\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (Legacy INS) - 1999 \ FEDERAL REGISTER INTERIM REGULATIONS - 1999 \ Suspension of Deportation and Special Rule Cancellation of Removal for Certain Nationals of Guatemala, El Salvador, and Former Soviet Bloc Countries [64 FR 27856] [FR 25-99] \ Jurisdiction
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Jurisdiction Over NACARA Applications
Several commenters requested that the Service be given initial jurisdiction over all applications for suspension of deportation and special rule cancellation of removal under NACARA. One comment stated that the Service should have jurisdiction over applications of individuals whose asylum applications were adjudicated under the terms of the ABC settlement agreement while NACARA was under legislative consideration, but before it passed, and also over individuals who have no mechanism for applying with the Se
rvice, such as those who registered for Temporary Protected Status (TPS), but never applied for asylum.
The Department will not change the jurisdictional scheme initially proposed, as it is the best way for ensuring timely resolution of NACARA applications. As explained in greater detail in the supplementary information published with the proposed rule, administrative efficiency is and has always been the Department's primary consideration in delineating jurisdiction. 63 FR 64895 (November 24, 1998). Distributing the NACARA caseload between the Executive Office for Immigration Review (EOIR) and the Service's
Asylum Program increases the Department's ability to resolve cases quickly, because, in the vast majority of cases, a NACARA application will be heard by the agency that also has jurisdiction over an applicant's pending asylum application. For those persons with asylum claims currently pending before the Service, the rule permits concurrent adjudication of the asylum and NACARA applications. If an applicant is granted either asylum or NACARA relief, it will be unnecessary to refer his or her case to the Imm
igration Court. It would be administratively inefficient to transfer the cases of individuals currently in immigration proceedings, including ABC class members whose asylum applications have already been given a de novo adjudication by the Service, back to the Service solely for a NACARA adjudication and would delay the resolution of their cases.
The interim rule does include two exceptions to the general rule that individuals in proceedings before the Immigration Court may apply for relief under section 203 of NACARA only before the Immigration Court. The first exception covers those registered ABC class members whose proceedings before the Immigration Court or the Board of Immigration Appeals (Board) were administratively closed or continued, including those class members with final orders of deportation or removal who have filed and been granted
NACARA motions to reopen under 8 CFR 3.43. An individual in this category is eligible to file a NACARA application with the Service if the individual is eligible for the benefits of the ABC settlement agreement, has not already had a
adjudication of the asylum claim by the Service pursuant to the agreement, and has not moved for and been granted a motion to recalendar proceedings before the Immigration Court or the Board to request suspension of deportation.
Under the second exception, a qualified family member of an individual who has a section 203 NACARA application pending with the Service, or who has been granted relief under that provision, may move to close the proceedings before the Immigration Court in order to apply with the Service. Administrative efficiency will likely be enhanced where family members have similar claims and there are strong policy reasons based on family unity to make this exception to the general jurisdiction rule.
The Department also declines to adopt the proposal that the Service be given jurisdiction over applications of individuals who have neither applied for asylum with the Service nor have been placed in immigration proceedings before the Immigration Court. The Department is concerned that such an expansion of the Service's jurisdiction would result in a large number of fraudulent applications being filed solely for the purposes of obtaining employment authorization, and thereby expose the Asylum Program to a r
ecurrence of the same problems that necessitated asylum reform in 1995.
Concerns regarding fraud arise because an applicant for suspension of deportation or special rule cancellation of removal will be entitled to apply immediately for and be granted employment authorization. The determination of eligibility for employment authorization will necessarily be made by Service Center personnel based solely on a written application. However, an asylum office must accurately verify whether an individual is an ABC class member and registered for ABC benefits. Verification of ABC class
membership and registration is a time consuming process that, because of limitations in the registration databases, often cannot be done without interviewing the individual. If the affirmative process is not limited as set forth in the proposed rule, an individual who is not an
class member, or who is an unregistered class member, could easily submit a fraudulent application for relief under section 203 of NACARA and be granted employment authorization.
Restricting the availability of the affirmative NACARA process to certain categories of NACARA beneficiaries who have pending asylum applications with the Service and those who have a qualified relative whose asylum application has been adjudicated by the Service or is pending with the Service ensures that the Service has an existing record of the applicant or the applicant's qualified relative before he or she is able to apply for affirmative relief under section 203 of NACARA. This restriction minimizes t
he Asylum Program's vulnerability to fraud and avoids diverting resources from the adjudication process in order to verify the status of each new applicant claiming to be a registered ABC class member. This allows the Service to focus on resolving the status of the approximately 240,000 registered
class members who have asylum applications pending with the Service and their qualified relatives.
