Executive Office for Immigration Review; Motion to Reopen: Suspension of Deportation and Cancellation of Removal

DOCUMENT NUMBER: FR 44-98

FEDERAL REGISTER CITE: 63 FR 31890

DATE OF PUBLICATION: June 11, 1998

BILLING CODE 4410-30-M

DEPARTMENT OF JUSTICE

8 CFR Part 3

[EOIR No. 121P; AG Order No. 2162-98]

RIN 1125-AA23

Executive Office for Immigration Review; Motion to Reopen:

Suspension of Deportation and Cancellation of Removal

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Interim rule with request for comments.

SUMMARY: This rule amends the regulations of the Executive Office for Immigration Review (EOIR) by establishing a special procedure for the filing and adjudication of motions to reopen to apply for suspension of deportation and cancellation of removal pursuant to section 203(c) of the Nicaraguan Adjustment and Central American Relief Act.

DATES: Effective date : This interim rule is effective June 11, 1998.

Comment date : Written comments must be submitted on or before July 13, 1998.

ADDRESSES: Please submit written comments, in triplicate, to Margaret M. Philbin, General Counsel, Executive Office for Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041.

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.

SUPPLEMENTARY INFORMATION: This interim rule with request for comments amends 8 CFR part 3 by creating new § 3.43.

Background

This regulation relates to a previous notice, signed by the Attorney General on January 15, 1998, and published at 63 FR 3154, on January 21, 1998, which designated the time period for filing motions to reopen pursuant to section 203(c) of the Nicaraguan Adjustment and Central American Relief Act (Pub. L. 105-100; 111 Stat. 2160, 2193) (NACARA). Section 203 of NACARA, signed into law on November 19, 1997, amended section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Pub. L. 104-208; 110 Stat. 3009-625) (IIRIRA) to provide special rules regarding applications for suspension of deportation and cancellation of removal by certain aliens. These aliens include Guatemalan, Salvadoran, and certain former Soviet bloc nationals described in section 309(c)(5)(C)(i) of IIRIRA, as amended by section 203 of NACARA.

Section 203(c) of NACARA also amended section 309 of IIRIRA by creating a provision for motions to reopen under NACARA. Section 309(g) of IIRIRA, as amended, permits aliens with final orders of deportation or removal who have become eligible for cancellation of removal or suspension of deportation as a result of the amendments made by section 203 of NACARA to file one motion to reopen removal or deportation proceedings to apply for such relief, without regard to the limitations imposed by law on motions to reopen. Section 309(g) of IIRIRA, as amended, further requires the Attorney General to designate a specific time period for filing motions to reopen for such relief beginning no later than 60 days after the date of enactment of NACARA and extending for a period not to exceed 240 days.

The Attorney General's notice in the Federal Register designated from January 16, 1998 to September 11, 1998 as the time period for filing NACARA motions to reopen. See 63 FR 3154. That notice waived the filing fee for motions to reopen filed pursuant to NACARA, but did not disturb any other regulatory provisions with respect to the filing or adjudication of motions to reopen.

The Interim Rule

The Attorney General is simplifying the filing process for NACARA motions to reopen in two ways. First, this rule clarifies who can file a motion to reopen pursuant to section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, by defining who has become eligible for "special rule" cancellation of removal or suspension of deportation as a result of the amendments made by section 203 of NACARA. Second, the rule permits any alien who is moving to reopen pursuant to section 309(g) of IIRIRA, as amended b y section 203(c) of NACARA, to file such motion initially without a suspension or cancellation application and supporting documents. The alien then will have until February 8, 1999 to file the application for suspension of deportation or cancellation of removal and to provide all other supporting evidence and arguments in favor of reopening. The alien should note at that time that he or she is filing such application to complete a NACARA motion to reopen filed earlier without an application and supporting d ocumentation.

The Attorney General is clarifying who can file a motion to reopen pursuant to section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, to ensure a fair and efficient administrative process. In addition, the Attorney General has decided to permit the initial filing of NACARA motions to reopen to pursue relief under NACARA without applications for relief and supporting documents because NACARA gives eligible aliens the opportunity to file only one NACARA-based motion to reopen and permits a 240-day time period during which the motion must be filed. Many potential NACARA beneficiaries may have been in proceedings years ago and it may take some time to accumulate the documents necessary to prepare an application for suspension of deportation.

