Suspension of Deportation and Cancellation of Removal

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 240

[EOIR No. 124I; AG Order No. 2182-98]

RIN 1125-AA25

Suspension of Deportation and Cancellation of Removal

AGENCY: Executive Office for Immigration Review, and Immigration and

Naturalization Service, Department of Justice.

ACTION: Interim rule.

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SUMMARY: This rule amends the regulations of the Executive Office for

Immigration Review (EOIR) and the Immigration and Naturalization

Service (Service) by eliminating the conditional grant process at 8 CFR

240.21, and establishing a permanent procedure for processing

suspension of deportation and cancellation of removal cases. This rule

is necessary to implement the numerical limitation on suspension of

deportation and cancellation of removal and adjustment of status

imposed by the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (IIRIRA) and the Nicaraguan Adjustment and Central American

Relief Act of 1997 (NACARA).

DATES: Effective Date: This interim rule is effective September 30,

1998.

Comment Date: Written comments must be submitted on or before

November 30, 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: 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) 305-0470. 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 amends 8 CFR part 240 by

eliminating the interim rule in section 240.21 and creating a new

section 240.21.

Background

On September 30, 1996, Congress enacted the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Public Law 104-208

(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 (INA), nor suspend the deportation

and adjust the status under section 244(a) of the INA (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, even if before the date of IIRIRA's enactment on September 30,

1996.

By mid-February 1997, EOIR had determined it had essentially

reached the fiscal year 1997 numerical limitation on suspension of

deportation grants. On February 13, 1997, the Board of Immigration

Appeals (Board) issued a directive to defer the adjudication of grants

of suspension of deportation until further notice. The Immigration

Courts received a directive to reserve decision in suspension of

deportation cases that they intended to grant. The instructions were

intended to be a temporary measure to give the Department time to

consider how best to implement the statutory cap.

[[Page 52135]]

On October 3, 1997, the Department issued an interim rule that was

published in the Federal Register at 62 FR 51760-51762. This rule added

8 CFR 240.21 to the regulations. The rule required immigration judges

and the Board to grant only on a conditional basis those applications

for suspension of deportation or cancellation of removal that meet the

statutory requirements and warrant a favorable exercise of discretion.

See 8 CFR 240.21(a) (in effect prior to publication of this rule). On

October 15, 1997, EOIR instructed immigration judges to begin issuing

conditional grants of suspension of deportation or cancellation of

removal on decisions reserved in accordance with the February 13, 1997

directive from the Chief Immigration Judge.

On November 19, 1997, the President signed into law the Nicaraguan

Adjustment and Central American Relief Act (NACARA), which modified the

statutory provisions on the suspension of deportation and cancellation

of removal cap. Section 204 of NACARA amended section 240A(e) of the

INA. It reaffirmed the existence of the 4,000 annual cap, but made

exemptions for certain aliens--those certain nationals of Guatemala, El

Salvador, and former Soviet bloc countries as described in section

203(a)(1) of NACARA, and those in deportation proceedings prior to

April 1, 1997, who apply for suspension of deportation pursuant to

section 244(a)(3) of the INA (as in effect prior to April 1, 1997). It

also created a one-time provision for fiscal year 1998 which added to

the statutory amount of 4,000 another 4,000 grants, less the number of

suspensions and cancellations that were granted in fiscal year 1997

after April 1, 1997. No cancellation of removal or suspension of

deportation applications were granted in fiscal year 1997 after April

1, 1997. Therefore, all 4,000 grants can be added to the 4,000

allotment, for a total of 8,000 grants for fiscal year 1998.

The Department has determined that the implementation of the

numerical cap on grants of suspension of deportation and cancellation

of removal requires resolution of three issues. The first issue

concerns how best to convert 8,000 conditional grants to grants before

the end of fiscal year 1998, in a way that does not contravene section

240A(e) of the INA. The second issue is how to ensure that all those

who received a conditional grant of suspension of deportation or

cancellation of removal which could not be granted in fiscal year 1998,

have an opportunity to receive a grant of relief. The third issue is

how to establish a procedure for future implementation of the cap.

