The Department of Justice (Department) published in the Federal Register a proposed rule at 65 FR 44476 on July 18, 2000, which created a uniform procedure for applying the law as enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The Department requested comments from the public for a period of 30 days, ending on August 17, 2000. In response to requests from the public, and to ensure the public ample opportunity to fully review and comment on the proposed rule, the Department published a notice in the Federal Register on October 11, 2000, extending the public comment period to October 11, 2000 (65 FR 60384).

How Many Comments Were Received From Interested Parties During the Comment Period?

    In response to the proposed rulemaking, the Department received 169 comments from various organizations, attorneys, and other interested individuals. Each Member of Congress, representative or member of a non-governmental organization (NGO), interested individual, or private attorney was counted separately as a “commenter.” Commenters included 10 Members of Congress, one Division of a State Department of Criminal Justice, 91 representatives of a number of NGOs, 11 private attorneys or legal professionals, a nd 56 interested individuals. Included in that number were eight letters submitted individually by eight separate NGOs. Five NGOs submitted identical form letters. One commentary was jointly submitted by a group of 10 NGOs and four legal professionals not affiliated with any of the NGOs, while another commentary was submitted by a group of 38 NGOs. Finally, identical form letter commentaries were separately submitted by 30 individual members of a single NGO. The Department appreciates the contributions of a ll individuals and groups who submitted comments.

What Were the Specific Comments and How Is the Department Amending the Rule as a Result?

    The issues raised by the commenters generally fell into five categories: (1) Procedural requirements; (2) eligibility; (3) nationwide uniformity; (4) parole; and (5) miscellaneous issues. The number of commenters raising issues pertaining to procedural requirements totaled 151 and those raising eligibility concerns totaled 158. Commenters who raised issues pertaining to parole totaled 123, while only 20 commenters were concerned with uniformity issues. Five commenters addressed miscellaneous issues. Comment s in each of these areas are discussed in further detail below.

1. Issues Pertaining to Procedural Requirements

    Concerns regarding various procedural requirements were raised by 151 commenters. All but two representatives from NGOs made suggestions concerning procedural issues, and 48 out of 56 interested individuals made similar suggestions.

    Comment : One hundred forty-six commenters expressed concern that the proposed rule lacks a mechanism to inform the public of available relief. These commenters suggested that the Department undertake the responsibility to notify each alien who appeared to be potentially eligible to file a motion to reopen, since it would be unlikely that an eligible, unrepresented alien would be aware of the relief available to him or her under the rule. Further, this group of commenters suggested that the Department provide publi c notice of the relief in appropriate venues and languages reaching the largest number of individuals both in and outside of the United States.

    Response : Notification of the availability of section 212(c) relief under this rule will be provided in the same manner and form as notification for other forms of relief. Final rules are always published in the Federal Register and are available on the Federal Register website. In addition, the Department will issue a press release announcing the effective date of the final rule and outlining the eligibility requirements. The Department has received, and will likely continue to receive, numerous telephone inquiries regarding the availability of section 212(c) relief pursuant to this rule from interested individuals and has directed them to the Federal Register for further updates.

    Comment : A group of 10 NGOs suggested that all individuals currently in proceedings should be notified, in person or via certified mail, of their possible eligibility for relief.

    Response : Because the regulation includes individuals who are potentially eligible for relief even though they have not yet filed a section 212(c) application, it would be difficult for the Department to identify the class of potentially eligible individuals with any accuracy. Moreover, in view of the administrative burdens involved in such a notification initiative, the Department has concluded that the traditional means of notification through the Federal Register is sufficient, particularly in combination with the press release the Department is issuing on this subject.

    Comment : These same commenters, speaking as a group, stated that although aliens presently in proceedings before the Immigration Court or the Board are intended to be covered by the proposed rule, the rule itself does not contain language which specifically includes such aliens.

    Response : 8 CFR 212.3(g) includes all eligible aliens whose deportation proceedings commenced before April 24, 1996. Nothing in the rule excludes otherwise covered aliens whose proceedings are pending as of the effective date of this final rule.

