Motion To Reopen Without Application for Relief

The Attorney General is creating an exception to the regulatory requirements, found at 8 CFR §§ 3.2(c) and 3.23(b)(3), providing that "[a]ny motion to reopen for the purpose of acting on an application for relief must be accompanied by the appropriate application for relief and all supporting documents" for any alien eligible to reopen under section 309(g) of IIRIRA, as amended by section 203 of NACARA. Such aliens may elect to file a motion to reopen initially without an application for relief and supporti ng documents. The alien must allege in such motion 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 re moval 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. The alien will then have until February 8, 1999 to file an application for suspension of deportation or cancellation of removal and all other supporting documents that would have been filed initially with a standard mo tion to reopen. A copy of both the motion to reopen and the subsequently filed application for suspension of deportation or cancellation of removal with all other supporting evidence must be served on the Immigration and Naturalization Service (INS or Service). The Service shall have 45 days from the date of service of the completed motion to respond to the motion.

The motion will be adjudicated only after it has been completed by the filing of the required application for suspension of deportation or cancellation of removal and the Service has submitted a response or the time for response has elapsed. The completed motion will be adjudicated under all applicable statutory and regulatory provisions. Persons filing a motion to reopen under NACARA should follow standard motion practice, as set forth in the regulations, with the exception of the special provisions regard ing the filing fee, the submission of the application for relief, and the provisions relating to Immigration Court jurisdiction as set forth in this rule.

If the alien fails to file the required application by February 8, 1999, the motion will be denied as abandoned. In that case, the alien will have lost the alien's one opportunity to move to reopen under section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, for suspension of deportation or cancellation of removal relief. However, an individual may still be eligible to reopen for other reasons as permitted by statute and regulation. The front page of a motion to reopen pursuant to section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, and any envelope containing such motion should include the notation "Special NACARA Motion." The $110 filing fee is waived for these motions to reopen pursuant to section 203(c) of NACARA. The requirements and procedures in 8 CFR §§ 3.31(b), 103.7(b)(1) and 240.11(f) for paying the application fee for suspension or cancellation after a motion to reopen is granted, however, are not waived. The alien should submit an Application for Suspension of Deportation (Form EOIR-40) whether or not he or she is in deportation or removal proceedings. The time period for filing the motion is from January 16, 1998 to September 11, 1998. See 63 FR 3154.

This special provision allowing for the filing of a motion to reopen without the application for relief and supporting documents applies only to motions to reopen under the special rules of section 309(g) of IIRIRA, as amended by section 203(c) of NACARA. An alien moving to reopen pursuant to section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, may choose to file a complete motion to reopen accompanied by an application for suspension of deportation or cancellation of removal and all other supp orting evidence within the designated time period of January 16, 1998 to September 11, 1998. The Service will then have 45 days to respond to the motion.

ABC Class Members

Any alien listed in section 309(c)(5)(C)(i) of IIRIRA with a final order of deportation or removal must file a motion to reopen pursuant to section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, in order to apply for suspension of deportation or "special rule" cancellation of removal. This includes, but is not limited to, the defined class of Salvadorans and Guatemalans who are afforded de novo asylum adjudications pursuant to the settlement agreement in American Baptist Churches v. Thornburgh , 760 F. Supp. 796 (1991) (ABC class members) who were issued final orders by the Board or the Immigration Judge.

The Attorney General anticipates promulgating regulations this year to delegate to Service asylum officers the authority to adjudicate the applications of certain NACARA beneficiaries for suspension of deportation and "special rule" cancellation of removal. It is anticipated that ABC class members who are eligible for ABC benefits (that is, are registered for ABC benefits and have filed an asylum application by the requisite dates: for Guatemalans, by January 3, 1995; for Salvadorans, by February 16, 1996) and who have a final order of deportation will have the option to seek adjudication of suspension of deportation before an asylum officer at INS if the motion to reopen is granted. Thus, ABC class members may request administrative closure at the time they file their motion to reopen or after the motion is granted. Their cases may be administratively closed pending promulgation of regulations governing adjudication of suspension of deportation or "special rule" cancellation of removal before the INS. An ABC class member who is eligible for ABC benefits, as described above, and whose case previously had been administratively closed by the Immigration Court, is not required to file a motion to reopen under section 309(g) of IIRIRA, as amended by section 203(c) of NACARA , however, as no final order has been issued in such a case.

Jurisdiction Over Motions To Reopen Under Section 203 of NACARA

All motions to reopen filed pursuant to the special rules of section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, shall be filed with the Immigration Court, even if the Board of Immigration Appeals (Board) issued an order in the case. An alien should make all efforts to file such motion to reopen and the completed application for suspension of deportation or cancellation of removal with the Immigration Court that last had jurisdiction over the proceedings because that is the Immigration Court t hat will adjudicate the motion to reopen. Any motion to reopen under the special rules of section 309(g), as amended by section 203(c) of NACARA, filed with the Board or with an Immigration Court other than the one that last had jurisdiction over the proceedings, will be forwarded to the appropriate Immigration Court for adjudication as a timely filed motion if filed on or before September 11, 1998.

The Department's implementation of this rule as an interim rule, with provision for post-promulgation public comment, is based upon the exception for rules of agency organization, procedures, or practice in 5 U.S.C. § 553(b)(3)(A) and upon the "good cause" exception found at 5 U.S.C. §§ 553(b)(3)(B), 553(d)(3). Immediate implementation is necessary because the time period has already been designated for filing motions to reopen under NACARA and will terminate on September 11, 1998.

Regulatory Flexibility 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 economic impact on a substantial number of small entities because it affects individual aliens, not small entities.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Executive Order 12866

The Attorney General has determined that this rule is a significant regulatory action under Executive Order 12866, and accordingly this rule has been reviewed by the Office of Management and Budget.

Executive Order 12612

The regulation adopted herein will not have substantial direct effects on the States, on the relationship between the National government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988: Civil Justice Reform

This interim rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.