Introduction: Adjudicative Issues Regarding Deferral of Removal

An alien who demonstrates eligibility for withholding of removal under the Convention Against Torture, but who is ineligible to have his or her removal deferred due to being subject to a mandatory ground for the denial of withholding of removal, will instead be granted deferral of removal. An alien who is granted deferral of removal will have his or her removal temporarily deferred, but may remain subject to immigration detention or to removal to a third country where he or she would not be at risk of being tortured. In this article, we will examine several adjudicative issues for aliens who have been granted deferral of removal.

Before reading this article, please see our full article about eligibility for withholding of removal and deferral of removal under the Convention Against Torture [see article]. Please also see our article expanding upon the definition of torture for purpose of the regulations implementing the Convention Against Torture [see article].

Eligibility for Deferral of Removal Under the Convention Against Torture

Under 8 C.F.R. 208.16(c)(4) and 208.17(a), an alien will be eligible for deferral of removal under the following circumstances:

The alien is ordered removed;
The alien demonstrated that he or she is entitled to protection under the Convention Against Torture (meaning that the alien showed he or she is more likely than not to be tortured in the country to which he or she was ordered removed to); and
The alien is subject to one of the mandatory denial grounds for withholding of removal described in 8 C.F.R. 208.16(d)(2) or (d)(3) (found in section 241(b)(3) of the Immigration and Nationality Act (INA)).

Deferral of removal is part of what distinguishes the withholding/deferral provisions under the Convention Against Torture from the statutory withholding of removal provisions. Deferral of removal in essence guarantees that an alien will garner at least temporary relief from removal even if he or she is ineligible for withholding of removal. There is no parallel saving provision for an alien who would be eligible for only statutory withholding of removal, but who is subject to a mandatory denial ground.

After Deferral of Removal is Granted

Under 8 C.F.R. 208.17(b)(1), an immigration judge will inform the alien of the following if he or she is granted deferral of removal:

(i) That it does not confer upon the alien any lawful permanent immigration status;
(ii) That it will not necessarily result in the alien being released from immigration custody if the alien is subject to such custody;
(iii) That the deferral is effective only until it is terminated; and
(iv) That deferral of removal is subject to review and termination if the immigration judge determines that it is not likely that the alien would be tortured in the country to which removal was deferred, or if the alien requests that the deferral be terminated.

Furthermore, under 8 C.F.R. 208.17(b)(2), the immigration judge will explain that the deferral of removal only applies to the country in which it was determined that the alien is likely to be tortured, and that the alien may be removed to any other country where it is not determined that the alien would be likely to be tortured.

Under 8 C.F.R. 208.17(c), an alien who has been granted deferral of removal may be placed in or remain in immigration detention if he or she is otherwise subject to detention. Accordingly, issues regarding immigration detention are governed by separate provisions in 8 C.F.R. 241.

Detention after Deferral of Removal is Granted

Although the an alien who is granted deferral of removal may be subject to immigration detention, the Department of Homeland Security (DHS) has taken the position that Immigration and Customs Enforcement (ICE) policy favors the release of an alien who has been granted protection so long as the alien presents no exceptional concerns, such as national security or danger to the community, and absent any detention requirement.1

Under section 241(a)(1) of the INA, an alien who is subject to a final order of removal is subject to a 90-day removal period. Under section 241(a)(2), the alien will be detained for the 90-day removal period. However, a legacy Department of Justice (DOJ) memorandum took the position that the then-INS (now DHS) may release an alien who has been granted deferral of removal when the government “is not actively pursuing the alien’s removal, even though the alien would otherwise be subject to mandatory detention” (see Memo, Cooper, INS Gen. Counsel, HQCOU 50/1.1 (Apr. 21, 2000), reprinted in 77 No 39 Interpreter Releases, 1445, 1460 (Oct. 9, 2000) [PDF version]).

Termination of Deferral of Removal

There are three ways in which deferral of removal may be terminated. 8 C.F.R. 208.17(d) explains how it may be terminated after a motion by USCIS followed by a hearing; 8 C.F.R. 208.17(e) explains how it may be terminated at the request of the alien, and 8 C.F.R. 208.17(f) and 8 C.F.R. 208.18(c) explain how it may be terminated after consultation between the Secretary of State and the Attorney General. We will discuss each of these in the following sections.

Termination of Deferral of Removal after Motion by USCIS and Hearing

Under 8 C.F.R. 208.17(d)(1), the USCIS District Counsel for the District with jurisdiction over the alien whose removal has been deferred may file a motion with the Immigration Court asking for a hearing on whether the deferral of removal should be terminated. The Immigration Court shall grant the motion if it is accompanied by relevant evidence regarding the likelihood that the alien would be tortured that was not presented at the previous hearing.