    Comment : The same group of 10 NGOs provided additional suggestions: (1) Eliminating the requirement of a motion to reopen altogether; (2) requiring the Board and the Immigration Courts to reopen sua sponte each case in which an individual may be eligible for relief under the rule, and (3) providing notice to the alien of such potential eligibility. An additional 129 commenters endorsed the sua sponte reopening of cases. Thirty commenters also suggested that no remand should be required for cases currently pending before the Board. Instead, they suggested that any appeal by the INS deemed without merit by the Board be dismissed and the decision of the Immigration Judge granting the section 212(c) waiver be re instated.

    Response : Pursuant to 8 CFR 3.2 and 3.23, sua sponte reopening of any case may occur at the discretion of the Board or an Immigration Judge, but such reopening is not mandated by this rule. The burden of establishing eligibility for section 212(c) relief, as with any other request for relief from deportation, is upon the alien, and it is incumbent upon any alien subject to a final order of deportation who wishes to pursue relief in proceedings to do so in a diligent and timely fashion, under the provisions of this rule. The Department cannot, as a practical matter, undertake the enormous burden of examining past cases that resulted in a final order of deportation for possible sua sponte reopening. Such a burden would result in inordinate delays in adjudicating cases currently pending before the Board and the Immigration Courts.

    With regard to INS appeals of section 212(c) applications that are presently pending before the Board, these cases will be adjudicated in the same manner as any other pending appeal subject to a superseding regulation or change in the law. The Board will continue to exercise its appellate authority to affirm the decision of the Immigration Judge, remand the case for an additional hearing, or adjudicate the appeal by applying the provisions of section 212(c) as promulgated prior to AEDPA.

    Comment : One commenter writing on behalf of an NGO suggested that the Department adopt a “streamlined” motion to reopen procedure using a simple, one-page fill-in or check-off form.

    Response : In view of the widely varying circumstances in each case, and the traditional requirement that persons seeking to reopen completed proceedings carry a burden of establishing, among other things, prima facie eligibility for relief upon reopening, the Department declines to adopt a “one-size-fits-all” form and will adhere to the normal requirements concerning motions to reopen, except as specifically modified by the rule.

    Comment : Twenty-one commenters suggested that aliens filing motions to reopen should not be required to file any legal documents previously submitted to the INS or to the Immigration Court.

    Response : In cases where an alien is filing a motion to reopen his or her proceedings based upon alleged eligibility for a form of relief from removal or deportation, the alien has the burden of establishing prima facie eligibility for that form of relief. This rule is not intended to alter that fundamental legal principle. In accordance with 8 CFR 3.23(b)(3), “[a]ny motion to reopen for the purpose of acting upon an application for relief must be accompanied by the appropriate application for relief and all suppor ting documents.” Because the files maintained by the INS often vary from those maintained by the Immigration Courts and the Board, a policy at variance from the regulations would cause aliens to operate on the mistaken assumption that the Immigration Court, the Board, and the INS maintain duplicate files while considering eligibility for relief. In addition, if an alien filed a motion to reopen without attaching supporting documents, but with the expectation that the Immigration Judge or Board would rely on certain documents the alien believes were already in the file in adjudicating that motion, that alien may not necessarily make a prima facie case for relief.

    Comment : One hundred thirty-five commenters requested either that the 90-day time limit on motions to reopen be eliminated and that no time limit whatsoever be imposed, or that the time period for filing a motion to reopen be extended from 90 days to 1 year commencing on the date of actual notice to the alien. They noted that it could prove difficult for aliens and their representatives to gather the necessary documentation to support their motions to reopen during the currently allotted 90-day time period.

