Suspension of Deportation and Special Rule Cancellation of Removal for Certain Nationals of Guatemala, El Salvador, and Former Soviet Bloc Countries

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 208, 240, 274a, and 299

[INS No. 1915-98; AG Order No. 2192-98]

RIN 1115-AF14

Suspension of Deportation and Special Rule Cancellation of

Removal for Certain Nationals of Guatemala, El Salvador, and Former

Soviet Bloc Countries

AGENCY: Immigration and Naturalization Service and Executive Office for

Immigration Review, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Department of Justice

(Department) regulations by offering certain beneficiaries of the

Nicaraguan Adjustment and Central American Relief Act (NACARA) who

currently have asylum applications pending with the Immigration and

Naturalization Service (Service), and their qualified dependents, the

option of applying to the Service for suspension of deportation or

cancellation of removal under the statutory requirements set forth in

NACARA (``special rule cancellation of removal'').

Described in very general terms, both suspension of deportation and

special rule cancellation of removal are forms of discretionary relief

that, if granted, permit an individual subject to deportation or

removal to remain in the United States. Integrating the processing of

certain applications under NACARA into the Service's Asylum Program

will provide an efficient mechanism for considering the suspension of

deportation and special rule cancellation of removal applications of

most of the approximately 240,000 registered class members of the

American Baptist Churches v. Thornburgh (ABC) litigation and certain

other beneficiaries of NACARA who have asylum applications pending with

the Service, as well as their qualified family members. The Immigration

Court will retain exclusive jurisdiction over most suspension of

deportation and special rule cancellation of removal applications

submitted by NACARA beneficiaries who have been placed in deportation

or removal proceedings.

In addition, this rule proposes to compile and codify the relevant

factors and standards for extreme hardship identified within existing

case law in order to provide a more uniform and focused mechanism for

evaluating this aspect of a person's eligibility for suspension of

deportation or special rule cancellation of removal.

DATES: Written comments must be submitted on or before January 25,

1999.

ADDRESSES: Please submit written comments in triplicate to the

Director, Policy Directives and Instructions Branch, Immigration and

Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC

20536. To ensure proper handling, please reference INS No. 1915-98 on

your correspondence. Comments are available for public inspection at

the above address by calling (202) 514-3048 to arrange for an

appointment.

FOR FURTHER INFORMATION CONTACT: For matters relating to the

Immigration and Naturalization Service: John Lafferty or Wenona Paul,

International Affairs, Department of Justice, Immigration and

Naturalization Service, 425 I Street NW., ULLICO Bldg., third floor,

Washington, DC 20536, telephone number (202) 305-2663. 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

number (703) 305-0470.

SUPPLEMENTARY INFORMATION:

I. Background

What is the Nicaraguan Adjustment and Central American Relief Act?

On November 19, 1997, President Clinton signed the Nicaraguan

Adjustment and Central American Relief Act, enacted as title II of Pub.

L. No. 105-100 (111 Stat. 2160, 2193) (as amended by the Technical

Corrections to the Nicaraguan Adjustment and Central American Relief

Act, Pub. L. No. 105-139 (111 Stat. 2644)). This new law amended the

Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)

and the Immigration and Nationality Act (Act) by providing several

distinct forms of relief to certain aliens who are presently residing

unlawfully in the United States. Section 202 of NACARA permits certain

Nicaraguan and Cuban nationals who meet the standards set forth in that

section to apply for adjustment of status to that of lawful permanent

resident. The interim rule governing applications for adjustment under

section 202 was published in the Federal Register on May 21, 1998, at

63 FR 27823.

This proposed rule implements section 203 of NACARA, which permits

certain Guatemalans, Salvadorans, and nationals of the former Soviet

bloc to apply for suspension of deportation or

[[Page 64896]]

cancellation of removal under special provisions set forth in that

section. Unlike those applying under section 202, NACARA beneficiaries

under section 203 may not become lawful permanent residents unless they

meet the statutory requirements for suspension of deportation or

cancellation of removal and are found to merit such relief as a matter

of discretion.

Throughout the discussion of this proposed rule, the term ``NACARA

beneficiaries'' refers to those persons listed in section

309(c)(5)(C)(i) of IIRIRA, as amended by NACARA, who may be eligible to

apply for suspension of deportation or cancellation of removal pursuant

to the NACARA amendments to IIRIRA.

How does NACARA affect applications for suspension of deportation

and cancellation of removal? The Illegal Immigration Reform and

Immigrant Responsibility Act, enacted by Congress on September 30,

1996, consolidated the dual system of exclusion and deportation

proceedings into removal proceedings for persons placed in proceedings

on or after April 1, 1997. Individuals placed in deportation

proceedings prior to April 1, 1997, can apply for suspension of

deportation under former section 244 of the Act, as in effect prior to

April 1, 1997. Suspension of deportation is a discretionary form of

relief available to individuals who can establish continuous physical

presence in the United States for 7 years prior to the date of

application, good moral character during that period, and that

deportation would result in extreme hardship to the applicant or to the

applicant's parent, spouse, or child who is a lawful permanent resident

or United States citizen. Different standards apply to individuals who

are deportable on certain criminal, document fraud, or security

grounds. Other special exceptions apply to battered spouses and

children and to individuals who have served in the United States

military.

Under the new framework created by IIRIRA, the discretionary relief

of suspension of deportation was replaced by section 240A, cancellation

of removal. Congress limited the availability of this type of relief in

three fundamental ways. First, Congress amended the rules relating to

time counted toward physical presence in the United States. For persons

seeking cancellation of removal, section 240A(d)(1) of the Act provides

that time counted towards continuous physical presence ceases when a

person is served with a charging document and placed in removal

proceedings or when a person commits an offense referred to in section

212(a)(2) of the Act that renders the person 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) of the Act, whichever is earlier

(the ``stop-time'' rule). The Board of Immigration Appeals (Board) held

that, under the transitional rules at section 309(c)(5) of IIRIRA

governing persons in deportation proceedings, this ``stop-time'' rule

applied equally to individuals placed in proceedings prior to April 1,

1997, who had applied for or who may apply for suspension of

deportation. Matter of N-J-B-, Int. Dec. #3309 (BIA 1997). In addition,

section 240A(d)(2) addresses certain breaks in presence in the United

States, for purposes of cancellation of removal eligibility, by

providing that an alien shall be considered to have failed to maintain

continuous physical presence in the United States if the alien has

departed from the United States for any period in excess of 90 days or

for any periods in the aggregate exceeding 180 days.

Second, IIRIRA heightened the eligibility standards for both the

required period of continuous physical presence in the United States

and the degree and type of hardship that must result from removal.

Generally, to be eligible for cancellation of removal under the Act as

amended by IIRIRA, the applicant must establish 10 years of continuous

physical presence in the United States, good moral character during

that period, and that removal would result in exceptional and extremely

unusual hardship to the applicant's spouse, parent, or child who is a

lawful permanent resident or United States citizen.

Third, Congress provided that no more than 4,000 aliens may have

their deportation suspended or removal canceled, and their status

adjusted pursuant thereto, in any fiscal year.

With certain exceptions, section 203 of NACARA permits certain

Guatemalans, Salvadorans, and nationals of former Soviet bloc countries

to apply for suspension of deportation or cancellation of removal under

the standards that existed prior to enactment of IIRIRA. Specifically,

NACARA exempts qualified Guatemalans, Salvadorans, and nationals of

former Soviet bloc countries from the ``stop-time'' rule. In addition,

section 203(b) of NACARA created a special rule for cancellation of

removal for NACARA beneficiaries who have not been placed in

deportation proceedings. Special rule cancellation of removal permits

these individuals to apply for cancellation of removal under standards

that are generally the same as those for suspension of deportation.

Section 204 of NACARA also amended the Act to exempt qualified

NACARA beneficiaries from the limit on the number of individuals who

may be granted suspension of deportation and cancellation of removal,

and adjustments of status pursuant thereto, each year.

What is suspension of deportation and special rule cancellation of

removal? Both suspension of deportation and special rule cancellation

of removal are forms of discretionary relief that, if granted, permit

an individual subject to deportation or removal to remain in the United

States. The criteria for granting such relief, in the exercise of

discretion, are described in Part IV of this Supplementary Information.

If an individual is granted suspension of deportation or special

rule cancellation of removal, his or her immigration status will then

be adjusted to that of lawful permanent resident. Suspension of

deportation is only available to eligible persons who were placed in

deportation proceedings prior to April 1, 1997. Special rule

cancellation of removal is available to eligible aliens who are placed

in removal proceedings on or after April 1, 1997, or who have not been

placed in deportation proceedings and are eligible to apply with the

Service under the standards set forth in this proposed rule.

Is there a limit on the number of individuals who may be granted

suspension of deportation or special rule cancellation of removal under

NACARA? No. NACARA exempts individuals eligible for relief under

section 203 of NACARA from the limit on the number of individuals who

may be granted suspension of deportation and cancellation of removal

each year. Because persons who qualify for relief under Section 203 are

not subject to this annual limitation, the interim rule at 8 CFR

240.21, published on September 30, 1998, in the Federal Register at 63

FR 52134, does not affect their eligibility for a grant of suspension

of deportation or special rule cancellation of removal.

Who can apply under this new law? Unless convicted of an aggravated

felony, the following individuals may be eligible to apply for

suspension of deportation or special rule cancellation of removal under

section 203 of NACARA:

(1) any registered class member of American Baptist Churches v.

Thornburgh (ABC), 760 F. Supp. 796 (N.D. Cal. 1991), who has not been

[[Page 64897]]

apprehended at the time of entry after December 19, 1990;

(2) any Guatemalan or Salvadoran national who filed an application

for asylum with the Service on or before April 1, 1990; and

(3) any alien who entered the Untied States on or before December

31, 1990, filed an application for asylum on or before December 31,

1991, and at the time of filing 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.

In addition and regardless of nationality, the spouse, child

(unmarried and under 21 years of age), unmarried son, and unmarried

daughter of an individual described in any of the above three

categories who is granted cancellation of removal or suspension of

deportation may apply for suspension of deportation or special rule

cancellation of removal under the provisions of NACARA, unless he or

she has been convicted of an aggravated felony. The relationship

between the spouse, child, unmarried son, or unmarried daughter and the

spouse or parent granted suspension of deportation or cancellation of

removal must exist at the time that the parent or spouse is granted

suspension of deportation or cancellation of removal. If the alien is

an unmarried son or unmarried daughter 21 years of age or older at the

time the parent is granted suspension of deportation or cancellation of

removal, he or she must have entered the United States on or before

October 1, 1990, in order to be eligible to apply for suspension of

deportation or special rule cancellation of removal under NACARA.

Although a spouse, child, unmarried son, or unmarried daughter is not

statutorily eligible to apply for such relief unless the ``principal''

spouse or parent has been granted suspension of deportation or

cancellation of removal, applications for relief may be submitted at

the same time as the ``principal'' spouse or parent submits an

application, or while the ``principal'' spouse or parent's application

is pending. The spouse, child, unmarried son, or unmarried daughter

will be required to independently establish each of the applicable

statutory criteria for suspension of deportation or special rule

cancellation of removal and that he or she merits discretionary relief.

Would withdrawal of an asylum application make someone ineligible

to apply under section 203 of NACARA? No, Although certain individuals

are eligible to apply for relief under section 203 of NACARA based on

nationality, entry date to the United States, and the filing of an

asylum application by a requisite date, the statute does not require

that the asylum application still be pending in order to apply for

relief under NACARA.

Will there be a new procedure to apply for suspension of

deportation or special rule cancellation of removal under section 203

of NACARA? Yes. To implement section 203 of NACARA efficiently and

expeditiously, the Attorney General has decided to integrate the

adjudication of suspension of deportation and special rule cancellation

of removal applications into the affirmative asylum process. Under this

proposed rule, the Attorney General will delegate to asylum officers

the authority to grant suspension of deportation or special rule

cancellation of removal to certain beneficiaries of NACARA who have

asylum applications pending with the Service and to their qualified

dependents. Under present regulations, only immigration judges, subject

to review by the Board and the Attorney General, are permitted to

adjudicate suspension of deportation or cancellation of removal

applications within the context of deportation or removal proceedings.

