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Suspension of Deportation and Cancellation of Removal [62 FR 51760] [FR 61-97]
FEDERAL REGISTER CITE:
62 FR 51760
DATE OF PUBLICATION:
October 3, 1997
BILLING CODE 4410-10-M
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
Executive Office for Immigration Review
8 CFR Part 240
[EOIR No. 118I; AG Order No. 2118-97]
Suspension of Deportation and Cancellation of Removal
Immigration and Naturalization Service, Justice, and Executive Office for Immigration Review, Justice.
Interim rule with request for comments.
This rule amends the regulations of the Executive Office for Immigration Review (EOIR) and Immigration and Naturalization Service (Service) by establishing a procedure for processing suspension of deportation and cancellation of removal and adjustment of status cases. This rule is a partial and transitional measure to implement provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) relating to suspension of deportation and cancellation of removal. This transitional p
olicy will be reevaluated after the Department determines how best to implement sections (304(a)(3) and 309(c)(7) of IIRIRA.
: This interim rule is effective October 1, 1997.
: Written comments must be submitted on or before December 1, 1997.
Please submit written comments, in triplicate, to Margaret M. Philbin, General Counsel, Executive Office for Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041.
FOR FURTHER INFORMATION CONTACT:
For matters relating to the Executive Office for Immigration Review--Margaret M. Philbin, General Counsel, Executive Office for Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041, telephone (703) 527-0470. For matters relating to the Immigration and Naturalization Service--Marguerite N. Przybylski, Associate General Counsel, Immigration and Naturalization Service, 425 I Street NW, Washington, D.C. 20536, telephone (202) 514-2895.
This interim rule with request for comments amends 8 CFR part 240 by creating new § 240.21.
On September 30, 1996 Congress enacted IIRIRA. Under section 304(a)(3) of IIRIRA, the Attorney General may not cancel the removal and adjust the status under section 240A(b) of the Immigration and Nationality Act (Act), nor suspend the deportation and adjust the status under section 244(a) of the Act (as in effect before April 1, 1997) of a total of more than 4,000 aliens in any fiscal year. Section 309(c)(7) of IIRIRA provides that this numerical limitation applies regardless of when an alien has applied f
or the relief. The limitation is effective beginning with fiscal year 1997.
Because no implementing regulations were in place upon IIRIRA's enactment on September 30, 1996, suspension cases granted in the first five months of fiscal year 1997 were granted without condition and the statutory cap was nearly reached by mid-February. On February 13, 1997, EOIR issued directives to the immigration judges and the Board of Immigration Appeals (Board) to reserve grants of suspension until further notice. These directives provided a temporary mechanism to ensure that EOIR did not exceed the
statutory cap in the remainder of fiscal year 1997 while the Department determined how to implement the cap. Over 3,000 decisions have been reserved since the issuance of these directives. In order to prevent this backlog of cases from continuing to increase, it is necessary to provide a procedure that will allow for the entry of a substantive determination regarding the merits of these cases, while allowing the Department an opportunity to further investigate methods to implement the cap. Therefore, immed
iate direction is required for the processing of these cases in light of sections 304(a)(3) and 309(c)(7) of IIRIRA.
This regulation provides the necessary procedures for the processing of suspension of deportation and cancellation of removal cases while it is determined how the numerical limitation will be implemented. The rule provides that applications for suspension or cancellation that meet the statutory requirements and warrant a favorable exercise of discretion will be conditionally granted. This rule is a transitional measure in that conditional grants of suspension of deportation and cancellation of removal will
be revisited after the Department determines how best to implement sections 304(a)(3) and 309(c)(7) of IIRIRA. This rule provides a partial solution to the statutory cap in that it will provide a mechanism to eliminate the backlog of reserved cases. The Department intends to implement the statutory cap in a separate regulation within approximately six months.
The Interim Rule
This interim rule provides that neither the immigration judges nor the Board shall make an unconditional grant of any application for suspension of deportation pursuant to section 244(a) of the Act (as it existed prior to April 1, 1997) or cancellation of removal and adjustment of status pursuant to section 240A(b) of the Act. If the immigration judge or the Board finds that an alien is statutorily eligible for suspension of deportation or cancellation of removal and adjustment of status and that the case w
arrants a favorable exercise of discretion, the immigration judge or the Board shall enter a conditional grant of suspension or cancellation. The Board shall enter a conditional grant of suspension or cancellation even if the immigration judge granted that application without condition. A conditional grant of suspension or cancellation may be appealed to the Board pursuant to the rules and time frames specified in 8 CFR part 3.
The conditional grant of suspension of deportation or cancellation of removal and adjustment of status shall specify which paragraph of section 244(a) of the Act (as in effect before April 1, 1997) or section 240A(b) of the Act applies, and shall include an alternate order of deportation, removal or voluntary departure. Thus the alien is conditionally granted suspension or cancellation and that conditional grant will be revised after the Department determines how best to implement sections 304(a)(3) and 309
(c)(7) of IIRIRA.
The Department's implementation of this rule as an interim rule, with provision for post-promulgation public comment, is based upon the exception for rules of agency organization, procedure or practice in 5 U.S.C. 553(b)(3)(A) and upon the "good cause" exception found at 5 U.S.C. 553(b)(3)(B) and 553(d)(3). Immediate implementation is necessary because EOIR has directed that suspension of deportation grants be reserved until further notice and over 3,000 decisions have been so reserved over the last few mon
ths. These cases must be resolved on the merits while the Department determines how to implement the statutory cap on suspension and cancellation. The Department has provided a public comment period on this interim rule of 60 days.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certified that this rule will not have a significant economic impact on a substantial number of small entities because it affects individual aliens, not 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 804 of the Small Business Regulatory Enforcement Act of 1996. 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
The Attorney General has determined that this rule is a significant regulatory action under Executive Order 12866, and accordingly this rule has been reviewed by the Office of Management and Budget.
Executive Order 12612
The regulation adopted herein will not have substantial direct effects on the States, on the relationship between the National Government and States, or on the distribution or power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Executive Order 12988 Civil Justice Reform
This interim rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988.