    Response : The Department recognizes the difficulty that aliens and/or their representatives may experience in assembling adequate documentation to establish prima facie eligibility under this rule. The Department also recognizes that in cases where the order of deportation became final many years ago, aliens and/or their representatives might need to request copies of conviction records from Federal or State authorities. The Department recognizes that it may be difficult for many bona fide applicants to become info rmed of available relief, obtain counsel, gather all necessary documents and file a motion to reopen within the currently allotted 90 days time period. Accordingly, the Department is adopting this suggestion to a limited extent, and is extending the period of time during which motions to reopen may be filed to 180 days commencing on the effective date of this rule. The Department feels that this time period strikes a reasonable balance between the litigative difficulties for aliens filing motions and the ad ministrative need for a finite and workable program.

    Comment : Sixty-five percent (65%) of the commenters suggested that an automatic stay of deportation be provided in conjunction with the filing of a motion to reopen under this rule, effective upon filing of the motion.

    Response : With very limited exceptions, the prevailing rule in immigration jurisprudence is that the mere filing of an application, motion, or petition does not automatically stay execution of a deportation order. Were it otherwise, individuals subject to a final order of deportation could thwart or delay deportation through meritless filings with the Service, Immigration Court, or Board. The Department will adhere to the traditional approach in this rule. Aliens who believe they are eligible for relief under this rule are free to request a discretionary stay of deportation from the Service, the Immigration Court, or the Board as appropriate.

2. Issues Pertaining to Eligibility

    One hundred fifty-four commenters raised concerns regarding the determination of eligibility for relief under the proposed rule.

    Comment : One hundred forty-eight commenters felt that using the date of “commencement” of proceedings to determine eligibility for section 212(c) relief was arbitrary, because commencement of proceedings is affected by various extraneous factors. For example, approximately 20 commenters suggested that individuals who had been served with Orders to Show Cause (OSCs) at any time, whether before or after April 24, 1996, should be eligible to apply for relief under the proposed rule, regardless of whether they had alr eady filed a section 212(c) waiver application. An equal number of commenters suggested that aliens who had committed or been convicted of offenses prior to April 24, 1996, be afforded an opportunity to apply for relief under the proposed rule. One commenter suggested that section 212(c) be amended to include post-April 1996 convictions.

    Response : The well-established rule in immigration law, as stated in 8 CFR 3.14(a), is that “[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service.” Up until the point of filing, the Service can cancel a charging document. See 8 CFR 239.2(a). After that point, it must request that the Immigration Court terminate proceedings. See 8 CFR 239.2(c). Hence, filing of the charging document with the Immigration Court is the cr itical event as regards the initiation of deportation proceedings.

    Because many other legal determinations depend on whether proceedings have commenced, the need for a bright-line rule as to the time of commencement is clear. The Department will adhere to its well-established regulatory scheme as regards commencement of proceedings, and will not rely on some other event such as the issuance or service of the charging document as determining whether proceedings have begun.

    Some circuits have looked to the service of a charging document as the critical event for purposes of “retroactivity” analysis. The Department disagrees with the reasoning of these courts, and declines to adopt it in this rule. In any such circuit, however, the Department will regard AEDPA section 440(d) as inapplicable to aliens whose charging documents were served before AEDPA’s enactment if required to do so by circuit precedent. A circuit’s adoption of a “retroactivity” analysis based on service of the charging document does not compel the further conclusion that proceedings commence with the service of a charging document. The latter conclusion flatly contradicts well-settled law.

    Comment : In adjudicating motions to reopen, one commenter suggested that when determining eligibility for section 212(c) relief in proceedings, only evidence available before April 24, 1996, be

considered.

    Response : Applications for relief from deportation are considered to be ongoing, and the Board assesses eligibility for relief as of the time of its decision. See In re Yeung , Interim Decion 3297 (BIA 1997); Matter of U-M- , 20 I. & N. Dec. 327, 332 (BIA 1991), aff’d sub nom . Urbina-Mauricio v. INS, 989 F.2d 1085 (9th Cir. 1993). To abandon this long-standing view would put the Department in the position of granting permanent U.S. status to persons presently ineligible for such status under applicable statutes. The Department declines to adopt such an approach. It should be noted that this rule often operates to the advantage of the respondent in proceedings, for example, by allowing for consideration of equities gained up until the date of the application.

