Motion To Reopen: Suspension of Deportation and Cancellation of Removal

DEPARTMENT OF JUSTICE

8 CFR Part 3

[EOIR No. 121F; AG Order No. 2214-99]

RIN 1125-AA23

Motion To Reopen: Suspension of Deportation and Cancellation of

Removal

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Final rule.

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

Immigration Review (EOIR) by extending the time period for the filing

of an application of suspension of deportation and special rule

cancellation of removal and all of the documentation supporting a

motion to reopen filed pursuant to section 203(c) of the Nicaraguan

Adjustment and Central American Relief Act.

DATES: Effective date: This final rule is effective March 22, 1999.

FOR FURTHER INFORMATION CONTACT: Margaret M. Philbin, General Counsel,

Executive Office for Immigration Review, Suite 2400, 5107 Leesburg

Pike, Falls Church, Virginia 22041, telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION: This rule amends and adopts in final form

an interim rule published at 63 FR 31890 on June 11, 1998. That interim

rule amended 8 CFR Part 3 by establishing a special procedure for the

filing and adjudication of motions to reopen to apply for suspension of

deportation and cancellation of removal under section 203 of the

Nicaraguan Adjustment and Central American Relief Act (Pub. L. 105-100;

111 Stat. 2160, 2193) (NACARA). That Act, signed into law on November

19, 1997, amended section 309 of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (Pub. L. 104-208; 110 Stat. 3009-

625) (IIRIRA). This rule makes two changes to the interim rule. First,

the final rule extends the February 8, 1999 deadline to submit the

application for suspension of deportation or special rule cancellation

of removal and all of the supporting documentation in support of the

NACARA motion to reopen. Second, the final rule addresses certain

eligibility problems for a dependent with a final order of deportation

or removal who is unable to complete his or her motion to reopen until

the principal alien is granted relief.

Background

Section 203 of NACARA provides special rules regarding applications

for suspension of deportation and cancellation of removal by certain

aliens. These aliens include Guatemalan, Salvadoran, and certain former

Soviet bloc nationals described in section 309(c)(5)(C)(i) of IIRIRA,

as amended by section 203 of NACARA.

On November 24, 1998, the Department of Justice published a

proposed regulation implementing section 203 of NACARA that would

permit certain aliens eligible for relief under section 203 of NACARA

to submit to the INS applications for suspension of deportation or

special rule cancellation of removal. Such applications will be

adjudicated by asylum officers. In certain cases, aliens currently in

immigration court proceedings would be given the opportunity to move

for administrative closure of their cases in order to apply for relief

before the INS. The period for public comment on the section 203 rule

closed on January 25, 1999, and the Department will publish a rule

implementing section 203 of NACARA after review and consideration of

all comments. Several provisions within the proposed rule are likely to

affect immigration court proceedings with respect to NACARA motions to

reopen; these provisions are discussed where relevant in the following

sections.

Section 203(c) of NACARA also amended section 309 of IIRIRA by

creating a provision for eligible aliens who have already received a

final order of deportation or removal to file a motion to reopen in

order to obtain the benefits of NACARA. Section 309(g) of IIRIRA, as

amended, permits aliens with final orders of deportation or removal who

have become eligible for cancellation of removal or suspension of

deportation as a result of the amendments made by section 203 of NACARA

to file one motion to reopen removal or deportation proceedings to

apply for such relief, without regard to the limitations imposed by law

on motions to reopen. That provision further required the Attorney

General to designate a specific time period for filing such motions to

reopen under NACARA beginning no later than 60 days after the date of

enactment of NACARA and extending for a period not to exceed 240 days.

Accordingly, on January 15, 1998, the Attorney General signed a

notice that designated from January 16, 1998, to September 11, 1998, as

the time period for filing NACARA motions to reopen. See 63 FR 3154

(Jan. 21, 1998). That notice waived the filing fee for motions to

reopen filed pursuant to NACARA, but did not disturb any other

regulatory provisions with respect to the filing or adjudication of

motions to reopen.

The Interim Motion To Reopen Rule

The interim published on June 11, 1998, addressed the specific

filing process for NACARA motions to reopen in two ways. First, it

clarified who can file a motion to reopen pursuant to section 309(g) of

IlRIRA, as amended by section 203(c) of NACARA, by defining who has

become eligible for ``special rule'' cancellation of removal or

suspension of deportation as a result of the amendments made by section

203 of NACARA. Second, it permitted any alien who is moving to reopen

pursuant to section 309(g) of IIRIRA, as amended by section 203(c) of

NACARA, to file an abbreviated motion to reopen initially, without also

including a suspension or cancellation application and supporting

documents. This two-tiered procedure departs from the general

requirement that a motion to reopen must be accompanied by the

appropriate application for relief and supporting documents at the time

of filing. The interim rule provided that aliens who had filed a motion

to reopen by September 11, 1998, must submit an application for

suspension of deportation or special rule cancellation of removal and

all other supporting evidence and arguments in favor of reopening no

later than February 8,

[[Page 13664]]

1999, in order to complete the motion to reopen.

