Tooby's California Post-Conviction Relief for Immigrants
§ 8.15 5. Restriction on Removal (Formerly Withholding of Deportation) Requires a Noncitizen to Avoid an Aggregate Sentence of 5 Years or More for Aggravated Felony Conviction(s)
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The DHS may not remove a noncitizen to a country if his or her life or freedom would be threatened in that country because of race, religion, nationality, membership in a particular social group, or political opinion.[38] This form of relief is now called “restriction on removal,” and was formerly called “withholding of deportation.” A noncitizen is disqualified from this form of relief if s/he has a “final judgment of conviction” of a “particularly serious crime” (PSC).[39] If a noncitizen “has been sentenced to an aggregate term of imprisonment of at least 5 years,” s/he “shall be considered to have committed a particularly serious crime.”[40] Even if the total sentence imposed is less than five years, the Attorney General may still conclude the noncitizen has been convicted of a PSC.[41]
Counsel may avoid this result by vacating or reducing sufficient aggravated-felony sentences imposed so that the remainder of the aggregate of all such sentences is less than five years.
[38] 8 U.S.C. § 1231(b)(3)(A).
[39] 8 U.S.C. § 1231(b)(3)(B)(ii).
[40] 8 U.S.C. § 1231(b)(3)(B).
[41] Ibid.
