DEPORTABILITY

General Classification of grounds

of removal

Inadmissible at time of entry.

Encompasses all the grounds of inadmissibility under 212 into the removal
provisions.

Allows for a second look at persons who may have been able to
successfully obtain admission, but were inadmissible at the time of
application or adjustment of status.

No statute of limitation on DHS bringing charges under this section.

HISTORICAL
CONSIDERATIONS

Deportation has historically involved the

removal of aliens who are in the US

First Deportation provisions found in the

Alien & Sedition Acts of 1798

Alien & Sedition Act authorized deportation on two grounds

Deportation of resident aliens who were citizens of nations at war

with the US; and

Aliens determined by the President to be dangerous to the peace

and safety of the United States.

Part two was never used and expired at the end of the
initial period of application of two years.

1888 - Congress authorized the deportation of contract laborers within one

year of entry.

Extended in 1891 to all aliens who entered the US in violation of law.

1903 Congress authorizes the removal of subversives whose activities and

beliefs were the basis for exclusion at their time of entry.

1910 Congress authorized the deportation of aliens identified with prostitution.

Significant change, as it extended Congressional reach of authority to

aliens who had entered legally, but engaged in conduct which was
unlawful.

From this point forward, Congress expands the post entry conduct
grounds which could subject an alien to deportation.

1917 Congress extended removal to aliens whose post entry conduct

included any alien who at any time after entry shall be found advocating or
teaching subversion.

Bridges v. Wixom, 326 U.S. 135 (1945) - deportation proceedings brought

against permanent resident who was a radical labor organizer and
member of the Communist Party of the United States under these
grounds.

Supreme Court quashed the deportation on the ground that the

evidence did not support the charge.

Justice Murphy filed a concurring opinion citing First Amendment

protections extending to aliens in the US and alluded that plenary
power of congress may override such constitutional
considerations. Remember only a concurring opinion!

Kessler v. Strecker, 307 US 59 (1939) - decided while Bridges was

pending, ruled that an alien who joined the Communist Party after entry
was not subject to the deportation ground.

Congress adopted legislation in 1940 which overrode Kessler,

apply ground to aliens for membership in a subversive group at
any time.

McCarran-Walther Act of 1952 expanded and codified grounds of removal for

subversive activities.

Harrisiades v. Shaughnessy, 342 U.S. 580 (1952) - radical departure

from Bridges and Kessler. However, both of those cases were
decided on statutory grounds.

Supreme Ct. rejected 5th Amendment due process argument,

found that the power to expel is linked to the foreign policy and
war authority of Congress and not subject to due process
under 5th Amendment.

Though severe hardship may be inflicted on aliens, it does not

violate the due process provisions of the 5th Amendment.

Also rejected the 1st Amendment argument against

deportation of aliens

Court also held that there was no violation of the ex post facto
prohibition since it was a continuation of prior legislation.
Moreover, the ex post facto prohibition did not apply to
deportation actions.

Reno v. American Arab Anti Discrimination Committee (1999) The Supreme

Count held that aliens unlawfully present in the US had no constitutional right
to assert selective enforcement as a defense against deportation. Did not
address 1st Amendment rights. On remand to the immigration court, the
immigration judge dismissed proceedings on the grounds of governmental
misconduct in failing to produce exculpatory evidence.

1954 Supreme Court revisited Harrisiades in its decision in Galvan v. Press,

347 U.S. 522 (1954) involving the retroactive application of the Subversive
Activity Control Act of 1950 which ordered deportation of any alien who at any
time after entry had been a member of the communist party and finding no
violation of the ex post facto prohibition

The Court has rejected similar ex post facto arguments in cases relating to
Nazi war criminals and in the 1996 IIRIRA expansion of new criminal grounds
of removal to acts committed before on or after the effective date of the
legislation.

INS v. St. Cyr, 533 U.S. 289 (2001) the Court found that the
presumption against retroactive evict of legislation can be
overcome only with clear congressional statement of intent.

