Periods of Lawful Temporary Resident Status and Lawful Permanent Resident Status To Establish Seven Years of Lawful Domicile [61 FR 59824] [FR 68-96]

DOCUMENT NUMBER: FR 68-96

FEDERAL REGISTER CITE: 61 FR 59824

DATE PUBLISHED: November 25, 1996

BILLING CODE 4410-10-M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 212

[INS No. 1748-96; AG Order No. 2063-96]

RIN 1115-AE27

Periods of Lawful Temporary Resident Status and Lawful Permanent

Resident Status To Establish Seven Years of Lawful Domicile

AGENCY: Immigration and Naturalization Service (INS), Executive Office for Immigration Review (EOIR), Justice.

ACTION: Interim rule with request for comments.

SUMMARY: This interim rule amends Department of Justice regulations that limit discretion to grant an application for relief under section 212(c) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1182(c), by expanding the class of aliens eligible for section 212(c) relief. This interim rule allows an alien who has adjusted to lawful permanent resident status pursuant to section 245A, 8 U.S.C. 1255a, or section 210, 8 U.S.C. 1160, of the Act to use the combined period of his or her status as a lawful temporary resident and lawful permanent resident to establish seven (7) years of lawful domicile in the United States for purposes of eligibility for section 212(c) relief. This interim rule will provide uniformity between the regulation and case law.

DATES: This interim rule is effective November 25, 1996. Written comments must be submitted on or before December 26, 1996.

ADDRESSES: Please submit written comments, in triplicate, to the Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 20536, Attention: Public Comment Clerk. To ensure proper handling, please reference INS number 1748-96 on your correspondence. Comments are available for public inspection at the above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Margaret M. Philbin, General Counsel, Executive Office for Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041, telephone (703) 305-0470; David M. Dixon, Chief Appellate Counsel, Immigration and Naturalization Service, Suite 309, 5113 Leesburg Pike, Falls Church, Virginia 22041, telephone (703) 756-6257.

SUPPLEMENTARY INFORMATION: Under recent case law, an alien who has acquired lawful permanent resident status under section 245A of the Act may accrue the seven (7) years of lawful domicile required for purposes of section 212(c) relief from the date of his or her application for temporary resident status. See Robles v. INS , 58 F.3d 1355 (9th Cir. 1995); Avelar-Cruz v. INS , 58 F.3d 338 (7th Cir. 1995); Castellon-Contreras v. INS , 45 F.3d 149 (7th Cir. 1995). The current regulation allows an alien to apply for section 212(c) relief only if he or she has established at least seven consecutive years of lawful permanent resident status immediately prior to filing the application See 8 CFR 212.3(f)(2). The Board of Immigration Appeals (BIA) has determined that, in cases arising in the Ninth Circuit, an alien may use the period of temporary resident status to establish the requisite seven years. See In re Carlos Cazares-Alvarez , Interim Decision 3262 (BIA 1996). However, in cases arising in circuits without such a temporary resident status rule, the BIA has determined that the current regulation requires seven years of lawful permanent resident status. See In re Hector Ponce de Leon-Ruiz , Interim Decision 3261 (BIA 1996). The BIA has referred these cases to the Attorney General pursuant to 8 CFR 3.1(h)(1)(ii) to resolve the issue. The issue raised in White v. INS, 75 F.3d 213 (5th Cir. 1996) (whether 8 CFR 212.3(f)(2) is consistent with 8 U.S.C. 1182(c) and therefore is entitled to deference), has been addressed and rendered moot by section 304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009 (September 30, 1996) (repealing section 212(c) and substituting other relief), effective April 1, 1997, codified at section 240A of the Immigration and Nationality Act as amended. The White court computed the years of lawful unrelinquished domicile (including the years of lawful temporary resident status) rather than lawful permanent re sidence in determining eligibility for relief.

This interim rule will permit an alien to demonstrate lawful domicile for section 212(c) relief purposes by combining his or her status as a lawful temporary resident and as a lawful permanent resident under section 245A or section 210 of the Act. This rule, which is necessary for consistency between the regulation and case law, will become effective immediately.

The Department's implementation of this rule as a interim rule, with provision for post-promulgation public comment, is based upon the "good cause" exception found at 5 U.S.C. 553(d)(3). The reasons and necessity for immediate implementation of this interim rule are as follows: (1) To resolve the conflict among the circuits regarding this issue; (2) to respond to the controversy raised by the BIA decisions; (3) to render moot the decisions referred to the Attorney General by the BIA; and (4) to provide a b enefit to those aliens who meet its criteria. An abbreviated comment period of 30 days is necessary because of the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, supra, which repeals the provision for section 212(c) relief and substitutes other relief, effective April 1, 1997. This regulation thus will be applicable only in the case of aliens in proceedings and who have filed an application for section 212(c) relief as of the effective date. Nothing in this regulation is intended to affect, nor will it affect, the operation of the Illegal Immigration Reform and Immigrant Responsibility Act, supra , to applications for relief pending on the general effective date of that act.

The Attorney General, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant adverse economic impact on a substantial number of small entities. It will affect certain individual aliens, not small entities. This rule does not constitute significant regulatory action within the meaning of section 3(f) of Executive Order 12866, nor does it have federalism implications warranting the preparati on of a Federalism Assessment in accordance with section 6(b) of Executive Order 12612.