Process for Placing NACARA Beneficiaries Ineligible to Apply With the Service Into Removal Proceedings
One commenter requested that the regulations provide a mechanism for those who are not eligible to apply with the Service to receive charging documents placing them in removal proceedings where they may apply for special rule cancellation of removal before the Immigration Court.
The Department recognizes that registered
class members who never applied for asylum and who have not been placed in immigration proceedings are unable to apply for special rule cancellation of removal unless the Service places them in removal proceedings by issuing charging documents. An individual may request that the district office with jurisdiction place him or her in proceedings, but the Service retains prosecutorial discretion to determine the priority status of such a request. The Department is considering the possibility of having the asy
lum offices issue charging documents to registered
class members who request to be placed into proceedings and who provide sufficient information for the Service to issue the charges. The preparation and service of charging documents is labor intensive and would require diverting resources from the adjudication of applications filed by the large number of individuals who have asylum applications
pending with the Service. Therefore, an asylum office's ability to issue charging documents upon request necessarily depends on the resources of the asylum office, the number of applications for suspension of deportation or special rule cancellation of removal initially filed by NACARA beneficiaries, the number of affirmative asylum applications the asylum office must adjudicate within the time limits imposed by statute, and other program requirements, such as the number of credible fear and reasonable fear
interviews requested of the office. The Department will be in a better position to determine the feasibility of issuing charging documents upon request after the affirmative program has begun and allocation of resources based on the number of NACARA applications filed each month can be evaluated more accurately.
Jurisdiction--"Still Pending Adjudication by the Service"
Several commenters requested that the regulations clarify what is meant by "still pending adjudication by the Service" for purposes of determining who is eligible to apply with the Service.
Section 240.62(a) of the proposed rule provides for Service jurisdiction over certain applicants whose asylum applications are "pending adjudication by the Service" at the time the applicants apply for relief under NACARA. For the sake of clarity, the interim rule contains a definition of this phrase at § 240.60. An asylum application will be considered "pending adjudication by the Service," if the Service has not served the applicant with a final decision or referred the application to the Immigration Cour
t. This means that, unless the Service has served the applicant with a final decision to grant asylum or deny asylum, or has served the applicant with documents referring his or her application to the Immigration Court, the asylum application will be considered pending with the Service, even if a final decision has been made by the Service, but not yet served on the applicant.
Jurisdiction--Scope of ABC Class Members' Eligibility to File With the Service
Several commenters requested that the regulations clarify the statement "otherwise met the asylum filing deadline pursuant to the
settlement agreement," contained in § 240.62(a). The commenters recommended that the phrase be interpreted to mean that certain ABC class members can still apply for asylum under the settlement agreement if the Service failed to serve them properly with required notices.
Paragraphs (a)(1) and (2) of § 240.62 give the Service jurisdiction over applications for suspension of deportation or special rule cancellation of removal filed by registered ABC class members who, in the Service's determination, are eligible for benefits of the settlement agreement and whose asylum applications are still pending adjudication by the Service. To be eligible for the benefits of the settlement agreement, a registered class member must have filed for asylum by a specified date. Consistent with
the settlement agreement, the Service has allowed a very small number of Salvadoran class members who registered for
benefits, but missed the requisite asylum filing date, to apply for asylum under the terms of the settlement agreement. Such applications are permissible where the Service determines that it failed to send those individuals a copy of Notice 5, as required by the settlement agreement. Under the settlement agreement, the Service was obligated to send Notice 5, which informed class members that they had to apply for asylum on or before January 31, 1996, in order to retain benefits of the settlement agreement,
to Salvadoran class members who had applied for TPS. To date, the Service has not excepted any other class members from the asylum filing deadlines for any other reason. However, the Department included the broad language in § 240.62(a)(1) and (2), "or otherwise met the asylum application filing deadline pursuant to the ABC settlement agreement," to enable the Service to maintain jurisdiction over a class member who demonstrates that he or she did not meet the requisite filing deadline because of some fau
lt of the Service, such as failure to serve certain required notices. The burden is on the class member, however, to establish that the Service was at fault.
The Department declines to adopt the definition recommended in the comments because it would not afford the necessary flexibility that may benefit the
class. The Department takes this action with the understanding that, pursuant to current practice and as documented in the
Procedures Manual that is used by field personnel in implementing the ABC settlement agreement, the Service will extend the asylum filing deadline if it determines that a Salvadoran class member who applied for temporary protected status was not properly sent Notice 5.