Aliens Eligible To File a Motion To Reopen Pursuant to NACARA

Section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, permits an alien who has a final order of deportation or removal to file one motion to reopen only if he or she has become eligible for cancellation of removal or suspension of deportation as a result of the amendments made by section 203 of NACARA. Section 203(c) of NACARA provides: "[N]otwithstanding any limitation imposed by law on motions to reopen removal or deportation proceedings (except limitations premised on an alien's conviction of an aggravated felony (as defined in section 101(a) of the Immigration and Nationality Act)), any alien who has become eligible for cancellation of removal or suspension of deportation as a result of the amendments made by section 203 of the Nicaraguan Adjustment and Central American Relief Act may file one motion to reopen removal or deportation proceedings to apply for cancellation of removal or suspension of deportation." See Public Law 105-100, § 203(c).

This rule clarifies who can file a motion to reopen pursuant to NACARA by defining "who has become eligible for cancellation of removal or suspension of deportation as a result of the amendments made by section 203 of the Nicaraguan Adjustment and Central American Relief Act." Several provisions of IIRIRA must be examined to determine "who has become eligible" for cancellation of removal or suspension of deportation as a result of the amendments made by NACARA.

IIRIRA consolidated deportation and exclusion proceedings into one unified removal proceeding and abolished the relief from deportation known as "suspension of deportation" contained in section 244(a) of the Immigration and Nationality Act (INA) (as it existed prior to April 1, 1997). Persons placed in removal proceedings after April 1, 1997 may, instead, apply for cancellation of removal pursuant to section 240A of the INA, as amended. While cancellation of removal resembles suspension of deportation, a n applicant for cancellation must generally establish continuous physical presence for ten years instead of seven years, must establish "exceptional and extremely unusual hardship" instead of "extreme hardship," and must establish hardship to the applicant's United States citizen or lawful permanent resident spouse, parent, or child rather than hardship to the applicant or a United States citizen or lawful permanent resident spouse, parent, or child.

Special rules terminating continuous physical presence also apply to cancellation of removal relief. Section 240A(d) (1) and (2) provides three rules relating to the termination of continuous residence or physical presence. Any period of continuous residence or continuous physical presence in the United States shall be deemed to end when the alien is: (1) served a notice to appear under section 239(a); or (2) has committed an offense referred to in section 212(a)(2) that renders the alien inadmissible to th e United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earlier. See section 240A(d)(1) of the INA, as amended. In addition, an alien shall be considered to have failed to maintain continuous physical presence in the United States if the alien has departed the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days. See section 240A(d)(2) of the INA, as amended. These "stop-time rules" of IIRIRA apply to all aliens in removal proceedings under section 240A of the INA, as amended.

Section 309(c)(5) of IIRIRA as in effect prior to amendment by NACARA contained a transitional rule providing that paragraphs (1) and (2) of section 240A(d) of the INA (which established these "stop-time rules" relating to continuous physical presence) shall apply to notices to appear issued before, on, or after the date of enactment of IIRIRA. This transitional rule has been interpreted as applying the "stop-time rules" of IIRIRA also to orders to show cause issued against persons in deportation proceeding s seeking suspension of deportation relief. Under this interpretation, an alien affected by any of the "stop-time rules" relating to continuous physical presence--for example, an alien who failed to accrue seven years of continuous physical presence before being served with an order to show cause--was made ineligible for suspension of deportation. Therefore, under IIRIRA an alien generally must establish seven years of continuous physical presence in the United States prior to service of a charging document , along with good moral character and extreme hardship, in order to qualify for suspension of deportation. (Aliens who cannot establish continuous physical presence because of commission of an offense, or because the continuity of their physical presence was interrupted by a departure from the United States exceeding 90 days (or 180 days in the aggregate), would also be ineligible for suspension of deportation.)