REMOVAL GROUNDS

General Classification of grounds

of removal

Violation of status subsequent to entry.

Conviction of crimes.

Failure to register of falsified documents

Engaged in activity that endangers national security or has adverse foreign policy
consequents

Public charge

Unlawful voting

237(a)(1)(A) - inadmissible at time of

entry or adjustment of status.

includes all grounds of inadmissibility

under 212(a) of the Act

Allows DHS to remove aliens who had

no right to enter, although such entry
was accomplished.

237(a)(1)(B) - Present in the US in

violation of law

includes non immigrants who have

failed to depart during the time
required by their admission
(overstays)

237(a)(1)(C) - Failure to maintain status

Applies only to non immigrants who

have been inspected and admitted.

Includes failure to abide by the terms

and conditions of admission. E.g.
unauthorized employment

 237(a)(1)(D) - Termination of Conditional

Permanent Resident Status.

- Applies to conditional residents under

216 and 216A.

237(a)(1)(E) - Encouraged, assisted,

abetted or aided illegal immigration at the
time of any entry or within 5 years of any
entry.

- Under this provision there is no

requirement to establish that gain was
an element.

237(a)(1)(G) - Marriage fraud

includes the termination &/or

annulment of marriage of less than 2
years from entry, unless alien shows
marriage entered into in good faith

includes failure of alien to fulfill marital

agreement

 237(a)(2)(A)(i) - convicted of a crime

involving moral turpitude (CIMT) for which
a sentence of one year may be imposed
and was committed within 5 years of
admission.

- If alien entered on an S visa, then

within 10 years of entry.

- Prior statute required a sentence of one

year and applied to commission within
5 years of entry.

 237(a)(2()A)(ii) - convicted at any time after admission of two

or more CIMTs not arising out of a single scheme of criminal
misconduct.

- Single scheme applies where crimes performed in

furtherance of a single criminal episode, such as where one
crime constitutes a lesser offense of another or where two
crime flow from and are the natural consequence of a
single act of criminal misconduct. Matter of Adetiba, 20
I&N 506

- Two incidents of passing bad checks on the same day at a

mall, involving different stores not a single scheme. Mail
fraud involving 3 different victims - not a single scheme.
Robberies on separate days involving separate dwellings not a single scheme.

- Applies to misdemeanors and felonies and may attach to

 237(a0(2)(A)(iii) - conviction of an
aggravated felony as defined in
101(a)(43) of the Act.

237(a)(2)(A)(iv) - High speed flight

- conviction for 18 USC 758 relating to

high speed flight from an immigration
checkpoint

237(a)(2)(A)(v) - Failure to register as

a sex offender.

237(a)(2)(B)(i) - after admission

convicted of a drug offense under state,
federal or foreign law. Includes attempts
and conspiracies.

237(a)(2)(B)(ii) - any alien who at any

time after admission is a drug abuser or
addict

237(a)(2)(C) - firearms offenses

Must be a firearm or destructive

device as defined in 18 USC 921

applies to post admission convictions

includes attempts and conspiracies

includes purchase, sale, offer for sale,

carry, possess, use or own

237(a)(2)(D) - Convictions of offense

relating to espionage, treason or sedition,
violations of Selective Service Act or
trading with enemy statutes. Applies to
convictions for violation of 215 & 278
of the Act.

applies to convictions at any time;

includes conspiracies or attempts

237(a)(2)(E)(i) - convictions after

admission of a crime of domestic
violence, stalking, or child abuse, neglect
or abandonment.

Crime of domestic violence must be a

crime of violence under 18 USC 16

DV must be against a protected

person

Applies only to convictions after Sept.

30, 1996.

237(a)(2)(E)(ii) - Violations of protection

orders

applies to convictions after admission

Court issued order protecting against

harassment or bodily injury to the named
person

includes temporary or final orders

applies only to convictions post 9/30/96

237(a)(2)(F) - engages in human trafficking as

described in 212(a)(2)(H) of the Act.