Advance Parole and Eligibility to Apply for NACARA
Several commenters disagreed with the Department's determination that NACARA beneficiaries in deportation proceedings who had previously left the country and returned under a grant of advance parole are ineligible for NACARA relief. They argued that, while such persons may be ineligible for suspension of deportation, they should be eligible to apply for special rule cancellation of removal by virtue of their status of inadmissibility.
For aliens present in the United States, a grant of advance parole under section 212(d)(5) of the Act permits the individual to leave the United States temporarily with advance permission to return to the United States. Upon expiration of parole, however, the statute requires that an applicant must be "dealt with in the same manner as that of any other applicant for admission to the United States." Consequently, an applicant who was previously considered deportable would be considered inadmissible for purp
oses of determining eligibility for any form of relief. As a practical matter, very few individuals in deportation proceedings were ever granted advance parole, but those who did receive permission to depart would have been subject, upon return, to termination of the deportation proceedings along with receipt of new charging documents placing them in exclusion proceedings. A very small number of ABC class members whose deportation proceedings were administratively closed pursuant to the settlement agreement
received advance parole. Upon their return, they were then technically inadmissible to the United States rather than deportable. In the normal course of events, those persons denied asylum at their de novo ABC adjudication would have been placed in exclusion proceedings once their parole was terminated. Because ABC asylum adjudications did not begin until 1997 and were subsequently suspended in 1998, as a result of NACARA, many, if not all of these cases have not yet been adjudicated.
For purposes of a NACARA adjudication before the Service, this small group of ABC class members might be ineligible for suspension of deportation based solely on their change in status from deportable to inadmissible, if their deportation proceedings are still pending when their NACARA applications are adjudicated. Though temporary absences from the United States ordinarily would not automatically terminate or nullify previously commenced deportation proceedings, they likely would in this circumstance becau
se these individuals became applicants for admission upon their return to the United States under advance parole, and the deportation charges contained in the show cause orders previously issued in their cases are no longer applicable.
See Matter of Brown
, 18 I & N Dec. 324 (BIA 1982). In these narrow set of circumstances, it is appropriate to consider the deportation proceedings against an individual who departed and returned to the United States under a grant of advance parole while those deportation proceedings were pending as having terminated as of the date of the person's departure from the United States. If the Service determines that such an applicant is eligible for relief under section 203 of NACARA, the applicant will be granted special rule canc
ellation of removal. If the applicant is not granted NACARA relief and is not granted asylum, the Service will issue charging documents placing the person into removal proceedings.
To the best of the Department's knowledge, only ABC class members will be affected by this provision. However, the rule permits asylum officers to follow the same procedure for any other applicant within their jurisdiction who received advance parole while in deportation proceedings.
Eligibility To Apply for NACARA in Exclusion Proceedings
Another issue raised by the commenters is whether section 203 of NACARA and the implementing regulations apply to NACARA beneficiaries who were in exclusion proceedings as of April 1, 1997, including those ABC class members who were in exclusion proceedings and had those proceedings administratively closed or continued by EOIR to allow the class members to pursue
adjudications of their asylum claims by the Service, as provided by the ABC settlement agreement. These commenters argued that Congress indicated its clear intent to make NACARA relief available to persons in exclusion proceedings, because the statute provides that NACARA's special rules apply "regardless of whether the alien is in exclusion or deportation proceedings.* * * " IIRIRA section 309(c)(5)(C)(i), as amended by section 203(a)(1) of NACARA. Several commenters suggested that the intent of Congress
can be carried out by placing individuals currently in exclusion proceedings into removal proceedings by: (1) electing to proceed under new removal
procedures in those cases where an evidentiary hearing in the exclusion process had not commenced prior to April 1, 1997, pursuant to section 309(c)(2) of IIRIRA; or (2) terminating exclusion proceedings where there has not been a final administrative decision and reinitiating them as removal proceedings, as provided for under section 309(c)(3) of IIRIRA.
Courts have consistently stated that suspension of deportation is unavailable to persons in exclusion proceedings, see Matter of Torres, 19 I & N 371, 372-73 (BIA 1986);
Landon v. Plasencia
, 459 U.S. 21, 26-27, 103 S.Ct. 321, 325-26, 74 L.Ed.2d 21 (1982) ("[T]he alien who loses his right to reside in the United States in a deportation hearing has a number of substantive rights not available to the alien who is denied admission in an exclusion proceeding'[including the right to] seek suspension of deportation."), even if the person has been present in the United States for an extended period of time under a grant of parole.
