C.F.R. » Title 8 » CHAPTER I—DEPARTMENT OF HOMELAND SECURITY › SUBCHAPTER B—IMMIGRATION REGULATIONS › PART 208—PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL › Subpart A—Asylum and Withholding of Removal

8 C.F.R. § 208.17

Deferral of removal under the Convention Against Torture

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(a) Grant of deferral of removal. An alien who: has been ordered removed; has been found under § 208.16(c)(3) to be entitled to protection under the Convention Against Torture; and is subject to the provisions for mandatory denial of withholding of removal under § 208.16(d)(2) or (d)(3), shall be granted deferral of removal to the country where he or she is more likely than not to be tortured.

(b) Notice to alien. (1) After an immigration judge orders an alien described in paragraph (a) of this section removed, the immigration judge shall inform the alien that his or her removal to the country where he or she is more likely than not to be tortured shall be deferred until such time as the deferral is terminated under this section. The immigration judge shall inform the alien that deferral of removal:

(i) Does not confer upon the alien any lawful or permanent immigration status in the United States;

(ii) Will not necessarily result in the alien being released from the custody of the Service if the alien is subject to such custody;

(iii) Is effective only until terminated; and

(iv) 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 has been deferred, or if the alien requests that deferral be terminated.

(2) The immigration judge shall also inform the alien that removal has been deferred only to the country in which it has been determined that the alien is likely to be tortured, and that the alien may be removed at any time to another country where he or she is not likely to be tortured.

(c) Detention of an alien granted deferral of removal under this section. Nothing in this section shall alter the authority of the Service to detain an alien whose removal has been deferred under this section and who is otherwise subject to detention. In the case of such an alien, decisions about the alien's release shall be made according to part 241 of this chapter.

(d) Termination of deferral of removal. (1) At any time while deferral of removal is in effect, the INS District Counsel for the District with jurisdiction over an alien whose removal has been deferred under paragraph (a) of this section may file a motion with the Immigration Court having administrative control pursuant to § 3.11 of this chapter to schedule a hearing to consider whether deferral of removal should be terminated. The Service motion shall be granted if it is accompanied by evidence that is relevant to the possibility that the alien would be tortured in the country to which removal has been deferred and that was not presented at the previous hearing. The Service motion shall not be subject to the requirements for reopening in §§ 3.2 and 3.23 of this chapter.

(2) The Immigration Court shall provide notice to the alien and the Service of the time, place, and date of the termination hearing. Such notice shall inform the alien that the alien may supplement the information in his or her initial application for withholding of removal under the Convention Against Torture and shall provide that the alien must submit any such supplemental information within 10 calendar days of service of such notice (or 13 calendar days if service of such notice was by mail). At the expiration of this 10 or 13 day period, the Immigration Court shall forward a copy of the original application, and any supplemental information the alien or the Service has submitted, to the Department of State, together with notice to the Department of State of the time, place and date of the termination hearing. At its option, the Department of State may provide comments on the case, according to the provisions of § 208.11 of this part.

(3) The immigration judge shall conduct a hearing and make a de novo determination, based on the record of proceeding and initial application in addition to any new evidence submitted by the Service or the alien, as to whether the alien is more likely than not to be tortured in the country to which removal has been deferred. This determination shall be made under the standards for eligibility set out in § 208.16(c). The burden is on the alien to establish that it is more likely than not that he or she would be tortured in the country to which removal has been deferred.

(4) If the immigration judge determines that the alien is more likely than not to be tortured in the country to which removal has been deferred, the order of deferral shall remain in place. If the immigration judge determines that the alien has not established that he or she is more likely than not to be tortured in the country to which removal has been deferred, the deferral of removal shall be terminated and the alien may be removed to that country. Appeal of the immigration judge's decision shall lie to the Board.

(e) Termination at the request of the alien. (1) At any time while deferral of removal is in effect, the alien may make a written request to the Immigration Court having administrative control pursuant to § 3.11 of this chapter to terminate the deferral order. If satisfied on the basis of the written submission that the alien's request is knowing and voluntary, the immigration judge shall terminate the order of deferral and the alien may be removed.

(2) If necessary the immigration judge may calendar a hearing for the sole purpose of determining whether the alien's request is knowing and voluntary. If the immigration judge determines that the alien's request is knowing and voluntary, the order of deferral shall be terminated. If the immigration judge determines that the alien's request is not knowing and voluntary, the alien's request shall not serve as the basis for terminating the order of deferral.

