\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (Legacy INS) - 2000 \ FEDERAL REGISTER FINAL REGULATIONS - 2000 \ Adjustment of Status for Certain Nationals of Nicaragua and Cuba [65 FR 15846] [FR 13-00] \ 6. Determining Nationality
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6. Determining Nationality
One commenter suggested that all applicants be required to establish nationality through a birth certificate that has been certified by the issuing governmental authority in accordance with 8 CFR 287.6(b).
All applicants are required to meet the proof of official records requirements set forth in 8 CFR 287.6 which, with regard to all documents submitted in support of this and other applications, requires either an official publication of the record, or a copy attested to by an authorized official. However, it should be noted that the Service regulation at 8 CFR 103.2(b) permits submission of secondary evidence and photocopies of documents under certain circumstances.
7. Fee for Fingerprinting Services
One commenter requested that the regulation clarify whether the applicant must pay an additional $25 fee for fingerprinting, in addition to the regular fee for filing an application for adjustment of status. Each applicant who is 14 years of age or older must be fingerprinted and must pay the fingerprinting fee at the time of filing the application for adjustment. The regulation has been clarified in this regard.
8. Employment Authorization
The Department received a number of comments on the employment authorization issuance process. As set forth in the interim regulation, the current process involves the Service’s issuing employment authorization on an expedited basis to those applicants whose application is supported by evidence that may be verified through existing Service records. Other applicants must wait up to 180 days (the maximum timeframe allowed under the statute) while the Service adjudicates the application for adjustment of statu
s. A number of commenters, citing the potential hardship to applicants, wanted the Service to issue employment authorization to all applicants immediately upon filing; one, citing the need to deter fraud, wanted the Service to wait the full 180 days in all cases; and one supported the process as set forth in the interim regulation. Upon examination of all the comments, the Department has concluded that the process set forth in the interim regulation provides the best balance between deterring fraud by mala
fide applicants and alleviating financial hardship for bona fide applicants. Accordingly, no changes are being made with regard to the work authorization issue.
Some commenters pointed out the apparent conflict between the statement in the interim rule’s supplementary information that the Department “will authorize employment for applicants whose cases have been pending for fewer than 180 days only if the applicant applies for work authorization and adjustment at the same time,” and the lack of such concurrent filing requirement in § 245.13(j)(2). The Department has decided not to require that an applicant file concurrently in order to benefit from the more expedit
ed of the two procedures. Accordingly, the language in the interim regulation will not be changed.
9. Travel and Parole Issues
Several commenters expressed concern about the provisions in the interim regulation that allow the Director of the Texas Service Center (TSC) to authorize parole for aliens outside the United States. One questioned the authority of the Attorney General (acting through the Director of the TSC) to authorize parole under these circumstances; a second did not want the Director of the TSC to authorize any paroles for persons to come to the United States; a third wanted the regulation to eliminate, or at least to
restrict greatly the Director of the TSC’s ability to authorize parole; and a fourth sought assurance that the Service would use a “tighter screening mechanism” to prevent abuse.
An explanation of the parole process, and how it relates to the NACARA adjustment program, may help to clarify the Service's approach. The authority to authorize parole into the United States is contained in section 212(d)(5) of the Act, which states:
“(5)(A) The Attorney General may, except as provided in subparagraph (B) or in section 214(f), in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have
been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.
(B) The Attorney General may not parole into the United States an alien who is a refugee unless the Attorney General determines that compelling reasons in the public interest with respect to that particular alien require that the alien be paroled into the United States rather than be admitted as a refugee under section 207.”
