DOCUMENT NUMBER: FR 33-04

FEDERAL REGISTER CITE: 69 FR 57826

DATE OF PUBLICATION: September 28, 2004

BILLING CODE: 4410-30

DEPARTMENT OF JUSTICE

8 CFR Parts 1003, 1212, and 1240

[EOIR No. 130F; AG Order No. 2734-2004]

Executive Office for Immigration Review; Section 212(c) Relief for Aliens With Certain Criminal

Convictions Before April 1, 1997

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Final rule.

SUMMARY: This final rule adopts without substantial change the proposed rule to establish procedures for lawful permanent residents with certain criminal convictions arising from plea agreements reached prior to a verdict at trial to apply for relief from deportation or removal pursuant to former section 212(c) of the Immigration and Nationality Act. The final rule also sets forth procedures and deadlines for filing motions to seek such relief before an immigration judge or the Board of Immigration Appeals for elig ible aliens currently in proceedings or under final orders of deportation or removal.

DATES: This rule is effective on October 28, 2004.

FOR FURTHER INFORMATION CONTACT: Mary Beth Keller, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041, telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION:

Introduction

Response to Comments Received

    A. Ineligibility of Aliens Outside the United States

    B. Ineligibility of Aliens Convicted After a Trial

    C. Stay of Deportation or Removal

    D. The 180-Day Deadline To File a Special Motion To Seek Section 212(c) Relief

    E. Date of the Plea Agreement

    F. Retroactivity of IIRIRA's Definition of “Aggravated felony”

    G. Applicability of AEDPA

    H. The Accrual of Seven Consecutive Years of Lawful Unrelinquished Domicile

    I. Eligibility for Aliens Who Are Deportable on Grounds for Which There Do Not Exist Corresponding Grounds of Exclusion or Inadmissibility

    J. Notification to Affected Individuals

    K. Proof of Permanent Residence

    L. Applicability of the Soriano Rule

    M. Filing New Motions To Reopen After Previously Filing Motions To Reopen

Introduction

    On August 13, 2002, the Department of Justice (Department) published a proposed rule to permit certain lawful permanent residents (LPRs) to apply for relief under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c) (1994 Supp. II 1996), from deportation or removal based on certain criminal convictions before April 1, 1997 (“section 212(c) relief”). 67 FR 52627. The proposed rule described procedures implementing the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001).

    This final rule adopts the proposed rule without substantial change. Certain LPRs who pleaded guilty or nolo contendere to crimes before April 1, 1997, may seek section 212(c) relief from being deported or removed from the United States on account of those pleas. Under this rule, eligible LPRs currently in immigration proceedings (and former LPRs under a final order of deportation or removal) who have not departed from the United States may file a request to apply for relief under former section 212(c) of t he Act, as in effect on the date of their plea, regardless of the date the plea agreement was entered by the court. This rule is applicable only to certain eligible aliens who were convicted pursuant to plea agreements made prior to April 1, 1997.

    The Department reiterates and adopts the Supplementary Information in the proposed rule, and the subsequent correction to the proposed rule published on August 22, 2002, as explaining the final rule. 67 FR 52627; 67 FR 54360. The following sections respond to the public comments, and provide additional discussion explaining the final rule and some clarifying amendments.

    In addition, this final rule reflects several technical and structural changes as a result of the establishment of the Department of Homeland Security (DHS), the transfer of the functions of the Immigration and Naturalization Service (INS) to DHS, and the abolition of the INS. On March 1, 2003, the functions of the former INS were transferred from the Department of Justice to DHS pursuant to the Homeland Security Act of 2002 (HSA), Pub. L. 107-296, 116 Stat, 2135, 2178 (Nov. 25, 2002). The HSA also provided that the functions of the immigration judges and the Board of Immigration Appeals within the Executive Office for Immigration Review (EOIR) remain in the Department of Justice under the authority of the Attorney General. The technical changes in this final rule comport with the structural reorganization of the regulations accomplished by the Department of Justice in previous rulemakings establishing a new 8 CFR chapter V containing the regulations relating to immigration adjudications before the immigratio n judges and the Board of Immigration Appeals, and the administrative functions of EOIR. 1/ The final rule also eliminates from 8 CFR 1212.3 the current provisions in paragraphs (a)(1) and (c), which relate to the authority of a district director to grant section 212(c) relief. To the extent that those provisions are still relevant at this time, they are already codified in DHS regulations at 8 CFR 212.3(a)(1) and (c). Consistent with the process for reducing the overlapping regulations between the Department and DHS, the Department is eliminating unnecessary regulations in § 1212.3 that relate solely to the authority of DHS

    The final rule also makes some stylistic changes to simplify the language of the existing regulations--for example, revising the language of 8 CFR 1212.3(e)(2) from “grant or deny an application for advance permission to return to an unrelinquished domicile under section 212(c)” to read “grant or deny an application for section 212(c) relief”. Lastly, as explained in the proposed rule, if the Board has jurisdiction and grants a special motion to seek section 212(c) relief, it will remand the case to an immi gration judge solely for a determination of the section 212(c) application. The Department recognizes that an alien who files a special motion to seek section 212(c) relief under this rule may have a petition for review pending before a Federal court of appeals. If the Board grants the alien's special motion to seek section 212(c) relief while the case is pending before a Federal court of appeals, the Department anticipates that the government will request that the court hold the case in abeyance pending th e resolution of the alien's section 212(c) application before EOIR.