Yuen Sang Low v. Attorney General of U.S.,
479 F.2d 820, 822 (9th Cir.), cert. denied, 414 U.S. 1039 (1973). This principle has recently withstood statutory and constitutional challenges, despite the
recognition that IIRIRA eliminated the distinction between deportation and exclusion for proceedings initiated on or after April 1, 1997, by replacing them with a single removal process. See
Patel v. McElroy
, 143 F.3d 56 (2nd Cir. 1998) (statutory challenge);
Skelly v. INS
, 168 F.3d 88 (2nd Cir. 1999) (constitutional challenge based on equal protection principles).
The general rule laid out in IIRIRA for the transition from exclusion and deportation procedures to a unified removal process is that, for "an alien who is in exclusion or deportation proceedings as of [April 1, 1997]," the amendments to the procedures for removing individuals from the United States instituted by IIRIRA "shall not apply," and exclusion and deportation proceedings "shall continue to be conducted without regard to such amendments." IIRIRA section 309(c)(1). The IIRIRA transitional rules deali
ng with suspension of deportation, as amended by section 203 of NACARA, are directed solely to outlining the circumstances under which the new cancellation of removal rules regarding continuous residence and physical presence, found in section 240A(d)(1) and (2) of the Act, apply to individuals who were placed in exclusion or deportation proceedings prior to April 1, 1997.
Under the transitional rules for suspension of deportation cases, section 309(c)(5)(A) of IIRIRA, as amended by NACARA, states that the rules regarding continuous residence and physical presence generally apply to orders to show cause regardless of when the orders to show cause are issued, thus making these rules applicable to requests for suspension of deportation. The first exception to this rule, located at section 309(c)(5)(B) of IIRIRA, as amended by NACARA, provides that the new continuous residence a
nd physical presence rules found at section 240A(d)(1) and (2) of the Act will not apply to an order to show cause issued prior to April 1, 1997, when the Attorney General decides to terminate a pending exclusion or deportation proceeding under section 309(c)(3) of IIRIRA and reinitiate the proceeding under removal provisions. The exception described in section 309(c)(5)(C)(i) of IIRIRA, as amended by NACARA, states that these new rules regarding continuous residence and physical presence will not apply to
NACARA beneficiaries who request suspension of deportation or cancellation of removal. While the first exception simply prevents the application of the new continuous residence and physical presence rules to an order to show cause in one particular situation, the second exception exempts NACARA beneficiaries from the continuous residence and physical presence rules whenever they file for suspension of deportation under the pre-IIRIRA section 244 of the Act, or for regular cancellation of removal under secti
on 240A of the Act (additional rules establishing eligibility for NACARA special rule cancellation of removal are covered separately in section 309(f) of IIRIRA, as amended by NACARA), "regardless of whether the alien is in exclusion or deportation proceedings before [April 1, 1997]." IIRIRA section 309(c)(5)(C)(i), as amended by NACARA.
Contrary to showing a congressional intent that NACARA relief be made available to persons in exclusion proceedings, the phrase quoted above and cited in several comments simply indicates that Congress did not want the new continuous residence and physical presence rules to apply to NACARA beneficiaries who are eligible to apply for suspension of deportation or cancellation of removal no matter what charging documents, if any, may have been issued to them prior to April 1, 1997. This language makes clear t
hat the initiation of exclusion proceedings against NACARA beneficiaries prior to April 1, 1997, does not result in the application of the new continuous residence and physical presence rules to their cases, acknowledging the possibility that such individuals may have their exclusion proceedings changed into removal proceedings under the transitional rules covered in section 309(c)(2) and (3) of IIRIRA.
None of these transitional rules dealing with suspension of deportation override the general transition rule that subjects a person placed into exclusion proceedings prior to April 1, 1997, to the rules governing exclusion that were in place before IIRIRA was enacted. IIRIRA section 309(c)(1). Included among those rules is the long-standing principle that persons in exclusion proceedings are ineligible to apply for suspension of deportation. As noted by certain comments, the IIRIRA transitional rules provi
de a way to allow such individuals to apply for special rule cancellation of removal under NACARA. This could be done by applying removal procedures to those cases in which an evidentiary hearing has not commenced as of April 1, 1997, as allowed under section 309(c)(2) of IIRIRA, or by terminating the exclusion proceedings and reinitiating proceedings under section 240 of the Act, as provided for under section 309(c)(3) of IIRIRA. For purposes of this interim rule, the Department declines to pursue these op
tions at this time, but invites additional comments on this point.