The Attorney General has delegated her authority to authorize parole to the Commissioner of the Immigration and Naturalization Service. In the case of an alien who is seeking parole from outside the United States, that authority is normally redelegated to the Director of the INS Office of International Affairs and to the overseas district director having jurisdiction over the area in which the alien is located. The effect of the May 21, 1998, regulation was to expand the list of persons to whom this authori
ty has been re-delegated to include the Director of the TSC for NACARA-related parole requests only. There have been no changes in the process for requesting, the standards for adjudicating, or the statutory authority for issuing parole. Parole determinations will still be made on a case-by-case basis, and the applicant for parole will still have to establish that urgent humanitarian reasons or significant public benefits exist. If the evidence shows that the positive factors (such as the desirability of re
uniting a family or allowing an otherwise-eligible alien to participate in this special adjustment of status program which Congress has established) are outweighed by negative discretionary factors, the parole request will be denied as a matter of discretion. Minor changes have been made in the regulation at § 245.13(k) to clarify this point.
One commenter did not want the Department to issue parole authorization to any alien who returned to his or her home country during any portion of the 180 days of absence from the United States permitted by section 202(b)(1) of NACARA. Although the suggestion might be appropriate if NACARA were to require the applicant to establish, for example, that he or she would risk persecution or extreme hardship if he or she went home, there is no such requirement, and the commenter’s suggestion will not be adopted.
One commenter felt that if the Service revoked the alien’s parole, the regulation should either require the district director to make a bond redetermination or authorize the immigration judge to set bond. As indicated in the passage cited above, when parole is terminated the alien is returned to the custody of the Service and is treated as any other applicant for admission. Under existing statutory and regulatory provisions, the district director then has the option of placing the alien into removal proceed
ings, admitting the alien (if he or she is admissible), or reparoling the alien. If the decision is to admit or reparole the alien, the district director may require that certain conditions be met, including the posting of an appropriate bond.
CFR § § 212.5(c)(1), 214.1(a)(3).
10. Jurisdictional Issues Between the Service and the Executive Office for Immigration Review (EOIR)
One commenter suggested that the regulation be modified to allow an alien whose application for adjustment is denied by the Service to renew his or her application in proceedings before the Immigration Court regardless of whether the proceedings occur before or after the March 31, 2000, expiration date of the NACARA program. Although section 202(a)(1)(A) of NACARA provides that applications for adjustment must be filed by March 31, 2000, section 202(e) of NACARA also provides that applicants for adjustment
of status shall have the same right to, and procedures for, administrative review as are provided to other applicants for adjustment under section 245 of the Act, or aliens subject to removal proceedings under section 240 of the Act. The Department interprets the deadline in section 202(a)(1)(A) of NACARA as relating only to the initial application for adjustment and not to any renewed application in removal proceedings following a denial of the initial application by the Service, provided that initial appl
ication was properly filed. The regulation is being modified accordingly.
Another commenter contended that all initial applications must be filed before the Service, and that EOIR only has appellate jurisdiction. The Department does not agree. The authority to adjudicate applications for adjustment of status under section 202 of NACARA rests with the Attorney General. It is well within her authority to assign initial jurisdiction over the applications to the Service (for those aliens who are not in removal proceedings) and to the Immigration Court (for those aliens who are in suc
h proceedings), and to provide that the Board of Immigration Appeals has appellate jurisdiction over cases decided by immigration judges. This arrangement is in keeping with the provisions of section 202(e) of NACARA.
One commenter suggested that aliens in proceedings before the Immigration Court be afforded the option of applying for adjustment before either the Service or the Immigration Court. Section 245.13(d)(3) already provides an alien in proceedings with a mechanism by which he or she may request administrative closure of such proceedings for the purpose of seeking adjustment of status under section 202 of NACARA before the Service.
One commenter suggested that aliens whose requests for administrative closure are granted be required to apply for adjustment before the Service within a fixed number of days of the granting of administrative closure. The Department considered this approach when drafting the interim regulation, but concluded that the difficulties inherent in administering it would far exceed any benefits.
Finally, one commenter suggested that for those cases which are referred to an immigration judge on a Form I-290C, Notice of Certification, for a “NACARA-only hearing” because the applicant had already been subject to an order of exclusion, deportation, or removal at the time the application was filed the “NACARA-only hearing” should be conducted under the same rules of procedure as the proceeding in which the alien received the order of exclusion, deportation, or removal. Under this suggestion, an alien wh
o was placed in exclusion or deportation proceedings prior to the enactment of IIRIRA would not be subject to the post-IIRIRA Immigration Court procedures. The Department does not agree with this suggestion, since the “NACARA-only hearing” is a new proceeding, not a reopening of the old exclusion or deportation proceeding.