Given the large number of NACARA beneficiaries who presently have

asylum applications pending before the Service, the Attorney General

has determined that delegation of authority to the Service in this

limited circumstances is the most efficient method for implementing

section 203 of NACARA.

Streamlining the process by permitting eligible applicants to raise

their suspensions of deportation or special rule cancellation of

removal claims simultaneously with their asylum claims offers an

efficient method for resolving many of these claims at an earlier stage

in the administrative process. The great majority of section 203

beneficiaries are class members of the ABC settlement agreement who

currently have asylum applications pending with the Service and are

awaiting a de novo adjudication of their applications pursuant to the

terms of the settlement agreement. Although the ABC class members

previously placed in deportation proceedings could seek to recalendar

their cases in order to apply for suspension of deportation before the

Immigration Court, most class members were never placed in proceedings.

Absent the proposed rule, these individuals, as well as other NACARA

beneficiaries who have asylum applications pending before the Service,

would be required to wait until their asylum claims had been

adjudicated and, if ineligible for asylum, placed in removal

proceedings before they would have an opportunity to file their

applications for relief under section 203 of NACARA before the

Immigration Court.

Under the proposed rule, an asylum officer will have the authority

to consider and grant suspension of deportation or special rule

cancellation of removal to an applicant who is clearly eligible for

relief from deportation or removal, thus reducing both the time and

expense incurred by the Government and the applicant in resolving the

claim. Consequently, the proposed rule will implement NACARA in a

manner consistent with the humanitarian concerns expressed by Congress

in passing this legislation.

II. Process for Applying With the Service

Who will be able to apply with the Service for suspension of

deportation or special rule cancellation of removal? The great majority

of individuals who are eligible to apply for suspension of deportation

or special rule cancellation of removal under NACARA will be eligible

to apply for such discretionary relief with the Service. However, not

all aliens covered by NACARA will be able to apply with the Service.

Asylum officers' jurisdiction to consider applications for suspension

of deportation or special rule cancellation of removal will be limited

to certain eligible NACARA beneficiaries who have an asylum application

pending with the Asylum Program and to their eligible spouses,

children, unmarried sons, and unmarried daughters.

The following individuals will be permitted to apply for suspension

of deportation or special rule cancellation of removal with the

Service:

(1) a Guatemalan or Salvadoran national who applied for asylum with

the Service on or before April 1, 1990, and whose asylum application is

pending with the Service;

(2) an ABC class member who is eligible for benefits of the ABC

settlement agreement and who has not yet had a de novo asylum

adjudication with the Service, under the terms of the settlement

agreement;

(3) a national of a former Soviet bloc country who meets the

application eligibility criteria in section 203 of NACARA and who has

an asylum application pending with the Service; and

(4) the spouse, child, unmarried son, and unmarried daughter of an

[[Page 64898]]

individual described in any of the preceding three categories, as long

as the qualified spouse or parent has pending with the Service an

application for suspension of deportation or special rule cancellation

of removal or has been granted suspension of deportation or special

rule cancellation of removal by the Service and, with certain

exceptions, the spouse, child, unmarried son, or unmarried daughter has

not been placed in immigration proceedings. To be eligible to apply for

suspension of deportation or special rule cancellation of removal under

NACARA, an unmarried son or unmarried daughter 21 years of age or older

must have first entered the United States on or before October 1, 1990,

or have been less than 21 years of age when his or her parent was

granted suspension of deportation or cancellation of removal.

With respect to aliens who have been placed in deportation or

removal proceedings, this proposed rule gives authority to asylum

officers to consider applications for suspension of deportation or

special rule cancellation of removal submitted by qualified applicants

only if an immigration judge has administratively closed those

proceedings or the Board has continued those proceedings because:

(1) the applicant is entitled to a de novo asylum adjudication

pursuant to the ABC settlement agreement (see next section for

discussion of class membership and ABC eligibility requirements);

(2) the applicant is an ABC class member with a final order of

deportation who is entitled to a de novo asylum adjudication pursuant

to the ABC settlement agreement, has filed and been granted a motion

to reopen under section 203(c) of NACARA, pursuant to the notice

published in the Federal Register by the Attorney General on January

21, 1998, at 63 FR 3154, or under 8 CFR 3.43 (published in the Federal

Register on June 11, 1998, at 63 FR 31890), and has requested that the

reopened proceedings be closed in order to file for suspension of

deportation before the Service; or

(3) the applicant is the spouse, child, unmarried, or unmarried

daughter of a NACARA beneficiary who is eligible to apply for, and has

applied for, suspension of deportation or special rule cancellation of

removal with the Service, and the Immigration Court or the Board has

administratively closed or continued the proceedings to permit the

applicant to submit an application for suspension of deportation or

special rule cancellation of removal with the Service.

All other persons in deportation or removal proceedings who are

eligible to apply for suspension of deportation or special rule

cancellation of removal under section 203 of NACARA must apply for this

relief before the Immigration Court.

To illustrate the jurisdictional divisions between the Service and

EOIR over applications for relief under section 203 of NACARA, the

Department is considering creating a jurisdictional chart, in table

format, to be published with the interim or final rule implementing

section 203 of NACARA. The Department solicits comments on whether the

public believes such a jurisdictional chart would be useful, and if so,

how such a chart would be organized.

Who is eligible for benefits of the ABC settlement agreement? A

class member of the ABC settlement agreement is eligible for benefits

of the agreement only if he or she registered for ABC benefits, applied

for asylum by a specified cutoff date, has not been convicted of an

aggravated felony, and has not been apprehended at the time of entry

after December 19, 1990. All Guatemalan nationals who first entered the

United States on or before October 1, 1990, and all Salvadoran

nationals who first entered the United States on or before September

19, 1990, are class members under the ABC settlement agreement.

Guatemalan class members were required to register for ABC benefits on

or before December 31, 1991, and to apply for asylum on or before

January 3, 1995. Salvadoran class members were required to register for

ABC benefits on or before October 31, 1991, and to apply for asylum on

or before January 31, 1996. (The Service permitted a two-week

administrative grace period, extending to February 16, 1996.) A class

member was not required to file a new asylum application under the

settlement agreement if the applicant had already filed an asylum

application with the Service or the Immigration Court prior to the

applicable filing deadline.

Can an ABC class member who registered for ABC benefits, but failed

to apply for asylum by the applicable filing deadline, apply for

suspension of deportation or special rule cancellation of removal with

the Service? No. Although NACARA allows a registered ABC class member

to apply for suspension of deportation or special rule cancellation of

removal, even if he or she failed to apply for asylum by the applicable

date necessary to retain ABC benefits, the proposed rule requires that

such an individual apply for relief under section 203 of NACARA in

deportation or removal proceedings before the Immigration Court. If a

registered ABC class member applied for asylum after the applicable ABC

filing deadline, the Service will process the asylum application

pursuant to current asylum regulations, but will not accept from the

class member an application for special rule cancellation of removal.

If such a class member is not granted asylum and appears to be

deportable or inadmissible, the Service will initiate removal

proceedings. The class member may then be eligible to apply for special

rule cancellation of removal before the Immigration Court. The Service

does not have jurisdiction over an asylum application filed by an ABC

class member who was in proceedings that were previously

administratively closed or continued by the Executive Office for

Immigration Review (EOIR) and who missed the applicable asylum filing

deadline for ABC benefits. In such cases, the Service will move to

recalendar proceedings before EOIR, and the class member may apply for

suspension of deportation in the context of the recalendared

proceedings.

This restriction permits the Service to focus its resources on the

adjudication of the applications filed by the registered ABC class

members who met the filing deadlines; other Guatemalans, Salvadorans,

and nationals of former Soviet bloc countries who are qualified to

apply under section 203 of NACARA and whose asylum applications are

pending with the Service; and the dependents of these groups. Limiting

the program to registered ABC class members who met the requisite

filing deadlines will also serve to protect the integrity of the

program by reducing the possibility of fraudulent claims of ABC class

membership and registration. Because an applicant for suspension of

deportation or special rule cancellation of removal will be entitled to

immediately apply for and be granted employment authorization, the

Service is concerned that there would be an influx of fraudulent

applications submitted solely for the purpose of obtaining employment

authorization, if no restrictions are placed on the submission of

applications. Consequently, to avoid creating such a problem and to

avoid diverting resources from the adjudication process in order to

verify the status of each new applicant claiming to be a registered ABC

class member, the Service has chosen to limit the group of persons

eligible to apply with the Service for relief from deportation or

removal under section 203 of NACARA to those persons who can more

readily be

[[Page 64899]]

identified by the their previously filed asylum applications.

Must a spouse, child, unmarried son, or unmarried daughter of a

beneficiary of section 203 of NACARA have applied for asylum with the

Service in order to be eligible to apply for suspension of deportation

or special rule cancellation of removal with the Service? No. In the

interest of preserving family unity and fostering administrative

efficiency, this rule proposes to give the Service jurisdiction to

grant or refer an application for suspension of deportation or special

rule cancellation of removal filed by a spouse, child, unmarried son,

or unmarried daughter of certain NACARA beneficiaries. The spouse,

child, unmarried son, or unmarried daughter will not be required to

apply for asylum with the Service in order to submit an application for

discretionary relief under section 203 of NACARA, so long as the

applicant's spouse or parent either has an application for relief under

section 203 of NACARA pending with the Service or has been granted

suspension of deportation or special rule cancellation of removal by

the Service.

If the spouse, child, unmarried son, or unmarried daughter

(``dependent'') is in deportation or removal proceedings, he or she

appears otherwise eligible for discretionary relief under section 203

of NACARA, and the qualified parent or spouse has submitted an

application for such relief with the Service, the Immigration Court may

administratively close the dependent's case to permit the dependent to

submit an application for suspension of deportation or special rule

cancellation of removal with the Service. Similarly, the board may

administratively close or continue the dependent's appeal to permit the

dependent to submit an application for suspension of deportation or

special rule cancellation of removal. A dependent's case that has been

administratively closed or continued to allow the dependent to apply

with the Service for relief under section 203 of NACARA may be

recalendared by the Service if the dependent fails to file his or her

application within a required period of time or if the dependent

becomes clearly ineligible for relief under section 203 of NACARA prior

to submitting his or her application with the Service. A dependent

whose case has been administratively closed or continued by EOIR for

purposes of filing an application for relief under NACARA with the

Service will not be permitted to file an asylum application with the

Service. Jurisdiction will remain with EOIR for all matters other than

the initial adjudication of the NACARA application.

Although the Service will attempt to interview the dependent and

make an eligibility determination at the same time the Service

considers the applications of other family members, the application

will generally be considered as a separate application for purposes of

the filing fee, because it will not have been filed at the same time as

the parent's or spouse's application.

When can an application be filed? Anyone who is eligible to apply

for suspension of deportation or special rule cancellation of removal

and who is in deportation or removal proceedings may apply for such

discretionary relief before the Immigration Court in the course of

those proceedings. Those who are eligible to apply with the Service

will be able to apply when interim or final regulations delegating

authority to the Service become effective. The Department expects to

publish interim or final regulations after the notice and comment

period for this proposed rule has been completed. There is no deadline

for filing the application with the Service, as long as the applicant

still meets the criteria for eligibility to apply with the Service.

How does one submit an application to the Service? To apply with

the Service for suspension of deportation or special rule cancellation

of removal under section 203 of NACARA, the applicant must submit a

Form I-881, Application for Suspension of Deportation or Special Rule

Cancellation of Removal (pursuant to section 203 of Public Law 105-

100), with all attachments and supporting documents, in accordance with

the instructions on that form. The Service is currently in the process

of preparing the final version of proposed Form I-881. The Service will

not accept applications submitted on a Form EOIR-40 or EOIR-42.

Each applicant, including all qualified dependents, must submit a

separate application.

Will there be a fee? Yes. The proposed rule establishes a $215 fee

for a single applicant, with a maximum family cap of $430 for a family

of two or more qualified relatives who submit applications to the

Service at the same time. Qualified relatives are limited to the

spouse, children, unmarried sons and unmarried daughters of an

applicant. A qualified relative who does not submit an application at

the same time as the relative's parent or spouse will be required to

pay the $215 fee. As with other applications for immigration benefits,

applicants may request a fee waiver pursuant to 8 CFR 103.7(c).

