[Federal Register Volume 63, Number 112 (Thursday, June 11, 1998)]
[Rules and Regulations]
[Pages 31890-31895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15588]
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DEPARTMENT OF JUSTICE
8 CFR Part 3
[EOIR No. 121P; AG Order No. 2162-98]
RIN 1125-AA23
Executive Office for Immigration Review; Motion to Reopen:
Suspension of Deportation and Cancellation of Removal
AGENCY: 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) by establishing a special procedure for the
filing and adjudication of motions to reopen to apply for suspension of
deportation and cancellation of removal pursuant to section 203(c) of
the Nicaraguan Adjustment and Central American Relief Act.
DATES: Effective date: This interim rule is effective June 11, 1998.
Comment date: Written comments must be submitted on or before July
13, 1998.
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: Margaret M. Philbin, General Counsel,
Executive Office for Immigration Review, Suite 2400, 5107 Leesburg
Pike, Falls Church, Virginia 22041, telephone (703) 305-0470.
SUPPLEMENTARY INFORMATION: This interim rule with request for comments
amends 8 CFR part 3 by creating new Sec. 3.43.
Background
This regulation relates to a previous notice, signed by the
Attorney General
[[Page 31891]]
on January 15, 1998, and published at 63 FR 3154, on January 21, 1998,
which designated the time period for filing motions to reopen pursuant
to section 203(c) of the Nicaraguan Adjustment and Central American
Relief Act (Pub. L. 105-100; 111 Stat. 2160, 2193) (NACARA). Section
203 of NACARA, signed into law on November 19, 1997, amended section
309 of the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (Pub. L. 104-208; 110 Stat. 3009-625) (IIRIRA) to provide
special rules regarding applications for suspension of deportation and
cancellation of removal by certain aliens. These aliens include
Guatemalan, Salvadoran, and certain former Soviet bloc nationals
described in section 309(c)(5)(C)(i) of IIRIRA, as amended by section
203 of NACARA.
Section 203(c) of NACARA also amended section 309 of IIRIRA by
creating a provision for motions to reopen under NACARA. Section 309(g)
of IIRIRA, as amended, permits aliens with final orders of deportation
or removal who have become eligible for cancellation of removal or
suspension of deportation as a result of the amendments made by section
203 of NACARA to file one motion to reopen removal or deportation
proceedings to apply for such relief, without regard to the limitations
imposed by law on motions to reopen. Section 309(g) of IIRIRA, as
amended, further requires the Attorney General to designate a specific
time period for filing motions to reopen for such relief beginning no
later than 60 days after the date of enactment of NACARA and extending
for a period not to exceed 240 days.
The Attorney General's notice in the Federal Register designated
from January 16, 1998 to September 11, 1998 as the time period for
filing NACARA motions to reopen. See 63 FR 3154. That notice waived the
filing fee for motions to reopen filed pursuant to NACARA, but did not
disturb any other regulatory provisions with respect to the filing or
adjudication of motions to reopen.
The Interim Rule
The Attorney General is simplifying the filing process for NACARA
motions to reopen in two ways. First, this rule clarifies who can file
a motion to reopen pursuant to section 309(g) of IIRIRA, as amended by
section 203(c) of NACARA, by defining who has become eligible for
``special rule'' cancellation of removal or suspension of deportation
as a result of the amendments made by section 203 of NACARA. Second,
the rule permits any alien who is moving to reopen pursuant to section
309(g) of IIRIRA, as amended by section 203(c) of NACARA, to file such
motion initially without a suspension or cancellation application and
supporting documents. The alien then will have until February 8, 1999
to file the application for suspension of deportation or cancellation
of removal and to provide all other supporting evidence and arguments
in favor of reopening. The alien should note at that time that he or
she is filing such application to complete a NACARA motion to reopen
filed earlier without an application and supporting documentation.
The Attorney General is clarifying who can file a motion to reopen
pursuant to section 309(g) of IIRIRA, as amended by section 203(c) of
NACARA, to ensure a fair and efficient administrative process. In
addition, the Attorney General has decided to permit the initial filing
of NACARA motions to reopen to pursue relief under NACARA without
applications for relief and supporting documents because NACARA gives
eligible aliens the opportunity to file only one NACARA-based motion to
reopen and permits a 240-day time period during which the motion must
be filed. Many potential NACARA beneficiaries may have been in
proceedings years ago and it may take some time to accumulate the
documents necessary to prepare an application for suspension of
deportation.