Effect of "Apprehended at Time of Entry" Limit on Eligibility
Several commenters requested that the regulations define the term "apprehended at time of entry" to promote consistency in interpretation. The commenters also proposed the following definition: "The phrase "apprehended at time of entry" means a person who was arrested at a United States port-of-entry between December 19, 1990, the preliminary approval date of the settlement agreement, and January 31, 1991, the date the court approved the settlement agreement."
The interim rule will not be amended to include this definition. Section 203 of NACARA provides that a registered ABC class member who "was not apprehended after December 19, 1990, at the time of entry," may apply for suspension of deportation or special rule cancellation of removal under the provisions enacted by NACARA. The language "apprehended * * * at time of entry" was derived from paragraph 2 of the ABC settlement agreement, which states, "Class members apprehended at the time of entry after the dat
e of preliminary approval of this agreement shall not be eligible for the benefits hereunder." See
American Baptist Churches v. Thornburgh,
760 F. Supp. 796, 800 (N.D. Cal. 1991). The date of preliminary approval of the settlement agreement was December 19, 1990. There is no provision in either the settlement agreement or section 203 of NACARA limiting this provision to those registered class members apprehended at time of entry between December 19, 1990, and January 31, 1991, nor is there any provision that excludes from the applicability of this provision registered class members apprehended after January 31, 1991. The Service consistently h
as implemented the plain meaning of the language in the settlement agreement in denying ABC benefits to class members apprehended at the time of entry after December 19, 1990. There is no indication that Congress intended to redefine the exclusionary ground included in the settlement agreement or to limit the corresponding statutory provision only to registered class members apprehended at the time of entry prior to January 31, 1991. Therefore, the Department does not believe that the interpretation suggest
ed in the comments is permitted by NACARA.
The Department has carefully considered the value of including a definition of "apprehended at time of entry" within the rule, but does not believe that it is appropriate to do so. The Service has issued and continues to provide policy guidance to its officers explaining that a class member who has been apprehended after the class member has effected an entry (consistent with the former "entry doctrine") cannot be considered to have been apprehended at the time of entry. Deriving guidance from the definitio
n of "entry" under the Act, as it existed prior to April 1, 1997, and as developed by case law, the Service has instructed officers that the determination of whether an entry has been effected involves consideration of the following three factors: (1) whether the class member has crossed into the territorial limits of the United States; (2) whether the class member has been inspected or admitted by an immigration officer, or has actually and intentionally evaded inspection at the nearest inspection point; a
nd (3) whether the class member crossed into the territorial limits of the United States free from official restraint, including free from surveillance. Because these factors necessarily are dependent on the individualized factors of each case, the Department has determined that it is more appropriate to continue to provide internal guidance on the factors to consider in evaluating whether an entry has been effected than to attempt to codify a definition that would cover the wide variety of facts that may b
e present in an individual case.
Guatemalans and Salvadorans Filing for Asylum by April 1, 1990
Several commenters suggested that the proposed rule reads too narrowly the eligibility requirement contained at section 309(c)(5)(C)(i)(II) of IIRIRA, as amended by NACARA. This sections permits Salvadorans and Guatemalans who "filed an application for asylum with the Immigration and Naturalization Service" prior to April 1, 1990, to apply for relief under NACARA. Section 240.61(a)(2) of the proposed rule would limit eligibility to those persons who filed an application for asylum directly with the Service.
The commenters note that the proposed rule fails to account for those persons who filed for asylum by April 1, 1990, before the Immigration Court. The comments argue that the critical factor in section 309(c)(5)(C)(i)(II) of the statute relates to asylum filing date, rather than the forum of filing. The comments further note that any application filed with the Immigration Court was necessarily served on the Service. They argue that a restrictive reading of the statute unnecessarily limits eligibility, and
that filing for purposes of this section should be met whenever an applicant filed for asylum with the Department of Justice.
The Department agrees that section 309(c)(5)(C)(i)(II) of IIRIRA is subject to different interpretations. In drafting the proposed rule, the Department contrasted the wording of this section with that of section 309(c)(5)(C)(i)(V) of IIRIRA, as amended by NACARA, which permits certain nationals of former Soviet bloc countries to apply for relief under NACARA if they "filed for asylum on or before December 31, 1991." The proposed rule reflected the Department's initial interpretation that subclauses (II) an
d (V) should be read together, such that subclause (II) should be read to limit eligibility to those who filed an affirmative asylum application with the Service, while an individual could be eligible for relief under subclause (V) as long as an asylum application was filed before either the Service or before the Immigration Court.