The fee for applying directly with the Immigration Court in the

course of deportation or removal proceedings will continue to be $100,

with a single fee of $100 whenever applications are filed by two or

more individuals in the same proceedings. If the application filed with

the Service is referred to the Immigration Court, the applicant will

not be required to pay an additional fee.

In addition to the fee required to submit an application for

suspension of deportation or special rule cancellation of removal, each

applicant who is required to be fingerprinted will also be required to

include a fingerprinting fee (now $25), or request for fee waiver, when

submitting the application to the Service, pursuant to current

regulations.

Why is the fee for individuals applying with the Service higher

than the fee for individuals applying with the Immigration Court? The

proposed fee for individuals applying with the Service is higher,

because the cost to the Service to adjudicate applications must be

funded from the Immigration Examinations Fee Account (IEFA). The IEFA

was established by Congress in 1989, and the revenue deposited in the

account is the sole source of funding for the processing of immigration

and naturalization applications and petitions, and for other purposes

designated by Congress, such as the processing of asylum applications

for which no fee is required. No appropriations are provided by

Congress from tax dollars. In contrast, the Immigration Court receives

funds appropriated by Congress to cover the costs of court functions.

The $100 fee to apply for suspension of deportation or cancellation of

removal in the Immigration Court partially covers the Service's costs

associated with litigating such applications in deportation or removal

proceedings.

How was the fee determined? The Service is authorized to charge

fees for the adjudication and processing of applications and petitions

for a wide variety of immigration and naturalization benefits. The fees

are required to recover the cost to the Service of providing a specific

immigration service. All fees must be reviewed regularly and adjusted

as costs change, as more precise cost determination processes become

available, or as directed by legislation. This rule proposes to

establish a fee that recovers the costs to the Service associated with

processing applications for suspension of deportation and special rule

cancellation of removal under section 203 of NACARA.

Revenues generated from the fee proposed in this rule will be

deposited

[[Page 64900]]

in the IEFA, which provides the sole source of funding available to the

Service to process the applications. The Service conducted a cost

review of its existing immigration and naturalization application and

petition fees in accordance with statutory mandates and Federal cost

accounting standards, using activity-based costing (ABC) methodology.

ABC methodology provides an accurate and precise cost calculation. This

methodology has been used successfully in the private sector and has

been used increasingly by Federal agencies to determine the costs of

programs, processes, products, and services. (A summary of the approach

and methodology used in the review is explained in the proposed rule to

adjust the fee schedule of the IEFA for 30 of the immigration

adjudication and naturalization applications and petitions. The

proposed rule was published in the Federal Register on January 12,

1998, at 63 FR 1775. The final rule was published in the Federal

Register on August 14, 1998, at 63 FR 43604.)

Because Service adjudication of suspension of deportation and

special rule cancellation of removal under section 203 of NACARA is a

new process, actual historical cost data is not available for

establishing a fee based upon actual experience. However, combining the

information developed in the IEFA cost review with expert knowledge, it

was determined that the application process activities for the Form I-

485, Application to Register Permanent Residence or Adjust Status, and

the Form I-589, Application for Asylum and for Withholding of Removal,

closely resemble the processing and adjudication of a suspension of

deportation or special rule cancellation of removal application. Using

data from the IEFA cost review, an activity and associated cost model

was constructed to anticipate the actual costs of the new process.

Integrating the applicable activity costs from the IEFA fee study, the

Service calculated a fee of $215 for a single applicant. The maximum

amount being proposed for families (as a family cap) is $430.

Must the applicant be fingerprinted? Yes. Each applicant 14 years

or older must be fingerprinted. Under current regulations, a

fingerprinting fee (now $25), or request for fee waiver, must be

submitted to the Service for each person who requires fingerprinting in

order to apply for a benefit. An applicant who has previously submitted

fingerprints for an asylum application must be fingerprinted again to

fulfill current requirements for suspension of deportation or special

rule cancellation of removal. The fingerprints will ordinarily be taken

at an Application Support Center or a designated Law Enforcement

Agency. For cases before the Service, after an application has been

submitted, the applicant will be notified in writing of the appointment

date and the location of the Application Support Center or designated

Law Enforcement Agency where the applicant must go to be fingerprinted.

The Service may not conduct an interview until the applicant has been

fingerprinted and the Service has received a definitive response from

the Federal Bureau of Investigation (FBI) that a full criminal

background check has been completed. An applicant's unexcused failure

to appear for fingerprinting may result in dismissal of the application

for suspension of deportation or special rule cancellation of removal

or referral of the application to the Immigration Court. For

applications submitted to the Immigration Court, the applicant should

proceed as directed by the immigration judge.

How will the interview process before the Service work and what

should the applicant bring to the interview? Each applicant will be

notified by the Asylum Office of the date, time, and place (address) of

a scheduled interview. The Service recommends that each applicant bring

a copy of the application and originals of any supporting documents to

the interview. Any documents submitted that are written in a foreign

language must be accompanied by a certified translation pursuant to 8

CFR 103.2(b)(3). The applicant should also bring some form of

identification, if available, including any passport(s), other travel

or identification documents, or Form I-94, Arrival-Departure Record.

An asylum officer shall conduct a nonadversarial interview to

elicit information relating to eligibility for both asylum and for

suspension of deportation or special rule cancellation of removal, if

the applicant has applied for both forms of relief.

The applicant has the right to legal representation at the

interview, at no cost to the United States Government. Any attorney or

representative of record who is representing an applicant must file a

G-28. Notice of Entry of Appearance as Attorney or Representative,

signed by the applicant.

If the applicant is unable to proceed with the interview in fluent

English, he or she must provide, at no expense to the Service, a

competent interpreter fluent in both English and a language that the

applicant speaks fluently. The interpreter must be at least 18 years of

age. The following persons cannot serve as interpreter: the attorney or

representative of record or a witness testifying on the applicant's

behalf at the interview. If the applicant also has an asylum

application pending with the Service, a representative or employee of

the applicant's country of nationality, or, if stateless, country of

last habitual residence, may not serve as an interpreter. Failure

without good cause to bring a competent interpreter to the interview

may be considered an unexcused failure to appear for the interview,

which may result in dismissal of the application or referral of the

application to the Immigration Court.

In most cases, the applicant will be given a notice to return to

the Asylum Office for service of the decision and, where appropriate,

charging documents placing the person in removal proceedings (the

``pick-up''). Each applicant will also be advised of the requirement to

bring an interpreter to the pick-up if the applicant is not fluent in

English. An applicant who is not fluent in English must bring an

interpreter to the ``pick-up,'' because the applicant may be asked at

that time to admit inadmissibility or deportability, and may also be

asked whether he or she intends to continue to pursue a pending

application for asylum before the Service, if suspension of deportation

or special rule cancellation of removal is granted. Although a grant of

suspension of deportation or cancellation of removal will confer lawful

permanent resident status, section 208 of the Act provides that an

alien who is physically present in the United States, or who arrives in

the United States, may apply for asylum irrespective of the alien's

status.

Must the applicant concede inadmissibility or deportability in

order to be granted suspension of deportation or special rule

cancellation of removal by the Service? Yes. NACARA provides that the

Attorney General may grant suspension of deportation to a qualified

individual who is deportable from the United States or special rule

cancellation of removal to a qualified alien who is inadmissible or

deportable from the United States. The Department has determined that,

before suspension of deportation or cancellation of removal may be

granted, there must be a finding of inadmissibility or deportability.

Because asylum officers are not authorized to make determinations

regarding inadmissibility or deportability in most contexts, applicants

for suspension of deportation or special rule cancellation of removal

before the Service will be required to concede inadmissibility or

[[Page 64901]]

deportability before the Service may grant the relief from deportation

or removal to the applicant. The instructions for the application will

advise the applicant of this requirement. If an asylum officer

determines that the applicant is eligible for suspension of deportation

or special rule cancellation of removal, the applicant will be informed

of the preliminary decision and asked to sign a written concession of

inadmissibility or deportability before the final decision is issued.

If the applicant declines to admit inadmissibility or deportability and

is not granted asylum, the applicant will be placed in immigration

proceedings and the application for suspension of deportation or

special rule cancellation of removal will be referred to the

Immigration Court.

What if an applicant does not appear for the scheduled interview

with an asylum officer? An applicant who cannot appear for the

scheduled interview should submit prior to the interview a written

request to reschedule the interview, explaining the reasons the

applicant cannot attend the interview. An unexcused failure to appear

for the interview may result in dismissal of the application for

suspension of deportation or special rule cancellation of removal or

referral of the application to the Immigration Court.

III. Process for applying with EOIR

How does one apply for suspension of deportation or special rule

cancellation of removal before the Immigration Court? A person eligible

to apply for suspension of deportation or special rule cancellation of

removal under section 203 of NACARA who is presently in deportation or

removal proceedings should follow the procedures for submitting an

application under the regulations and as directed by the immigration

judge. The Immigration Court is already adjudicating applications under

section 203 of NACARA; there is no need for those who are in

proceedings to wait for publication of an interim or final version of

this proposed rule to submit an application to the Immigration Court.

However, persons who apply for suspension of deportation or special

rule cancellation of removal under section 203 of NACARA after this

proposed rule is issued as an interim or final rule, will be required

to submit their applications on Form I-881, Application for Suspension

of Deportation or Special Rule Cancellation of Removal (pursuant to

section 203 of Public Law 105-100), with all attachments and supporting

documents, in accordance with the instructions for that form. Each

applicant must submit a separate application.

What if a person who is eligible to apply for special rule

cancellation of removal is not in proceedings and either does not have

an asylum application pending or filed for asylum after the applicable

filing deadline? Under this proposed rule, a person who is not in

proceedings and who is ineligible to apply with the Service for

discretionary relief under section 203 of NACARA will not be permitted

to submit an application unless and until he or she is placed in

removal proceedings. Under section 203 of NACARA, there is no deadline

for filing an application for special rule cancellation of removal. The

decision to place an alien in proceedings lies solely with the

discretion of the Service.

IV. Eligibility for Suspension of Deportation and Special Rule

Cancellation of Removal

What are the applicable statutory provisions? Statutory eligibility

for suspension of deportation will be determined based on the criteria

governing continuous physical presence, good moral character, and

extreme hardship set forth in paragraph, (a) and (b) of former section

244 of the Act, as in effect prior to April 1, 1997, and, as discussed

below, subject to applicable bars to discretionary relief as provided

in the Act, as in effect prior to April 1, 1997. However, persons

eligible to apply for suspension of deportation under section 203 of

the NACARA are exempted from the transitional rule governing continuous

physical presence contained in section 309(c)(5) of IIRIRA. This means

that such applicants are exempt from 240A(d)(1) of the Act, as amended

by IIRIRA, which affects the determination of when time counted toward

continuous physical presence in the United States stops accruing (the

``stop-time'' rule). Specifically, section 240A(d)(1) of the Act, as

amended by IIRIRA, provides that time counted toward physical presence

in the United States stops accruing when a person is served a notice to

appear under section 239(c) of the Act or commits an offense referred

to in section 212(a)(2) of the Act that renders the person 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) of the Act,

whichever is earlier. Such persons are also exempt from section

240A(d)(2), which addresses breaks in presence in the United States.

Applications for special rule cancellation of removal under section

203 of NACARA are governed by statutory eligibility requirements

contained in section 309(f)(1) of IIRIRA, as amended by NACARA. These

requirements correspond, with certain exceptions, to the requirements

contained in former section 244(a)(1) and (a)(2) of the Act, as in

effect prior to April 1, 1997. Applications under section 203 of NACARA

are otherwise subject to the provisions of section 240A of the Act,

with the exception of sections 240A(b)(1) (the heightened standards

relating to eligibility), (d)(1) (the ``stop-time rule''), and (e)

(limitations on the annual number of individuals granted relief).

