Suspension of Deportation and Cancellation of Removal

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

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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-

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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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