Although this interpretation is consistent with the literal wording of the statute, the Department recognizes that, in determining eligibility to apply for suspension of deportation or special rule cancellation of removal under NACARA, "filed" could be read more broadly to mean either submitted to or served on the Service. This interpretation is supported by several factors. First, it is more appropriate to track subclauses (I) and (II) rather than subclauses (II) and (V). Section 309(c)(5)(C)(i) of IIRIRA
contains two provisions specifically relating to Salvadorans and Guatemalans. Subclause (I) permits Salvadorans and Guatemalans who entered the United States prior to September 19, 1990, and October 1, 1990, respectively, to file for NACARA relief if they registered for benefits under the ABC agreement by the dates specified in the agreement. Subclause (II) relates to Salvadorans and Guatemalans who filed for asylum by April 1, 1990, regardless of whether they also registered for ABC benefits. When subclaus
e (I) and (II) are read together, the application of the statute creates inconsistent results unless subclause (II) is interpreted to cover both Service and EOIR asylum filings. For instance, a Salvadoran placed in immigration proceedings who filed an application for asylum with the Immigration Court by April 1, 1990 is, by definition, a member of the ABC class because he or she entered the United States prior to September 19, 1990. If he or she registered for ABC benefits, he or she would be eligible to ap
ply for relief under subclause (I), even though he or she did not initially file the asylum application with the Service. Given that subclause (II) essentially concerns ABC class members who failed to register for ABC benefits, it is inconsistent with the ameliorative purposes of NACARA to limit eligibility solely to those persons who filed directly with the Service.
Second, NACARA makes use of either ABC registration deadlines or asylum filing deadlines to identify eligible aliens. A grant of asylum confers the same benefits regardless of whether the grant is conferred by an asylum officer or an Immigration Court. It is the act of filing for asylum or registering for ABC benefits, rather than the forum, that distinguishes subclause (II) applicants from those Salvadorans and Guatemalans in the United States who never applied for asylum or registered for ABC benefits.
Consequently, 8 CFR 240.61(a)(2) has been amended to include a Guatemalan or Salvadoran national who filed an application for asylum with the Service on or before April 1, 1990, either by filing an application directly with the Service or filing the application with the Immigration Court and serving a copy of that application on the Service.
Determining When an Application for Asylum is Filed
Though not included in the proposed rule, the Department has included in § 240.60 of this interim rule a definition for determining when a person is considered to have "filed an application for asylum. This definition is necessary in order to determine eligibility to apply for relief under section 203 of NACARA. The definition will also be used to determine the date a dependent included in an asylum application is considered to have "filed" for asylum. Under this definition, any dependent spouse or child w
ho was present in the United States and included in the principal's asylum application at the time it was filed will be considered to have filed an application for asylum on the date the principal's asylum application was filed. Any dependent who is added to the principal's asylum application after it was initially filed will be considered to have filed an application for asylum on the date the dependent was added to principal's asylum application.
One commenter requested that the regulations specify that children and spouses can file for relief under NACARA after they have attained 7 years of continuous physical presence in the United States, even if they had not been continuously present in the United States for 7 years at the time the statute was enacted, or have not reached 7 years by the time the rule implementing section 203 of NACARA becomes effective.
The Department agrees with this interpretation. Both section 203 of NACARA and the interim rule allow children and spouses to apply for relief under NACARA, even if they had not been continuously physically present in the United States for 7 years at the time NACARA was enacted or implemented. To meet the physical presence requirement, the spouse or child must have 7 years of continuous physical presence in the United States (10 years, if certain inadmissibility or deportability grounds apply) as of the dat
e the application for relief was filed. Unlike section 202 of NACARA, there is no deadline for applying for relief under section 203 of NACARA.
