\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (CIS, ICE, CBP) - 2004 \ FEDERAL REGISTER FINAL REGULATIONS - 2004 \ Executive Office for Immigration Review; Section 212(c) Relief for Aliens With Certain Criminal Convictions Before April 1, 1997 [69 FR 57826] [FR 33-04] \ I. Eligibility for Aliens Who Are Deportable on Grounds for Which There Do Not Exist Corresponding Grounds of Exclusion or Inadmissibility
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Eligibility for Aliens Who Are Deportable on Grounds for Which There Do Not Exist Corresponding Grounds of Exclusion or Inadmissibility
One commenter stated that the proposed rule should clarify that an alien charged and found deportable as an aggravated felon is not eligible for section 212(c) relief “if there is no comparable ground of inadmissibility for the specific category of aggravated felony charged.” The commenter continues, “[f]or example, the rule should not apply to aggravated felons charged with deportability under specific types or categories of aggravated felonies such as `Murder, Rape, or Sexual Abuse of a Minor' or `Crime o
f Violence' aggravated felonies.” Thus, the commenter states that § 1212.3(f)(4) should include those aliens who have been charged with aggravated felonies for which there is no corresponding ground of inadmissibility as being ineligible for section 212(c) relief.
The commenter is correct in stating this limitation on the scope of relief available under section 212(c). Matter of Granados, 16 I&N Dec. 726, 728 (BIA 1979) (“[I]f a ground of deportation is also a ground of inadmissibility, section 212(c) can be invoked in a deportation hearing.”); Cabasug v. INS, 847 F.2d 1321 (9th Cir. 1988); Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991). In describing the eligibility requirements, the supplementary information of the proposed rule noted that “[a]
n applicant must, at a minimum, meet the following criteria to be considered for a waiver under section 212(c): * * * [t]he alien is deportable or removable on a ground that has a corresponding ground of exclusion or inadmissibility * * *” 67 FR at 52628-52629. However, this requirement was not included in the regulatory language of the proposed rule. As a result, the Department will effectuate the commenter's suggestion by adding this requirement for section 212(c) eligibility. Accordingly, the final rule
provides that an alien who is deportable or removable on a ground that does not have a corresponding ground of exclusion or inadmissibility is ineligible for section 212(c) relief.
Notification to Affected Individuals
Several commenters suggested that the proposed rule is flawed because it does not provide a mechanism for identifying and notifying LPRs who are eligible to apply for section 212(c) relief. For example, one commenter proposed that the Department “identify individuals who were denied an opportunity to apply for relief on the basis of St. Cyr and notify them of this change [because otherwise] many affected individuals will not learn of these rules and will miss the opportunity to resolve their cases.”
The Department disagrees with these recommendations. As noted above in relation to other comments, the Department finds that publishing the current rule in the
is the well-established and accepted method of informing the entire public of a change in the law. See Federal Crop Ins. Corporation, 332 U.S. at 384-85 (“Just as everyone is charged with knowledge of the United States Statutes at Large, Congress has provided that the appearance of rules and regulations in the
gives legal notice of their contents.”) (citing 44 U.S.C. 307). The Department does not accept the premise of these arguments that it, or any other agency, is required to provide individual notice of the content of the law. Like citizens, aliens have a duty to know the law and abide by the law.
Immigration judges routinely inform aliens who appear before them of the types of relief for which they may be eligible. 8 CFR 1240.11(a)(2); cf. 8 CFR 1240.49(a) (narrower provision applicable to deportation proceedings). Thus, the Department finds that there exist ample opportunities for aliens affected by this final rule to become aware of its contents. Therefore, the Department declines to accept these recommendations.
Proof of Permanent Residence
One commenter stated that the Department should eliminate the “burdensome paperwork requirements” of compelling potentially eligible aliens to submit proof of permanent residence. The commenter suggested that “[i]t is inappropriate and impractical to require an individual to provide proof of permanent residence or a copy of the Form I-90 when the EOIR and/or the [DHS] have that information and control access to it.”
The Department disagrees with the commenter. Similar to other avenues of petitioning for relief, the alien has the burden of proving that he or she is eligible for, and merits, a form of relief. In the context of section 212(c) in particular, the alien bears the burden of proof to demonstrate LPR status as an essential element of establishing eligibility for such relief. The language of the rule merely reflects the fact that the alien bears this burden of proof.
