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1939

Appendix I—Relief From Deportation

  • Suspension of Deportation, 8 U.S.C. § 1254

Discretionary suspension of deportation and adjustment of status to that of alien lawfully admitted for permanent residence may be available to deportable aliens. Pursuant to 8 U.S.C. § 1254(a)(2), an alien deportable under 8 U.S.C. § 1251(a)(2) would have to establish continuous physical presence in the United States of not less than ten years since the act constituting ground for deportation and prove that during all such period the alien was a person of good moral character. If the alien meets this threshold of eligibility, suspension of deportation may be granted if in the discretion of the Attorney General [or the court] deportation would result in "exceptional and extremely unusual hardship to the alien or a spouse, parent, or child who is a citizen or 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 felony could establish the good moral character required for relief. In this regard, it should be noted that 8 U.S.C. § 1101(f)(8) expressly precludes a finding 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 the application for relief. For the reasons noted above, it is highly improbable 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 abroad, and who are returning to a lawful unrelinquished domicile of seven consecutive years. However, it is our understanding that INS has acquiesced in administrative and judicial case law holding that, on equal protection grounds, this form of relief also is available in deportation proceedings. See Francis v. INS, 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 of imprisonment of at least five years. Apparently, however, an alien just being sentenced for an aggravated felony could be eligible for such relief. Arguably, an alien with lawful permanent residence status, but with less than seven years domicile, could accumulate the necessary unrelinquished seven years domicile while in prison, at which time the alien could make a claim for relief from deportation.

  • Asylum, 8 U.S.C. §§ 1158(a), 1101(a)(42)

Asylum is strictly a discretionary form of relief. To qualify for asylum, an alien must demonstrate a well grounded fear of persecution upon return to the country of such person's nationality on account of race, religion, nationality, membership in a particular social group, or political opinion. An application for asylum is deemed also to constitute an application for withholding of deportation (discussed below). An alien who has been convicted of an aggravated 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 convicted 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 that 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 basis for an asylum claim. Unlike asylum, which is strictly a discretionary form of relief, withholding of deportation is a mandatory form of relief for qualified 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 would fear persecution will suffice. However, withholding of deportation requires a "clear probability" that one's life or freedom would be threatened. An alien is ineligible for this form of relief if it is determined that such alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States. An alien who has been convicted 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 in the United States if the alien's country of nationality has been designated by the Attorney General as a place where extraordinary and temporary conditions, such as armed conflict and natural disasters, exist. An alien convicted of any felony in the United States would be ineligible for this relief.

[cited in Criminal Resource Manual 1926; USAM 9-73.500]