Conversion of 8,000 Conditional Grants for Fiscal Year 1998

Because of the statutory language, it is necessary to devise a

procedure that will convert up to 8,000 conditional grants to grants

before the end of fiscal year 1998. The statute states that ``[t]he

Attorney General may not cancel the removal and adjust the status under

this section, nor suspend the deportation and adjust the status under

section 244(a) (as in effect before the enactment of [IIRIRA]), of a

total of more than 4,000 aliens in any fiscal year.'' INA Sec. 240A(e).

The phrase ``in any fiscal year'' has been interpreted to mean that

those eligible aliens must be granted relief of suspension of

deportation or cancellation of removal during the fiscal year in which

they are given a grant under the cap. To implement the 8,000 cap for

fiscal year 1998, the Department has determined that the first 8,000

conditional grants (not including Nicaraguan and Cuban nationals with

conditional grants) that were made since October 1997 shall be

converted to grants of suspension of deportation or cancellation of

removal in order of the date the conditional grant was issued by the

Immigration Court or the Board, unless the immigration judge's decision

is on appeal at the Board, or either party has reserved appeal of an

immigration judge's decision and the time for appeal has not run out.

Before the end of fiscal year 1998, EOIR will remove the condition and

grant suspension of deportation or cancellation of removal and

adjustment of status. Conversion from a conditional grant to a grant is

not an appealable action. Pursuant to the interim regulation providing

for conditional grants at 62 FR 51760 (Oct. 3, 1997), the right of

appeal attaches at the time of entry of the conditional grant.

Because this conversion will take place in a short period of time

and will not involve review of the merits of the cases, this rule

permits the Service to file a motion to reopen within 90 days after an

alien is issued a grant of suspension of deportation or cancellation of

removal. This rule provides that such motions to reopen are only

permitted if, while the applicant was a conditional grantee, he or she

committed an act that would have rendered him or her statutorily

ineligible for such relief. Motions to reopen based upon evidence that

might affect a discretionary finding are not authorized by this rule.

Ability To Travel for Aliens With Conditional Grants

The Service has received several inquiries concerning the effect of

travel on an alien's conditional grant. This interim rule, promulgated

by the Attorney General, provides a definitive answer to this recurring

question. As a result of delays associated with implementation of the

statutory cap provision, a significant period of time may have elapsed

before an alien's conditional grant is converted to a grant of

suspension of deportation or cancellation of removal. Some aliens with

conditional grants will have had or will have legitimate needs to

travel. Because such aliens are determined at the time of the

conditional grant to be statutorily eligible to receive suspension of

deportation or cancellation of removal and to warrant a grant on the

basis of discretion, it is likely that they will be able to remain

permanently in the United States as lawful permanent residents once

their conditional grants are converted to grants. Therefore, the

Attorney General finds it reasonable to permit conditional grantees to

return to the United States after a temporary absence abroad without

losing their conditional grant by virtue of their departure.

This interim rule provides that those aliens with conditional

grants of suspension of deportation or cancellation of removal who,

before publication of this interim rule, temporarily traveled abroad or

who are abroad and have not returned, shall not lose their conditional

grants as a result of their departure. The Attorney General recognizes

the unique nature of the conditional grant and, since it is likely that

many of these conditional grantees would not have understood the

consequences of departing the United States without advance parole,

finds it reasonable to grant this one-time waiver. However, upon

publication of this rule in the Federal Register, an alien with a

conditional grant must first obtain a grant of advance parole from the

District Director before he or she leaves the United States. This

requirement allows the Service to verify the alien's claims about the

purpose of his or her travel and the duration of his or her absence, in

order to aid in its determination of whether to grant or deny advance

parole.