Applicability of the Soriano Rule
One commenter expressed concern that the proposed rule would delete a previous rule issued by the Department that created a procedure for eligible aliens to apply for section 212(c) relief. The previous rule, sometimes referred to as the “Soriano rule,” was published on January 22, 2001, at 66 FR 6436, and is presently codified at 8 CFR 1212.3(g) (and the related motion to reopen rule, which is being replaced by this final rule, is presently codified at 8 CFR 1003.44). The Department adopted the Soriano rul
e in response to the substantial judicial precedent rejecting the interpretation of section 212(c) set forth in Matter of Soriano, 21 I&N Dec. 516 (BIA 1996, A.G. 1997).
Briefly, the Soriano rule provided that the limitations of section 440(d) of AEDPA are not applicable to section 212(c) applicants whose deportation proceedings commenced prior to April 24, 1996, the effective date of AEDPA. Under the Soriano rule, such section 212(c) applicants may apply for relief, if eligible, under the pre-AEDPA version of section 212(c), irrespective of whether their convictions resulted from plea agreements or criminal trials. The commenter suggested that the “provision set forth in 8
CFR 212.3(g) should be retained in its entirety” because of pending cases before the immigration judges and the Board that were commenced based on the Soriano rule.
In this rule, the Department is implementing the Supreme Court's ruling in St. Cyr by providing eligibility and procedural requirements for section 212(c) relief for aliens whose convictions were entered after a plea agreement. This rule both amends 8 CFR 1212.3 and replaces the special motion to reopen provisions adopted at the time of the Soriano rule, 8 CFR 1003.44 (which is no longer relevant since the time to submit a motion to reopen under that rule has long since expired).
The commenter is correct in observing that the issue addressed in current § 1212.3(g) continues to be relevant to aliens whose deportation proceedings were commenced prior to the enactment of AEDPA. The Department will therefore leave intact the existing provision of 8 CFR 1212.3(g), which will continue to govern cases falling within its parameters.
Any motions that were filed pursuant to the Soriano rule that are still pending before the immigration judges or the Board will be adjudicated under the requirements of either the Soriano rule or this final rule. However, if a motion under Soriano was denied, and the alien desires to seek section 212(c) relief under this rule, he or she will need to file a new special motion, as described in 8 CFR 1003.44, as revised. Even if the motion was denied because the alien did not satisfy the requirements of 8 CFR
1212.3(g) (for deportation proceedings commenced prior to April 24, 1996), that ineligibility will not bar him or her from timely applying for section 212(c) relief under this rule if he or she is eligible under 8 CFR 1003.44 and 1212.3, as revised.
Aliens who were eligible to file for section 212(c) relief under the Soriano rule but failed to do so will be able to file for section 212(c) relief under this rule, but only if they meet the eligibility requirements contained in this final rule--that is, with respect to convictions entered pursuant to a plea agreement made prior to April 1, 1997. This rule does not provide any additional relief to aliens whose convictions were entered after a trial. Accordingly, this rule does not extend the deadline of Ju
ly 23, 2001, for aliens to submit a motion to reopen to apply for section 212(c) relief pursuant to the pre-existing provisions of § 1003.44, with respect to convictions entered after a trial.
Filing New Motions To Reopen After Previously Filing Motions To Reopen
One commenter inquired whether attorneys representing aliens should file new special motions to seek section
212(c) relief under this rule if they previously filed a motion to reopen under 8 CFR 1003.2 or 1003.23 in order to seek relief based on the St. Cyr decision.
The Department does not require an alien to file a new special motion to seek section 212(c) relief if he or she previously filed a motion to reopen under 8 CFR 1003.2 or 1003.23 based on the St. Cyr decision and the previous motion is still pending. An eligible alien who has already filed a motion with an immigration judge or the Board based on the St. Cyr decision may supplement that motion if it is still pending.