11. Compliance With the Unfunded Mandates Reform Act of 1995
One commenter suggested that the interim rule implicated the Unfunded Mandates Reform Act of 1995. The interim rule merely implements a statutory provision providing permanent residency for certain qualified aliens. Neither the statute nor the interim rule mandates a State or local jurisdiction to provide any services not already provided to aliens who adjust their status to that of lawful permanent resident under other provisions of immigration law. The Department has no reason to believe that the implemen
tation of section 202 of NACARA will result in any expenditures by State or local governments that are in contravention of the Unfunded Mandates Act.
The Department received a wide range of comments regarding waiver of interviews. One commenter stated that all applicants should be interviewed; a second wanted fewer restrictions on the types of interviews the Director of the TSC can waive; and a third wanted the Service to waive interviews for all children under age 14. It is important to remember that the Service does not waive interviews in order to avoid work for itself or inconvenience to the applicant, but rather because doing so enables it to concen
trate its limited resources on those cases most warranting interview. The Department believes this can be best accomplished by giving the Director of the TSC the authority to waive interviews only in those cases that, first, are supported by evidence of commencement of physical presence that can be verified through Service records; second, have no unresolved questions about the applicant’s eligibility; and third, do not require a waiver of inadmissibility. Accordingly, no changes will be made in the regulat
ion in this regard.
A number of commenters felt that the Service should either grant stays of removal to all applicants for adjustment of status under section 202 of NACARA (
without fee or application), or require the application but waive the fee. Most of those who expressed the former view cited subsections 202(c)(1) and (2) of NACARA in support of their view. However, those subsections read:
“(1) IN GENERAL-The Attorney General shall provide by regulation for an alien subject to a final order of deportation or removal
a stay of such order based on the filing of an application under subsection (a).
(2) DURING CERTAIN PROCEEDINGS-Notwithstanding any provision of the Immigration and Nationality Act, the Attorney General shall not order any alien to be removed from the United States,
if the alien is in exclusion, deportation, or removal proceedings
under any provision of such Act and has applied for adjustment of status under subsection (a), except where the Attorney General has rendered a final administrative determination to deny the application. [Emphasis Added]”
Taken together, these two subsections clearly indicate that Congress intended that, with regard to any alien who is the beneficiary of a properly filed application for adjustment of status under section 202 of NACARA and who is in exclusion, deportation, or removal proceedings before an immigration judge, or whose case is on appeal to the Board of Immigration Appeals (the Board), neither the immigration judge nor the Board may issue an order of exclusion, deportation, or removal unless and until the applica
tion for adjustment is denied. The alien does not need to file any request, motion, or other form beyond the application for adjustment itself in order to benefit from this automatic protection.
There is no such automatic protection with regard to an alien who became the subject of a final order of exclusion, deportation, or removal prior to his or her filing the application for adjustment under section 202 of NACARA. If the alien wishes to receive protection from the enforcement of an existing order of exclusion, deportation, or removal, he or she must “seek a stay of such order.” The process for seeking a stay of removal is to file Form I-246, Application for Stay of Removal, and pay the required
fee, through the local Service office. It must be noted that the filing of Form I-246 is not a prerequisite to applying for, or being granted, benefits under section 202 of NACARA; the decision to seek a stay of removal is strictly up to the alien. Accordingly, no change will be made to the regulation regarding the process for seeking a stay of removal. However, the Department does see a need for guidelines on the adjudication of such request for stay of removal. Accordingly, the regulation is being modifi
ed to reflect that, absent significant negative discretionary factors, if an alien files Form I-246, pays the fee, and submits evidence of the filing of an application for adjustment of status under section 202 of NACARA, execution of the order of exclusion, deportation, or removal shall be stayed until a decision is reached on the application for adjustment of status.