Eliminate the Conditional Grant Process

In the interim rule published on October 3, 1997, which established

a procedure for processing suspension of deportation and cancellation

of removal

[[Page 52136]]

applications, the Department made clear in the supplementary language

that ``[t]his 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.'' 62 FR at 51761. The

Department has determined that it will no longer implement the

conditional grant process. After review of the statutory cap provision,

the Department does not believe that the statute supports a permanent

regime based on conditional grants. Instead, future grants of

suspension and cancellation of removal will be issued on a ``first in

time'' basis, outlined further below.

Conditional Grants From Fiscal Year 1998

Although the cap may not be reached in fiscal year 1998 (not

including those Nicaraguans and Cubans eligible for relief under

section 202 of NACARA as discussed below), any conditional grants which

remain after the fiscal year 1998 grants are issued shall be converted

to grants in fiscal year 1999 and will count against the numerical cap

for fiscal year 1999. If there are conditional grants that could not be

converted in fiscal year 1998 (e.g., if the time for appeal had not run

until after the end of fiscal year 1998) such conditional grant will be

converted in fiscal year 1999. Accordingly, this procedure will allow

for all persons whose cases were adjudicated under the October 3, 1997

interim regulation providing for conditional grants who remain in

conditional grant status in fiscal year 1999 to receive a grant of

suspension of deportation or cancellation of removal in fiscal year

1999.

Treatment of Certain Nicaraguan and Cuban Nationals With

Conditional Grants

In fiscal year 1998, over 1,000 nationals of Nicaragua and Cuba

were given conditional grants of suspension of deportation or

cancellation of removal. On November 19, 1997, the enactment of NACARA

made certain Nicaraguan and Cuban nationals eligible for adjustment of

status in addition to other forms of relief. See NACARA section 202. In

an effort to preserve as many grants as possible under the cap in

fiscal year 1998 for aliens for whom suspension of deportation or

cancellation of removal was truly the only avenue for relief, the

Attorney General has determined that it is appropriate to offer those

nationals of Nicaragua and Cuba who have already received a conditional

grant of suspension or cancellation an opportunity to first pursue

adjustment of status under section 202 of NACARA (NACARA adjustment).

These Nicaraguan and Cuban nationals who are processed for adjustment

will receive the benefit of an immediate adjudication of their

adjustment of status requests before a Service officer on or before

December 31, 1998. Further, Nicaraguan and Cuban national spouses and

children, including certain unmarried sons and daughters, of NACARA-

adjusted aliens, may be immediately eligible for NACARA adjustment

themselves. No such derivative benefit accrues from a grant of

suspension of deportation or cancellation of removal.

To be eligible for adjustment of status pursuant to NACARA section

202, an alien must be a person who: (1) Is a national of Nicaragua or

Cuba; (2) has been physically present in the United States for a period

commencing not later than December 1, 1995 and ending not earlier than

the date of adjustment (excluding absences totaling not more than 180

days); (3) is not inadmissible under any provision of INA section 212

not specifically excepted by NACARA (e.g., public charge, lack of labor

certification, illegal entry, lack of immigrant visa/entry document,

and unlawful presence); and (4) applies for such adjustment before

April 1, 2000.

By virtue of having received a conditional grant of suspension of

deportation or cancellation of removal, which entails successfully

demonstrating a lengthy period of continuous physical presence in the

United States as well as good moral character during this period, most

Nicaraguans and Cubans in this position should easily be able to

satisfy the similar eligibility requirements for NACARA adjustment. As

a result, the Attorney General has determined that this alternative

avenue of relief to suspension/cancellation must be explored by all

Cuban and Nicaraguan conditional grantees identified by EOIR. To that

end, the Attorney General, in this regulation, deems the application

for suspension of deportation or cancellation of removal filed by a

national of Nicaragua or Cuba who has received a conditional grant of

suspension of deportation or cancellation of removal on or before

September 30, 1998 to be a concurrent request for NACARA adjustment.