CATEGORICAL ANALYSIS
CONVICTIONS

Not all state convictions trigger removal on criminal grounds.

Immigration law uses the categorical approach ( and its derivative modified
categorical approach) to determine the immigration consequences of a criminal
conviction.

Taylor v. United States, 495 U.S. 575 (1990) mod. Shepard v. United States, 544
U.S. 13 (2005) outline the categorical analysis methodology. Initially applied in
criminal sentencing proceedings for determining enhancement and later applied in
the immigration context.

Do the Statutory Elements or Facts Necessary to the Conviction

sufficiently match the immigration removal ground?

Generic
Immigration
Definition

States
Definition
of a crime

States
Definition
of a Crime

Generic
Immigration
Definition

CATEGORICAL MATCH:
Example: A statute prohibiting communicating with a minor for immoral
purposes.
A crime involving moral turpitude is one that involves base, reprehensible,
immoral acts which society as a whole finds unacceptable

CIMT

CIMP

NOT A CATEGORICAL MATCH:

237(a)(2)(C) renders removable one who is convicted of a firearm or destructive
device.

Assault with a
deadly weapon

Firearm or destructive
device

Modified Categorical Approach:

State statute criminalizes Unlawful Carrying/Handling a Weapon
Statute includes a variety of weapons including knives, axes, firearms,
bombs etc.

Firearm Removal Ground

Unlawful Carrying/ Handling
of a Weapon
gun

knife

Review of the Record of

Conviction determines if the
weapon was a Gun, or bomb and
thus, triggers deportation ground some other weapon =no removal

237(a)(3)(A) - Failure to register as

required by 265 of the Act

not applicable if failure not shown to

be willful or reasonably excusable

237(a)(4)(B) - conviction under 266 for

failure to comply with Alien Registration
Act; Foreign Agents Registration Act or
violation of 18 USC 1546

237(a)(3)(C) - alien subject to a final

order under 274C relating to document
fraud

237(a)(3)(D) - False claim to US

citizenship for any purpose under the Act
(including 274A) or any federal or state
law

Except where reasonable belief that

held a claim to US citizenship through
a US parent.

237(a)(4)(A)(i) - activity violating any

law of US relating to espionage,
sabotage, export of goods, technology or
sensitive information

237(a)(4)(A)(ii) - any activity

endangering public safety or national
security

237(a)(4)(A)(iii) - overthrow of the

government by force or violence or
unlawful means

 237(a)(4)(B) - alien described under

212(a)(3) (terrorist/terrorist activity/material
support for terrorism)

237(a)(4)(C) - alien who presence in the

US gives Sec. of State reasonable grounds
to believe would have potentially adverse
foreign policy consequences

237(a)(4)(D) - participation in Nazi war

crimes, genocide or torture

237(a)(4)(E) - participated in
commission of serious violations of
religious freedom

237(a)(5) - within 5 years after

admission has become a public charge as
a result of causes arising after admission.

237(a)(6) alien who has voted in a

Federal, State or local constitutional
provision, statute, ordinance or regulation.

AGGRAVATED FELONIES

CONVICTIONS

101(a)(48) contains statutory definition of a

conviction

DHS must prove that a vacated conviction was done

so for rehabilitative purposes in order to allow
conviction to form basis of charge of removal.

IMPORTANT: Padilla v. Kentucky - FAILURE TO

PROVIDE IMMIGRATION CONSEQUENCES TO AN
ALIEN DEFENDANT PRIOR TO A PLEA IS
CONSTITUTIONAL INEFFECTIVE ASSISTANCE OF
COUNSEL!