Eligibility of Dependents Who Have Turned 21 Years of Age Since NACARA Was Enacted
Several commenters expressed concern about children who have lost or will lose eligibility to apply for relief pursuant to section 309(c)(5)(C)(i)(III) of IIRIRA, as amended by section 203(a) of NACARA, because they turned 21 years of age between November 19, 1997, the date NACARA was enacted, and the effective date of this regulation. Several commenters suggested that the regulations "grandfather" in all unmarried sons and unmarried daughters who have turned 21 years of age since November 19, 1997. The com
menters compare the current situation to that faced by juveniles eligible for special immigration status under section 153 of the Immigration Act of 1990 (IMMACT 90), Pub. L. 101-649 (104 Stat. 4978), who aged out prior to the publication of regulations implementing that section of the law. Under the rule, juveniles who met the statutory requirements on the date the statute was enacted, but who had aged out prior to implementation of regulations, were permitted to apply for and receive special immigrant sta
Comparison to the rule implementing section 153 of IMMACT 90 is not persuasive, as the statutes and circumstances in question are not analogous. Regulations implementing section 153 of the Immigration Act of 1990, governing special eligibility provisions for juveniles to adjust to lawful permanent resident status, "grandfathered" in certain juveniles who met eligibility requirements on November 29, 1990. This was done because IMMACT 90 did not originally exempt special immigrant juvenile aliens from the nor
mal statutory requirements for adjustment of status. Recognizing that most special immigrant juvenile alien adjustment applicants were statutorily ineligible for adjustment of status, for reasons unrelated to their age, Service offices were directed to accept and hold in abeyance applications filed by juveniles who appeared to meet the statutory requirements for special immigrant juvenile classification, but who may have been precluded based on statutory requirements for adjustment of status. This policy wa
s adopted because the Service had put forward technical amendments that would exempt these applicants from many of the ineligibility grounds contained in sections 245 (a) and (c) of the Act. The technical amendments to the Act were enacted at the end of 1991. The supplementary information published as a final rule in the
on August 12, 1993, at 58 FR 42843, explained that the rule would apply the exemptions contained in the technical amendments to aliens who could establish that they otherwise met the eligibility criteria on November 29, 1990, "to ensure that special immigrant juveniles are not precluded from obtaining lawful permanent residence because of the passage of time while the Service was awaiting Congressional action to amend the adjustment of status provisions * * *."
Unlike the special immigrant cases, NACARA predicates eligibility for dependents of a NACARA principal applicant on a grant of suspension of deportation or cancellation of removal to the principal applicant. The Department may not extend eligibility to qualified individuals who were 21 years of age or older on the date of enactment of NACARA, or prior to promulgation of regulations implementing the affirmative application process because it exceeds the scope of eligibility permitted by the statute. In sect
ion 309(c)(5)(C)(i)(IV)(bb) of IIRIRA, as amended by NACARA, Congress explicitly linked the age of the unmarried son or daughter to the date the parent is granted suspension of deportation or cancellation of removal, not to the date the unmarried son or daughter's application is adjudicated or any other date.
In contrast to individuals covered by section 153 of IMMACT 90, nothing in NACARA precludes qualified children of NACARA beneficiaries from applying for relief once the parent or spouse has been granted suspension of deportation or special rule cancellation of removal. Any NACARA beneficiary who has a NACARA-eligible dependent nearing the age of 21 years old, and who has had an asylum application pending with the Service, has been afforded the opportunity to request an expedited adjudication of the asylum a
pplication. In such a case, if the asylum application were not granted, the applicant would be placed in removal proceedings where he or she could apply for relief under section 203 of NACARA with the Immigration Court. Alternatively, the parent could request that his or her pending asylum application be withdrawn in order to apply with the Immigration Court for both asylum and relief under section 203 of NACARA. In such cases, if the dependent was listed on the parent's asylum application and was included
in the request for asylum, he or she would also be placed in proceedings and could file a NACARA application with the Immigration Court. The Service has outlined these options to the public in previous section 203 of NACARA information materials issued through the Service's Office of Public Affairs. ("Questions and Answers about NACARA and Cancellation of Removal," February 10, 1998; "Nicaraguan Adjustment and Central American Relief Act of 1997," April 1, 1998; and "Section 203 of the Nicaraguan Adjustmen
t and Central American Relief Act of 1997," November 24, 1998.)
Initial Eligibility and ABC Class Members
One commenter stated that registered ABC class members who did not apply for asylum by the dates required to retain eligibility for benefits of the ABC settlement agreement should not be allowed to apply for relief under NACARA. The commenter argued that NACARA was intended to provide ABC class members with the opportunity to apply for suspension of deportation under the rules that existed before IIRIRA was enacted, and that if an ABC class member did not comply with the requirements of the ABC settlement a
greement, the class member should not be allowed to apply for relief under NACARA.
Section 309(c)(5)(C)(i)(I) of IIRIRA, as amended by section 203(a) of NACARA, provides that any registered ABC class member who has not been apprehended, after December 19, 1990, at time of entry or convicted of an aggravated felony may apply for suspension of deportation or special rule cancellation of removal under the provisions enacted by NACARA. In contrast to sections 309(c)(5)(C)(i)(II) and (V) of IIRIRA, as amended by NACARA, there is no statutory language in section 309(c)(5)(C)(i)(I) of IIRIRA con
necting eligibility to apply for relief under NACARA to the filing of an asylum application. Section 309(c)(5)(C)(i)(I) of IIRIRA contains no requirement that the registered class member have applied for asylum on any particular date, or ever have applied for asylum, but instead predicates eligibility to apply solely on nationality and entry date (which correspond to ABC class membership) and registration for ABC benefits. Therefore, the Department believes it would be improper to include in the regulations
a substantive restriction on eligibility that is not reflected in the statute.