Aliens Eligible To File a Motion To Reopen Pursuant to NACARA
Section 309(g) of IIRIRA, as amended by section 203(c) of NACARA,
permits an alien who has a final order of deportation or removal to
file one motion to reopen only if he or she has become eligible for
cancellation of removal or suspension of deportation as a result of the
amendments made by section 203 of NACARA. Section 203(c) of NACARA
provides: ``[N]otwithstanding any limitation imposed by law on motions
to reopen removal or deportation proceedings (except limitations
premised on an alien's conviction of an aggravated felony (as defined
in section 101(a) of the Immigration and Nationality Act)), any alien
who has become eligible for cancellation of removal or suspension of
deportation as a result of the amendments made by section 203 of the
Nicaraguan Adjustment and Central American Relief Act may file one
motion to reopen removal or deportation proceedings to apply for
cancellation of removal or suspension of deportation.'' See Public Law
105-100, Sec. 203(c).
This rule clarifies who can file a motion to reopen pursuant to
NACARA by defining ``who has become eligible for cancellation of
removal or suspension of deportation as a result of the amendments made
by section 203 of the Nicaraguan Adjustment and Central American Relief
Act.'' Several provisions of IIRIRA must be examined to determine ``who
has become eligible'' for cancellation of removal or suspension of
deportation as a result of the amendments made by NACARA.
IIRIRA consolidated deportation and exclusion proceedings into one
unified removal proceeding and abolished the relief from deportation
known as ``suspension of deportation'' contained in section 244(a) of
the Immigration and Nationality Act (INA) (as it existed prior to April
1, 1997). Persons placed in removal proceedings after April 1, 1997
may, instead, apply for cancellation of removal pursuant to section
240A of the INA, as amended. While cancellation of removal resembles
suspension of deportation, an applicant for cancellation must generally
establish continuous physical presence for ten years instead of seven
years, must establish ``exceptional and extremely unusual hardship''
instead of ``extreme hardship,'' and must establish hardship to the
applicant's United States citizen or lawful permanent resident spouse,
parent, or child rather than hardship to the applicant or a United
States citizen or lawful permanent resident spouse, parent, or child.
Special rules terminating continuous physical presence also apply
to cancellation of removal relief. Section 240A(d) (1) and (2) provides
three rules relating to the termination of continuous residence or
physical presence. Any period of continuous residence or continuous
physical presence in the United States shall be deemed to end when the
alien is: (1) served a notice to appear under section 239(a); or (2)
has committed an offense referred to in section 212(a)(2) that renders
the alien inadmissible to the United States under section 212(a)(2) or
removable from the United States under section 237(a)(2) or 237(a)(4),
whichever is earlier. See section 240A(d)(1) of the INA, as amended. In
addition, an alien shall be considered to have failed to maintain
continuous physical presence in the United States if the alien has
departed the United States for any period in excess of 90 days or for
any periods in the aggregate exceeding 180 days. See section 240A(d)(2)
of the INA, as amended. These ``stop-time rules'' of IIRIRA apply to
all aliens in removal proceedings under section 240A of the INA, as
amended.
Section 309(c)(5) of IIRIRA as in effect prior to amendment by
NACARA contained a transitional rule providing
[[Page 31892]]
that paragraphs (1) and (2) of section 240A(d) of the INA (which
established these ``stop-time rules'' relating to continuous physical
presence) shall apply to notices to appear issued before, on, or after
the date of enactment of IIRIRA. This transitional rule has been
interpreted as applying the ``stop-time rules'' of IIRIRA also to
orders to show cause issued against persons in deportation proceedings
seeking suspension of deportation relief. Under this interpretation, an
alien affected by any of the ``stop-time rules'' relating to continuous
physical presence--for example, an alien who failed to accrue seven
years of continuous physical presence before being served with an order
to show cause--was made ineligible for suspension of deportation.
Therefore, under IIRIRA an alien generally must establish seven years
of continuous physical presence in the United States prior to service
of a charging document, along with good moral character and extreme
hardship, in order to qualify for suspension of deportation. (Aliens
who cannot establish continuous physical presence because of commission
of an offense, or because the continuity of their physical presence was
interrupted by a departure from the United States exceeding 90 days (or
180 days in the aggregate), would also be ineligible for suspension of
deportation.)
