Periods of Lawful Temporary Resident Status and Lawful Permanent Resident Status To Establish Seven Years of Lawful Domicile

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 212

[INS No. 1748-96; AG Order No. 2063-96]

RIN 1115-AE27

Periods of Lawful Temporary Resident Status and Lawful Permanent

Resident Status To Establish Seven Years of Lawful Domicile

AGENCY: Immigration and Naturalization Service (INS), Executive Office

for Immigration Review (EOIR), Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule amends Department of Justice regulations

that limit discretion to grant an application for relief under section

212(c) of the Immigration and Nationality Act (the Act), 8 U.S.C.

1182(c), by expanding the class of aliens eligible for section 212(c)

relief. This interim rule allows an alien who has adjusted to lawful

permanent resident status pursuant to section 245A, 8 U.S.C. 1255a, or

section 210, 8 U.S.C. 1160, of the Act to use the combined period of

his or her status as a lawful temporary resident and lawful permanent

resident to establish seven (7) years of lawful domicile in the United

States for purposes of eligibility for section 212(c) relief. This

interim rule will provide uniformity between the regulation and case

law.

DATES: This interim rule is effective November 25, 1996. Written

comments must be submitted on or before December 26, 1996.

ADDRESSES: Please submit written comments, in triplicate, to the Policy

Directives and Instructions Branch, Immigration and Naturalization

Service, 425 I Street, NW., Room 5307, Washington, DC 20536, Attention:

Public Comment Clerk. To ensure proper handling, please reference INS

number 1748-96 on your correspondence. Comments are available for

public inspection at the above address by calling (202) 514-3048 to

arrange for an appointment.

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; David M. Dixon, Chief Appellate Counsel,

Immigration and Naturalization Service, Suite 309, 5113 Leesburg Pike,

Falls Church, Virginia 22041, telephone (703) 756-6257.

SUPPLEMENTARY INFORMATION: Under recent case law, an alien who has

acquired lawful permanent resident status under section 245A of the Act

may accrue the seven (7) years of lawful domicile required for purposes

of section 212(c) relief from the date of his or her application for

temporary resident status. See Robles v. INS, 58 F.3d 1355 (9th Cir.

1995); Avelar-Cruz v. INS, 58 F.3d 338 (7th Cir. 1995); Castellon-

Contreras v. INS, 45 F.3d 149 (7th Cir. 1995). The current regulation

allows an alien to apply for section 212(c) relief only if he or she

has established at least seven consecutive years of lawful permanent

resident status immediately prior to filing the application See 8 CFR

212.3(f)(2). The Board of Immigration Appeals (BIA) has determined

that, in cases arising in the Ninth Circuit, an alien may use the

period of temporary resident status to establish the requisite seven

years. See In re Carlos Cazares-Alvarez, Interim Decision 3262 (BIA

1996). However, in cases arising in circuits without such a temporary

resident status rule, the BIA has determined that the current

regulation requires seven years of lawful permanent resident status.

See In re Hector Ponce de Leon-Ruiz, Interim Decision 3261 (BIA 1996).

The BIA has referred these cases to the Attorney General pursuant to 8

CFR 3.1(h)(1)(ii) to resolve the issue. The issue raised in White v.

INS, 75 F.3d 213 (5th Cir. 1996) (whether 8 CFR 212.3(f)(2) is

consistent with 8 U.S.C. 1182(c) and therefore is entitled to

deference), has been addressed and rendered moot by section 304 of the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

Pub. L. 104-208, 110 Stat. 3009 (September 30, 1996) (repealing section

212(c) and substituting other relief), effective April 1, 1997,

codified at section 240A of the Immigration and Nationality Act as

amended. The White court computed the years of lawful unrelinquished

domicile (including the years of lawful temporary resident status)

rather than lawful permanent residence in determining eligibility for

relief.

This interim rule will permit an alien to demonstrate lawful

domicile for section 212(c) relief purposes by combining his or her

status as a lawful temporary resident and as a lawful permanent

resident under section 245A or section 210 of the Act. This rule,

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which is necessary for consistency between the regulation and case law,

will become effective immediately.

The Department's implementation of this rule as a interim rule,

with provision for post-promulgation public comment, is based upon the

``good cause'' exception found at 5 U.S.C. 553(d)(3). The reasons and

necessity for immediate implementation of this interim rule are as

follows: (1) To resolve the conflict among the circuits regarding this

issue; (2) to respond to the controversy raised by the BIA decisions;

(3) to render moot the decisions referred to the Attorney General by

the BIA; and (4) to provide a benefit to those aliens who meet its

criteria. An abbreviated comment period of 30 days is necessary because

of the passage of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, supra, which repeals the provision for

section 212(c) relief and substitutes other relief, effective April 1,

1997. This regulation thus will be applicable only in the case of

aliens in proceedings and who have filed an application for section

212(c) relief as of the effective date. Nothing in this regulation is

intended to affect, nor will it affect, the operation of the Illegal

Immigration Reform and Immigrant Responsibility Act, supra, to

applications for relief pending on the general effective date of that

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 adverse

economic impact on a substantial number of small entities. It will

affect certain individual aliens, not small entities. This rule does

not constitute significant regulatory action within the meaning of

section 3(f) of Executive Order 12866, nor does it have federalism

implications warranting the preparation of a Federalism Assessment in

accordance with section 6(b) of Executive Order 12612.

List of Subjects in 8 CFR Part 212

Administrative practice and procedure, Aliens, Immigration,

Passports and visas, Reporting and recordkeeping requirements.

Accordingly, part 212 of chapter I of title 8 of the Code of

Federal Regulations is amended as follows:

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;

ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

1. The authority citation for part 212 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225,

1226, 1227, 1228, 1252; 8 CFR part 2.

2. In Sec. 212.3 paragraph (f)(2) is revised to read as follows:

Sec. 212.3 Application for the exercise of discretion under section

212(c).

* * * * *

(f) * * *

(2) The alien has not maintained lawful domicile in the United

States, as either a lawful permanent resident or a lawful temporary

resident pursuant to section 245A or section 210 of the Act, for at

least seven consecutive years immediately preceding the filing of the

application;

* * * * *

Dated: November 19, 1996.

Janet Reno,

Attorney General.

[FR Doc. 96-29996 Filed 11-22-96; 8:45 am]

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