Response to Comments Received

    The Department received 60 comments on the proposed rule and will respond to them by subject matter. The Department appreciates the analytical detail of these comments, which were received from aliens and their family members, community organizations and special interest groups, immigration attorneys, professors, and other members of the public. The issues raised in the submissions were largely devoted to eligibility concerns, with a majority of the commenters recommending that eligibility for section 212(c ) relief be broadened to encompass several categories of aliens who were not eligible for relief under the proposed rule. Other recurring issues raised by the commenters dealt with procedural concerns, such as the need for an automatic stay provision, in addition to concerns about the 180-day deadline applicable to aliens subject to a final order of deportation or removal.

A. Ineligibility of Aliens Outside the United States

    Approximately 80 percent of the commenters stated that aliens who have already been deported and are currently outside the United States should be eligible to apply for section 212(c) relief. Of these comments, virtually all argued that many aliens were deported without being given a hearing with respect to their eligibility for a waiver under section 212(c). These comments state that because these individuals did not have a “sufficient opportunity” to challenge their deportation order, and since the Suprem e Court mandated such a hearing for section 212(c) eligibility in the St. Cyr decision, their deportation cannot be conceived as lawful. Accordingly, these commenters recommended that the Department rectify this situation by allowing such aliens who are abroad as a result of deportation to apply for section 212(c) relief, in order to avoid what they see as a continuing impermissible retroactive effect. Other commenters asserted that because such aliens were improperly removed, they should be paroled or admi tted into the United States in order to reinitiate their application process for section 212(c) relief. One commenter also argued that the Equal Protection Clause requires that both aliens who are currently in the United States and those abroad be allowed to apply for section 212(c) relief.

    Under the proposed rule, aliens would have been ineligible for section 212(c) relief if they: (1) Departed the United States and are currently outside the United States; (2) returned illegally to the United States after being issued a final order of deportation or removal; or (3) are present in the United States without having been admitted or paroled. As previously stated in the proposed rule, the Department finds that as a general rule, aliens who have been deported or departed, and for whom the period of time for filing a petition for review of their removal orders closed may not challenge their prior immigration proceedings. See 8 U.S.C. 1231(a)(5); 8 CFR 1003.2(d); 67 FR at 52629.

    After considering the public comments, the Department adheres to the position stated in the proposed rule. Under 8 CFR 1003.2(d), a motion to reopen or to reconsider “shall not be made by or on behalf of a person who is the subject of deportation or removal proceedings subsequent to his or her departure from the United States.” The existing regulations thus treat an executed deportation or removal order as administratively complete, thereby eliminating any possibility of challenging a proceeding that result ed in the departure of an alien.

    Similarly, the Department believes that this distinction is reasonable and fair because aliens who have been deported had a sufficient opportunity to challenge the denial of their applications for section 212(c) relief in administrative and judicial proceedings. See 67 FR at 52629. Generally, aliens who were deported prior to the Supreme Court's decision in St. Cyr had an opportunity to challenge the denial of their section 212(c) application before the Board or a Federal court. These aliens also had the op portunity to apply for stays of deportation in anticipation of the Supreme Court's ruling in St. Cyr. Therefore, aliens who were deported had the opportunity to continue to exhaust administrative and judicial remedies that could have enabled them to remain in the United States. Accordingly, the Department finds the distinction precluding section 212(c) eligibility for aliens abroad as a result of a deportation or removal order to be fair and reasonable.

    The Department also believes that the decision to distinguish between those aliens who are in the United States and those aliens who have been deported is reasonable and consistent with the plenary authority of the political branches of the government in the immigration area. See Fiallo v. Bell, 430 U.S. 787, 792 (1977); Mathews v. Diaz, 426 U.S. 67, 80-82 (1976). As previously noted in the proposed rule, this distinction is reasonable because the aliens who never departed from the United States are not “si milarly situated” to those who have had their deportation or removal orders executed, since the administrative deportation process with the latter group has been completed (and aliens in this category are further subject to at least a five-year bar against reentry).

    The Department believes that declining to allow aliens who have been deported from the United States to obtain relief under the regulation is consistent with Congress's intent as demonstrated by the language in former section 212(c). See 67 FR at 52629. Former section 212(c) of the Act explicitly made aliens under a deportation order ineligible for relief: “[a]liens * * * not under an order of deportation * * * may be admitted in the discretion of the Attorney General * * *” 8 U.S.C. 1182(c) (1994) (emphasi s added). Thus, Congress stated unequivocally whom it sought to benefit in legislating the section 212(c) waiver. Accordingly, the decision to preclude aliens under a deportation or removal order from obtaining section 212(c) relief is grounded in Congress's intent to limit its availability to those not under deportation orders.

    Moreover, the United States Court of Appeals for the Ninth Circuit has upheld this distinction against constitutional challenge in the context of addressing the identical distinction under 8 CFR 1003.44(i). Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169 (9th Cir. 2001). In upholding the distinction from an equal protection challenge, the court reasoned that “the government has a legitimate interest in discouraging aliens who have already been deported from illegally reentering,” and concluded that “this di stinction is rationally related to that purpose.” Id. at 1174. See also Robledo-Gonzales v. Ashcroft, 342 F.3d 667, 676-683 (7th Cir. 2003) (equal protection challenge to 8 CFR 1003.44 fails because distinction between illegal reentrants from those eligible under regulation was rational). Thus, the Department declines to grant eligibility to those who have departed the United States and are currently outside the United States, returned illegally to the United States after being issued a final order of depor tation or removal, or are present in the United States without having been admitted or paroled. Other LPRs who are currently in the country, however, are allowed to apply for such relief.