\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (Legacy INS) - 1999 \ FEDERAL REGISTER INTERIM REGULATIONS - 1999 \ Adjustment of Status for Certain Nationals of Haiti [64 FR 25756] [FR 22-99] \ Can an Applicant Travel Outside the United States While the Application Is Pending?
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Can an Applicant Travel Outside the United States While the Application Is Pending?
Nothing in HRIFA authorizes the Service to allow an applicant to re-enter the United States without proper documents. If an applicant plans to leave the United States to go to any other country before a decision is made on his or her HRIFA adjustment application, he or she should contact the Service to request advance authorization for parole. If an applicant leaves the United States without such advance authorization, action on his or her HRIFA adjustment application may be terminated and the application m
ay be denied. An applicant may also experience difficulty when returning to the United States if he or she does not have such advance authorization. Furthermore, any absence from the United States without an advance parole authorization issued prior to the alien's departure counts toward the 180-day aggregate time period that the applicant is allowed to be outside the United States.
What Is the Status of an Alien Who Is Under a Final Order of Exclusion, Deportation, or Removal and Who Departs From the United States?
Such alien would be a "self-deport" and would be subject to the inadmissibility provisions of section 212(a)(9) of the Act. This is true regardless of whether the alien obtained an Authorization for Parole of an Alien Into the United States (Form I-512) prior to departure. While being inadmissible would not preclude the alien from being
into the United States, it would preclude the alien from being
to the United States or being granted an adjustment of status, unless the alien first applied for and was granted permission to reapply for admission into the United States.
How Can Such an Alien Apply for Permission to Reapply for Admission into the United States?
An alien needing such permission may file an Application for Permission to Reapply for Admission Into the United States After Deportation or Removal (Form I-212), in accordance with the instructions on that form. Form I-212 may be filed prior to the alien's departure. Persons needing such forms may obtain them through the Service's Forms Center at 1-800-870-3676.
What Documentation Will Be Issued If the Adjustment Application Is Approved?
After processing is completed, a notice of the decision will be mailed to the HRIFA applicant. Applicants should keep this notice for their records. If the application has been approved, a permanent resident card will be mailed separately to the applicant. To obtain temporary evidence of lawful permanent resident status, the applicant may present the original approval notice and his or her passport or other photo identification at his or her local Service office. The local Service office will issue temporar
y evidence of lawful permanent resident status after verifying the approval of the HRIFA adjustment of status application. If the applicant is not in possession of a passport in which such temporary evidence may be endorsed, he or she should also submit two photographs meeting Alien Documentation, Identification, and Telecommunication System (ADIT) specifications so that the Service may prepare and issue temporary evidence of lawful permanent residence status.
Is There Any Special Action That an Applicant Who Had Been in Exclusion, Deportation, or Removal Proceedings Must Take Once the Application Has Been Approved?
No. If the alien previously had been issued a final order of exclusion, deportation, or removal, such order shall automatically be deemed canceled as of the date of the approval of the application for adjustment of status. If the alien had been in exclusion, deportation, or removal proceedings that were administratively closed, such proceedings shall automatically be deemed terminated as of the date of approval of the application for adjustment of status.
What Happens if an Application is Denied by the Service?
If the Service finds that an applicant is ineligible for adjustment of status under HRIFA, the Service will advise him or her of its determination and of the applicant's right to seek, and the procedures for seeking, consideration of the application by an immigration judge. Depending on the individual case circumstances, those procedures could take one of three different routes as follows:
(1) If exclusion, deportation, or removal proceedings had never been commenced, the Service will issue a Notice to Appear, thereby initiating removal proceedings during which the applicant may renew his or her application for adjustment under HRIFA before the Immigration Court. In such proceedings, an immigration judge shall adjudicate the renewed application.
(2) If exclusion, deportation, or removal proceedings had been initiated and later administratively closed, the Service will advise the alien of the Service's denial of the HRIFA adjustment application and will move the Immigration Court, or the Board if at the time of administrative closure the Board had jurisdiction over the case, to recalendar or reinstate the proceeding. The previously closed removal proceedings will then be recalendared by the Immigration Court, or reinstated by the Board, as appropria
(3) If a final order of exclusion, deportation, or removal had been issued, the Service, using Form I-290C, Notice of Certification, will refer its decision to deny the HRIFA adjustment application to the Immigration Court, which will adjudicate the application in proceedings designed solely for the purpose of such adjudication.
What Happens If an Application Is Denied by the Immigration Court?
If the Immigration Court denies the HRIFA adjustment application of an alien in exclusion, deportation, or removal proceedings before the Immigration Court, the decision may be appealed to the Board along with and under the same procedures as all other issues before the Immigration Court in those proceedings.
If the Immigration Court denies the HRIFA adjustment application of an alien whose case was remanded to the Immigration Court by the Board, the Immigration Court shall certify the decision to the Board for review.
If the Immigration Court denies the HRIFA adjustment application of an alien whose case was referred by the Service for a HRIFA-only inquiry, the alien shall have the right to appeal the decision to the Board, subject to the requirements in 8 CFR parts 3 and 240 governing appeals from Immigration Courts to the Board, including the requirements of filing a Notice of Appeal to the Board of Immigration Appeals of Decision of Immigration Judge (Form EOIR-26) and paying the filing fee.