Additionally, to be eligible for suspension of deportation or

special rule cancellation of removal, the alien must not be subject to

any of the statutory bars to seeking such relief. Section 244(f) of the

Act, as it existed prior to April 1, 1997, and section 240A(c) of the

Act provide that certain categories of aliens (crewmen and certain non-

immigrant exchange aliens) are ineligible for suspension of deportation

or cancellation of removal. Pursuant to former section 242B(e)(2) of

the Act, as in effect prior to April 1, 1997, and section 240B(d) of

the Act, an alien who was previously granted voluntary departure and

received notice of the consequences of failing to depart, but did not

depart the United States within the time specified, is barred for a

specific period of time from various forms of discretionary relief,

including suspension of deportation and cancellation of removal.

Similarly, former sections 242B(e)(1), (3) and (4) of the Act, as in

effect prior to April 1, 1997, preclude the Attorney General from

granting suspension of deportation to aliens who, under certain

circumstances, fail at appear to a deportation or asylum hearing, or as

ordered for deportation. Applicants for special rule cancellation of

removal are subject, where applicable, to the bar to discretionary

relief contained in section 240(b)(7) of the Act, relating to failure

to appear at removal proceedings. The Attorney General has no authority

to waive such bars in the cases in which they apply.

What are the requirements for establishing eligibility? The burden

is on the applicant to establish that he or she meets each of the

statutory requirements for the relief sought and that he or she is

entitled to relief from deportation or removal as a matter of

discretion. As explained further below, the general requirements for

eligibility relate to the amount of time the applicant has been

[[Page 64902]]

continuously physically present in the United States, whether the

applicant is and has been of good moral character during the requisite

period of continuous physical presence, and the degree of hardship to

the applicant or qualified relative resulting from removal. There are

two basic standards both for eligibility for suspension of deportation

and for special rule cancellation of removal, and the applicable

standard is determined by the grounds of deportability or

inadmissibility that apply. Aliens who are inadmissible or deportable

on certain criminal or other grounds are subject to a higher standard

that requires the applicant to establish a longer period of continuous

physical presence and a higher degree of hardship resulting from

removal. In addition, special eligibility provisions may apply to

certain individuals who have been battered or subject to extreme

cruelty, or whose children have been subject to such abuse, and to

certain individuals who have served in the United States Armed Forces.

To be eligible for suspension of deportation under the general

standard set forth in former section 244(a)(1) of the Act, as in effect

prior to April 1, 1997, an applicant must not have been convicted of an

aggravated felony, must not be deportable for having participated in

Nazi persecution or in genocide, and must be deportable under any law

of the United States other than paragraph (a)(2) (criminal grounds),

paragraph (3) (failure to register and falsification of documents), or

paragraph (4) (security and related grounds) of the former section

241(a) of the Act, as in effect prior to April 1, 1997. To be eligible

for special rule cancellation of removal under the general standard set

forth in section 309(f)(1)(A) of IIRIRA, as amended by NACARA, an

applicant must not be inadmissible to the United States under paragraph

(2) (criminal and related grounds) or paragraph (3) (security and

related grounds) of section 212(a) of the Act, or deportable under

paragraph (2) (criminal grounds), paragraph (3) (failure to register

and falsification of documents), or paragraph (4) (security and related

grounds) of section 237(a) of Act, and may not be an alien who has been

convicted of an aggravated felony or has been to be a persecutor.

An applicant for either form of relief who meets the foregoing

eligibility requirements must also establish that:

(1) the applicant has been physically present in the United States

continuously for at least 7 years before applying for the relief;

(2) the applicant is and has been a person of good moral character

during those 7 years of physical presence; and

(3) removal from the United States would result in extreme hardship

to the applicant, or to the applicant's spouse, parent, or child, who

is a United States citizen or alien lawfully admitted for permanent

residence.

The applicant must also establish that the applicant merits relief

as a matter of discretion.

Generally, persons who are inadmissible or deportable on the basis

of the grounds previously described (other than those who have been

convicted of an aggravated felony or involved in the persecution of

others) may still be eligible for suspension of deportation under

former section 244(a)(2) of the Act, as in effect prior to April 1,

1997, or for special rule cancellation of removal under section

309(f)(1)(B) of IIRIRA, as amended by NACARA, under a higher standard.

To be eligible under the higher standard, the applicant must establish

that:

(1) the applicant has been physically present in the United States

continuously for not less than 10 years immediately following the

commission of an act, or the assumption of a status, constituting a

ground for deportation or removal;

(2) the applicant is and has been a person of good moral character

during that period; and

(3) deportation or removal would result in exceptional and

extremely unusual hardship to the applicant or to the applicant's

spouse, parent, or child, who is a citizen of the United States or an

alien lawfully admitted for permanent residence. The applicant must

also establish that the applicant merits relief as a matter of

discretion.

What factors are considered in evaluating continuous physical

presence? For persons covered by section 203 of NACARA who are

presently in deportation proceedings, the primary impact of NACARA is

the elimination of the transitional rules contained in section

309(c)(5) of IIRIRA relating to the ``stop-time'' rule and certain

breaks in presence. A person eligible to apply for suspension of

deportation under NACARA must establish the required period of

continuous physical presence by the date on which the application is

filed. A person who is already subject to a final order of deportation

and must reopen his or her proceedings under 8 CFR 3.43 must establish

the required period of physical presence by no later than September 11,

1998, regardless of the date on which service of the charging document

was completed.

The proposed rule repeats the statutory requirement that an

applicant for suspension of deportation must establish that any break

in continuous physical presence was brief, casual, and innocent, and

did not meaningfully interrupt the applicant's period of continuous

physical presence in the United States. The proposed rule also reflects

conclusions set forth in case law that departures under an order of

deportation, departures under an order of voluntary departure, or

departures during which the applicant formed the intent to commit a

crime meaningfully interrupt continuous physical presence.

Although applicants for special rule cancellation of removal are

exempt from the ``stop-time'' provision of section 240A(d)(1) of the

Act, they are not exempt from section 240A(d)(2) of the Act, relating

to breaks in continuous physical presence. Under section 309(f)(2) of

IIRIRA, as amended by section 203(b) of NACARA, an applicant for

special rule cancellation of removal will be considered to have failed

to maintain continuous physical presence in the United States if he or

she is absent from the United States for any period in excess of 90

days or for any periods that in the aggregate exceed 180 days. The

proposed rule specifies that periods of shorter duration may be found

to terminate continuous physical presence if the absence is a

meaningful interruption.

What factors are considered in evaluating good moral character? To

be eligible for suspension of deportation or special rule cancellation

of removal, the person will have to establish good moral character

during the requisite period of continuous physical presence in the

United States. Good moral character is decided on a case-by-case basis,

taking into account the provisions of section 101(f) of the Act, which

identify reasons a person cannot be found to be of good moral

character, and precedent decisions by the Board and Federal courts.

What factors are considered in evaluating extreme hardship? An

applicant for suspension of deportation under former section 244(a)(1)

of the Act, as in effect prior to April 1, 1997, or special rule

cancellation of removal under section 309(f)(1)(A) of IIRIRA, as

amended by section 203 of NACARA, must establish that his or her

deportation or removal would result in extreme hardship to the

applicant, or to a parent, child or spouse who is a United States

citizen or lawful permanent resident alien. In adopting the same

standards for special rule cancellation of removal as were required for

suspension of deportation under

[[Page 64903]]

former section 244(a)(1) of the Act, prior to amendments by IIRIRA,

Congress appears to have intended the same standard for extreme

hardship to apply to both forms of relief. The phrase ``extreme

hardship'' is not defined in the Act, and NACARA provides no additional

guidelines for interpretation of this requirement. Instead, ``extreme

hardship'' has acquired specific legal meaning through interpretation

by the Board and Federal courts.

The Board has not set forth a bright line test for determining

``extreme hardship,'' finding that ``extreme hardship'' within the

meaning of section 244(a)(1) of the Act ``is not a definable term of

fixed and inflexible content or meaning. It necessarily depends upon

the facts and circumstances peculiar to each case.'' Matter of Hwang,

10 I & N Dec. 448, 451 (BIA 1964). Over time, however, precedent

decisions issued by the Board and federal courts have created a body of

case law that has provided a framework for analyzing claims of extreme

hardship. See Matter of Anderson, 16 I & N Dec. 596 (BIA 1978); Matter

of Ige, 20 I & N Dec. 880 (BIA 1994); Matter of O-J-O), Int. Dec. #3280

(BIA 1996); Matter of L-O-G, Int Dec. #3281 (BIA 1996); Matter of

Pilch, Int. Dec. #3298 (BIA 1996). In these decisions and others, the

Board has enumerated a series of factors that are relevant to a

determination of extreme hardship. These precedent decisions are

binding on the Service and EOIR.

Under this proposed rule, asylum officers will be required to

consider suspension of deportation and special rule cancellation of

removal applications under the same legal standards that govern

adjudication by the Immigration Court. Because of the breadth of the

case law governing the ``extreme hardship'' standard, the Department

has concluded that a regulatory compilation of the relevant factors and

standards identified within this body of law would provide a more

uniform and focused source for evaluating extreme hardship claims. This

proposed rule is not intended, however, to overturn or modify existing

case law. Nor does it intend to limit the development through case law

of other relevant factors. Instead, codification is intended to assist

adjudicators, attorneys, and applicants to identify factors that may be

relevant to an extreme hardship determination in the context of an

application for suspension of deportation or special rule cancellation

of removal. This regulation, however, does not codify the higher

standard of ``exceptional and extremely unusual hardship'' required

under former section 244(a)(2) of the Act, as in effect prior to April

1, 1997, section 240A(b)(1) of the Act for persons seeking cancellation

of removal, or section 309(f)(1)(B) of IIRIRA, as amended by NACARA,

for persons seeking special rule cancellation of removal.

This proposed rule maintains the flexibility of the existing

standard by identifying broad factors that have been cited in existing

precedent decisions as relevant to the evaluation of whether

deportation would result in extreme hardship to the alien or to his or

her qualified relative. These factors are (1) the age of the alien,

both at the time of entry to the United States and at the time of

application for suspension of deportation; (2) the age, number, and

immigration status of the alien's children and their ability to speak

the native language and adjust to life in another country; (3) the

health condition of the alien or the alien's child, spouse, or parent

and the availability of any required medical treatment in the country

to which the alien would be returned; (4) the alien's ability to obtain

employment in the country to which the alien would be returned; (5) the

length of residence in the United States; (6) the existence of other

family members who will be legally residing in the United States; (7)

the financial impact of the alien's departure; (8) the impact of a

disruption of educational opportunities; (9) the psychological impact

of the alien's deportation or removal; (10) the current political and

economic conditions in the country to which the alien would be

returned; (11) family and other ties to the country to which the alien

would be returned; (12) contributions to and ties to a community in the

United States, including the degree of integration into society; (13)

immigration history, including authorized residence in the United

States; and (14) the availability of other means of adjusting to

permanent resident status.

Ultimately, ``extreme hardship'' must be evaluated on a case-by-

case basis after a review of all the circumstances in the case, and

none of the listed factors alone, or taken together, automatically

establishes a claim of extreme hardship. Nor is the list exhaustive, as

there may be other factors relevant to the issue of extreme hardship in

a particular case. The listed factors should not preclude consideration

of other factors raised by an applicant, nor is an applicant required

to show that each of the listed factors applies in the applicant's

case, in order to establish extreme hardship. Conversely, an

adjudicator is not required to consider factors that have not been

raised in making an extreme hardship determination.

Generally, no single factor will be dispositive in making an

extreme hardship determination. Matter of Anderson, 16 I & N Dec. 596.

To establish extreme hardship, an applicant must demonstrate that

deportation or removal would result in a degree of hardship beyond that

typically associated with deportation or removal. For example, extreme

hardship requires more than the mere economic deprivation that might

result from an alien's deportation from the United States. Davidson v.

INS, 558 F.2d 1361, 1363 (9th Cir. 1977), and Matter of Sipus, 14 I & N

Dec. 229, 231 (BIA 1972). Loss of a job and the concomitant financial

loss is not synonymous with extreme hardship. Matter of Pilch, Int.

Dec. #3298. Similarly, readjustment to life in the native country after

having spent a number of years in the United States is not the type of

hardship that has been characterized as extreme, since most aliens who

have spent time abroad suffer this kind of hardship. Matter of

Chumpitazi, 16 I & N 629 (BIA 1978). The birth of a United States

citizen child does not in itself provide a basis for a finding of

extreme hardship. Davidson v. INS, 558 F.2d at 1363; Matter of Kim, 15

I & N Dec. 88 (BIA 1974). Nor does a significant reduction in one's

standard of living or inability to pursue one's profession, in itself,

compel a finding of extreme hardship. Matter of Pilch, Int. Dec. #3298.