In order to provide relief in the form of NACARA adjustment to as

many conditional suspension/cancellation grantees as possible, the

Attorney General has directed the Service to give individual notice to

all Cuban and Nicaraguan conditional grantees identified by EOIR. The

notice shall inform them of the date, time, and place at which they

must appear before a Service officer to perfect their request for

NACARA adjustment. Since the file of an applicant for suspension of

deportation or cancellation of removal will not invariably contain all

of the information necessary to determine an alien's eligibility for

NACARA adjustment, the alien will be required to complete a form in

which the alien must attest to certain facts regarding his or her

eligibility for NACARA adjustment. If the alien is inadmissible to the

United States, he or she may apply for any applicable waivers of

inadmissibility. Given that this application process has been mandated

by the Attorney General, no fees will be charged for perfecting a

NACARA adjustment request or for any applications for a waiver of

inadmissibility submitted in conjunction with these NACARA adjustment

requests. To the extent that a Cuban or Nicaraguan national who

received a conditional grant of suspension or cancellation on or before

September 30, 1998, applied for NACARA adjustment through the

preexisting channels prior to the effective date of this regulation, no

refund of the application fees shall be issued.

If the Service officer grants NACARA adjustment, he or she shall

create a record of lawful permanent residence, the order granting

suspension of deportation or cancellation of removal on a conditional

basis shall be vacated, and the alien's deportation or removal

proceedings shall be terminated automatically. If, at the time of the

alien's appearance before a Service officer, the alien expresses a

desire not to be processed for NACARA adjustment, is unable to complete

the attestation, or if the Service officer determines that the alien is

ineligible for such adjustment, the alien's conditional grant of

suspension or cancellation shall be automatically converted to a final

grant and the Service will create a record of lawful permanent

residence on the basis of that grant. The Service will then notify EOIR

that a suspension/cancellation grant has been allotted. For that

reason, there is no appeal from a Service officer's determination that

an alien is not eligible for NACARA adjustment. If an alien fails to

appear before a Service officer when scheduled, his or her conditional

grant of suspension of deportation or cancellation of removal shall be

automatically converted to a final grant

[[Page 52137]]

effective December 31, 1998. After December 31, 1998, an application

for suspension of deportation or cancellation of removal filed by a

national of Nicaragua or Cuba who received a conditional grant of

suspension or cancellation on or before September 30, 1998, shall cease

to be considered a request for NACARA adjustment.

The Attorney General has directed that all NACARA eligibility

determinations, as outlined above, be completed on or before December

31, 1998, to ensure that covered conditional grantees obtain lawful

permanent residence status as soon as possible, be it pursuant to

section 202 of NACARA or through a grant of suspension/cancellation. In

order to minimize the processing time for these applicants, the

Attorney General has deemed the documentary requirements applicable to

other NACARA adjustment applicants to be satisfied by the completion of

the attestation form noted above. As a result, these applicants will

not be required to submit medical examination records or a new set of

fingerprints. In addition, the Attorney General has directed that,

absent contrary evidence developed in an interview or otherwise, the

Service will accept the attestation form as sufficient evidence of an

alien's admissibility, including health-related grounds and/or

continuous physical presence. The Attorney General has determined that

these extraordinary measures are justified in this limited instance

because these aliens have already been found eligible to obtain lawful

permanent resident status, and in fact will obtain such status on the

basis of suspension of deportation or cancellation of removal even if

they do not seek or are found ineligible for NACARA adjustment. As a

result, there will be little incentive for an alien to misrepresent his

or her circumstances to the Service officer. However, any alien found

to have misrepresented his or her eligibility for NACARA adjustment

will be subject to prosecution and removal from the United States.

