[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR208.17]

[Page 202-203]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL--Table of Contents
 
              Subpart A--Asylum and Withholding of Removal
 
Sec. 208.17  Deferral of removal under the Convention Against Torture.

    (a) Grant of deferral of removal. An alien who: has been ordered 
removed; has been found under Sec. 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 
Sec. 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 Sec. 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 
Secs. 3.2 and 3.23 of this chapter.
    (2) The Immigration Court shall provide notice to the alien and the 
Service

[[Page 203]]

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 Sec. 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 Sec. 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 
Sec. 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 Sec. 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 
Sec. 208.18(c).

[64 FR 8489, Feb. 19, 1999]