[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR208.17]



[Page 155-157]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

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



[[Page 156]]



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 

Sec. Sec. 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 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



[[Page 157]]



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]