§ 17.10 E. Eligibility for Relief
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Most forms of relief available in deportation proceedings, such as cancellation of removal and political asylum, effectively avoid both deportability and inadmissibility. Additional forms of relief effectively apply only to noncitizens seeking to avoid inadmissibility. For more information on forms of relief, see Chapter 24, infra.
Conviction of an aggravated felony offense will, in most cases, bar any chance of obtaining relief from deportation. Relief is generally available to avoid removability on the basis of the other crime-based grounds of deportation (not including the security-based grounds), as long as the other statutory requirements of the form of relief are met.
 See § 24.3, infra.
 See § § 24.7, 24.18, 24.31, infra.
 See § 18.9, infra.
 See § 19.98, infra.
RELIEF - ADJUSTMENT OF STATUS - USCIS HAS EXCLUSIVE JURISDICTION TO ADJUDICATE ARRIVING ALIEN APPLICATION FOR ADJUSTMENT EVEN AFTER AN UNEXECUTED REMOVAL ORDER HAS BECOME ADMINISTRATIVELY FINAL
Matter of Yauri, 25 I. & N. Dec. 103 (BIA Oct. 28, 2009) (with a narrow exception not applicable to this case, USCIS has exclusive jurisdiction to adjudicate an arriving aliens application for adjustment of status under 8 C.F.R. 245.2(a)(1) and agrees that it retains jurisdiction to adjudicate the application even where an unexecuted administratively final order of removal remains outstanding).
RELIEF - BURDEN OF PROOF - AGGRAVATED FELONY
"DHS regulations specifically provide that the respondent has such a burden only "[i]f the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply." 8 C.F.R. 1240.8(d) (emphasis added). Thus, in a case where deportability is not at issue but eligibility for relief is, the regulations clarify that there must first be evidence that indicates that the offense may be an aggravated felony before the burden shifts to the respondent seeking cancellation of removal to establish that his or her offense is not an aggravated felony. Given the categorical approach to determining what state convictions constitute aggravated felonies, where an examination of the state statute does not indicate that the conviction may be an aggravated felony, the burden does not shift. Cf, e.g., Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006) (in interpreting similar regulation that imposes burden on asylum applicant of proving by a preponderance of evidence that a mandatory bar does not apply if "the evidence indicates" that the bar applies, court required proof on both elements of the mandatory bar before the burden shifted to the respondent)." Question: Who bears the burden of showing whether an aggravated felony conviction bars relief from removal?
A: See Immigrant Defense Project brief on this subject at: http://www.nysda.org/idp/docs/07_Yanez-Garciaamicusbrief.pdf
See also, National Immigration Project advisory ("The Burden of Proof to Overcome the Aggravated Felony Bar to Cancellation of Removal") posted on the NIP website at: http://www.nationalimmigrationproject.org/CrimPage/Practice_Advisory_BurdenProof_AgFelBar_3.07.pdf
Thanks to Manny Vargas