Executive Office for Immigration Review; 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. 2104-97]

RIN 1115-AE27

Executive Office for Immigration Review; 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: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule adopts without change an interim rule published in

the Federal Register by the Immigration and Naturalization Service and

the Executive Office for Immigration Review on November 25, 1996, which

amended 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) by expanding the class of aliens eligible

for section 212(c) relief. Although Congress recently limited the

availability of section 212(c) relief, certain classes of aliens remain

eligible. This rule allows a 212(c) eligible alien who has adjusted to

lawful permanent resident status, pursuant to sections 245A or 210 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 rule will provide

uniformity between the regulation and case law.

DATES: This final rule is effective August 14, 1997.

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: Two recent enactments affect the

availability of relief under section 212(c). The Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA) restricts the classes of

alien criminals eligible for section 212(c) relief. The Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 repeals and

replaces section 212(c), but only for proceedings commenced on or after

April 1, 1997. This rule only affects the cases not covered by these

new restrictions, i.e., those commenced before April 1, 1997, and not

barred by AEDPA.

Under recent 212(c) 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,

Public Law 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.

The Service published an interim rule with request for comments in

the Federal Register on November 25, 1996, at 61 FR 59824. The interim

rule permitted 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 sections

245A or 210 of the Act. Since no comments were received, the Service

and EOIR are adopting the interim rule as final without changes.

Effective Date

Since there are no changes between the interim rule and this final

rule, the Service believes that ``good cause'' exists to implement this

rule effective upon date of publication in the Federal Register.

Regulatory Flexibility Act

The Attorney General, in accordance with 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. The affected parties are individuals not

small entities, and the impact of the regulation is not an economic

one.

Unfunded Mandates Reform Act

This rule will not result in the expenditure by State, local, and

tribunal 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-

based companies in domestic and export markets.

Executive Order 12866

This rule is not considered by the Department of Justice,

Immigration and

[[Page 43467]]

Naturalization Service and the Executive Office for Immigration Review,

to be a ``significant regulatory action'' under Executive Order 12866,

section 3(f), Regulatory Planning and Review, and the Office of

Management and Budget has waived its review process under section

6(a)(3)(A).

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. 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

This final 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 212

Administrative practice and procedure, Aliens, Immigration,

Passports and visas, Reporting and recordkeeping requirements.

Accordingly, the interim rule amending 8 CFR part 212 which was

published at 61 FR 59824 on November 25, 1996, is adopted as a final

rule without change.

Dated: August 7, 1997.

Janet Reno,

Attorney General.

[FR Doc. 97-21458 Filed 8-13-97; 8:45 am]

BILLING CODE 4410-10-M