Suspension of Deportation and Cancellation of Removal [63 FR 52134] [FR 71-98]

DOCUMENT NUMBER: FR 71-98

FEDERAL REGISTER CITE: 63 FR 52134

DATE OF PUBLICATION: September 30, 1998

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 240

[EOIR No. 124I; AG Order No. 2182-98

RIN 1125-AA25

Suspension of Deportation and Cancellation of Removal

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

ACTION: Interim rule.

SUMMARY: This rule amends the regulations of the Executive Office for Immigration Review (EOIR) and the Immigration and Naturalization Service (Service) by eliminating the conditional grant process at 8 CFR 240.21, and establishing a permanent procedure for processing suspension of deportation and cancellation of removal cases. This rule is necessary to implement the numerical limitation on suspension of deportation and cancellation of removal and adjustment of status imposed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA).

DATES: Effective Date : This interim rule is effective September 30, 1998.

Comment Date : Written comments must be submitted on or before November 30, 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: 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 (703) 305-0470. For matters relating to the Immigration and Naturalization Service--Marguerite N. Przybylski, Associate General Counsel, Immigration and Naturalization Service, 425 I Street, NW, Washington, D.C. 20536, telephone (202) 514-2895.

SUPPLEMENTARY INFORMATION: This interim rule amends 8 CFR part 240 by eliminating the interim rule in section 240.21 and creating a new section 240.21.

Background

On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208 (IIRIRA). Under section 304(a)(3) of IIRIRA, the Attorney General may not cancel the removal and adjust the status under section 240A(b) of the Immigration and Nationality Act (INA), nor suspend the deportation and adjust the status under section 244(a) of the INA (as in effect before April 1, 1997) of a total of more than 4,000 aliens in any fiscal year. Section 309(c)(7) of I IRIRA provides that this numerical limitation applies regardless of when an alien has applied for the relief, even if before the date of IIRIRA's enactment on September 30, 1996.

By mid-February 1997, EOIR had determined it had essentially reached the fiscal year 1997 numerical limitation on suspension of deportation grants. On February 13, 1997, the Board of Immigration Appeals (Board) issued a directive to defer the adjudication of grants of suspension of deportation until further notice. The Immigration Courts received a directive to reserve decision in suspension of deportation cases that they intended to grant. The instructions were intended to be a temporary measure to give th e Department time to consider how best to implement the statutory cap.

On October 3, 1997, the Department issued an interim rule that was published in the Federal Register at 62 FR 51760-51762. This rule added 8 CFR 240.21 to the regulations. The rule required immigration judges and the Board to grant only on a conditional basis those applications for suspension of deportation or cancellation of removal that meet the statutory requirements and warrant a favorable exercise of discretion. See 8 CFR 240.21(a) (in effect prior to publication of this rule). On October 15, 1997, EOIR instructed immigration judges to begin issuing conditional grants of suspension of deportation or cancellation of removal on decisions reserved in accordance with the February 13, 1997 directive from the Chief Immigration Judge.

On November 19, 1997, the President signed into law the Nicaraguan Adjustment and Central American Relief Act (NACARA), which modified the statutory provisions on the suspension of deportation and cancellation of removal cap. Section 204 of NACARA amended section 240A(e) of the INA. It reaffirmed the existence of the 4,000 annual cap, but made exemptions for certain aliens--those certain nationals of Guatemala, El Salvador, and former Soviet bloc countries as described in section 203(a)(1) of NACARA, and th ose in deportation proceedings prior to April 1, 1997, who apply for suspension of deportation pursuant to section 244(a)(3) of the INA (as in effect prior to April 1, 1997). It also created a one-time provision for fiscal year 1998 which added to the statutory amount of 4,000 another 4,000 grants, less the number of suspensions and cancellations that were granted in fiscal year 1997 after April 1, 1997. No cancellation of removal or suspension of deportation applications were granted in fiscal year 1997 af ter April 1, 1997. Therefore, all 4,000 grants can be added to the 4,000 allotment, for a total of 8,000 grants for fiscal year 1998.

The Department has determined that the implementation of the numerical cap on grants of suspension of deportation and cancellation of removal requires resolution of three issues. The first issue concerns how best to convert 8,000 conditional grants to grants before the end of fiscal year 1998, in a way that does not contravene section 240A(e) of the INA. The second issue is how to ensure that all those who received a conditional grant of suspension of deportation or cancellation of removal which could not b e granted in fiscal year 1998, have an opportunity to receive a grant of relief. The third issue is how to establish a procedure for future implementation of the cap.