Aggravated

Felonies (AF)
Inadmissibility has been removed from US and convicted of
AF in past 20 years
Deportability convicted of AF any time after admission
Aggravated Felony
Conviction does not need to be under federal laws listed but
could be a state or federal conviction which includes
elements of listed crimes
Also includes foreign convictions with confinement within
past 15 years
Even though listed, it can be difficult to determine because:
Federal or state crime may not match title of crime in INA
May depend on length of imprisonment either which may be
or actually is imposed
If a crime is a felony, it is an aggravated felony, but
misdemeanors may also be aggravated felonies
BIA defers to circuit court interpretation so aggravated
felonies may vary from circuit to circuit

Aggravated Felonies

101(a)(43) of the Act defines the categories

of crimes.

Applies in most instances to crimes

committed before, on or after the effective
date of the Act (currently 9/30/96).

Aggravated Felonies

Most rapidly changing area of the immigration law since 1996.

Leocal v. Ashcroft (2004) - Permanent resident convicted of felony driving

under the influence under a statute that included an element of causing injury
to another. INS had charged him with removal as one convicted of an
aggravated felony under 101(a)(43) as a crime of violence.

Supreme Court applied the categorical approachThis statute has no mens rea
elementit does not require the defendant to have any particular level of
intent to commit the crime. In Florida, DUI does not entail the attempted or
threatened use of physical force; if DUI is to qualify as a crime of violence, it
must so qualify because it involves the use of physical force. The "use" of
physical force "most naturally suggests a higher degree of intent than
negligent or merely accidental conduct." Likewise, DUI does not entail a
"substantial risk" that physical force will be used.

Aggravated Felonies

Lopez v. Gonzales, (2006) -Lopez, a legal permanent resident alien, pleaded guilty
to South Dakota charges of aiding and abetting another persons possession of
cocaine, which state law treated as the equivalent of possessing the drug, a state
felony. The Immigration and Naturalization Service (INS) began removal
proceedings on the ground, inter alia, that Lopezs state conviction was for an
aggravated felony. The Immigration Judge ultimately ruled that despite the
controlled substances acts treatment of Lopezs crime as a misdemeanor, see 21
U. S. C. 844(a), it was an aggravated felony under the INA owing to its being a
felony under state law.

Conduct made a felony under state law but a misdemeanor under the CSA
is not a felony punishable under the Controlled Substances Act for INA
purposes. A state offense comes within the quoted phrase only if it
proscribes conduct punishable as a felony under the CSA.

aggravated felonies
Murder, Rape or Sexual Abuse of a Minor:
Murder:

Generally case law looks to the state designation of the crime.

Rape:

Definition (1) At common law, unlawful sexual intercourse committed by a

man with a woman not his wife, through force and against her will and (2) unlawful
sexual activity (especially intercourse) with a person (usually female) without consent
and usually by force or threat of injury.

aggravated felonies
Murder, Rape or Sexual Abuse of a Minor:
Sexual Abuse of a Minor:
Case law defines a variety of sexual offenses involving minors within this
ground. E.g. conviction for felony attempted child molestation found to be categorically
sexual abuse of a minor; consensual sexual intercourse with a minor under 17
pursuant to Texas statute found to be subject to this ground.
Illicit Trafficking in a controlled substance, ad defined in 102 of the Controlled
Substance Act, including a drug trafficking crime (18 U.S.C. 924(c))
Generally considered a particularly serious crime for purposes of asylum and
withholding of removal. Matter of Y-L-, 23 I&N Dec. 270 (BAI 2002)

aggravated felonies
Illicit Trafficking in a controlled substance, ad defined in 102 of the Controlled
Substance Act, including a drug trafficking crime (18 U.S.C. 924(c)
Conviction for two simple possessions of marijuana can constitute an
aggravated felony by virtue of its correspondence to the Federal felony of recidivist
possession as defined by 21 U.S.C. 844(a). Matter of Yanez, 23 I&N Dec. 390.
Recidivist possession arises when there is a second or subsequent
conviction after the first is final. The status as a recidivist drug offender must be either
admitted in the proceeding or determined by a judge or jury.