Future Implementation of the Cap

Under the first in time process established in this interim rule,

the Immigration Court and the Board will issue grants of suspension of

deportation or cancellation of removal in chronological order until

grants are no longer available in a fiscal year. A grant will be

counted against the cap for the fiscal year in which a grant of

suspension of deportation or cancellation of removal is final as set

forth in 8 CFR 3.1(d)(2) and 3.39. To ensure that the cap is not

exceeded in any fiscal year, the Immigration Court and the Board,

except as described below, will reserve all decisions on suspension of

deportation or cancellation of removal when grants are no longer

available in any fiscal year. Those reserved decisions will be

completed in the next fiscal year if there are grants available under

the cap. If grants are not available in the next fiscal year, decisions

will be completed in a fiscal year when grants are available. Persons

with reserved decisions will be considered to still be ``in

proceedings'' while their decision is reserved. They normally cannot be

removed from the country while they are still in proceedings. Neither

can they receive any form of relief until the Immigration Court or the

Board takes further action.

The requirement to reserve decision once grants are no longer

available in a fiscal year will not apply in the following

circumstances. Immigration judges and the Board may deny without

reserving decision or may pretermit suspension of deportation or

cancellation of removal applications because the applicant has failed

to establish statutory eligibility for relief. The following is a

partial list of examples in which the Immigration Court and the Board

may deny without reserving decision or may pretermit suspension of

deportation or cancellation of removal applications, because the

applicant is ineligible for relief based on statutory bars: (1) The

alien is an aggravated felon pursuant to section 101(a)(43) of the INA;

(2) the mandatory bar to establishing good moral character pursuant to

section 101(f) of the INA applies to the alien; (3) the alien failed to

voluntarily depart, was found deportable or removable in absentia, or

failed to appear for deportation or removal at the time and place

ordered as set forth in section 242B(e) of the INA (as in effect prior

to April 1, 1997), and sections 240B(d) and 240(b)(7) of the INA; (4)

the alien does not have the requisite continuous physical presence for

suspension of deportation or cancellation of removal relief pursuant to

section 244(a) of the INA (as in effect prior to April 1, 1997) or

section 240A(b) of the INA; or (5) (for cancellation cases only) the

alien cannot demonstrate that he or she has a qualifying relative as to

whom exceptional or extremely unusual hardship must be shown.

However, such denial or pretermission of a suspension or

cancellation application shall not be based on any of the following: an

unfavorable exercise of discretion, a finding of no good moral

character on a ground not specifically noted in section 101(f) of the

INA, a failure to establish exceptional or extremely unusual hardship

to a qualifying relative in cancellation cases, or a failure to

establish extreme hardship to the applicant and/or qualifying relative

in suspension cases.

Those Eligible for Other Forms of Relief

Whether or not the cap has been reached, the Immigration Court or

the Board shall adjudicate concurrently all other forms of relief for

which the alien has applied. If the Immigration Court or the Board

grants asylum or adjustment of status, the application for suspension

or cancellation shall be denied in the exercise of discretion. If the

Immigration Court denies as a matter of discretion an application for

suspension of deportation or cancellation of removal on such basis,

such decision will be reconsidered if an appeal of the decision

granting asylum or adjustment is sustained by the Board.

Interim Rule

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 before the end of the fiscal year, because the 8,000 grants

under the cap for fiscal year 1998 must be distributed before October

1, 1998 (the beginning of the next fiscal year), or the grants will be

lost. The Department has provided for 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, 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.

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.

[[Page 52138]]

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by the Small Business

Regulatory Enforcement Act of 1996, 5 U.S.C. 804. 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

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.

Paperwork Reduction Act of 1995

Section 240.21(b)(2) of this rule requires certain nationals of

Nicaragua and Cuba who were granted suspension of deportation or

cancellation of removal on a conditional basis on or before September

30, 1998 to complete a new Service Form I-895, Attestation of Alien and

Memorandum of Creation of Record of Lawful Permanent Residence. This

form is considered an information collection. A delay in issuing this

interim rule could have a negative effect on the ability of certain

aliens to obtain lawful permanent resident status in a timely manner.

