Appendix IRelief From Deportation
- Suspension of Deportation, 8 U.S.C. § 1254
Discretionary suspension of deportation and adjustment of status to
of alien lawfully admitted for permanent residence may be available to
aliens. Pursuant to 8 U.S.C. § 1254(a)(2), an alien deportable under
U.S.C. § 1251(a)(2) would have to establish continuous physical
the United States of not less than ten years since the act constituting
for deportation and prove that during all such period the alien was a person
good moral character. If the alien meets this threshold of eligibility,
suspension of deportation may be granted if in the discretion of the
General [or the court] deportation would result in "exceptional and
unusual hardship to the alien or a spouse, parent, or child who is a citizen
alien lawfully admitted for permanent residence.
It would appear that it would be highly improbable that an alien facing
sentencing for a recent crime involving moral turpitude or an aggravated
could establish the good moral character required for relief. In this
it should be noted that 8 U.S.C. § 1101(f)(8) expressly precludes a
of good moral character for an alien convicted of an aggravated felony.
- Voluntary Departure, 8 U.S.C. § 1254(e)
Relief in the form of voluntary departure in lieu of deportation also
requires that the alien establish good moral character for 5 years preceding
application for relief. For the reasons noted above, it is highly
that an alien facing sentencing for a recent crime of moral turpitude or an
aggravated felony could establish the good moral character required for
discretionary voluntary departure.
- Relief Under 8 U.S.C. § 1182(c)
On its face, 8 U.S.C. § 1182(c) provides discretionary relief in
exclusion, not deportation, proceedings for excludable aliens with lawful
permanent residence status, who temporarily and voluntarily proceeded
who are returning to a lawful unrelinquished domicile of seven consecutive
However, it is our understanding that INS has acquiesced in administrative
judicial case law holding that, on equal protection grounds, this form of
also is available in deportation proceedings. See Francis v.
532 F.2d 268, 273 (2nd Cir. 1976).
By its terms, this relief is not available to an alien who has been
convicted of an aggravated felony, and who has served for such felony a term
imprisonment of at least five years. Apparently, however, an alien just
sentenced for an aggravated felony could be eligible for such relief.
an alien with lawful permanent residence status, but with less than seven
domicile, could accumulate the necessary unrelinquished seven years domicile
while in prison, at which time the alien could make a claim for relief from
- Asylum, 8 U.S.C. §§ 1158(a), 1101(a)(42)
Asylum is strictly a discretionary form of relief. To qualify for
an alien must demonstrate a well grounded fear of persecution upon return to
country of such person's nationality on account of race, religion,
membership in a particular social group, or political opinion. An
for asylum is deemed also to constitute an application for withholding of
deportation (discussed below). An alien who has been convicted of an
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
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.
- Withholding of Deportation, 8 U.S.C. § 1253(h)
To qualify for withholding of deportation, an alien must demonstrate
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
for an asylum claim. Unlike asylum, which is strictly a discretionary form
relief, withholding of deportation is a mandatory form of relief for
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
fear persecution will suffice. However, withholding of deportation requires
"clear probability" that one's life or freedom would be threatened. An
ineligible for this form of relief if it is determined that such alien,
been convicted by a final judgment of a particularly serious crime,
a danger to the community of the United States. An alien who has been
of an aggravated felony shall be considered to have committed a particularly
serious crime. 8 U.S.C. § 1253(h)(2).
- Temporary Protected Status, 8 U.S.C. § 1254a
An eligible deportable alien may be granted temporary protected status
the United States if the alien's country of nationality has been designated
the Attorney General as a place where extraordinary and temporary
such as armed conflict and natural disasters, exist. An alien convicted of
felony in the United States would be ineligible for this relief.
[cited in Criminal Resource Manual 1926; USAM 9-73.500]