    Comment : Approximately five commenters felt that the Soriano decision deprived many aliens of a full and fair opportunity to pursue their applications for relief from deportation under section 212(c). These commenters cited examples where aliens were not permitted to file section 212(c) waiver applications because they were found ineligible on statutory grounds and their applications were pretermitted. Two Members of Congress joined in this view, noting that absent section 440(d) of the AEDPA, an alien would have been permitted to li tigate issues of statutory eligibility. Additionally, thirty-one percent of commenters felt that affected aliens should be returned to their position prior to the issuance of the Soriano decision by the Attorney General. One hundred forty commenters suggested that the language in proposed 8 CFR 3.44(b)(4)(i), which currently states, inter alia , that:

    A motion to reopen proceedings to seek section 212(c) relief under this section must establish that the alien: * * * (4) Either--(i) Applied for and was denied section 212(c) relief by the Board on the basis of the 1997 decision of the Attorney General in Matter of Soriano (or its rationale), and not any other basis (emphasis added); be changed to read as follows:

    A motion to reopen proceedings to seek section 212(c) relief under this section must establish that the alien: * * * (4) Either--(i) Applied for and was denied section 212(c) relief in whole or in part on the basis of the Attorney General’s 1997 decision in Soriano.

(Emphasis added.)

    One commenter suggested that the rule contain examples illustrating the meaning of “on the basis of * * *[ Soriano ] and not any other basis.”

    Response : The purpose of this rule is to provide a uniform interpretation of AEDPA section 440(d) and to provide a remedy for certain aliens subject to a final order based on proceedings commenced before AEDPA’s enactment who are eligible presently ( i.e. , at the time of decision) for section 212(c) relief and would have been eligible to apply at the time of their final orders but for the Soriano decision. The “not any other basis” language ensures that persons who were ineligible for or denied relief on some other basis, and thus were not affected by Soriano , do not improperly benefit from the rule.

    Comment : Presenting the opposite view that the proposed Soriano rule should be construed as narrowly as possible, another commenter suggested deleting proposed 8 CFR 3.44(b)(4)(iii) altogether, which permits aliens who did not apply for section 212(c) relief but would have been eligible for such relief “but for” the Attorney General’s decision in Soriano . This commenter also recommended that the final condition imposed in 3.44(b)(4)(i), which restricts eligibility to those aliens whose section 212(c) applications were denied “on the basis” of Soriano “and not any other basis,” be added to 3.44(b)(4)(ii). Another commenter agreed with the proposed rule as written, stating that section 212(c) applications denied for reasons other than Soriano should be excluded from the coverage of the rule.

    Response : As noted in the proposed rule, this final rule is intended to provide a uniform interpretation of section 440(d) of AEDPA and to mitigate disagreements among the circuits regarding the scope of its application. If the Department were to delete 8 CFR section 3.44(b)(4)(iii), relief under this rule would be limited to those aliens who filed applications for 212(c) relief and would leave unresolved those cases where an alien’s application for 212(c) relief was pretermitted. Therefore, the Department declines to adopt this suggestion.

    Comment : A group of 10 commenters suggested that the word “presently” be deleted in proposed 8 CFR 3.44(b)(3). These commenters stated that, as currently written, the proposed rule would exclude individuals eligible for section 212(c) at the time of an incorrectly pretermitted application, but who “presently” have not had a lawful unrelinquished domicile of seven years in the United States.

    Response : The Department chooses to retain the word “presently” in 8 CFR section 3.44(b)(3). As noted above, the rule does require eligibility (but for the Soriano decision) for section 212(c) relief at the time of the final deportation order. But the rule requires present eligibility for relief as well, because applications for relief are considered to be ongoing, and the Department’s adjudicators assess eligibility for relief at the time of decision. This rule is not intended to change the statutory requirements for eligibility for section 212(c) relief, but is strictly limited to providing a uniform interpretation of the temporal scope of section 440(d) of AEDPA.