Accordingly, the Department of Justice, Immigration and Naturalization

Service has submitted an information collection request (ICR) utilizing

emergency review procedures to the Office of Management and Budget

(OMB) for review and clearance in accordance with the Paperwork

Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35).

Emergency review and approval of this collection has been requested

from OMB by October 15, 1998. If granted, the emergency approval is

only valid for 180 days. Comments and questions concerning the ICR

should be directed to: Office of Information and Regulatory Affairs

(OMB), OMB Desk Officer for the Immigration and Naturalization Service,

Office of Management and Budget, Room 10235, Washington, DC 20503.

Your comments should address one or more of the following points:

(1) Evaluate whether the proposed collection of information is

necessary for the proper performance of the functions of the agency,

including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimate of the burden of

the proposed collection of information, including the validity of the

methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to

be collected; and

(4) Minimize the burden of the collection of information on those

who are to respond, including through the use of technological

collection techniques or other forms of information technology, e.g.,

permitting electronic submission of responses.

The Service, in calculating the overall burden this requirement

will place upon the public, estimates that approximately 1,000

respondents will be completing this form. The Service also estimates

that it will take approximately two hours to complete the form. This

amounts to 2,000 total burden hours.

List of Subjects in 8 CFR Part 240

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--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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; sec. 202, Pub. L. 105-100 (111

Stat. 2160, 2193); 8 CFR part 2.

2. Section 240.21 is revised in its entirety to read as follows:

Sec. 240.21 Suspension of Deportation and Adjustment of Status Under

Section 244(a) of the Act (as in effect before April 1, 1997) and

Cancellation of Removal and Adjustment of Status Under Section 240A(b)

of the Act for Certain Nonpermanent Residents.

(a) Applicability of annual cap on suspension of deportation or

cancellation of removal. (1) As used in this section, the term cap

means the numerical limitation of 4,000 grants of suspension of

deportation or cancellation of removal in any fiscal year (except

fiscal year 1998, which has a limitation of 8,000 grants) pursuant to

section 240A(e) of the Act.

(2) The provisions of this section apply to grants of suspension of

deportation pursuant to section 244(a) of the Act (as in effect before

April 1, 1997) or cancellation of removal pursuant to section 240A(b)

of the Act that are subject to a numerical limitation in section

240A(e) of the Act for any fiscal year. This section does not apply to

grants of suspension of deportation or cancellation of removal to

aliens described in section 309(c)(5)(C)(i) of the Illegal Immigration

Reform and Immigrant Responsibility Act (IIRIRA), as amended by section

203(a)(1) of the Nicaraguan Adjustment and Central American Relief Act

(NACARA), or aliens in deportation proceedings prior to April 1, 1997,

who apply for suspension of deportation pursuant to section 244(a)(3)

of the Act (as in effect prior to April 1, 1997). The Immigration Court

and the Board shall no longer issue conditional grants of suspension of

deportation or cancellation of removal as provided in 8 CFR 240.21 (as

in effect prior to September 30, 1998).

(b) Conditional grants of suspension of deportation or cancellation

of removal in fiscal year 1998 cases. (1) Conversion to grants. Except

with respect to cases described in paragraphs (b)(2) and (b)(3) of this

section, EOIR shall grant suspension of deportation or cancellation of

removal without condition prior to October 1, 1998, to the first 8,000

aliens given conditional grants of suspension of deportation or

cancellation of removal (as determined by the date of the immigration

judge's order or, if the order was appealed to the Board, the date such

order was entered by the Board.)

