Suspension of Deportation and Special Rule Cancellation of Removal for Certain Nationals of Guatemala, El Salvador, and Former Soviet Bloc Countries [64 FR 27856] [FR 25-99]

DOCUMENT NUMBER: FR25-99

FEDERAL REGISTER CITE: 64 FR 27856

DATE OF PUBLICATION: May 21, 1999

BILLING CODE: 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 208, 240, 246, 274a, 299

[INS No. 1915-98; AG Order No. 2224-99]

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: Interim rule with request for comments.

SUMMARY: This rule implements section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA). It amends the Department of Justice (Department) regulations by offering certain beneficiaries of section 203 of 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 as a lawful permanent resident alien. Integrating the processing of certain applications under NACARA into the Service's Asylum Program will provide an efficient process for considering the suspension of deportation and special rule cancellation of removal applications of most of the approximately 240,000 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.

This rule also codifies the relevant factors and standards for extreme hardship identified within existing case law, incorporates additional extreme hardship factors relevant to battered spouses and children, creates a rebuttable presumption of extreme hardship for NACARA-eligible ABC class members who submit completed applications, sets forth relevant eligibility criteria, creates procedures for adjudicating suspension of deportation and special rule cancellation of removal cases before the Service, and pr ovides for the referral of certain cases to the Immigration Court.

DATES: Effective date : This interim rule is effective June 21, 1999.

Comment date : Written comments must be submitted on or before July 20, 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 : Joanna Ruppel, 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 : Chuck Adkins-Blanch, Acting General Counsel, Executive Office for Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls Church, VA 22041, telephone number (703) 305-0470.

SUPPLEMENTARY INFORMATION:

I. Background

What Is Section 203 of the Nicaraguan Adjustment and Central American Relief Act?

Section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), enacted as title II of Pub. L. 105-100 (111 Stat. 2160, 2193) (as amended by the Technical Corrections to the Nicaraguan Adjustment and Central American Relief Act, Pub. L. 105-139 (111 Stat. 2644)), permits certain Guatemalans, Salvadorans, and nationals of former Soviet bloc countries to apply for suspension of deportation or cancellation of removal under special provisions set forth in that section.

How Did the Service Propose To Implement Provisions of Section 203 of NACARA?

On November 24, 1998, the Department of Justice published a proposed rule to implement certain aspects of section 203 of NACARA in the Federal Register at 63 FR 64895. The proposed rule would grant asylum officers jurisdiction to adjudicate certain NACARA cases, create a new NACARA application form, and outline the eligibility criteria for obtaining relief, as well as the process for submitting an application to the Service and processing procedures. The proposed rule would also codify the factors from relevant case law generally considered in evaluating extreme hardship claims. Comments were requested from the public by January 25, 1999.

In response to the proposed rule, the Department received over 400 comments from a wide range of community organizations, legal service providers, advocacy groups, members of Congress, the private bar, and individuals. The comments offered suggestions for revising and streamlining the adjudication and application process, providing alternative legal interpretations for certain eligibility issues, and advocating various policy interpretations with regard to implementation of section 203 of NACARA. The vast m ajority of comments, however, urged the Department to create a mandatory finding of extreme hardship for NACARA beneficiaries, particularly for those ABC class members who are eligible for relief under section 203 of NACARA.

Why Is the Service Issuing an Interim Rule With Requests for Comments?

The Department has reviewed all the comments submitted in response to its proposed rule carefully and, in deciding which comments to incorporate, has kept in mind the ameliorative purposes of NACARA. Many suggestions from the public have been incorporated, particularly with regard to streamlining the application form and clarifying certain aspects of the application and adjudication process. With respect to alternative legal interpretations of eligibility requirements and other substantive matters, the Depa rtment has made those changes that comport with the Immigration and Nationality Act (the Act) and NACARA.

Some of the substantive legal recommendations, however, exceed the scope of the law and could not be included in the interim rule. This is particularly true with regard to the resolution of the extreme hardship issue. As will be explained in greater detail, the Department has determined that it would be inconsistent with both the Act and NACARA to adopt a conclusive finding of extreme hardship for all NACARA applicants, as well as for the more limited group of ABC class members. The Department has determine d, however, that a more limited approach is most consistent with the requirement that suspension of deportation and cancellation of removal cases be adjudicated on a case-by-case basis. This rule, therefore, creates a rebuttable presumption of extreme hardship for those ABC class members who are eligible to apply for relief under section 203 of NACARA. The presumption will not apply to nationals from the former Soviet bloc countries or any NACARA dependents.

Because the adoption of a rebuttable presumption represents a significant shift from the proposed rule, the Department has determined that an additional comment period is needed. However, due to the substantial number of aliens eligible to apply for relief under section 203 of NACARA, the Department finds that there is good cause to avoid further delay in allowing applications by issuing this regulation as an interim rule. 5 U.S.C. 553.

How Are the Comments to the Proposed Rule Addressed in This Interim Rule?

Given the large number of comments and the variety of issues addressed, the discussion of the comments is divided into the general categories of jurisdiction, initial and substantive eligibility requirements, application procedures, adjudication procedures, and revisions to the form that will generally be used to request relief under section 203 of NACARA, Form I-881, "Application for Suspension of Deportation or Special Rule Cancellation of Removal (pursuant to section 203 of Public Law 105-100 (NACARA))." Within each category, the discussion contains a brief summary of relevant comments, the Department's responses, and the changes made to the rule or form.

Additionally, this interim rule at 8 CFR part 246 gives asylum office directors the same authority currently accorded district directors to rescind adjustment of status granted to an individual by an asylum officer in cases in which the individual is later found to have been ineligible for adjustment of status. This interim rule also outlines certain conditions and consequences of filing an application for NACARA relief at 8 CFR 240.63(d).

II. Discussion of Comments