If the alien's previous motion to reopen based on the St. Cyr decision was found to be barred solely because of time or number limits on motions to reopen, this rule makes clear that an eligible alien will be able to file a special motion under this rule to address the merits of the alien's St. Cyr claims. However, if the previous motion to reopen under St. Cyr was denied for any reason other than because of the time or number limitations for motions to reopen, § 1003.44(g)(3) precludes the filing of a new
special motion under this rule. In that instance, the alien has already had the opportunity to raise the St. Cyr issues on the merits through a motion to reopen, and there is no reason to give the respondent a second opportunity to raise issues related to St. Cyr through another motion to reopen. See also 8 CFR 1003.44(d).
Moreover, as stated in the proposed rule, if the alien under a final order of deportation or removal previously filed a motion to reopen or a motion to reconsider with EOIR on “other grounds,” he or she is still required to file a separate special motion to seek section 212(c) relief to receive the benefits under this rule as provided in § 1003.44(g)(1).
In view of the fact-specific nature of the determination whether or not to grant section 212(c) relief, this final rule provides that, if the Board grants a special motion to seek section 212(c) relief in a case in which it last had jurisdiction, the Board will remand the case to an immigration judge for adjudication of those issues. 8 CFR 1003.44(j); see also 8 CFR 1003.1(d)(3).
Regulatory Flexibility Act
The Attorney General, in accordance with 5 U.S.C. 605(b), has reviewed this rule and, by approving it, certifies that it affects only Departmental employees and aliens or their representatives who appear in proceedings before the immigration judges or the Board. Therefore, this rule does not have a significant economic impact on a substantial number of 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 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule will not result in an 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
This rule has been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulation. The Department has determined that this rule is a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review. Accordingly, this rule has been submitted to the Office of Management and Budget (OMB) for review.
Executive Order 13132
This rule 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 section 6 of Executive Order 13132, the Department has determined that this rule does not have sufficient federalism implications to warrant a federalism summary impact statement.
Executive Order 12988
This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995, Pub. L. 104-13, all Departments are required to submit to OMB for review and approval any reporting requirements inherent in a final rule. This rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act.
List of Subjects
8 CFR Part 1003
Administrative practice and procedure, Aliens, Immigration, Legal services, Organization and functions (Government agencies).
8 CFR Part 1212
Administrative practice and procedure, Aliens, Immigration, Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 1240
Administrative practice and procedure, Aliens, Immigration.
Accordingly, chapter V of title 8 of the Code of Federal Regulations is amended as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
1. The authority citation for part 1003 continues to read as follows:
5 U.S.C. 301; 8 U.S.C. 1101 note, 1103, 1252 note, 1252b, 1324b, 1362; 28 U.S.C. 509, 510, 1746; § 2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
2. Revise 8 CFR 1003.44 to read as follows:
§ 1003.44 Special motion to seek section 212(c) relief for aliens who pleaded guilty or nolo contendere to certain crimes before April 1, 1997.
Standard for adjudication
. This section applies to certain aliens who formerly were lawful permanent residents, who are subject to an administratively final order of deportation or removal, and who are eligible to apply for relief under former section 212(c) of the Act and 8 CFR 1212.3 with respect to convictions obtained by plea agreements reached prior to a verdict at trial prior to April 1, 1997. A special motion to seek relief under section 212(c) of the Act will be adjudicated under the standards of this section and 8 CFR 1212
.3. This section is not applicable with respect to any conviction entered after trial.
. The alien has the burden of establishing eligibility for relief, including the date on which the alien and the prosecution agreed on the plea of guilt or nolo contendere. Generally, a special motion under this section to seek section 212(c) relief must establish that the alien:
(1) Was a lawful permanent resident and is now subject to a final order of deportation or removal;
(2) Agreed to plead guilty or nolo contendere to an offense rendering the alien deportable or removable, pursuant to a plea agreement made before April 1, 1997;
(3) Had seven consecutive years of lawful unrelinquished domicile in the United States prior to the date of the final administrative order of deportation or removal; and
(4) Is otherwise eligible to apply for section 212(c) relief under the standards that were in effect at the time the alien's plea was made, regardless of when the plea was entered by the court.
