[Federal Register Volume 62, Number 192 (Friday, October 3, 1997)]
[Rules and Regulations]
[Pages 51760-51762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26385]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
Executive Office for Immigration Review
8 CFR Part 240
[EOIR No. 118I; AG Order No. 2118-97]
RIN: 1125-AA19
Suspension of Deportation and Cancellation of Removal
AGENCY: Immigration and Naturalization Service, Justice, and Executive
Office for Immigration Review, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: 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 policy will be reevaluated after the
Department determines how
[[Page 51761]]
best to implement sections (304(a)(3) and 309(c)(7) of IIRIRA.
DATES: Effective date: This interim rule is effective October 1, 1997.
Comment date: Written comments must be submitted on or before
December 1, 1997.
ADDRESSES: 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.
SUPPLEMENTARY INFORMATION: This interim rule with request for comments
amends 8 CFR part 240 by creating new Sec. 240.21.
Background
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 for 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, immediate
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 warrants 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 months. 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-
[[Page 51762]]
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.
List of Subjects in 8 CFR Part 140
Administrative practice and procedure, Aliens, Immigration.
Accordingly, part 240 of chapter I of Title 8 of the Code of
Federal Regulations is amended as follows:
PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
1. The authority citation for part 240 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227,
1251, 1252 note, 1252a, 1252b, 1362; 8 CFR part 2.
2. Section 240.21 is added to read as follows:
Sec. 240.21 Suspension of deportation and adjustment under section
244(a) of the Act (as in effect before April 1, 1997) and cancellation
of removal and adjustment under section 240A(b) of the Act for certain
nonpermanent residents.
(a) Applications for suspension of deportation under section 244(a)
of the Act (as in effect before April 1, 1997) or cancellation of
removal and adjustment of status under section 240A(b) of the Act that
meet the statutory requirements and warrant a favorable exercise of
discretion may be granted only on a conditional basis. The order
conditionally granting relief shall state which paragraph of section
244(a) of the Act (as in effect before April 1, 1997) or section
240A(b) of the Act applies. No application for suspension or
cancellation shall receive a favorable exercise of discretion where the
applicant has been granted asylum or adjustment of status while the
suspension or cancellation application is pending. A decision to deny
as a matter of discretion an application for suspension or cancellation
on this basis shall be reconsidered where an appeal of a decision
granting asylum or adjustment is sustained by the Board of Immigration
Appeals.
(b) An alternate order of voluntary departure, deportation, or
removal must be entered when there is a conditional grant of suspension
or cancellation. The alternate order shall take effect if the condition
is not ultimately removed.
(c) An order conditionally granting an application for suspension
or cancellation is appealable to the Board pursuant to the procedures
set forth in this chapter, and the time for appeal by the Service of
the conditional grant or for appeal by the alien of the finding of
deportability or of any denial of other relief by the immigration judge
shall run from the date of such order.
(d) If, on appeal, the Board determines that an application for
suspension of deportation or cancellation of removal meets the
statutory requirements and warrants a favorable exercise of discretion,
such application shall be granted on a conditional basis, even if an
immigration judge granted the application without condition.
Dated: October 1, 1997.
Janet Reno,
Attorney General.
[FR Doc. 97-26385 Filed 10-1-97; 11:36 am]
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