Section 203 of NACARA amends section 309(c)(5) of IIRIRA by
eliminating this transitional restriction on suspension of deportation
for six classes of aliens in deportation proceedings and similarly
exempts persons in removal proceedings who are within those six
categories from operation of the ``stop-time rules'' contained in
section 240A(d)(1) of the INA. Section 203 also creates a ``special
rule'' for cancellation of removal which generally restores pre-IIRIRA
suspension rules for those who are applying for cancellation of removal
and fall within the six classes of aliens.
Generally, an alien within one of the six classes who would have
been ineligible for suspension of deportation at the time of
adjudication as a result of section 309(c)(5) of IIRIRA may now be
eligible for suspension under the NACARA amendments. Thus, an alien who
was served with an order to show cause before being physically present
in the United States for a continuous period of seven years may now be
eligible for suspension of deportation as a result of the amendments
made by section 203 of NACARA. Similarly, an alien within one of the
six classes who was ineligible for cancellation of removal under the
heightened standard of ``exceptional and extremely unusual hardship''
may now be eligible under the special rule for cancellation of removal.
For example, an alien served with a notice to appear before being
physically present in the United States for a continuous period of 10
years, or an alien who could not establish that his removal would
result in exceptional and extremely unusual hardship to a United States
citizen or lawful permanent resident spouse, parent, or child, may now
be eligible for the special rule for cancellation of removal as a
result of the amendments made by section 203 of NACARA.
This rule provides that a motion to reopen pursuant to section
309(g) of IIRIRA, as amended by section 203(c) of NACARA, must
establish that the alien: (1) is prima facie eligible for suspension of
deportation pursuant to section 244(a) of the INA (as in effect prior
to April 1, 1997) or the special rule for cancellation of removal
pursuant to section 309(f) of IIRIRA, as amended by section 203(b) of
NACARA; and (2) was or would be ineligible (a) for suspension of
deportation by operation of section 309(c)(5) of IIRIRA (as in effect
prior to November 19, 1997); or (b) for cancellation of removal
pursuant to section 240A of the INA, but for operation of section
309(f) of IIRIRA, as amended by section 203(b) of NACARA; and (3) has
not been convicted at any time of an aggravated felony; and (4) falls
within one of the six classes of aliens described in section 203(a)(1)
of NACARA.
Prima Facie Eligibility and Statutory Bars
As mentioned above, an alien reopening pursuant to NACARA must
establish prima facie eligibility for suspension of deportation or
cancellation of removal under the applicable standards governing such
forms of discretionary relief pursuant to section 244 of the INA, as in
effect prior to April 1, 1997. In general, the alien must have been
physically present in the United States for a continuous period of at
least seven years immediately preceding the date of such application;
must be a person of good moral character during such period; and must
establish that deportation or removal would result in extreme hardship
to the alien or to the alien's spouse, parent, or child who is a
citizen of the United States or an alien lawfully admitted for
permanent residence. Different standards apply to aliens who are
deportable because of a criminal conviction or certain other grounds.
See section 244(a)(2) of the INA, as in effect prior to April 1, 1997.
The period of continuous physical presence must be established as of no
later than September 11, 1998.
Further, to be prima facie eligible to apply for suspension of
deportation or cancellation of removal, the alien must not be subject
to any of the statutory bars to seeking such relief. Section 240A(c) of
the INA, and section 244(f) of the INA as it existed prior to April 1,
1997, provide that certain categories of aliens are ineligible for
cancellation of removal or suspension of deportation. Moreover, an
alien who was previously granted voluntary departure and received oral
and written notice of the consequences of failing to depart, but did
not depart the United States voluntarily within the time specified, is
barred for a specific period of time from various forms of
discretionary relief, including cancellation of removal and suspension
of deportation, pursuant to section 240B(d) of the INA and section
242B(e)(2) of the INA as it existed prior to April 1, 1997. Sections
242B(e)(1), (3) and (4) of the INA as it existed prior to April 1,
1997, also bar eligibility for such relief for certain aliens who,
after receiving the required oral and written notices, failed to appear
at their removal or deportation hearings, failed to appear as ordered
for deportation, or failed to appear at an asylum hearing. These and
any other statutory bars to eligibility for suspension of deportation
or cancellation of removal are not waived by the provisions of NACARA.
Although there may be only a limited number of aliens who are affected
by these provisions, the Attorney General has no authority to waive
these statutory bars in the cases where they do apply.
