Executive Office for Immigration Review; Motion to Reopen: Suspension of Deportation and Cancellation of Removal

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