission: ¾ do this.
Process: Inspecting officer and supervisor have control – it’s usually done (in an airport) with no witnesses, formal hearing, counsel, maybe an interpreter.” Broad authority – No valid documents” includes “you have a B-1 but you should have an H-1”
Almost no review – basically only available if you weren’t supposed to be in the system because of a claim to be a citizen or an approved refugee or asylee.
Asylum seekers – Once a person wants asylum they’re shunted away from the expedited removal system and given a credible fear hearing. If they pass that they get into the regular asylum system and may be paroled. Controversy about hoe much info CBP should provide about asylum.
No procedural due process for nonimmigrants, even with facially valid visas, who are subject to expedited removal. AILA v. Reno,1998 (old ladies) Applied the Knauff doctrine to nonimmigrants.
Expansion: The AG has the authority to expand expedited removal to other classes of aliens (like those not admitted who have been here <2 years and are non-Cuban, or EWIs generally)
Current expansion: to those found near the border who can’t prove they’ve been here 14 days
May continue to expand “near the border” farther in the future
Special Removal Procedures – § 235 (c)
AG can order removal of an arriving alien on most of the nat’l security inadmissibility grounds without a hearing if acts on confidential info whose disclosure would be prejudicial to the public interest safety, or security
In regular § 240 removal proceedings, § 240 (b)(4)(B) lets the gov use secret national security evidence in opposition to your admission or application for discretionary relief, but NOT for the gov’s case in chief for removal based on deportability (since you’re due more DP there)
But the use of secret evidence in those instances might still violate DP if it fails the Mathews test. LPRs have strong liberty interests in staying in the U.S. and should be able to challenge gov. claims. Kiareldeen, 1999(secret evidence of terrorist activity against grant of adjustment of status not good enough)