(2) Treatment of certain nationals of Nicaragua and Cuba who

received conditional grants of suspension of deportation or

cancellation of removal on or before September 30, 1998. (i) NACARA

adjustment request. An application for suspension of deportation or

cancellation of removal filed by a national of Nicaragua or Cuba

[[Page 52139]]

that was granted on a conditional basis on or before September 30,

1998, shall be deemed to be a request for adjustment of status pursuant

to section 202 of NACARA (``NACARA adjustment'') for the period

starting September 30, 1998 and ending December 31, 1998. The Service

shall provide the applicant with notice of the date, time, and place at

which the applicant must appear before a Service officer to perfect the

request for NACARA adjustment. Such notice shall include an attestation

form, Attestation of Alien and Memorandum of Creation of Record of

Lawful Permanent Residence, Form I-895, regarding the applicant's

eligibility for NACARA adjustment.

(ii) Submission of documentation. To perfect the request for NACARA

adjustment, the applicant must appear before a Service officer on the

date scheduled with the following documentation:

(A) The order granting suspension of deportation or cancellation of

removal on a conditional basis issued on or before September 30, 1998;

(B) A completed, but unsigned Form I-895, which the applicant shall

be required to sign and to attest to the veracity of the information

contained therein in the presence of a Service officer;

(C) Any applicable applications for waiver of inadmissibility; and

(D) Two ``ADIT-style'' photographs; meeting the specifications in

the instructions attached to Form I-895.

(iii) Waiver of documentation and fees. The provisions of

Sec. 245.13(e) and (f) of this chapter relating to documentary

requirements for NACARA adjustment are waived with respect to an alien

seeking to perfect a request for adjustment of status pursuant to

paragraph (b)(2) of this section. In addition, the fees for the NACARA

adjustment and for any applications for waivers of inadmissibility

submitted in conjunction with perfecting a request for NACARA

adjustment shall be waived.

(iv) NACARA adjustment determination. In determining an applicant's

eligibility for NACARA adjustment under the provisions of paragraph

(b)(2) of this section, unless the Service officer before whom the

applicant appears is not satisfied that the applicant is admissible to

the United States in accordance with section 202(a)(1)(B) of NACARA,

and has continuously resided in the United States from December 1,

1995, through the date of appearance before the Service officer (not

counting an absence or absences from the United States totaling 180

days or less or any absences that occurred pursuant to advance

authorization for parole (Form I-512 issued by the Service)), the

Service officer shall accept an alien's attestation of admissibility

and/or continuous physical presence as sufficient evidence that the

applicant has met the admissibility and/or continuous physical presence

requirement for NACARA adjustment. If the Service officer grants NACARA

adjustment, then the Service officer shall create a record of lawful

permanent residence and the prior order granting suspension of

deportation or cancellation of removal on a conditional basis shall be

automatically vacated and the deportation or removal proceedings shall

be automatically terminated. The Service officer (whose decision in

this regard is not subject to appeal) shall not adjust the applicant to

lawful permanent resident status pursuant to section 202 of NACARA if:

(A) The Service officer is not satisfied that the applicant is

eligible for NACARA adjustment and so indicates on the attestation

form; or

(B) The applicant indicates on the attestation form that he or she

does not wish to receive NACARA adjustment.

(v) Automatic conversion. If the Service officer does not adjust

the applicant to lawful permanent resident status pursuant to section

202 of NACARA, the applicant's conditional grant of suspension of

deportation or cancellation of removal shall be automatically converted

to a grant of suspension of deportation or cancellation of removal.

Upon such a conversion, the Service shall create a record of lawful

permanent residence based upon the grant of suspension of deportation

or cancellation of removal.

(vi) Failure to appear. An alien who fails to appear to perfect his

or her request for NACARA adjustment shall have his or her conditional

grant of suspension of deportation or cancellation of removal

automatically converted by the Immigration Court or the Board to a

grant of suspension of deportation or cancellation of removal effective

December 31, 1998.