Aggravated felony definition
. For purposes of eligibility to apply for section 212(c) relief under this section and 8 CFR 1212.3, the definition of aggravated felony in section 101(a)(43) of the Act is that in effect at the time the special motion or the application for section 212(c) relief is adjudicated under this section. An alien shall be deemed to be ineligible for section 212(c) relief if he or she has been charged and found deportable or removable on the basis of a crime that is an aggravated felony, except as provided in 8 CF
Effect of prior denial of section 212(c) relief
. A motion under this section will not be granted with respect to any conviction where an alien has previously been denied section 212(c) relief by an immigration judge or by the Board on discretionary grounds.
Scope of proceedings
. Proceedings shall be reopened under this section solely for the purpose of adjudicating the application for section 212(c) relief, but if the immigration judge or the Board grants a motion by the alien to reopen the proceedings on other applicable grounds under 8 CFR 1003.2 or 1003.23 of this chapter, all issues encompassed within the reopened proceedings may be considered together, as appropriate.
Procedure for filing a special motion to seek section 212(c) relief
. An eligible alien shall file a special motion to seek section 212(c) relief with the immigration judge or the Board, whichever last held jurisdiction over the case. An eligible alien must submit a copy of the Form I-191 application, and supporting documents, with the special motion. The motion must contain the notation “special motion to seek section 212(c) relief.” The Department of Homeland Security (DHS) shall have 45 days from the date of filing of the special motion to respond. In the event the DHS d
oes not respond to the motion, the DHS retains the right in the proceedings to contest any and all issues raised.
Relationship to motions to reopen or reconsider on other grounds
Other pending motions to reopen or reconsider
. An alien who has previously filed a motion to reopen or reconsider that is still pending before an immigration judge or the Board, other than a motion for section 212(c) relief, must file a separate special motion to seek section 212(c) relief pursuant to this section. The new motion shall specify any other motions currently pending before an immigration judge or the Board. An alien who has previously filed a motion to reopen under 8 CFR 1003.2 or 1003.23 based on INS v. St. Cyr is not required to file a
new special motion under this section, but he or she may supplement the previous motion if it is still pending. Any motion for section 212(c) relief described in this section pending before the Board or an immigration judge on the effective date of this rule that would be barred by the time or number limitations on motions shall be deemed to be a motion filed pursuant to this section, and shall not count against the number restrictions for other motions to reopen.
Motions previously filed pursuant to prior provision
. If an alien previously filed a motion to apply for section 212(c) relief with an immigration judge or the Board pursuant to the prior provisions of this section, as in effect before October 28, 2004, and the motion is still pending, the motion will be adjudicated pursuant to the standards of this section, both as revised and as previously in effect, and the alien does not need to file a new special motion pursuant to paragraph (g)(1) of this section. However, if a motion filed under the prior provisions o
f this section was denied because the alien did not satisfy the requirements contained therein, the alien must file a new special motion pursuant to this section, if eligible, in order to apply for section 212(c) relief based on the requirements established in this section.
Effect of a prior denial of a motion to reopen or motion to reconsider filed after the St. Cyr decision
. A motion under this section will not be granted where an alien has previously submitted a motion to reopen or motion to reconsider based on the St. Cyr decision and that motion was denied by an immigration judge or the Board (except on account of time or number limitations for such motions).
Limitations for motions
. The filing of a special motion under this section has no effect on the time and number limitations for motions to reopen or reconsider that may be filed on grounds unrelated to section 212(c).
Deadline to file a special motion to seek section 212(c) relief under this section
. An alien subject to a final administrative order of deportation or removal must file a special motion to seek section 212(c) relief on or before April 26, 2005. An eligible alien may file one special motion to seek section 212(c) relief under this section.
. No filing fee is required at the time the alien files a special motion to seek section 212(c) relief under this section. However, if the special motion is granted, and the alien has not previously filed an application for section 212(c) relief, the alien will be required to submit the appropriate fee receipt at the time the alien files the Form I-191 with the immigration court.
Remands of appeals
. If the Board has jurisdiction and grants the motion to apply for section 212(c) relief pursuant to this section, it shall remand the case to the immigration judge solely for adjudication of the section 212(c) application.
Limitations on eligibility under this section
. This section does not apply to:
(1) Aliens who have departed the United States and are currently outside the United States;
(2) Aliens issued a final order of deportation or removal who then illegally returned to the United States; or
(3) Aliens who have not been admitted or paroled.