Crimes of Moral Turpitude

Deferred action may be granted to a noncitizen who is removable on account of one or more CMT convictions, with the effect of temporarily postponing, or completely terminating, removal proceedings.

Deferred Action Status (DAS) has been a mechanism in which the noncitizen asks the INS to postpone or completely terminate deportation proceedings.  It first appeared as a policy, and was then codified as INS Operations Instructions 242.1(a)(22).[118]  It applies, for example, to a noncitizen granted asylum, unless the grant of asylum is first revoked.[119]

The Operations Instruction provided that the application should be made to the District Director of the INS.  This application is usually a last ditch request for a case with exceptional equities but is no way to win lawful resident permanent status or to avoid a removal or deportation order.  For example, in San Francisco, the INS granted DAS to a young man with a minor drug conviction and an otherwise excellent record, whose entire family had just won suspension of deportation.  The application for DAS should be specific and as well documented as possible.  The assistance of a well-known and respected immigration attorney with good relations with the immigration authorities, as well as outstanding equities for the applicant, may be particularly important.

Deferred Action Status is also used officially as a kind of Temporary Protected Status,[120] at times as a vehicle for awarding employment authorization.

            In one case, a United States District Court ordered the INS on due process grounds to grant deferred action status to a noncitizen until it can establish that she is not likely to be killed if deported to Colombia.[121]

            For a discussion of DHS prosecutorial discretion in general, see N. Tooby & J. Rollin, Criminal Defense of Immigrants § 15.20 (4th Ed. 2007).

[118] The Operations Instruction was rescinded in July 1997 as part of major changes in the OI to comport with the 1996 IIRAIRA, but the policy still is being followed and the OI is expected to return.

[119] 8 C.F.R. § 208.22.

[120] See § 3.36, infra.

[121] Rosciano v. Sonchik, 2002 U.S. Dist. LEXIS 25419 (D. Ariz. 2002) (unpublished).