Motion To Reopen Without Application for Relief
The Attorney General is creating an exception to the regulatory
requirements, found at 8 CFR Secs. 3.2(c) and 3.23(b)(3), providing
that ``[a]ny motion to reopen for the purpose of acting on an
application for relief must be accompanied by the appropriate
application for relief and all supporting documents'' for any alien
eligible to reopen under section 309(g) of IIRIRA, as amended by
section 203 of NACARA. Such aliens may elect to file a motion to reopen
initially without an application for relief and supporting documents.
The alien must allege in such motion that the alien: (1) is prima facie
eligible for suspension of deportation pursuant to section 244(a) of
the INA (as in effect prior to April 1, 1997) or the special rule for
cancellation of removal pursuant to section 309(f) of IIRIRA, as
amended by section 203(b) of NACARA; and (2) was or would be
[[Page 31893]]
ineligible (a) for suspension of deportation by operation of section
309(c)(5) of IIRIRA (as in effect prior to November 19, 1997); or (b)
for cancellation of removal pursuant to section 240A of the INA, but
for operation of section 309(f) of IIRIRA, as amended by section 203(b)
of NACARA; and (3) has not been convicted at any time of an aggravated
felony; and (4) falls within one of the six classes of aliens described
in section 203(a)(1) of NACARA. The alien will then have until February
8, 1999 to file an application for suspension of deportation or
cancellation of removal and all other supporting documents that would
have been filed initially with a standard motion to reopen. A copy of
both the motion to reopen and the subsequently filed application for
suspension of deportation or cancellation of removal with all other
supporting evidence must be served on the Immigration and
Naturalization Service (INS or Service). The Service shall have 45 days
from the date of service of the completed motion to respond to the
motion.
The motion will be adjudicated only after it has been completed by
the filing of the required application for suspension of deportation or
cancellation of removal and the Service has submitted a response or the
time for response has elapsed. The completed motion will be adjudicated
under all applicable statutory and regulatory provisions. Persons
filing a motion to reopen under NACARA should follow standard motion
practice, as set forth in the regulations, with the exception of the
special provisions regarding the filing fee, the submission of the
application for relief, and the provisions relating to Immigration
Court jurisdiction as set forth in this rule.
If the alien fails to file the required application by February 8,
1999, the motion will be denied as abandoned. In that case, the alien
will have lost the alien's one opportunity to move to reopen under
section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, for
suspension of deportation or cancellation of removal relief. However,
an individual may still be eligible to reopen for other reasons as
permitted by statute and regulation. The front page of a motion to
reopen pursuant to section 309(g) of IIRIRA, as amended by section
203(c) of NACARA, and any envelope containing such motion should
include the notation ``Special NACARA Motion.'' The $110 filing fee is
waived for these motions to reopen pursuant to section 203(c) of
NACARA. The requirements and procedures in 8 CFR Secs. 3.31(b),
103.7(b)(1) and 240.11(f) for paying the application fee for suspension
or cancellation after a motion to reopen is granted, however, are not
waived. The alien should submit an Application for Suspension of
Deportation (Form EOIR-40) whether or not he or she is in deportation
or removal proceedings. The time period for filing the motion is from
January 16, 1998 to September 11, 1998. See 63 FR 3154.
This special provision allowing for the filing of a motion to
reopen without the application for relief and supporting documents
applies only to motions to reopen under the special rules of section
309(g) of IIRIRA, as amended by section 203(c) of NACARA. An alien
moving to reopen pursuant to section 309(g) of IIRIRA, as amended by
section 203(c) of NACARA, may choose to file a complete motion to
reopen accompanied by an application for suspension of deportation or
cancellation of removal and all other supporting evidence within the
designated time period of January 16, 1998 to September 11, 1998. The
Service will then have 45 days to respond to the motion.
ABC Class Members
Any alien listed in section 309(c)(5)(C)(i) of IIRIRA with a final
order of deportation or removal must file a motion to reopen pursuant
to section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, in
order to apply for suspension of deportation or ``special rule''
cancellation of removal. This includes, but is not limited to, the
defined class of Salvadorans and Guatemalans who are afforded de novo
asylum adjudications pursuant to the settlement agreement in American
Baptist Churches v. Thornburgh, 760 F. Supp. 796 (1991) (ABC class
members) who were issued final orders by the Board or the Immigration
Judge.