The Board has also found that ``a claim of persecution may not

generally be presented as a means of demonstrating extreme hardship,

for purposes of suspension of deportation.'' Matter of L-O-G, Int. Dec.

#3281. In those cases in which a claim of persecution is raised,

however, it must be examined from the perspective of extreme hardship,

rather than on the basis of the criteria used to identify a refugee

under asylum law. Ordonez v. INS, 137 F.3d 1120, 1123 (9th Cir. 1998).

Consequently, issues such as the circumstances under which an

individual left his or her country or the political consequences of

such a return may be relevant to the discussion of listed factors such

as the psychological impact of deportation or removal, current country

conditions, immigration history, or remaining ties to the country of

deportation or removal. See Matter of O-J-O, Int. Dec. #3280 (family's

history of conflict with Sandinistas factored into evaluation of effect

of current country conditions).

Thus, a factor that may not in itself be determinative may become

significant, or even critical, when weighed with all

[[Page 64904]]

the other circumstances and factors presented. Matter of L-O-G, Int.

Dec. #328. Relevant factors that may not be considered extreme in

themselves must be considered in the aggregate to determine whether

extreme hardship exists. Matter of Ige, 20 I & N Dec. at 882. ``In all

cases, the particular degree of personal hardship resulting from each

of the factors must be taken into account.'' Matter of L-O-G, Int. Dec.

#328. Similarly, an adjudicator should not discount the effect of a

factor simply because it is not unique to the individual. The Board has

noted that the ``word `extreme' should not be equated with `unique' and

hardship for suspension purposes need not be unique to be extreme.''

Id.

V. Adjudication by the Service

How will a decision be made if a person has applied for both asylum

and suspension of deportation or special rule cancellation of removal?

An asylum officer will determine eligibility for suspension of

deportation or special rule cancellation of removal concurrently with

the determination of eligibility for asylum if an applicant who is

eligible to apply with the Service under NACARA has applied for both

forms of relief. After considering the information and documents

submitted by the applicant, the testimony of the applicant and any

witnesses presented at the interview, relevant country conditions

information, and other information available to the asylum officer, the

asylum officer will determine whether the applicant is eligible for

suspension of deportation or special rule cancellation of removal or

asylum. The Service will grant suspension of deportation or special

rule cancellation of removal if the applicant is clearly eligible for

the relief sought. If the Service finds that the applicant is not

clearly eligible for suspension of deportation or special rule

cancellation of removal and is ineligible for asylum, the asylum

officer will refer the application for suspension of deportation or

special rule cancellation of removal to the Immigration Court (or

dismiss the application without prejudice, if the applicant is in valid

non-immigrant or immigrant status). The Service will also process the

asylum application under the terms of the settlement agreement for

eligible ABC class members or under 8 CFR 208.14 for all other NACARA

beneficiaries.

When will the Service refer an application to the Immigration

Court? Under the proposed rule, asylum officers will not have the

authority to deny an application for suspension of deportation or

special rule cancellation of removal. Instead, an asylum officer will

refer an application to the Immigration Court, if the applicant appears

to be inadmissible or deportable and any of the following circumstances

apply:

(1) The applicant appears to be statutorily ineligible for the

relief sought;

(2) It appears that relief should be denied as a matter of

discretion;

(3) The applicant appears to be eligible for relief only under the

higher standards set forth in former section 244(a)(2) of the Act, as

in effect prior to April 1, 1997, or section 309(f)(1)(B) of IIRIRA, as

amended by NACARA (requiring, among other things, 10 years continuous

physical presence and a showing of exceptional and extremely unusual

hardship resulting from removal);

(4) The applicant appears eligible for relief only under the

provisions that apply to battered spouses and children in former

section 244(a)(3) of the Act, as in effect prior to April 1, 1997, or

section 240A(b)(2) of the Act;

(5) The applicant declines to concede inadmissibility or

deportability; or

(6) The applicant fails to appear for an interview or for a

fingerprint appointment, and such failure to appear is unexcused. In

the case of an unexcused failure to appear for an interview or for

fingerprinting, the Service may refer the application to the

Immigration Court without conducting an interview, or the Service may

dismiss the application.

Generally, referrals to the Immigration Court will occur after the

Service has evaluated the application and determined that the applicant

is not clearly eligible for suspension of deportation or special rule

cancellation of removal. In the case of applicants who are only

eligible under the higher standard for either form of relief, referral

is necessary to avoid complex determinations regarding admissibility or

deportability that are more appropriately made by an immigration judge.

Other grounds for referral are related to administrative efficiency and

parallel provisions in 8 CFR part 208 with respect to the referral of

asylum applications.

What happens if the Service finds that the applicant is eligible

for suspension of deportation or special rule cancellation of removal,

but is not eligible for asylum? If the Service determines that the

applicant is eligible for a grant of suspension of deportation or

special rule cancellation of removal by the Service and makes a

preliminary determination that the applicant is not eligible for

asylum, The Service will grant the applicant suspension of deportation

or special rule cancellation of removal and adjust the applicant's

status to that of lawful permanent resident. When the Services notifies

the applicant of the decision to grant suspension of deportation or

special rule cancellation of removal, the Service will notify the

applicant that the Service has made a preliminary determination that

the applicant is not eligible for asylum, but that the applicant has

the right to continue to pursue the request for asylum. At the same

time, the Service will give the applicant the opportunity to request to

pursue the asylum application or to request in writing to withdraw the

asylum application. If the applicant requests in writing to withdraw

the asylum application, the application will be dismissed without

prejudice. If the applicant wishes to pursue the asylum application and

the applicant is eligible for ABC benefits, the Service will send the

applicant a Notice of Intent to Deny the asylum application and provide

an opportunity to rebut the Notice of Intent to Deny pursuant to the

terms of the settlement agreement. If the applicant is not eligible for

ABC benefits and wishes to pursue the asylum application, the Service

will send the applicant a Notice of Intent to Deny in accordance with

current asylum procedures for applicants who are in valid immigration

status.

What happens if the Service determines that the applicant is

eligible for both suspension of deportation or special rule

cancellation of removal and for asylum? If the asylum officer

determines that the applicant is eligible for both asylum and a grant

of suspension of deportation or special rule cancellation of removal by

the Service, the Service will grant the applicant suspension of

deportation or special rule cancellation of removal and adjust his or

her status to that of lawful permanent resident. After the Service has

adjusted the applicant's status to that of lawful permanent resident,

the applicant will still be eligible for asylum. Section 208 of the Act

provides that an alien who is physically present in the United States,

or who arrives in the United States, may apply for asylum irrespective

of the alien's status. Therefore, if an asylum officer has found that

the applicant is eligible for asylum, the Service will grant the

applicant's asylum application.

What happens if the Service finds that the applicant is eligible

for asylum, but not suspension of deportation or special rule

cancellation of removal? If the Service determines that the applicant

is

[[Page 64905]]

eligible for asylum, but appears ineligible for suspension of

deportation or special rule cancellation of removal, the Service will

grant the application for asylum and dismiss the application for

suspension of deportation or special rule cancellation of removal

without prejudice.

What happens if the Service finds that the applicant is ineligible

for asylum, suspension of deportation, or special rule cancellation of

removal? If the Service determines that the applicant is not eligible

for a grant of asylum, suspension of deportation, or special rule

cancellation of removal by the Service, and the applicant is not in

valid immigrant or non-immigrant status, the Service will place the

applicant in removal proceedings or move to recalendar or resume

proceedings before EOIR if such proceedings were administratively

closed or continued. The Service will refer the application for

suspension of deportation or special rule cancellation of removal to

the Immigration Court or, if proceedings before the Board and been

administratively closed or continued, to the Board. The asylum

application filed with the Service will also be referred to the

Immigration Court, if the application is governed by current asylum

regulations. The application for asylum will be denied, if the

application is governed by the ABC settlement agreement.

What happens to a pending asylum application if the Service adjusts

the applicant's status to that of lawful permanent resident? Some

asylum applicants may be eligible to adjust their status to lawful

permanent resident through means other than section 203 of NACARA. For

example, Nicaraguans and Cubans who have adjusted status under section

202 of NACARA may no longer wish to seek asylum in the United States.

To avoid unnecessary scheduling of such persons for asylum interviews

and unnecessary adjudications, the Service may notify the applicant

that it intends to dismiss without prejudice the asylum application

unless the applicant notifies the Service in writing within 30 days of

the date of the notice that the applicant would like to pursue the

asylum request.

The process for adjudicating eligible ABC class members' asylum

applications is governed by the ABC settlement agreement and the 1990

asylum regulations. Accordingly, this provision does not apply to them,

and the Service will not presume their applications abandoned. However,

if the Service grants an eligible ABC class member suspension of

deportation or special rule cancellation of removal and makes a

preliminary determination that the class member is not eligible for

asylum, the Service may notify the class member of the negative

preliminary assessment regarding asylum eligibility and give the class

member the opportunity to withdraw the asylum request.

How will an application be processed if the applicant was in

proceedings in Immigration Court that were administratively closed

under the ABC settlement agreement? Pursuant to the ABC settlement

agreement, EOIR already has administratively closed proceedings for ABC

class members who were in proceedings before the Immigration Court.

This action was taken to afford the class members the opportunity to

pursue a de novo asylum adjudication with the Service. Because these

class members were in deportation proceedings prior to April 1, 1997,

they may be eligible to apply for suspension of deportation. If the

Service grants either asylum or suspension of deportation to a

registered ABC class member whose proceedings with the Immigration

Court were administratively closed, such grant of asylum or suspension

of deportation will terminate those proceedings under this regulation.

(The Department currently is engaged in efforts to clarify language in

the ABC settlement agreement in accordance with this proposal for

automatic termination of proceedings before EOIR upon a grant of

asylum). If the Service denies asylum to a registered ABC class member

whose previous proceedings were administratively closed and the asylum

officer determines that the applicant is not clearly eligible for

suspension of deportation, the Service will move to recalendar

proceedings before the Immigration Court, pursuant to the settlement

agreement. At the same time, the Service will refer to the Immigration

Court the application for suspension of deportation.

How will applications be processed for applicants who have an

appeal pending with the Board of Immigration Appeals, which was

continued under the ABC settlement? Pursuant to the ABC settlement

agreement, the Board stayed or continued indefinitely appeals that had

been filed by ABC class members in order to give them the opportunity

to pursue the benefits of the settlement agreement. If the Service

grants either asylum or suspension of deportation to a registered ABC

class member whose proceedings with the Board were administratively

closed or continued, such grant of asylum or suspension of deportation

will terminate those proceedings under this regulation. (As noted

above, the Department currently is engaged in efforts to clarify

language in the ABC settlement agreement in accordance with this

proposal for automatic termination of proceedings before EOIR upon a

grant of asylum.) If the Service denies asylum to an eligible ABC class

member and does not grant suspension of deportation, the Board shall

resume proceedings upon notice from the Service, under the terms of the

ABC settlement agreement. The Service will refer the application for

suspension of deportation to the Board. The Board will remand

proceedings to the immigration judge solely for adjudication of the

application for suspension of deportation unless the eligible ABC class

member also moves for, and is granted, a remand of the asylum

application pursuant to the terms of the ABC settlement agreement.

How will applications be processed for class members eligible for

ABC benefits who have been issued a final order of deportation? Section

203(c) of NACARA permits eligible NACARA beneficiaries with final

orders to file a motion to reopen in order to pursue suspension of

deportation or special rule cancellation of removal under NACARA.

Section 203(c) requires that all NACARA beneficiaries who are under

final orders of deportation, including ABC class members, must have

filed a motion to reopen no later than September 11, 1998, in order to

obtain relief under section 203 of NACARA. (The applicable rule, 8 CFR

3.43, was published in the Federal Register on June 11, 1998, at 63 FR

31890.)

