Suspension of Deportation and Special Rule Cancellation of Removal for Certain Nationals of Guatemala, El Salvador, and Former Soviet Bloc Countries [63 FR 64895] [FR 82-98]

DOCUMENT NUMBER: FR 82-98

FEDERAL REGISTER CITE: 63 FR 64895

DATE OF PUBLICATION: November 24, 1998

BILLING CODE 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 208, 240, 274a, and 299

[INS No. 1915-98; AG Order No. 2192-98]

RIN 1115-AF14

Suspension of Deportation and Special Rule Cancellation of Removal for Certain Nationals of Guatemala, El Salvador, and Former Soviet Bloc Countries

AGENCY: Immigration and Naturalization Service and Executive Office for Immigration Review, Justice.

ACTION: Proposed rule.

SUMMARY: This rule proposes to amend the Department of Justice (Department) regulations by offering certain beneficiaries of the Nicaraguan Adjustment and Central American Relief Act (NACARA) who currently have asylum applications pending with the Immigration and Naturalization Service (Service), and their qualified dependents, the option of applying to the Service for suspension of deportation or cancellation of removal under the statutory requirements set forth in NACARA ("special rule cancellation of removal").

Described in very general terms, both suspension of deportation and special rule cancellation of removal are forms of discretionary relief that, if granted, permit an individual subject to deportation or removal to remain in the United States. Integrating the processing of certain applications under NACARA into the Service's Asylum Program will provide an efficient mechanism for considering the suspension of deportation and special rule cancellation of removal applications of most of the approximately 240,0 00 registered class members of the American Baptist Churches v. Thornburgh (ABC) litigation and certain other beneficiaries of NACARA who have asylum applications pending with the Service, as well as their qualified family members. The Immigration Court will retain exclusive jurisdiction over most suspension of deportation and special rule cancellation of removal applications submitted by NACARA beneficiaries who have been placed in deportation or removal proceedings.

In addition, this rule proposes to compile and codify the relevant factors and standards for extreme hardship identified within existing case law in order to provide a more uniform and focused mechanism for evaluating this aspect of a person's eligibility for suspension of deportation or special rule cancellation of removal.

DATES: Written comments must be submitted on or before January 25, 1999.

ADDRESSES: Please submit written comments in triplicate to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 20536. To ensure proper handling, please reference INS No. 1915-98 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: For matters relating to the Immigration and Naturalization Service: John Lafferty or Wenona Paul, International Affairs, Department of Justice, Immigration and Naturalization Service, 425 I Street NW., ULLICO Bldg., third floor, Washington, DC 20536, telephone number (202) 305-2663. For matters relating to the Executive Office for Immigration Review: Margaret M. Philbin, General Counsel, Executive Office for Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041, telephone number (703) 305-0470.

SUPPLEMENTARY INFORMATION:

I. Background

What is the Nicaraguan Adjustment and Central American Relief Act?

On November 19, 1997, President Clinton signed the Nicaraguan Adjustment and Central American Relief Act, enacted as title II of Pub. L. No. 105-100 (111 Stat. 2160, 2193) (as amended by the Technical Corrections to the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-139 (111 Stat. 2644)). This new law amended the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Immigration and Nationality Act (Act) by providing several distinct forms of relief to certain aliens who are presently residing unlawfully in the United States. Section 202 of NACARA permits certain Nicaraguan and Cuban nationals who meet the standards set forth in that section to apply for adjustment of status to that of lawful permanent resident. The interim rule governing applications for adjustment under section 202 was published in the Federal Register on May 21, 1998, at 63 FR 27823.

This proposed rule implements section 203 of NACARA, which permits certain Guatemalans, Salvadorans, and nationals of the former Soviet bloc to apply for suspension of deportation or cancellation of removal under special provisions set forth in that section. Unlike those applying under section 202, NACARA beneficiaries under section 203 may not become lawful permanent residents unless they meet the statutory requirements for suspension of deportation or cancellation of removal and are found to merit such r elief as a matter of discretion.

Throughout the discussion of this proposed rule, the term "NACARA beneficiaries" refers to those persons listed in section 309(c)(5)(C)(i) of IIRIRA, as amended by NACARA, who may be eligible to apply for suspension of deportation or cancellation of removal pursuant to the NACARA amendments to IIRIRA.

How does NACARA affect applications for suspension of deportation and cancellation of removal?

The Illegal Immigration Reform and Immigrant Responsibility Act, enacted by Congress on September 30, 1996, consolidated the dual system of exclusion and deportation proceedings into removal proceedings for persons placed in proceedings on or after April 1, 1997. Individuals placed in deportation proceedings prior to April 1, 1997, can apply for suspension of deportation under former section 244 of the Act, as in effect prior to April 1, 1997. Suspension of deportation is a discretionary form of relief ava ilable to individuals who can establish continuous physical presence in the United States for 7 years prior to the date of application, good moral character during that period, and that deportation would result in extreme hardship to the applicant or to the applicant's parent, spouse, or child who is a lawful permanent resident or United States citizen. Different standards apply to individuals who are deportable on certain criminal, document fraud, or security grounds. Other special exceptions apply to batt ered spouses and children and to individuals who have served in the United States military.