Under 8 C.F.R. 208.17(d)(2), if the Immigration Court grants the USCIS’s motion it will notify the alien of the time and place of the hearing. The alien will then have 10 days (or 13 days if notice was served by email) to supplement the information in his or her original application for withholding of removal (with information relevant to the likelihood that he or she would be tortured). After this 10/13 day period elapses, the information in the original application along with the supplemental information will be forwarded to the Department of State (DOS). The DOS will be able to provide its own comments on the case.

Under 8 C.F.R. 208.17(d)(3), the immigration judge will make a de novo (from the beginning) determination based on the record of proceeding and initial application in addition to any new evidence submitted by the USCIS and the alien. The burden still rests with the alien to demonstrate that he or she would be more likely tortured than not if removed to the country to which his or her removal was deferred.

Under 8 C.F.R. 208.17(d)(4), if the immigration judge determines that the alien would still more likely than not be tortured, the deferral of removal order would remain in place. If the immigration judge determines that the alien would not more likely than not be tortured, the deferral of removal order would be terminated and the alien would be subject to removal. The immigration judge’s decision may be appealed to the BIA.

In the Matter of C-C-I-, 26 I&N Dec. 375 (BIA 2014) [PDF version], the Board held that removal proceedings may be reopened for a de novo (from the beginning) hearing to consider new evidence presented by the Government that was not considered at the previous hearing if it is relevant to the possibility that the alien would be tortured in the country to which his or her removal was deferred. Furthermore, the Board held that the doctrine of collateral estoppel (issue preclusion) does not prevent the immigration judge from reevaluating an alien’s credibility based upon new evidence that contradicted prior evidence. The Board distinguished the case from the Ninth Circuit decision in Oyeniran v. Holder, 672 F.3d 800 (9th Cir. 2012) [PDF version], in which the Ninth Circuit held that collateral estoppel does apply if the DHS does not present new evidence that contradicts prior evidence. The Second Circuit held in Ali v. Mukasey, 529 F.3d 478 (2d Cir. 2008) [PDF version] that de novo review is permitted under the regulations, and that the temporariness of the deferral of removal remedy shows that the underlying basis for deferral may be reevaluated.

Termination of Deferral of Removal at the Request of the Alien

At any time while a deferral of removal order is in place, the alien may request that his or her deferral of removal order be terminated. In order to do so, 8 C.F.R. 208.17(e)(1) requires that the alien must make a written request to the Immigration Court having administrative control. If the immigration judge is satisfied that the alien’s request is knowing and voluntary, the deferral of removal order shall be terminated and the alien may be removed. However, under 8 C.F.R. 208.17(e)(2), the immigration judge may schedule a hearing to determine if the request was knowing and voluntary. If, at such a hearing, the immigration judge finds that the request was knowing and voluntary, the deferral of removal order shall be terminated. However, if the immigration judge determines that the request was not knowing and voluntary, the request by itself would not serve as the basis for terminating the order of deferral.

Termination of Deferral of Removal based on Diplomatic Assurances

Under 8 C.F.R. 208.17(f), the Attorney General may determine that deferral of removal should be terminated based upon diplomatic assurances forwarded by the Secretary of State in accordance with 8 C.F.R. 208.18(c).

Under 8 C.F.R. 208.18(c), the Secretary of State may forward assurances obtained from the government of the country to which an alien’s removal has been deferred that the alien would not be tortured if he or she were to be removed to that country. If the Attorney General (or certain delegates of the Attorney General) determines, after consultation with the Secretary of State, that the assurances are “sufficiently reliable” to ensure that the alien may be removed in such a manner as to be consistent with the Convention Against Torture, the alien’s claim for protection under the Convention Against Torture shall not be considered further by the an immigration judge, the BIA, or an asylum officer.

However, in Khouzam v. Att’y Gen. of the U.S., 549 F.3d 235 (3d Cir. 2008) [PDF version], the Third Circuit held that an alien who’s deferral of removal is terminated under 8 C.F.R. 208.17(f) is entitled to a hearing at which he or she can “test the reliability of those assurances” before he or she may be removed.

Conclusion: Adjudicative Issues Regarding Deferral of Removal

As the Second Circuit explained in Ali v. Mukasey, deferral of removal is intended to be a temporary remedy. It exists solely to prevent an alien who is ineligible for asylum and withholding from being removed to a country to which he or she will more likely than not be tortured. Deferral of removal confers no additional benefits upon an alien and does not prevent an alien from being detained. It is easier for the government to have a deferral of removal order terminated than to have withholding of removal terminated. Therefore, an alien who has been granted deferral of removal should consult with an experienced immigration attorney for a full understanding of his or her situation and assistance in managing issues associated with deferral of removal such as immigration detention or attempts by the government to terminate the deferral order.

  1. I. Kurzban, Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 720-21, (describing Memo, Garcia, Asst. Sec. DHS (Feb. 9, 2004), published on AILA InfoNet at Doc. No. 04022462

Resources and materials:

Kurzban, Ira J. Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 684-85, 712-13, 720-21, Print. Treatises & Primers.