An ABC class member who has been issued a final order, but

currently has an asylum application pending before the Service, may

file an application for suspension of deportation with the Service only

if he or she has filed a motion to reopen with EOIR, and the motion has

been granted. Unless the case is reopened, the alien will remain

subject to the order of deportation, which will be enforceable if the

alien is denied asylum under the terms of the ABC settlement agreement.

If the motion is granted, the ABC class member may move to have his or

her deportation proceedings administratively closed in order to apply

for suspension of deportation with the Service. As is the case for all

NACARA beneficiaries with final orders, eligible ABC class members who

have challenged their immigration proceedings in Federal court must

file and be granted a motion to reopen by EOIR in order to seek relief

under section 203 of NACARA. If the applicant

[[Page 64906]]

has pending in Federal court a case that was stayed so that the

applicant could pursue ABC benefits, the Government will wait until the

application for suspension of deportation is adjudicated before

requesting that court proceedings be resumed or dismissed.

All motions to reopen under section 203(c) of NACARA must have been

filed on or before September 11, 1998. Therefore, any alien who did not

file a motion to reopen by that date is no longer eligible to file a

motion to reopen proceedings under section 203(c) of NACARA.

Employment Authorization

Are applicants for suspension of deportation or special rule

cancellation of removal eligible for employment authorization? Yes.

Under current regulations, applicants for suspension of deportation or

cancellation of removal are eligible to apply for and be granted

employment authorization. 8 CFR 274a.12(c)(10). Applicants for

suspension of deportation or special rule cancellation of removal under

section 203 of NACARA will also be eligible to apply for and be granted

employment authorization under this provision at the time of filing an

application with the Service or EOIR.

Travel Outside the United States

Is an applicant permitted to travel outside the United States while

an application for suspension of deportation or special rule

cancellation of removal is pending? Applicants for suspension of

deportation or special rule cancellation of removal under NACARA are

subject to present rules and procedures governing advance parole.

Nothing in NACARA authorizes travel outside the United States for

beneficiaries. Those NACARA beneficiaries who leave the country without

first obtaining advance parole and who are inadmissible under section

212(a)(C) or 212(a)(7) may be subject on their return to expedited

removal under section 235(b) of the Act.

NACARA beneficiaries who leave the country and are paroled back in

will no longer be eligible for suspension of deportation since they

would be inadmissible to the United States, rather than deportable from

the United States.

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 impact on a

substantial number of small entities because of the following reason:

This rule would provide new administrative procedures for the Service

to consider applications from certain Guatemalans, Salvadorans,

nationals of former Soviet Bloc countries, and their qualified

relatives who are applying for suspension of deportation or special

rule cancellation of removal and, if granted, to adjust their status to

that of lawful permanent resident. It will have no effect on small

entities, as that term is defined in 5 U.S.C. 601(6).

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 251 of the

Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C.

Sec. 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 the United States-based

companies to compete with foreign-based companies in domestic and

export markets.

Executive Order 12866

This rule is considered by the Department of Justice to be a

``significant regulatory action'' under section 3(f) of Executive Order

12866, Regulatory Planning and Review. Accordingly, this regulation has

been submitted to the Office of Management and Budget for review.

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

responsibility 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 proposed rule meets the applicable standards set forth in

sections 3(a) and (3)(b)(2) of Executive Order 12988.

Paperwork Reduction Act

This rule requires applicants to provide biographical data and

information regarding eligibility for relief under section 203 of

NACARA on an application form (Form I-881). This requirement is

considered an information collection that is subject to review by OMB

under the Paperwork Reduction Act of 1995. The Service issued a 60-day

notice in the Federal Register on May 8, 1998, at 63 FR 25523,

requesting comments on this new information collection. No comments

were received during that initial 60-day comment period. On July 23,

1998, the Service issued a notice in the Federal Register, at 63 FR

39596, extending the comment period by 30 days. Comments were received

and considered, and certain changes made to the proposed Form I-881 in

light of those comments.

The Service solicits additional public comments on the information

collection requirements in order to:

(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 appropriate automated,

electronic, mechanical, or other technological collection techniques or

other forms of information technology, e.g., permitting electronic

submission of responses.

In calculating the overall burden this requirement will place upon

the public, the Service estimates that no more than 100,000 individuals

will apply for relief under section 203 of NACARA in any single year.

The Service also estimates that it will take each applicant

approximately 12 hours to comply with the information collection

requirement. This amounts to 1,200,000 total burden hours, which

equates to an annual cost to the public of $33.5 million a year.

[[Page 64907]]

The following is the formula for determining the cost to the public:

(100,000 respondents x $215 application fee = $21,500,000)+(100,000

respondents x 12 hours per response x $10+$12,000,000)=$33,500,000.

Organizations and individuals desiring to submit comments on the

information collection requirements should direct them to the Office of

Information and Regulatory Affairs, OMB, Room 10235, New Executive

Office Building, Washington, DC 20503; Attention: Stuart Shapiro, Desk

Officer for the Immigration and Naturalization Service.

If you have additional comments, suggestions, or need a copy of the

proposed information collection instrument with instructions, or

additional information, please contact Richard A. Sloan, (202) 514-

3291, Director, Policy Directives and Instructions Branch, Immigration

and Naturalization Service, U.S. Department of Justice, Room 5307, 425

I Street, NW., Washington, DC 20536.

As required by section 3507(d) of the Paperwork Reduction Act of

1995, the Service has submitted a copy of the Form I-881 and this

proposed rule to OMB for its review of the information collection

requirements. OMB is required to make a decision concerning the

collection of information contained in the proposed regulation between

30 and 60 days after publication of this document in the Federal

Register. Therefore, a comment to OMB is best assured of having its

full effect if OMB receives it within 30 days of publication. This does

not affect the deadline for the public to comment to the Service on the

proposed regulation.

List of Subjects

8 CFR Part 103

Administrative practice and procedure, Authority delegations

(Government agencies), Freedom of information, Privacy, Reporting and

recordkeeping requirements, Surety bonds.

8 CFR Part 208

Administrative practice and procedure, Aliens, Immigration,

Reporting and recordkeeping requirements.

8 CFR Part 240

Administrative practice and procedure, Immigration.

8 CFR Part 274a

Administrative practice and procedure, Aliens, Employment,

Penalties, Reporting and recordkeeping requirements.

8 CFR Part 299

Immigration, Reporting and recordkeeping requirements.

Accordingly, chapter I of title 8 of the Code of Federal

Regulations is proposed to be amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF

SERVICE RECORDS

1. The authority citation for part 103 continues to read as

follows:

Authority: 5 U.S.C. 552, 552a, 8 U.S.C. 1101, 1103, 1201, 1252

note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,

15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

2. In Sec. 103.1, the last sentence in paragraph (g)(3)(ii) is

revised to read as follows:

Sec. 103.1 Delegations of authority.

* * * * *

(g) * * *

(3) * * *

(ii) Asylum officers. * * * Asylum officers are delegated the

authority to hear and adjudicate credible fear of persecution

determinations under section 235(b)(1)(B) of the Act, applications for

asylum and for withholding of removal, as provided under 8 CFR part

208, and applications for suspension of deportation and special rule

cancellation of removal, as provided under 8 CFR part 240, subpart H.

* * * * *

3. In Sec. 103.7, paragraph (b)(1) is amended by adding the entry

for ``Form I-881'' to the listing of fees, in proper numerical

sequence, to read as follows:

Sec. 103.7 Fees.

* * * * *

(b) * * *

(1) * * *

* * * * *

Form I-881. For filing an application for suspension of

deportation or special rule cancellation of removal (pursuant to

section 203 of Public Law 105-100):

--$215 for adjudication by the Service, except that the maximum

amount payable by family members (related as husband, wife,

unmarried child under 21, unmarried son, or unmarried daughter) who

submit applications of the same time shall be $430.

--$100 for adjudication by the Immigration Court (a single fee

of $100 will be charged whenever applications are filed by two or

more aliens in the same proceedings). The $100 fee is not required

if the Form 1-881 is referred to the Immigration Court by the

Service.

* * * * *

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

4. The authority citation for part 208 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282, 8 CFR part 2.

5. Section 208.14 is amended by revising the section heading and by

adding a new paragraph (f), to read as follows:

Sec. 208.14 Approval, denial, referral or dismissal of application.

* * * * *

(f) If an asylum applicant is granted adjustment of status to

lawful permanent resident, the Service may notify the applicant that

his or her asylum application will be presumed abandoned and dismissed

without prejudice, unless the applicant requests in writing within 30

days of the notice that the asylum application be adjudicated. If an

applicant does not respond within 30 days of the date of the notice,

the Service may presume the asylum application abandoned and dismiss it

without prejudice.

PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE

UNITED STATES

6. The authority citation for part 240 is revised to read as

follows:

Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227,

1251, 1252 note, 1252a, 1252b, 1362; secs. 202, 203, and 204 of Pub.

L. 105-100 (111 Stat. 2160, 2193); 8 CFR part 2.

7. In subpart F, a new Sec. 240.58 is added to read as follows:

Sec. 240.58 Extreme hardship.

(a) To be eligible for suspension of deportation under former

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

alien must meet the requirements set forth in the Act, which include a

showing that deportation 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.

Extreme hardship is evaluated on a case-by-case basis, taking into

account the particular facts and circumstances of each case. Applicants

are encouraged to cite in their applications and to document all

applicable factors, as the presence or absence of any one factor is not

determinative in evaluating extreme hardship. Adjudicators should weigh

all relevant factors presented and consider them in light of the

totality of the circumstances, but are not required to

[[Page 64908]]

offer an independent analysis of each listed factor when rendering a

decision.

(b) To establish extreme hardship, an applicant shall demonstrate

that deportation would result in a degree of hardship beyond that

typically associated with deportation. Factors that may be considered

in evaluating whether deportation would result in extreme hardship to

the alien or to the alien's qualified relative include, but are not

limited to, the following:

(1) The age of the alien, both at the time of entry to the United

States and at the time of application for suspension of deportation;

(2) The age, number, and immigration status of the alien's children

and their ability to speak the native language and to adjust to life in

another country;

(3) The health condition of the alien or the alien's children,

spouse, or parents and the availability of any required medical

treatment in the country to which the alien would be returned;

(4) The alien's ability to obtain employment in the country to

which the alien would be returned;

(5) The length of residence in the United States;

(6) The existence of other family members who will be legally

residing in the United States;

(7) The financial impact of the alien's departure;

(8) The impact of a disruption of educational opportunities;

(9) The psychological impact of the alien's deportation;

(10) The current political and economic conditions in the country

to which the alien would be returned;

(11) Family and other ties to the country to which the alien would

be returned;

(12) Contributions to and ties to a community in the United States,

including the degree of integration into society;

(13) Immigration history, including authorized residence in the

United States; and

(14) The availability of other means of adjusting to permanent

resident status.

(c) Nothing in paragraph (a) of this section shall be construed as

creating any right, interest, or entitlement that is legally

enforceable by or on behalf of any party against the United States or

its agencies, officers, or any other person.

8. Part 240 is amended by adding Subpart H to read as follows:

Subpart H--Applications for Suspension of Deportation or Special Rule

Cancellation of Removal Under Section 203 of Public Law 105-100

Sec.

240.60 Definitions.

240.61 Applicability.

240.62 Jurisdiction.

240.63 Application process.

240.64 Eligibility--general.

240.65 Eligibility for suspension of deportation.

240.66 Eligibility for special rule cancellation of removal.

240.67 Procedure for interview before an asylum officer.

240.68 Failure to appear at an interview before an asylum officer

or failure to follow requirements for fingerprinting.

240.69 Reliance on information compiled by other sources.

240.70 Decision by the Service.

Subpart H--Applications for Suspension of Deportation or Special

Rule Cancellation of Removal Under Section 203 of Public Law 105-

100

Sec. 240.60 Definitions.

As used in this subpart the term:

ABC refers to American Baptist Churches v. Thornburgh, 760 F. Supp.

796 (N.D. Cal. 1991).

ABC class member refers to:

(1) Any Guatemalan national who first entered the United States on

or before October 1, 1990; and

(2) Any Salvadoran national who first entered the United States on

or before September 19, 1990.

IIRIRA refers to the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, enacted as Public Law 104-208 (110 Stat.

3009-625).