Under the new framework created by IIRIRA, the discretionary relief of suspension of deportation was replaced by section 240A, cancellation of removal. Congress limited the availability of this type of relief in three fundamental ways. First, Congress amended the rules relating to time counted toward physical presence in the United States. For persons seeking cancellation of removal, section 240A(d)(1) of the Act provides that time counted towards continuous physical presence ceases when a person is serve d with a charging document and placed in removal proceedings or when a person commits an offense referred to in section 212(a)(2) of the Act that renders the person inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4) of the Act, whichever is earlier (the "stop-time" rule). The Board of Immigration Appeals (Board) held that, under the transitional rules at section 309(c)(5) of IIRIRA governing persons in deportation proceedings, t his "stop-time" rule applied equally to individuals placed in proceedings prior to April 1, 1997, who had applied for or who may apply for suspension of deportation. Matter of N-J-B-, Int. Dec. #3309 (BIA 1997). In addition, section 240A(d)(2) addresses certain breaks in presence in the United States, for purposes of cancellation of removal eligibility, by providing that an alien shall be considered to have failed to maintain continuous physical presence in the United States if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.

Second, IIRIRA heightened the eligibility standards for both the required period of continuous physical presence in the United States and the degree and type of hardship that must result from removal. Generally, to be eligible for cancellation of removal under the Act as amended by IIRIRA, the applicant must establish 10 years of continuous physical presence in the United States, good moral character during that period, and that removal would result in exceptional and extremely unusual hardship to the appl icant's spouse, parent, or child who is a lawful permanent resident or United States citizen.

Third, Congress provided that no more than 4,000 aliens may have their deportation suspended or removal canceled, and their status adjusted pursuant thereto, in any fiscal year.

With certain exceptions, section 203 of NACARA permits certain Guatemalans, Salvadorans, and nationals of former Soviet bloc countries to apply for suspension of deportation or cancellation of removal under the standards that existed prior to enactment of IIRIRA. Specifically, NACARA exempts qualified Guatemalans, Salvadorans, and nationals of former Soviet bloc countries from the "stop-time" rule. In addition, section 203(b) of NACARA created a special rule for cancellation of removal for NACARA benefici aries who have not been placed in deportation proceedings. Special rule cancellation of removal permits these individuals to apply for cancellation of removal under standards that are generally the same as those for suspension of deportation.

Section 204 of NACARA also amended the Act to exempt qualified NACARA beneficiaries from the limit on the number of individuals who may be granted suspension of deportation and cancellation of removal, and adjustments of status pursuant thereto, each year.

What is suspension of deportation and special rule cancellation of removal?

Both suspension of deportation and special rule cancellation of removal are forms of discretionary relief that, if granted, permit an individual subject to deportation or removal to remain in the United States. The criteria for granting such relief, in the exercise of discretion, are described in Part IV of this Supplementary Information.

If an individual is granted suspension of deportation or special rule cancellation of removal, his or her immigration status will then be adjusted to that of lawful permanent resident. Suspension of deportation is only available to eligible persons who were placed in deportation proceedings prior to April 1, 1997. Special rule cancellation of removal is available to eligible aliens who are placed in removal proceedings on or after April 1, 1997, or who have not been placed in deportation proceedings and a re eligible to apply with the Service under the standards set forth in this proposed rule.

Is there a limit on the number of individuals who may be granted suspension of deportation or special rule cancellation of removal under NACARA?

No. NACARA exempts individuals eligible for relief under section 203 of NACARA from the limit on the number of individuals who may be granted suspension of deportation and cancellation of removal each year. Because persons who qualify for relief under Section 203 are not subject to this annual limitation, the interim rule at 8 CFR 240.21, published on September 30, 1998, in the Federal Register at 63 FR 52134, does not affect their eligibility for a grant of suspension of deportation or special rule cancellation of removal.

Who can apply under this new law?

Unless convicted of an aggravated felony, the following individuals may be eligible to apply for suspension of deportation or special rule cancellation of removal under section 203 of NACARA:

(1) any registered class member of American Baptist Churches v. Thornburgh (ABC), 760 F. Supp. 796 (N.D. Cal. 1991), who has not been apprehended at the time of entry after December 19, 1990;

(2) any Guatemalan or Salvadoran national who filed an application for asylum with the Service on or before April 1, 1990; and

(3) any alien who entered the Untied States on or before December 31, 1990, filed an application for asylum on or before December 31, 1991, and at the time of filing was a national of the Soviet Union, Russia, any republic of the former Soviet Union, Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania, Hungary, Bulgaria, Albania, East Germany, Yugoslavia, or any state of the former Yugoslavia.

In addition and regardless of nationality, the spouse, child (unmarried and under 21 years of age), unmarried son, and unmarried daughter of an individual described in any of the above three categories who is granted cancellation of removal or suspension of deportation may apply for suspension of deportation or special rule cancellation of removal under the provisions of NACARA, unless he or she has been convicted of an aggravated felony. The relationship between the spouse, child, unmarried son, or unmarr ied daughter and the spouse or parent granted suspension of deportation or cancellation of removal must exist at the time that the parent or spouse is granted suspension of deportation or cancellation of removal. If the alien is an unmarried son or unmarried daughter 21 years of age or older at the time the parent is granted suspension of deportation or cancellation of removal, he or she must have entered the United States on or before October 1, 1990, in order to be eligible to apply for suspension of dep ortation or special rule cancellation of removal under NACARA. Although a spouse, child, unmarried son, or unmarried daughter is not statutorily eligible to apply for such relief unless the "principal" spouse or parent has been granted suspension of deportation or cancellation of removal, applications for relief may be submitted at the same time as the "principal" spouse or parent submits an application, or while the "principal" spouse or parent's application is pending. The spouse, child, unmarried son, or unmarried daughter will be required to independently establish each of the applicable statutory criteria for suspension of deportation or special rule cancellation of removal and that he or she merits discretionary relief.