The Attorney General anticipates promulgating regulations this year
to delegate to Service asylum officers the authority to adjudicate the
applications of certain NACARA beneficiaries for suspension of
deportation and ``special rule'' cancellation of removal. It is
anticipated that ABC class members who are eligible for ABC benefits
(that is, are registered for ABC benefits and have filed an asylum
application by the requisite dates: for Guatemalans, by January 3,
1995; for Salvadorans, by February 16, 1996) and who have a final order
of deportation will have the option to seek adjudication of suspension
of deportation before an asylum officer at INS if the motion to reopen
is granted. Thus, ABC class members may request administrative closure
at the time they file their motion to reopen or after the motion is
granted. Their cases may be administratively closed pending
promulgation of regulations governing adjudication of suspension of
deportation or ``special rule'' cancellation of removal before the INS.
An ABC class member who is eligible for ABC benefits, as described
above, and whose case previously had been administratively closed by
the Immigration Court, is not required to file a motion to reopen under
section 309(g) of IIRIRA, as amended by section 203(c) of NACARA ,
however, as no final order has been issued in such a case.
Jurisdiction Over Motions To Reopen Under Section 203 of NACARA
All motions to reopen filed pursuant to the special rules of
section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, shall
be filed with the Immigration Court, even if the Board of Immigration
Appeals (Board) issued an order in the case. An alien should make all
efforts to file such motion to reopen and the completed application for
suspension of deportation or cancellation of removal with the
Immigration Court that last had jurisdiction over the proceedings
because that is the Immigration Court that will adjudicate the motion
to reopen. Any motion to reopen under the special rules of section
309(g), as amended by section 203(c) of NACARA, filed with the Board or
with an Immigration Court other than the one that last had jurisdiction
over the proceedings, will be forwarded to the appropriate Immigration
Court for adjudication as a timely filed motion if filed on or before
September 11, 1998.
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, procedures, or practice in
5 U.S.C. Sec. 553(b)(3)(A) and upon the ``good cause'' exception found
at 5 U.S.C. Secs. 553(b)(3)(B), 553(d)(3). Immediate implementation is
necessary because the time period has already been designated for
filing motions to reopen under NACARA and will terminate on September
11, 1998.
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, certifies 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.
[[Page 31894]]
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 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 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 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 Executive Order 12988.
List of Subjects in 8 CFR Part 3
Administrative practice and procedure, Immigration, Organization
and functions (Government agencies).
Accordingly, part 3 of chapter I of Title 8 of the Code of Federal
Regulations is amended as follows:
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
1. The authority citation for part 3 is revised to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b,
1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950; 3
CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100.
2. Section 3.43 is added to subpart C to read as follows:
Sec. 3.43 Motion to Reopen for Suspension of Deportation and
Cancellation of Removal pursuant to Section 203(c) of the Nicaraguan
Adjustment and Central American Relief Act (NACARA).
(a) Standard for Adjudication. Except as provided in this section,
a motion to reopen proceedings under section 309(g) of IIRIRA, as
amended by section 203(c) of NACARA, will be adjudicated under
applicable statutes and regulations governing motions to reopen.
(b) Aliens eligible to reopen proceedings under section 203 of
NACARA. A motion to reopen proceedings to apply for suspension of
deportation or cancellation of removal under the special rules of
section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, must
establish that the alien:
(1) Is prima facie eligible for suspension of deportation pursuant
to section 244(a) of the INA (as in effect prior to April 1, 1997) or
the special rule for cancellation of removal pursuant to section 309(f)
of IIRIRA, as amended by section 203(b) of NACARA;
(2) Was or would be ineligible:
(i) For suspension of deportation by operation of section 309(c)(5)
of IIRIRA (as in effect prior to November 19, 1997); or
(ii) For cancellation of removal pursuant to section 240A of the
INA, but for operation of section 309(f) of IIRIRA, as amended by
section 203(b) of NACARA;
(3) Has not been convicted at any time of an aggravated felony; and
(4) Is within one of the following six classes:
(i) A national of El Salvador who:
(A) First entered the United States on or before September 19,
1990;
(B) Registered for benefits pursuant to the settlement agreement in
American Baptist Churches, et al. v. Thornburgh, 760 F.Supp. 796 (N.D.