What Happens If an Alien Fails To Appear for a Hearing Before the Immigration Court on a HRIFA Adjustment Application?
An alien must appear for all scheduled hearings before an Immigration Court, unless his or her appearance is waived by the Immigration Court. An alien who is in exclusion, deportation, or removal proceedings before the Immigration Court, and who fails to appear for a hearing regarding a HRIFA adjustment application, will be subject to the applicable statutory and regulatory in absentia procedures (i.e., section 242B of the Act as it existed prior to the amendments of the Illegal Immigration Reform and Immig
rant Responsibility Act of 1996 (IIRIRA) on September 30, 1996, for deportation proceedings, and section 240 of the Act as amended by IIRIRA for removal proceedings).
What Rules of Procedure Apply in HRIFA-Only Hearings Conducted on Cases Referred by the Service to the Immigration Court?
Although an alien who is placed before the Immigration Court for a HRIFA-only hearing after referral on a Notice of Certification (Form I-290) to the Immigration Court by the Service is not specifically subject to the statutory and regulatory provisions governing exclusion, deportation, and removal proceedings, the Department has inserted language in this interim rule reflecting the standards in section 240 of the Act for removal proceedings, including the in absentia procedures. Absent specific statutory d
irection in this area, the procedures of section 240 of the Act were chosen because such procedures are similar to those from the pre-IIRIRA section 242B of the Act and indicate Congress' most recent preference to have procedures dealing with failures to appear for immigration proceedings. Use of the language from section 240 of the Act also ensures that the in absentia procedures used for those in HRIFA-only proceedings are consistent with the in absentia procedures applicable to aliens who file HRIFA adju
stment applications in ongoing removal and deportation proceedings.
As for those aliens who, upon reopening and remand by the Board to the Immigration Court, fail to file a HRIFA adjustment application with the Immigration Court, the immigration judge will certify the case back to the Board for consideration of the previously pending appeal or motion. If, prior to receiving a final order from the Board, the alien subsequently requests a remand to file a HRIFA adjustment application, the Board shall remand the case to the Immigration Court, unless the alien is clearly inelig
ible for such relief.
May an Applicant Who Receives a Final Determination by the Service, the Immigration Court, or the Board Denying His or Her Application of HRIFA Adjustment Appeal That Decision to a Federal Court?
No. While the regulations provide for various avenues for administrative review of negative HRIFA determinations, section 902(f) of HRIFA provides that "[a] determination by the Attorney General as to whether the status of any alien should be adjusted under [HRIFA] is final and shall not be subject to review by any court."
Good Cause Exception
The Department's implementation of this rule as an interim rule, with provision for post-promulgation public comment, is based upon the "good cause" exceptions found at 5 U.S.C. 553(b)(B). Section 902 of HRIFA became effective immediately upon enactment on October 21, 1998. Publication of this rule as an interim rule will expedite implementation of that section and allow Haitian nationals to apply for and obtain the benefits available to applicants for adjustment of status under HRIFA as soon as possible in
light of the statutory application deadline of March 31, 2000.
Regulatory Flexibility Act
In accordance with 5 U.S.C. 605(b), the Attorney General certifies that this rule will not, if promulgated, have a significant adverse economic impact on a substantial number of small entities. This rule allows certain Haitian nationals to apply for adjustment of status; it has no effect on small entities as that term is defined in 5 U.S.C. 601(6).
Executive Order 12866
This rule is considered by the Department of Justice to be a "significant regulatory action" under section 3(f) of Executive Order 12866, Regulatory Planning and Review. Accordingly, this regulation has been submitted to the Office of Management and Budget for review.
Executive Order 12612
The regulation 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 Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism
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 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 12988: Civil Justice Reform
This interim rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
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 1 year, and 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.
Paperwork Reduction Act
The information collection requirement contained in this rule (Form I-485, Supplement C) was submitted to the Office of Management and Budget (OMB) for emergency review and approval under 5 CFR 1320.13(a)(1)(i) and (a)(2)(iii). In a notice published in the Federal Register on April 2, 1999 at 64 FR 15990, the Immigration and Naturalization Service notified the public of the proposed information collection contained in Form I-485 Supplement C. The information collection requirement in this application will
be used to determine whether an alien applying for adjustment of status under the provisions of section 902 of Division A, Title IX of Public Law 105-277 is eligible to become a permanent resident of the United States. The estimated total number of respondents is 50,000 and the amount of time estimated for an average respondent to respond is 30 minutes for a total public burden of 25,000 hours.
This information collection request has been approved by OMB and has an OMB Number of 1115-0229. The emergency approval is only valid for 180 days. Comments and suggestions concerning the information collection are encouraged and will be accepted until June 1, 1999. To obtain a copy of the collection instrument or to make comments on this information collection you may contact Mr. Richard A. Sloan, (202) 514-3291, Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, U
.S. Department of Justice, Room 5307, 425 I Street, NW, Washington, DC 20536.