aggravated felonies
(C) Illicit Trafficking in Firearms/Destructive Device (18U.S.C. 921) or Explosive
Devices (18 U.S.C. 841(c)
(D) Laundering Monetary Instruments (18U.S.C. 1956) or Monetary Transactions
over $10,000.00 Derived from Unlawful Activities (18 U.S.C. 1957).
Laundering Monetary Instruments (18 U.S.C. 1956)
For purposes of this section, the amount of money laundered must exceed
$10,000 to be an aggravated felony. The monetary loss to the victim or the amount of
restitution is not considered under this section. (Loss to the victim is considered for
purposes of 101(a)(43)(M)).

aggravated felonies

(E) Explosive Materials Offenses (18 U.S.C. 842(h)-(i), 844(d)-(i)), Firearms

Offenses (18 U.S.C. 922(g)(1)-(5), (j), (n)-(p), (r) and 924(b), (h)), or Firearms
Offenses (IRS Code 5861 (1986))
Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002): Possession of a firearm by
a felon in violation of CAL. PENAL CODE 12021(a)(l) is an AF because it is described
in 18 U.S.C. 922(g)(l). Specifically, the BIA held that an offense defined by state or
foreign law may be an AF as described in a federal statute enumerated in section
101(a)(43) of the INA, even if it lacks the jurisdictional element of the federal statute.

aggravated felonies
(F) Crimes of Violence (18 U.S.C. 16) (Not including purely political offenses) Term
of imprisonment at least 1 year.
18 U.S.C. 16(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of another, or (b) any
other offense that is a felony and that, by its nature, involves a substantial risk that
physical force against the person or property of another may be used in the course of
committing the offense. See U.S.S.G. 2L1.2 (using the identical language in 18
U.S.C. 16(a) to define COV for sentencing purposes).
Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) - Indeterminate sentences are
generally measured by the maximum period that could be imposed.

aggravated felonies
(F) Crimes of Violence (18 U.S.C. 16) (Not including purely political offenses) Term of imprisonment at
least 1 year.
Examples of Crimes of Violence:
Michigan conviction of Kidnapping in violation of MICH. COMP. LAWS 750.349 constitutes a COV
for federal sentencing purposes. The statute requires that the kidnapping be committed forcibly, which is an
element requiring the use, attempted use, or threatened use of physical force against the person of another.
Arson
Assault involving the intentional use of force or violence
Burglary of a dwelling
Child abduction

aggravated felonies
(G) Theft/Burglary/Receipt of Stolen PropertyTerm of Imprisonment at least 1
yearTheft/Receipt of Stolen Property
Theft:
A theft offense, including the receipt of stolen property, is the taking of property or
an exercise of control over property without consent with the criminal intent to deprive the
owner of rights and benefits of ownership, even if such deprivation is less than total or
permanent.
Burglary
Taylor v. United States, 495 U.S. 575 (1990) - Supreme Court defines burglary as
unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent
to commit a crime.

aggravated felonies
(H) Demand for or Receipt of Ransom (18 U.S.C. 875, 876, 877, or 1202)
(I) Child Pornography (18 U.S.C. 2251, 2251A, or 2252)

(J) RICO (18 U.S.C. 1962) sentence of 1 year or more may be imposed for transmission of
wagering info (18 U.S.C. 1084)for second or subsequent offenses and sentence of 1 year or
more may be imposed or Gambling Offenses (18 U.S.C. 1955)sentence of 1 year or more may
be imposed
(K)(i) Owning, Controlling, Managing, Supervising Prostitution Business
(K)(ii) Transportation for Prostitution if Committed for Commercial Advantage (18 U.S.C. 2421,
2422, 2423)
(K)(iii) Peonage/Slavery/Involuntary Servitude (18 U.S.C. 1581, 1582, 1583, 1584, 1585, 1588)

aggravated felonies

(L)(i) Gathering/Transmitting National Defense Information (18 U.S.C. 793);