Eligibility-Continuous Physical Presence
Several commenters suggested revisions to § 240.64, regarding the calculation of continuous physical presence. With respect to § 240.64(b)(1), concerning continuous physical presence for suspension of deportation cases, the commenters suggested modifying the "brief, casual, and innocent" standard by defining single absences not exceeding 90 days or aggregate absences not exceeding 180 days to be considered "brief" in order to parallel the standard used in cancellation of removal cases. The commenters furthe
r proposed that absences of greater duration should be evaluated on a case-by-case basis, and that the applicant should still be required to establish that any departure was casual or innocent.
With respect to § 240.64(b)(2), relating to special rule cancellation of removal, several commenters objected to the requirement that an applicant must establish that single absences of 90 days or less were brief, casual, and innocent. These commenters argued that such a requirement was inconsistent with the Act. Similarly, these commenters objected to the language contained in § 240.64(b)(3), which states that a departure incident to a final order of deportation or removal, or an order of voluntary departu
re, or with the intent to commit a crime terminates continuous physical presence. The commenters suggested amending the provision for special rule cancellation of removal to delete the mandatory finding and substitute language providing that such absences may be the basis for finding that continuous physical presence has been terminated.
The Department will adopt certain suggestions regarding the definition of a "brief" absence from the United States. As proposed, § 240.64(b)(1) reiterates former section 244(b)(2) of the Act, as in effect prior to IIRIRA, which establishes that for purposes of continuous physical presence, absences from the United States will be evaluated based on a determination of whether the absence was brief, casual, and innocent. Initially, the Department chose to adopt this language without further clarification in th
e rule, based on the body of case law interpreting this provision, as well as the greater flexibility inherent in the phrase "brief, casual, and innocent." Because the concept of "brief, casual, and innocent," however, goes to the nature of a departure, it is consistent with section 244(d)(2) of the Act, as in effect prior to IIRIRA, to provide some guidance within the rule regarding one or more of these factors. Given the use of the 90/180-day rule within the context of both cancellation of removal and sp
ecial rule cancellation of removal, it is reasonable to adopt these timeframes for purposes of suspension of deportation under NACARA. To assist adjudicators and to ensure consistent determinations regarding the length of a departure, the Department will revise the rule to define a "brief" absence as one of 90 days or less or an aggregate of 180 days or less. Absences of greater duration will still be considered on a case-by-case basis in suspension cases in order to comply with the broader language of "bri
ef, casual, and innocent" contained in the statute. All absences will be evaluated, however, to determine whether or not they were casual and innocent.
The Department will also amend § 240.64(b)(2) of the proposed rule relating to special rule cancellation of removal to reflect the definition of "brief" adopted in § 240.64(b)(1). It is not appropriate, however, to adopt the remaining suggestions relating to special rule cancellation of removal. The commenters suggest that it is contrary to the statute to disqualify a special rule cancellation of removal applicant based on the nature of his or her absences. Neither NACARA nor the Act, as amended by IIRIRA,
precludes such an evaluation, and when the 90/180-day rule is read within the context of immigration reform under IIRIRA, it is apparent that Congress intended certain kinds of departures, such as those made in furtherance of criminal offenses, to terminate continuous physical presence. Similarly, through reinstatement under section 241(a)(5) of the Act, Congress severely limited the opportunity to seek relief for aliens who illegally reenter the United States after previously being removed, or departing vo
luntarily under final orders.
The interim rule resolves the apparent inconsistency by clarifying the effect of certain absences of 90 days or less in a manner consistent with suspension of deportation. Specifically, the second sentence of § 240.64(b)(2) retains the analytical framework of the brief, casual, and innocent standard to account for those situations in which a relatively brief absence nonetheless meaningfully interrupts continuous physical presence. The burden of proof remains on the applicant to establish the "casual and inn
ocent" nature of such departures in order to conform with the burden of proof required under suspension of deportation. While § 240.64(b)(2) attempts to account for departures generally, § 240.64(b)(3) identifies specific departures that have long been considered to break continuous physical presence in the context of suspension of deportation adjudications. It is, therefore, both reasonable and necessary to place the same restrictions on special rule cancellation applicants.