(f) Termination pursuant to § 208.18(c). At any time while deferral of removal is in effect, the Attorney General may determine whether deferral should be terminated based on diplomatic assurances forwarded by the Secretary of State pursuant to the procedures in § 208.18(c).

[64 FR 8489, Feb. 19, 1999]
Notes of Decisions
Cited in 127 cases (11 in the last 5 years), 1999–2026 · leading case: Cole v. Holder, 659 F.3d 762 (9th Cir. 2011).
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Cole v. Holder, 659 F.3d 762 (9th Cir. 2011). · cites it 4× “See 8 C.F.R. § 208.17 (a); Lemus-Galvan v. Mukasey, 518 F.”
Mohamed Kamara v. Attorney Gen. of the United States, 420 F.3d 202 (3rd Cir. 2005). · cites it 3× “See 8 C.F.R. § 208.17 (d). 13 Thus, even if CAT relief is granted, the government is authorized to file a motion to reopen, based on changed country conditions, to terminate an alien’s deferral of removal.”
J-e, 23 I. & N. Dec. 291 (BIA 2002). · cites it 3× “8 C.F.R. § 208.17 (a). This means that we are compelled by law to defer removal of anyone who shows that it is more likely than not that he or she would be subjected to torture, even if that person has engaged in serious criminal activity.”
Nken v. Holder, 556 U.S. 418 (2009). “85, see 8 CFR § 208.17 (2008). In his application, Nken claimed he had been persecuted in the past for participation in protests against the Cameroonian Government, and would be subject to further persecution if he returns to Cameroon.”
Y-l, 23 I. & N. Dec. 270 (BIA 2002). · cites it 2× “2 See 8 C.F.R. § 208.17 . I. The three respondents in this consolidated matter are foreign nationals who bear final judgments of conviction for felony drug trafficking offenses in the United States.”
Yusupov v. Attorney Gen. of the United States, 518 F.3d 185 (3rd Cir. 2008). · cites it 2× “8 C.F.R. § 208.17 (a). An alien is entitled to deferral of removal if he is "more likely than not to be tortured” in the country of removal.”
Denis v. Attorney Gen. of the United States, 633 F.3d 201 (3rd Cir. 2011). · cites it 2× “Denis also contends that he received ineffective assistance of counsel and should have been found eligible for deferral of removal pursuant to the Convention Against Torture (“CAT”), 8 C.F.R. § 208.17 . 1 We conclude that the BIA correctly determined that Denis’s conviction…”
Saidou Dia v. John Ashcroft, Attorney Gen. of the United States, 353 F.3d 228 (3rd Cir. 2003). “1027(CAT), see 8 C.F.R. § 208.17 (2002), Dia must prove that he is more likely than not to be tortured in the country of removal.”
Alvarez Acosta v. U.S. Attorney Gen., 524 F.3d 1191 (11th Cir. 2008). · cites it 2× “85, see 8 CFR § 208.17 (2002). [6] The purpose of an I-130 is to establish that there is a legal relationship between the petitioner and the beneficiary of the I-130, such that the beneficiary is entitled to apply for a change or adjustment of status based on that legal…”
Lemus-Galvan v. Mukasey, 518 F.3d 1081 (9th Cir. 2008). · cites it 2× “See 8 C.F.R. § 208.17 (a). *1084 The jurisdictional wrinkle here is that although the IJ ordered removal on the basis of Lemus-Galvan’s felony conviction, he denied Lemus-Galvan’s request for deferral of removal under the CAT because Lemus-Galvan failed to establish that…”
Mu-Xing Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003). “Still, Wang may be entitled to some relief under CAT because 8 C.F.R. § 208.17 (a) provides that [a]n alien who: has been ordered removed; has been found under § 208.”
Masoud Hosseini v. Alberto R. Gonzales, Attorney Gen., 471 F.3d 953 (9th Cir. 2006). “See 8 C.F.R. § 208.17 (a). Conclusion We decline to review for lack of jurisdiction the BIA’s discretionary denial of adjustment of status.”
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— 8 C.F.R. § 208.17(a) — 1 case
Chinchilla-Jimenez v. Immigr. & Naturalization Serv., 226 F. Supp. 2d 680 (E.D. Pa. 2002).
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