(3) Conditional grants not converted in fiscal year 1998. The

provisions of paragraphs (b)(1) and (b)(2) of this section for granting

relief shall not apply with respect to:

(i) Any case in which a conditional grant of suspension of

deportation or cancellation of removal is pending on appeal before the

Board as of September 30, 1998 or, if the right to appeal to the Board

has not been waived, the time for an appeal has not expired. After the

Board issues its decision or the time for appeal has expired, the

conditional grant shall be converted to a grant when a grant is

available.

(ii) Any other conditional grant not described in paragraphs

(b)(1), (b)(2) or (b)(3)(i) of this section, which was not converted to

a grant in fiscal year 1998. Such a conditional grant shall be

converted to a grant when a grant is available.

(4) Motion to reopen. The Service may file a motion to reopen

within 90 days after the alien is issued a grant of suspension of

deportation or cancellation of removal pursuant to paragraphs (b)(1),

(b)(2), or (b)(3) of this section, if after the issuance of a

conditional grant by the Immigration Court or the Board the applicant

committed an act that would have rendered him or her ineligible for

suspension of deportation or cancellation or removal at the time of the

conversion.

(5) Travel for aliens conditionally granted suspension of

deportation or cancellation of removal. If the Immigration Court or the

Board granted suspension of deportation or cancellation of removal on a

conditional basis or, if the conditional grant by the Immigration Court

was appealed to the Board and the Board issued such a conditional

grant, the alien shall retain the conditional grant of suspension of

deportation or cancellation of removal upon return to the United States

following a temporary absence abroad and be permitted to resume

completion of his or her case, provided that:

(i) The alien departed on or before September 30, 1998 with or

without a grant of advance parole from the District Director; or

(ii) The alien, prior to his or her departure from the United

States after September 30, 1998, obtained a grant of advance parole

from the District Director in accordance with section 212(d)(5) of the

Act and Sec. 212.5 of this chapter and complied with the terms and

conditions of the advance parole.

(c) Grants of suspension of deportation or cancellation of removal

in fiscal years subsequent to fiscal year 1998. On and after October 1,

1998, the Immigration Court and the Board may grant applications for

suspension of deportation and adjustment of status under section 244(a)

of the Act (as in effect prior to April 1, 1997) or cancellation of

removal and adjustment of status under section 240A(b) of the Act that

meet the statutory requirements for such relief and warrant a favorable

exercise of discretion until the annual numerical limitation has been

reached in that fiscal year. The awarding of such relief shall be

determined according to

[[Page 52140]]

the date the order granting such relief becomes final as defined in

Secs. 3.1(d)(2) and 3.39 of this chapter.

(1) Applicability of the annual cap. When grants are no longer

available in a fiscal year, further decisions to grant or deny such

relief shall be reserved until such time as a grant becomes available

under the annual limitation in a subsequent fiscal year. Immigration

judges and the Board may deny without reserving decision or may

pretermit those suspension of deportation or cancellation of removal

applications in which the applicant has failed to establish statutory

eligibility for relief. The basis of such denial or pretermission may

not be based on an unfavorable exercise of discretion, a finding of no

good moral character on a ground not specifically noted in section

101(f) of the Act, a failure to establish exceptional or extremely

unusual hardship to a qualifying relative in cancellation cases, or a

failure to establish extreme hardship to the applicant and/or

qualifying relative in suspension cases.

(2) Aliens applying for additional forms of relief. Whether or not

the cap has been reached, the Immigration Court or the Board shall

adjudicate concurrently all other forms of relief for which the alien

has applied. Applications for suspension of deportation or cancellation

of removal shall be denied in the exercise of discretion if the alien

is granted asylum or adjustment of status, including pursuant to

section 202 of NACARA, while the suspension of deportation or

cancellation of removal application is pending. Where an appeal of a

decision granting asylum or adjustment is sustained by the Board, a

decision to deny as a matter of discretion an application for

suspension of deportation or cancellation of removal on this basis

shall be reconsidered.

Dated: September 25, 1998.

Janet Reno,

Attorney General.

[FR Doc. 98-26200 Filed 9-29-98; 8:45 am]

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