Disclosure Classified Info (18 U.S.C. 798); Sabotage (18 U.S.C. 2153); or Treason
(18 U.S.C. 2381, 2382)
(L)(ii) Protecting Identity of Undercover Intelligence Agents (50 U.S.C. 421)
(L)(iii) Protecting Identify of Undercover Agents (Nationality Security Act of 1947 601)

aggravated felonies
(M)(i) Offense Involving Fraud or Deceit Causing Loss to Victim Over $10,000
Nijhawan v. Holder, 129 S. Ct. 2294 (2009) - The $10,000 threshold refers to the
particular circumstances in which an offender committed a fraud or deceit crime on a
particular occasion rather than to an element of the fraud or deceit crime.
Matter of Babaisakov, 24 I&N Dec. 306 (BIA 2007) - When considering whether a
conviction for an offense involving fraud or deceit is one in which the loss to the victim or
victims exceeds $10,000 under INA 101(a)(43)(M)(i), an IJ is not restricted to record of
conviction evidence but may consider any evidence admissible in removal proceedings
bearing on the amount of loss to the victim. The BIA recognized that the ruling represents a
departure from the precepts that have been presumed to apply in immigration hearings
involving AF charges arising under section 101(a)(43)(M)(i) of the Act. It left for another
day any questions that may arise with respect to circuit law that may be in tension with this
decision, as we ordinarily follow circuit law in cases arising within the particular circuit and
the grounds for any departure would need to be developed in the context of specific cases.

aggravated felonies
(M)(ii) Tax Evasion Exceeding $10,000 (IRS Code of 1986 7201)
(N) Alien Smuggling (8 U.S.C. 1324; INA 274(a) (1) (A) or (2))
Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA 1999) The parenthetical relating to alien
smuggling is merely descriptive and does not limit the types of convictions that may be regarded as an
AF under INA 274(a)(1)(A) or (2). Likewise, the exclusion and deportation grounds in INA
212(a)(6)(E)(i) and 241(a)(1)(E)(i) do not limit the scope of offenses described in INA 274(a)(1)(A)
or (2). Affd by Ruiz-Romero v. Reno, 205 F.3d 837 (5th Cir. 2000)
(O) Improper Entry/Reentry By Alien Previously Deported for a 101(a)(43) Offense (8 U.S.C.
1325(a) or 1326; INA 275(a) or 276)
Note: IIRIRA changes apply under 276(b) only to violations of 276(a) (reentry after
deportation) occurring on or after date of enactment (9/30/96). (Section 321(c) of IIRAIRA).

aggravated felonies
(P) Falsely Making/Forging/Counterfeiting/Mutilating/Altering Passport or Instrument
(18 U.S.C. 1543) or Document Fraud-term of imprisonment is at least 12 months (18
U.S.C. 1546(a))
(Q) Failure to Appear for Service of Sentence When Underlying Offense Punishable by
Five Years or More

(R) Commercial Bribery, Counterfeiting, Forgery or Trafficking in Vehicles the ID

Numbers of Which Have Been Alteredterm of imprisonment at least 1 year
(S) Obstruction of Justice/Perjury or Subornation of Perjury/Bribery of Witness term of
imprisonment at least one year

aggravated felonies

(T) Failure to Appear After Court Order to Answer Felony Chargefor which term of 2
years or more may be imposed
Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir. 2008) - A conviction in
violation of 18 U.S.C. 3146, failure to appear in court, does not constitute AF under
INA 101(a)(43)(T) but does constitute an AF under INA 101(a)(43)(S). (Offense
relating to obstruction of justice)
(U) Attempt or Conspiracy to Commit Any of the Above Offenses

RELIEF FROM REMOVAL

RELIEF FROM REMOVAL

Registry
Cancellation

of Removal and Adjustment of

Status
Waiver of Deportability Grounds
Voluntary Departure
Asylum, Withholding of Removal, CAT,
Temporary Protected Status, and Parole

relief from removal

Generally the most significant issue in the removal hearing.

Prosecutorial Discretion - exercised by the agency in determining whether to

initiate proceedings.