Cal. 1991) (ABC) on or before October 31, 1991, or applied for
Temporary Protected Status (TPS) on or before October 31, 1991; and
(C) Was not apprehended after December 19, 1990, at time of entry;
or
(ii) A national of Guatemala who:
(A) First entered the United States on or before October 1, 1990;
(B) Registered for ABC benefits on or before December 31, 1991; and
(C) Was not apprehended after December 19, 1990, at time of entry;
or
(iii) A national of Guatemala or El Salvador who applied for asylum
with INS on or before April 1, 1990; or
(iv) An alien who:
(A) Entered the United States on or before December 31, 1990;
(B) Applied for asylum on or before December 31, 1991; and
(c) At the time of filing such application for asylum was a
national of the Soviet Union, Russia, any republic of the former Soviet
Union, Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania,
Hungary, Bulgaria, Albania, East Germany, Yugoslavia, or any state of
the former Yugoslavia; or
(v) The spouse or child of a person described under paragraphs
(b)(4)(i) through (b)(4)(iv) of this section who was a spouse or child
of such person at the time the person was granted suspension of
deportation or cancellation of removal; or
(vi) An unmarried son or daughter of a parent, who is described
under paragraphs (b)(4)(i) through (b)(4)(iv) of this section, at the
time the parent is granted suspension of deportation or cancellation of
removal, provided that, if the son or daughter is 21 years of age or
older at the time the parent is granted suspension of deportation or
cancellation of removal, the son or daughter must have entered the
United States on or before October 1, 1990.
(c) Motion to reopen under section 203 of NACARA. (1) An alien
filing a motion to reopen proceedings pursuant to section 309(g) of
IIRIRA, as amended by section 203(c) of NACARA, may initially file a
motion to reopen without an application for suspension of deportation
or cancellation of removal and supporting documents, but the motion
must be filed no later than September 11, 1998. The alien must allege
in such motion to reopen that the alien:
(i) Is prima facie eligible for suspension of deportation pursuant
to section 244(a) of the INA (as in effect prior to April 1, 1997) or
the special rule for cancellation of removal pursuant to section 309(g)
of IIRIRA, as amended by section 203(b) of NACARA;
(ii) Was or would be ineligible:
(A) For suspension of deportation by operation of section 309(c)(5)
of IIRIRA (as in effect prior to November 19, 1997); or
(B) For cancellation of removal pursuant to section 240A of the
INA, but for operation of section 309(f) of IIRIRA, as amended by
section 203(b) of NACARA;
(iii) Has not been convicted at any time of an aggravated felony;
and
[[Page 31895]]
(iv) Falls within one of the six classes described in paragraph
(b)(4) of this section.
(2) A motion to reopen filed without an application for suspension
of deportation or cancellation of removal shall not be considered
complete until it has been supplemented with the application for
suspension of deportation or cancellation of removal and all other
supporting documentation. An alien shall have until February 8, 1999 to
complete that motion. A motion to reopen filed without an application
and supporting documents will not be adjudicated until it is completed
with the required application for suspension of deportation or
cancellation of removal and supporting documents. The Service shall
have 45 days from the date of service of the application for suspension
of deportation or cancellation of removal to respond to that completed
motion. If the alien fails to file the required application by 150 days
after September 11, 1998 the motion will be denied as abandoned.
(c) Fee for motion to reopen waived. No filing fee is required for
a motion to reopen to apply for suspension of deportation or
cancellation of removal under the special rules of section 309(g) of
IIRIRA, as amended by section 203(c) of NACARA.
(d) Jurisdiction over motions to reopen under section 203 of NACARA
and remand of appeals. (1) Notwithstanding any other provisions, any
motion to reopen filed pursuant to the special rules of section 309(g)
of IIRIRA, as amended by section 203(c) of NACARA, shall be filed with
the Immigration Court, even if the Board of Immigration Appeals issued
an order in the case. The Immigration Court that last had jurisdiction
over the proceedings will adjudicate a motion to reopen filed pursuant
to the special rules of section 309(g) of IIRIRA, as amended by section
203(c) of NACARA.
(2) The Board will remand to the Immigration Court any presently
pending appeal in which the alien appears eligible to apply for
suspension of deportation or cancellation of removal under the special
rules of section 309(g) of IIRIRA, as amended by section 203 of NACARA,
and appears prima facie eligible for that relief. The alien will then
have the opportunity to apply for suspension or cancellation under the
special rules of NACARA before the Immigration Court.
Dated: June 5, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-15588 Filed 6-10-98; 8:45 am]
BILLING CODE 4410-30-M