NACARA refers to the Nicaraguan Adjustment and Central American

Relief Act (NACARA), enacted as title II of Public Law 105-100 (111

Stat. 2160, 2193), as amended by the Technical Corrections to the

Nicaraguan Adjustment and Central American Relief Act, Public Law 105-

139 (111 Stat. 2644).

Registered ABC class member refers to an ABC class member who:

(1) In the case of an ABC class member who is a national of

Guatemala, properly submitted an ABC registration form to the Service

on or before December 31, 1991; or

(2) In the case of an ABC class member who is a national of El

Salvador, properly submitted an ABC registration form to the Service on

or before October 31, 1991, or applied for temporary protected status

on or before October 31, 1991.

Sec. 240.61 Applicability.

(a) Except as provided in paragraph (b) of this section, this

subpart H applies to the following aliens:

(1) A registered ABC class member who has not been apprehended at

the time of entry after December 19, 1990;

(2) A Guatemalan or Salvadoran national who filed an application

for asylum with the Service on or before April 1, 1990;

(3) An alien who entered the United States on or before December

31, 1990, filed an asylum application on or before December 31, 1991,

and, at the time of filing the application 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;

(4) An alien who is the spouse or child of an individual described

in paragraph (a)(1), (a)(2), or (a)(3) of this section, at the time a

decision is made to suspend the deportation, or cancel the removal, of

the individual described in paragraph (a)(1), (a)(2), or (a)(3) of this

section;

(5) An alien who is:

(i) The unmarried son or unmarried daughter of an individual

described in paragraph (a)(1), (a)(2), or (a)(3) of this section and is

21 years of age or older at the time a decision is made to suspend the

deportation, or cancel the removal, of the parent described in

paragraph (a)(1), (a)(2), or (a)(3) of this section; and

(ii) Entered the United States on or before October 1, 1990.

(b) This subpart H does not apply to any alien who has been

convicted at any time of an aggravated felony, as defined in section

101(a)(43) of the Act.

Sec. 240.62 Jurisdiction.

(a) Office of International Affairs. Except as provided in

paragraph (b) of this section, the Office of International Affairs

shall have initial jurisdiction to grant or refer to the Immigration

Court or Board an application for suspension of deportation or special

rule cancellation of removal filed by an alien described in

Sec. 240.61, provided:

(1) In the case of a national of El Salvador described in

Sec. 240.61(a)(1), the alien filed a complete asylum application on or

before January 31, 1996 (with an administrative grace period extending

to February 16, 1996), or otherwise met the asylum application filing

deadline pursuant to the ABC settlement agreement, and the application

is still pending adjudication by the Service;

(2) In the case of a national of Guatemala described in

Sec. 240.61(a)(1), the alien filed a complete asylum application on or

before January 3, 1995, or otherwise met the asylum application filing

deadline pursuant to the ABC settlement agreement, and the application

is still pending adjudication by the Service;

[[Page 64909]]

(3) In the case of an individual described in Sec. 240.61(a) (2) or

(3), the individual's asylum application is pending adjudication by the

Service;

(4) In the case of an individual described in Sec. 240.61(a) (4) or

(5), the individual's parent or spouse has an application pending with

the Service under this subpart H or has been granted relief by the

Service under this subpart.

(b) Immigration Court. The Immigration court shall have exclusive

jurisdiction over an application for suspension of deportation or

special rule cancellation of removal filed pursuant to section

309(f)(1) (A) or (B) of IIRIRA, as amended by NACARA, by an alien who

has been served Form I-221, Order to Show Cause, or Form I-862, Notice

to Appear, after a copy of the charging document has been filed with

the Immigration court, unless the alien is covered by one of the

following exceptions:

(1) Certain ABC class members. (i) The alien is a registered ABC

class member for whom proceedings before the immigration judge or the

Board were administratively closed or continued (including those aliens

who had final orders of deportation or removal who have filed and been

granted a Motion to Reopen as required under 8 CFR 3.43);

(ii) The alien is eligible for benefits of the ABC settlement

agreement and has not had the de novo asylum adjudication under the

settlement agreement; and

(iii) The alien has not moved for and been granted a motion to

recalendar proceedings before the Immigration Court or the Board to

request suspension of deportation.

(2) Spouses, children, unmarried sons, and unmarried daughters. (i)

The alien is described in Sec. 240.61(a)(4) or (5);

(ii) The alien's spouse or parent is described in

Sec. 240.61(a)(1), (a)(2), or (a)(3) and has Form I-881 pending with

the Service; and

(iii) The alien's proceedings before the Immigration Court have

been administratively closed, or the alien's proceedings before the

Board have been continued, to permit the alien to file an application

for suspension of deportation or special rule cancellation of removal

with the Service.

Sec. 240.63 Application process.

(a) Except as provided in paragraph (b) of this section, the

application must be made on a Form I-881, Application for Suspension of

Deportation or Special Rule Cancellation of Removal (pursuant to

section 203 of Public Law 105-100 (NACARA)), and filed in accordance

with the instructions for that form. Each application must be filed

with the filing and fingerprint fees as provided in Sec. 103.7(b) of

this subchapter, or request for fee waiver, as provided in

Sec. 103.7(c) of this subchapter. The fact that an applicant has also

applied for asylum does not exempt the applicant from the

fingerprinting fees associated with the Form I-881.

(b) Applications filed with EOIR. If jurisdiction rests with the

Immigration Court under Sec. 260.62(b), the application must be made on

the Form I-881, if filed subsequent to the effective date of the

interim or final rule. The application form, along with any supporting

documents, must be filed with the Immigration Court and served on the

Service's district counsel in accordance with the instructions for the

form. Applications for suspension of deportation or special rule

cancellation of removal filed prior to the effective date of the

interim or final rule shall be filed on Form EOIR-40, Application for

Suspension of Deportation.

(c) Applications filed with the Service. If jurisdiction rests with

the Service under Sec. 240.62(a), the Form I-881 and supporting

documents must be filed at the appropriate Service Center in accordance

with the instructions for the form.

Sec. 240.64 Eligibility--general.

(a) Burden and standard of proof. The burden of proof is on the

applicant to establish by a preponderance of the evidence that he or

she is eligible for suspension of deportation or special rule

cancellation of removal and that discretion should be exercised to

grant relief.

(b) Calculation of continuous physical presence and certain breaks

in presence. For purposes of calculating continuous physical presence

under this section, section 309(c)(5)(A) of IIRIRA and section

240A(d)(1) of the Act shall not apply to persons described in

Sec. 240.61.

(1) For applications for suspension of deportation made under

former section 244 of the Act, as in effect prior to April 1, 1997, the

burden of proof is on the applicant to establish that any breaks in

continuous physical presence were brief, casual, and innocent and did

not meaningfully interrupt the period of continuous physical presence

in the United States.

(2) For applications for special rule cancellation of removal made

under section 309(f)(1) of IIRIRA, as amended by NACARA, the applicant

shall be considered to have failed to maintain continuous physical

presence in the United States if he or she has departed from the United

States for any period in excess of 90 days or for any periods in the

aggregate exceeding 180 days. The burden is on the applicant to

establish that any period of absence less than 90 days was brief,

casual, and innocent and did not meaningfully interrupt the period of

continuous physical presence in the United States.

(3) For all applications made under this subpart, a period of

continuous physical presence is terminated whenever an alien is removed

from the United States under an order issued pursuant to any provision

of the Act or the alien has voluntarily departed under the threat of

deportation or when the departure is made for purposes of committing an

unlawful act.

(4) The requirements of continuous physical presence in the United

States under this subpart shall not apply to an alien who:

(i) Has served for a minimum period of 24 months in an active-duty

status in the Armed Forces of the United States and, if separated from

such service, was separated under honorable conditions, and

(ii) At the time of the alien's enlistment or induction was in the

United States.

(c) Factors relevant to extreme hardship. Extreme hardship is

decided on a case-by-case basis, taking into account the particular

facts and circumstances of the claim and considering the factors

enumerated in Sec. 240.58. For purposes of evaluating eligibility for

special rule cancellation of removal under this subpart, the factors

enumerated in Sec. 240.58 pertaining to extreme hardship resulting from

deportation shall apply equally to extreme hardship resulting from

removal.

Sec. 240.65 Eligibility for suspension of deportation.

(a) To establish eligibility for suspension of deportation under

this section, the applicant must be described in Sec. 240.61, must

establish that he or she is eligible under former section 244 of the

Act, as in effect prior to April 1, 1997, must not be subject to any

bars to eligibility in former section 242B(e) of the Act, as in effect

prior to April 1, 1997, or any other provisions of law, and must not

have been convicted of an aggravated felony or be an alien described in

former section 241(a)(4)(D) of the Act, as in effect prior to April 1,

1997 (relating to Nazi persecution and genocide).

(b) General rule. To establish eligibility for suspension of

deportation under former section 244(a)(1) of the Act, as in effect

prior to April 1, 1997, an alien must be deportable under any

[[Page 64910]]

law of the United States, except the provisions specified in paragraph

(c) of this section, and must establish:

(1) The alien has been physically present in the United States for

a continuous period of not less than 7 years immediately preceding the

date the application was filed;

(2) During all of such period the alien was and is a person of good

moral character; and

(3) The alien's deportation would, in the opinion of the Attorney

General, 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.

(c) Aliens deportable on criminal or certain other grounds. To

establish eligibility for suspension of deportation under former

section 244(a)(2) of the Act, as in effect prior to April 1, 1997, an

alien who is deportable under paragraph (2), (3), or (4) of former

section 241(a) of the Act, as in effect prior to April 1, 1997

(relating to criminal activity, document fraud, failure to register,

and security threats), must establish:

(1) The alien has been physically present in the United States for

a continuous period of not less than 10 years immediately following the

commission of an act, or the assumption of a status, constituting a

ground for deportation;

(2) During all of such period the alien has been and is a person of

good moral character; and

(3) The alien's deportation would, in the opinion of the Attorney

General, result in exceptional and extremely unusual 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.

(d) Battered spouses and children. To establish eligibility for

suspension of deportation under former section 244(a)(3) of the Act, as

in effect prior to April 1, 1997, an alien must be deportable under any

law of the United States, except former section 241(a)(1)(G) of the

Act, as in effect prior to April 1, 1997) (relating to marriage fraud),

and except the provisions specified in paragraph (c) of this section,

and must establish:

(1) The alien has been physically present in the United States for

a continuous period of not less than 3 years immediately preceding the

date the application was filed;

(2) The alien has been battered or subjected to extreme cruelty in

the United States by a spouse or parent who is a United States citizen

or lawful permanent resident (or is the parent of a child of a United

States citizen or lawful permanent resident and the child has been

battered or subjected to extreme cruelty in the United States by such

citizen or permanent resident parent); and

(3) During all of such time in the United States the alien was and

is a person of good moral character; and

(4) The alien's deportation would, in the opinion of the Attorney

General, result in extreme hardship to the alien or the alien's parent

or child.

Sec. 240.66 Eligibility for special rule cancellation of removal.

(a) To establish eligibility for special rule cancellation of

removal, the applicant must show he or she is eligible under section

309(f)(1) of IIRIRA, as amended by section 203 of NACARA. The applicant

must be described in Sec. 240.61, must be inadmissible or deportable,

must not be subject to any bars to eligibility in sections 240(b)(7),

240B(d), or 240A(c) of the Act, or any other provisions of law, and

must not have been convicted of an aggravated felony or be an alien

described in section 241(b)(3)(B)(i) of the Act (relating to

persecution of others).

(b) General rule. To establish eligibility for special rule

cancellation of removal under section 309(f)(1)(A) of IIRIRA, as

amended by section 203 of NACARA, the alien must establish:

(1) The alien is not inadmissible under paragraph (2) or (3) of

section 212(a) or deportable under paragraph (2), (3) or (4) of section

237(a) of the Act (relating to criminal activity, document fraud,

failure to register, and security threats);

(2) The alien has been physically present in the United States for

a continuous period of 7 years immediately preceding the date the

application was filed;

(3) The alien has been a person of good moral character during the

required period of continuous physical presence; and

(4) The alien's removal from the United States would result in

extreme hardship to the alien, or to the alien's spouse, parent or

child who is a United States citizen or an alien lawfully admitted for

permanent residence.