Section 203 of NACARA amends section 309(c)(5) of IIRIRA by eliminating this transitional restriction on suspension of deportation for six classes of aliens in deportation proceedings and similarly exempts persons in removal proceedings who are within those six categories from operation of the "stop-time rules" contained in section 240A(d)(1) of the INA. Section 203 also creates a "special rule" for cancellation of removal which generally restores pre-IIRIRA suspension rules for those who are applying for c ancellation of removal and fall within the six classes of aliens.

Generally, an alien within one of the six classes who would have been ineligible for suspension of deportation at the time of adjudication as a result of section 309(c)(5) of IIRIRA may now be eligible for suspension under the NACARA amendments. Thus, an alien who was served with an order to show cause before being physically present in the United States for a continuous period of seven years may now be eligible for suspension of deportation as a result of the amendments made by section 203 of NACARA. Simil arly, an alien within one of the six classes who was ineligible for cancellation of removal under the heightened standard of "exceptional and extremely unusual hardship" may now be eligible under the special rule for cancellation of removal. For example, an alien served with a notice to appear before being physically present in the United States for a continuous period of 10 years, or an alien who could not establish that his removal would result in exceptional and extremely unusual hardship to a United Sta tes citizen or lawful permanent resident spouse, parent, or child, may now be eligible for the special rule for cancellation of removal as a result of the amendments made by section 203 of NACARA.

This rule provides that a motion to reopen pursuant to section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, must establish that the alien: (1) is prima facie eligible for suspension of deportation pursuant to section 244(a) of the INA (as in effect prior to April 1, 1997) or the special rule for cancellation of removal pursuant to section 309(f) of IIRIRA, as amended by section 203(b) of NACARA; and (2) was or would be ineligible (a) for suspension of deportation by operation of section 309(c)( 5) of IIRIRA (as in effect prior to November 19, 1997); or (b) for cancellation of removal pursuant to section 240A of the INA, but for operation of section 309(f) of IIRIRA, as amended by section 203(b) of NACARA; and (3) has not been convicted at any time of an aggravated felony; and (4) falls within one of the six classes of aliens described in section 203(a)(1) of NACARA.

Prima Facie Eligibility and Statutory Bars

As mentioned above, an alien reopening pursuant to NACARA must establish prima facie eligibility for suspension of deportation or cancellation of removal under the applicable standards governing such forms of discretionary relief pursuant to section 244 of the INA, as in effect prior to April 1, 1997. In general, the alien must have been physically present in the United States for a continuous period of at least seven years immediately preceding the date of such application; must be a person of good moral c haracter during such period; and must establish that deportation or removal would result in extreme hardship to the alien or to the alien's spouse, parent, or child who is a citizen of the United States or an alien lawfully admitted for permanent residence. Different standards apply to aliens who are deportable because of a criminal conviction or certain other grounds. See section 244(a)(2) of the INA, as in effect prior to April 1, 1997. The period of continuous physical presence must be established as of no later than September 11, 1998.

Further, to be prima facie eligible to apply for suspension of deportation or cancellation of removal, the alien must not be subject to any of the statutory bars to seeking such relief. Section 240A(c) of the INA, and section 244(f) of the INA as it existed prior to April 1, 1997, provide that certain categories of aliens are ineligible for cancellation of removal or suspension of deportation. Moreover, an alien who was previously granted voluntary departure and received oral and written notice of the conse quences of failing to depart, but did not depart the United States voluntarily within the time specified, is barred for a specific period of time from various forms of discretionary relief, including cancellation of removal and suspension of deportation, pursuant to section 240B(d) of the INA and section 242B(e)(2) of the INA as it existed prior to April 1, 1997. Sections 242B(e)(1), (3) and (4) of the INA as it existed prior to April 1, 1997, also bar eligibility for such relief for certain aliens who, aft er receiving the required oral and written notices, failed to appear at their removal or deportation hearings, failed to appear as ordered for deportation, or failed to appear at an asylum hearing. These and any other statutory bars to eligibility for suspension of deportation or cancellation of removal are not waived by the provisions of NACARA. Although there may be only a limited number of aliens who are affected by these provisions, the Attorney General has no authority to waive these statutory bars in the cases where they do apply.