Macro exercise - agency wide determination of setting priorites. This

can include such things as targeting particular violations. Examples
include pursuing employees who have false social security numbers
through no match letters or safe communities initiative.

Micro exercise - not initiating removal proceedings against a particular

individual who the agency believes is removable, but for other reasons
elects not to proceed.

relief from removal

Deferred Action

Deferred action status is granted by an agency official (currently field office director of
DRO) for an individual as a matter of administrative discretion.

Does not confirm any immigration status on the beneficiary

Considers factors such as the likelihood of removal of the alien, age or physical
condition relating to travel, acceptance by another country, availability of relief
which might ultimately affect removal.

Can also be used if there is an established need for testimony in criminal

proceedings.

DACA by the Executive is an example of the macro exercise of this authority.

relief from removal

Stay of Removal

Automatic stay during pendency of an appeal to the BIA, motion to reopen in

absentia proceeding.

No automatic stay during pendency of appeal to the circuit courts

Request of stay usually looks to the general likelihood of success on

the merits and other sympathetic factors.

relief from removal

Adjudicatory Discretion

Considered in a wide variety of applications such as bond, voluntary

departure, adjustment of status, grants of waivers, asylum and cancellation
of removal.

relief from removal

Relief resulting in Permanent Residence:

Cancellation of removal
(1)Permanent Resident - allows otherwise removable aliens to retain their
status as LPRs.
(2)Complete waiver of grounds of removal

(3)applies to both criminal and non criminal and non criminal grounds
(4)Residency Period - 7 & 5
(5)Stop Time rule - cuts off residence when offense committed
(6)discretionary application

relief from removal

Relief resulting in Permanent Residence:
Cancellation of removal
1.Non Permanent Resident - akin to former suspension
a)Continuous Physical Presence - 10 years
b)Same stop time as Perm Res. Cancellation
c)GMC
d)Exceptional and Extremely Unusual Hardship - Recenis/Monreal factors
2.Battered Spouse or Child
a)Under VAWA - CPP only 3 years
b)Lower level of hardship i.e. Extreme and consider to applicant
c)requires LPR or USC batterer

relief from removal

Relief resulting in Permanent Residence:
Waivers
212(h) - applies to both 212 & 237 proceedings where R seeking to adjust status.
1.applies to criminal grounds of removal and possess for ones own use of 30 grams or less of MJ
2.Not available for conviction of agg. felony
3.Not available for LPR unless has 7 years prior to initiation of proceedings as LPR.
212(c) - previously discussed - applies to convictions by plea prior to Sept. 30, 1996

4.Agg felony covered as long as not imprisoned for 1 year or more

5.LPR only with 7 years (time runs to the time of hearing i.e. may accumulate time for residency after commission of
offense).
237(a)(1)(H) - waives certain grounds of misrepresentation & fraud
1.spouse parent or child of USC or LPR
2.in possession of immigrant visa and was otherwise admissible Matter of Fu, 23 I&N Dec. 985 (BIA 2006)
3.237(a)(1)(E)(iii) - smuggling waiver for humanitarian reasons where smuggling done to provide family unity i.e. smuggled
spouse parent son or daughter only.

relief from removal

I.

Voluntary Departure
A. Pre hearing voluntary departure - discretionary with DHS, no judicial review. A/K/A administrative voluntary departure
1. Can grant up to 120 days
B. Pre conclusion VD - prior to conclusion of removal hearing.
1. No requirement of GMC
2. No need to prove physical presence
3. Must admit all facts and charge
4. Must waive appeal
5. Maximum 120 days.
6. No bond required.
7. No request for additional relief.
8. Not available for agg. felon
C.Voluntary Departure - Conclusion of hearing
1. Must prove 1 year residence prior to initiation of proceeding
2. must present valid travel doc to DHS for copying
3. must establish means and willingness to depart
4. must post VD bond of $500. w/in five business days
5. Limit of 60 days.
6. must show GMC for at least 5 years preceding the for VD.