(c) Aliens inadmissible or deportable on criminal or certain other

grounds. To establish eligibility for special rule cancellation of

removal under section 309(f)(1)(B) of IIRIRA, as amended by section 203

of NACARA, the alien must be described in Sec. 240.61 and establish:

(1) The alien is inadmissible under section 212(a)(2) of the Act

(relating to criminal activity), or deportable under section 237(a)(2)

(other than section 237(a)(2)(A)(iii), relating to aggravated felony

convictions), or 237(a)(3) of the Act (relating to criminal activity,

document fraud, and failure to register);

(2) The alien has been physically present in the United States for

a continuous period of not less than 10 years immediately following the

commission of an act, or the assumption of a status, constituting a

ground for removal;

(3) The alien has been a person of good moral character during the

required period of continuous physical presence; and

(4) The alien's removal from the United States would result in

exceptional and extremely unusual hardship to the alien or the alien's

spouse, parent, or child, who is a United States citizen or an alien

lawfully admitted for permanent residence.

Sec. 240.67 Procedure for interview before an asylum officer.

(a) Fingerprinting requirements. The Service will notify each

applicant 14 years of age or older to appear for an interview only

after the applicant has complied with fingerprinting requirements

pursuant to Sec. 103.2(e) of this subchapter, and the Service has

received a definitive response from the Federal Bureau of Investigation

(FBI) that a full criminal background check has been completed. A

definitive response that a full criminal background check on an

applicant has been completed includes:

(1) Confirmation from the FBI that an applicant does not have an

administrative or criminal record;

(2) Confirmation from the FBI that an applicant has an

administrative or a criminal record; or

(3) Confirmation from the FBI that two properly prepared

fingerprint cards (Form FD-258) have been determined unclassifiable for

the purpose of conducting a criminal background check and have been

rejected.

(b) Interview. (1) The asylum officer shall conduct the interview

in a non-adversarial manner and, except at the request of the

applicant, separate and apart from the general public. The purpose of

the interview shall be to elicit all relevant and useful information

bearing on the applicant's eligibility for suspension of deportation or

special rule cancellation of removal. If the applicant has an asylum

application pending with the Service, the asylum officer shall also

elicit information relating to the application for asylum in accordance

with Sec. 208.9 of this subchapter. At the time of the interview,

[[Page 64911]]

the applicant must provide complete information regarding the

applicant's identity, including name, date and place of birth, and

nationality, and may be required to register this identity

electronically or through any other means designated by the Attorney

General.

(2) The applicant may have counsel or a representative present, may

present witnesses, and may submit affidavits of witnesses and other

evidence.

(3) An applicant unable to proceed with the interview in English

must provide, at no expense to the Service, a competent interpreter

fluent in both English and a language in which the applicant is fluent.

The interpreter must be at least 18 years of age. The following

individuals may not serve as the applicant's interpreter: the

applicant's attorney or representative of record; a witness testifying

on the applicant's behalf; or, if the applicant also has an asylum

application pending with the Service, a representative or employee of

the applicant's country of nationality, or, if stateless, country of

last habitual residence. Failure without good cause to comply with this

paragraph may be considered a failure to appear for the interview for

purposes of Sec. 240.68.

(4) The asylum officer shall have authority to administer oaths,

verify the identify of the applicant (including through the use of

electronic means), verify the identify of any interpreter, present and

receive evidence, and question the applicant and any witnesses.

(5) Upon completion of the interview, the applicant or the

applicant's representative shall have an opportunity to make a

statement or comment on the evidence presented. The asylum officer may,

in the officer's discretion, limit the length of such statement or

comment and may require its submission in writing. Upon completion of

the interview, the applicant shall be informed that the applicant must

appear in person to receive and to acknowledge receipt of the decision

and any other accompanying material at a time and place designated by

the asylum officer, except as otherwise provided by the asylum officer.

(6) The asylum officer shall consider evidence submitted by the

applicant with the application, as well as any evidence submitted by

the applicant before or at the interview. As a matter of discretion,

the asylum officer may grant the applicant a brief extension of time

following an interview during which the applicant may submit additional

evidence.

Sec. 240.68 Failure to appear at an interview before an asylum officer

or failure to follow requirements for fingerprinting.

Failure to appear for a scheduled interview without prior

authorization may result in dismissal of the application or waiver of

the right to an interview. Failure to comply with fingerprint

processing requirements without good cause may result in dismissal of

the application or waiver of the right to an adjudication by an asylum

officer. Failure to appear shall be excused if the notice of the

interview or fingerprint appointment was not mailed to the applicant's

current address and such address had been provided to the Office of

International Affairs by the applicant prior to the date of mailing in

accordance with section 265 of the Act and regulations promulgated

thereunder, unless the asylum officer determines that the applicant

received reasonable notice of the interview or fingerprinting

appointment. Failure to appear at the interview or fingerprint

appointment shall be excused if the applicant demonstrates that such

failure was the result of exceptional circumstances.

Sec. 240.69 Reliance on information compiled by other sources.

In determining whether an applicant is eligible for suspension of

deportation or special rule cancellation of removal, the asylum officer

may rely on material described in Sec. 208.12 of this chapter. Nothing

in this subpart shall be construed to entitle the applicant to conduct

discovery directed towards records, officers, agents, or employees of

the Service, the Department of Justice, or the Department of State.

Sec. 240.70 Decision by the Service.

(a) Service of decision. Unless otherwise provided by an Asylum

Office, the applicant will be required to return to the Asylum Office

to receive service of the decision on the applicant's application. If

the applicant does not speak English fluently, the applicant shall

bring an interpreter when returning to the office to receive service of

the decision.

(b) Grant of suspension of deportation. An asylum officer may grant

suspension of deportation to an applicant eligible to apply for this

relief with the Service who qualifies for suspension of deportation

under former section 244(a)(1) of the Act, as in effect prior to April

1, 1997, who is not an alien described in former section 241(a)(4)(D)

of the Act, as in effect prior to April 1, 1997, and who admits

deportability under any law of the United States, excluding paragraph

(2), (3), or (4) of former section 241(a) of the Act, as in effect

prior to April 1, 1997. If the Service has made a preliminary decision

to grant the applicant suspension of deportation under this subpart,

the applicant shall be notified of that decision and asked to sign an

admission of deportability or inadmissibility. The applicant must sign

the concession before the Service may grant the relief sought. If

suspension of deportation is granted, the Service shall adjust the

status of the alien to lawful permanent resident, effective as of the

date that suspension of deportation is granted.

(c) Grant of cancellation of removal. An asylum officer may grant

cancellation of removal to an applicant who is eligible to apply for

this relief with the Service, and who qualifies for cancellation of

removal under section 309(f)(1)(A) of IIRIRA, as amended by section 203

of NACARA, and who admits deportability under section 237(a), excluding

paragraphs (2), (3), and (4), of the Act, or inadmissibility under

section 212(a), excluding paragraphs (2) or (3), of the Act. If the

Service has made a preliminary decision to grant the applicant

cancellation of removal under this subpart, the applicant shall be

notified of that decision and asked to sign an admission of

deportability or inadmissibility. The applicant must sign the

concession before the Service may grant the relief sought. If the

Service grants cancellation of removal, the Service shall adjust the

status of the alien to lawful permanent resident, effective as of the

date that cancellation of removal is granted.

(d) Referral of the application. Except as provided in paragraphs

(e) and (f) of this section, and unless the applicant is granted asylum

or is in lawful immigrant or non-immigrant status, an asylum officer

shall refer the application for suspension of deportation or special

rule cancellation of removal to the Immigration Court for adjudication

in deportation or removal proceedings, if:

(1) The applicant is not clearly eligible for suspension of

deportation under former section 244(a)(1) of the Act as in effect

prior to April 1, 1997, or for cancellation of removal under section

309(f)(1)(A of IIRIRA, as amended by NACARA;

(2) The applicant does not appear to merit relief as a matter of

discretion;

(3) The applicant appears to be eligible for suspension of

deportation or special rule cancellation of removal under this subpart,

but does not admit deportability or inadmissibility; or

(4) The applicant failed to appear for a scheduled interview with

an asylum officer or failed to comply with

[[Page 64912]]

fingerprinting processing requirements and such failure(s) was not

excused by the Service, unless the application is dismissed.

(e) Dismissal of the application. An asylum officer shall dismiss

without prejudice an application for suspension of deportation or

special rule cancellation of removal submitted by an applicant who has

been granted asylum, or who is in lawful immigrant or non-immigrant

status. An asylum officer may also dismiss an application for failure

to appear, pursuant to Sec. 240.68.

(f) Special provisions for certain ABC class members whose

proceedings before EOIR were administratively closed or continued. The

following provisions shall apply with respect to an ABC class member

who was in proceedings before the Immigration Court or the Board, and

those proceedings were closed or continued pursuant to the ABC

settlement agreement:

(1) Suspension of deportation or asylum granted. If an asylum

officer grants asylum or suspension of deportation, the previous

proceedings before the Immigration Court or Board shall be terminated

as a matter of law on the date relief is granted.

(2) Asylum denied and application for suspension of deportation not

approved. If an asylum officer denies asylum and does not grant the

applicant suspension of deportation, the Service shall move to

recalendar proceedings before the Immigration Court or resume

proceedings before the Board, whichever is appropriate. The Service

shall refer to the Immigration Court or the Board the application for

suspension of deportation. In the case where jurisdiction rests with

the Board, an application for suspension of deportation that is

referred to the Board will be remanded to the immigration judge for

adjudication.

(g) Special provisions for dependents whose proceedings before EOIR

were administratively closed or continued. If an asylum officer grants

suspension of deportation or special rule cancellation of removal to an

applicant described in Sec. 240.61(a)(4) or (a)(5), whose proceedings

before EOIR were administratively closed or continued, those

proceedings shall terminate as of the date the relief is granted. If

suspension of deportation or special rule cancellation of removal is

not granted, the Service shall move to recalendar proceedings before

the Immigration Court or resume proceedings before the Board, whichever

is appropriate. The Service shall refer to the Immigration Court or the

Board the application for suspension of deportation or special rule

cancellation of removal. In the case where jurisdiction rests with the

Board, an application for suspension of deportation or special rule

cancellation of removal that is referred to the Board will be remanded

to the immigration judge for adjudication.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

9. The authority citation for part 274a continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.

10. Section 274a.12 is amended by revising the first sentence in

paragraph (c)(10), to read as follows:

Sec. 274a.12 Classes of aliens authorized to accept employment.

* * * * *

(c) * * *

(10) An alien who has filed an application for suspension of

deportation under section 244 of the Act (as it existed prior to April

1, 1997), cancellation of removal pursuant to section 240A of the Act,

or special rule cancellation of removal under section 309(f)(1) of the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

enacted as Public Law 104-208 (110 Stat. 3009-625) (as amended by the

Nicaraguan Adjustment and Central American Relief Act (NACARA), title

II of Public Law 105-100 (111 Stat. 2160, 2193) and whose application

has been accepted by the Service or EOIR. * * *

* * * * *

PART 299--IMMIGRATION FORMS

11. The authority citation for part 299 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.

12. Section 299.1 is amended in the table by adding the entry for

Form ``I-881'' in proper numerical sequence, to read as follows:

Sec. 299.1 Prescribed forms.

* * * * *

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

Form No. Edition date Title

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

* * * *

* * *

I-881............... 10-01-98 Application for Suspension of

Deportation or Special Rule

Cancellation of Removal (pursuant

to section 203 of Public Law 105-

100).

* * * *

* * *

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

13. Section 299.5 is amended in the table by adding the entry for

Form ``I-881'' in proper numerical sequence, to read as follows:

Sec. 299.5 Display of control numbers.

* * * * *

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

INS form No. INS form title Currently assigned OMB control No.

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

* * * * * *

*

I-881........................... Application for Suspension of Deportation 1115-xxxx.

or Special Rule Cancellation of Removal

(pursuant to section 203 of Public Law

105-100).

* * * * * *

*

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

[[Page 64913]]

Dated: November 17, 1998.

Janet Reno,

Attorney General.

[FR Doc. 98-31348 Filed 11-23-98; 8:45 am]

BILLING CODE 4410-10-M