Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225, 1226, 1227.

4. Amend § 1212.3 by:

A.     Revising the section heading, paragraph (a), the second to last sentence of paragraph (b);

B.     Removing and reserving paragraph (c);

C.     Revising paragraph (d), paragraph (e), paragraph (f) introductory text, and paragraphs (f)(3), (f)(4), and (f)(5); and

D.     Adding a new paragraph (h).

    The revisions and addition read as follows:

§ 1212.3 Application for the exercise of discretion under former section 212(c).

    (a) Jurisdiction . An application by an eligible alien for the exercise of discretion under former section 212(c) of the Act (as in effect prior to April 1, 1997), if made in the course of proceedings under section 240 of the Act, or under former sections 235, 236, or 242 of the Act (as in effect prior to April 1, 1997), shall be submitted to the immigration judge by filing Form I-191, Application for Advance Permission to Return to Unrelinquished Domicile.

    (b) * * * All material facts or circumstances that the applicant knows or believes apply to the grounds of excludability, deportability, or removability must be described in the application. * * *

    (c) [Reserved]

    (d) Validity . Once an application is approved, that approval is valid indefinitely. However, the approval covers only those specific grounds of excludability, deportability, or removability that were described in the application. An applicant who failed to describe any other grounds of excludability, deportability, or removability, or failed to disclose material facts existing at the time of the approval of the application, remains excludable, deportable, or removable under the previously unidentified grounds. If the a pplicant is excludable, deportable, or removable based upon any previously unidentified grounds a new application must be filed.

    (e) Filing or renewal of applications before an immigration judge . (1) An eligible alien may renew or submit an application for the exercise of discretion under former section 212(c) of the Act in proceedings before an immigration judge under section 240 of the Act, or under former sections 235, 236, or 242 of the Act (as it existed prior to April 1, 1997), and under this chapter. Such application shall be adjudicated by the immigration judge, without regard to whether the applicant previously has made application to the district director.

    (2) The immigration judge may grant or deny an application for relief under section 212(c), in the exercise of discretion, unless such relief is prohibited by paragraph (f) of this section or as otherwise provided by law.

    (3) An alien otherwise entitled to appeal to the Board of Immigration Appeals may appeal the denial by the immigration judge of this application in accordance with the provisions of § 1003.38 of this chapter.

    (f) Limitations on discretion to grant an application under section 212(c) of the Act . An application for relief under former section 212(c) of the Act shall be denied if:

* * * * *

    (3) The alien is subject to inadmissibility or exclusion from the United States under paragraphs (3)(A), (3)(B), (3)(C), (3)(E), or (10)(C) of section 212(a) of the Act;

    (4) The alien has been charged and found to be deportable or removable on the basis of a crime that is an aggravated felony, as defined in section 101(a)(43) of the Act (as in effect at the time the application for section 212(c) relief is adjudicated), except as follows:

    (i) An alien whose convictions for one or more aggravated felonies were entered pursuant to plea agreements made on or after November 29, 1990, but prior to April 24, 1996, is ineligible for section 212(c) relief only if he or she has served a term of imprisonment of five years or more for such aggravated felony or felonies, and

    (ii) An alien is not ineligible for section 212(c) relief on account of an aggravated felony conviction entered pursuant to a plea agreement that was made before November 29, 1990; or

    (5) The alien is deportable under former section 241 of the Act or removable under section 237 of the Act on a ground which does not have a statutory counterpart in section 212 of the Act.

* * * * *

    (h) Availability of section 212(c) relief for aliens who pleaded guilty or nolo contendere to certain crimes. For purposes of this section, the date of the plea agreement will be considered the date the plea agreement was agreed to by the parties. Aliens are not eligible to apply for section 212(c) relief under the provisions of this paragraph with respect to convictions entered after trial.

    (1) Pleas before April 24, 1996. Regardless of whether an alien is in exclusion, deportation, or removal proceedings, an eligible alien may apply for relief under former section 212(c) of the Act, without regard to the amendment made by section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, with respect to a conviction if the alien pleaded guilty or nolo contendere and the alien's plea agreement was made before April 24, 1996.

    (2) Pleas between April 24, 1996 and April 1, 1997. Regardless of whether an alien is in exclusion, deportation, or removal proceedings, an eligible alien may apply for relief under former section 212(c) of the Act, as amended by section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, with respect to a conviction if the alien pleaded guilty or nolo contendere and the alien's plea agreement was made on or after April 24, 1996, and before April 1, 1997.

    (3) Please on or after April 1, 1997. Section 212(c) relief is not available with respect to convictions arising from plea agreements made on or after April 1, 1997.

PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED STATES

5. The authority citation for part 1240 is revised to read as follows:

        Authority: 8 U.S.C. 1103; 1182, 1186a, 1224, 1225, 1226, 1227, 1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277 (112 Stat. 2681).

§ 1240.1 [Amended]

6. In § 1240.1, amend paragraph (a)(1)(ii) by removing the words “and section 902 of Pub. L. 105-277” and replacing them with the words “section 902 of Pub. L. 105-277, and former section 212(c) of the Act (as it existed prior to April 1, 1997)”.

September 20, 2004 ___________________ Dated:

Signed _____________________________ John Ashcroft, Attorney General

Footnotes:

1/     On February 28, 2003, the Attorney General published a technical rule that reorganized title 8 of the Code of Federal Regulations to reflect the transfer of these functions. See Aliens and Nationality; Homeland Security; Reorganization of Regulations, 68 FR 9824 (February 28, 2003); see also 68 FR 10349 (March 5, 2003). This technical rule created a new chapter V in 8 CFR as part of the Department of Justice regulations, beginning with 8 CFR 1001; the existing regulations in chapter I of 8 CFR now pertain t o DHS. Among other changes, the February 28 rule transferred part 3 and most of part 240 to part 1003 and part 1240, respectively, and duplicated part 212 (in the current DHS regulations) as part 1212 in the Department of Justice regulations. Thus, while the proposed rule and the comments received cited the regulations prior to the reorganization of the regulations, this final rule will reflect the revised section numbers in the regulations.