The Final Rule

This final NACARA motion to reopen rule amends two aspects of the

interim NACARA motion to reopen rule based on consideration of public

comments, as well as the Department's review of the process during the

interim rule period.

First, the final rule extends the February 8, 1999 deadline to

submit the application for suspension of deportation or special rule

cancellation of removal and all of the supporting documentation in

support of the NACARA motion to reopen. An alien who timely filed the

abbreviated NACARA motion to reopen will have 150 days from the

effective date of the rule implementing section 203 of NACARA to

complete the motion by submitting the application for suspension of

deportation or special rule cancellation of removal accompanied by any

supporting evidence.

Second, the final motion to reopen rule and addresses certain

eligibility problems for a dependent with a final order of deportation

or removal who is unable to complete his or her motion to reopen until

the principal alien is granted relief. The final rule continues to

require a dependent to meet NACARA motion to reopen filing deadlines,

however, it now enables the dependent to reopen his or her case upon a

showing that he or she is prima facie eligible for suspension of

deportation or special rule cancellation of removal pursuant to NACARA.

Prima facie eligibility requires that the dependent show he or she

meets the statutory requirements for suspension of deportation or

special rule cancellation of removal relief and requires proof that the

principal has applied for NACARA relief.

The Department received sixteen comments following publication of

the interim rule. The sixteen comments contained six themes, all of

which are addressed below.

September 11, 1998 Deadline

Fourteen commenters suggested that the September 11, 1998 deadline

for submitting motions to reopen should be extended to account for the

size of the affected population, the difficulty of verifying the

existence of many final orders issued prior to 1989, and the lagtime

between announcing the designated period and publication of the interim

rule.

Section 203(c) of NACARA directed the Attorney General to designate

a time period up to 240 days in which an eligible alien could file a

NACARA motion to reopen without regard to the time limits generally

imposed by statute or regulation. Section 203(c) also required that the

Attorney General designated such a period beginning no later that 60

days after the passage of NACARA. Consequently, the Attorney General

designated the period from January 16, 1998, to September 11, 1998, as

the statutory period in which a NACARA motion to reopen could be filed.

The period for filing motions to reopen was set by Congress and,

accordingly, cannot be extended by rule.

The Department recognized, however, that it would be difficult for

many individuals to complete their applications for relief within that

time frame. The Department sought to address this apparent difficulty

by permitting applicants to file an abbreviated motion to reopen that

could be supplemented with a full application no later than February 8,

1999. See 63 FR 31890 (June 11, 1998). This final rule further extends

the time for filing the application and accompanying material in

support of the motion to reopen. Any alien who filed an abbreviated

NACARA motion to reopen by September 11, 1998, under section 203 of

NACARA will receive the benefit of this rule.

The Department continues to believe that this two-step approach

adequately addresses the concerns raised regarding the initial filing

deadline, while adhering to the statute.

The expiration of the special NACARA filing period, however, does

not preclude individuals who believe they are eligible for relief under

NACARA from seeking to reopen their final orders under the standard

rules governing motions to reopen. The INS will consider on a case by

case basis whether to join in a motion to reopen raised by an otherwise

eligible applicant who has missed the statutory deadline. See 8 CFR

3.23(b)(4)(iv).

February 8, 1999 Deadline

Fourteen commenters stated that the February 8, 1999 deadline for

submitting the application and supporting documentation should be

extended for those aliens with outstanding Freedom of Information Act

(FOIA) requests. They argue that applicants will not have enough

information and may be missing critical information contained in the

FOIA documentation to determine whether they should complete the motion

to reopen. Most commenters stated that the deadline should be extended

until 60 after the alien receives the Department's final response to a

FOIA request.

The existence of a pending FOIA request would not, of itself,

suffice to extend the filing deadline. However, the Department

recognizes that much time has elapsed since some of the orders were

issued, and it may be difficult to obtain the information necessary to

complete in application.

Moreover, the Department recognizes that some of the individuals

who have filed motions to reopen under NACARA may want to file under

the new program at the INS. Many aliens are eligible to have their

applications reviewed by asylum officers, as described in the proposed

rule implementing section 203 of NACARA, published on November 24,

1998. See 63 FR 64895. Under the section 203 proposed rule, which

establishes the procedure to apply for suspension of deportation or

special rule cancellation of removal for aliens defined as NACARA-

eligible, applications submitted to the INS must be filed on proposed

Form I-881. The Form I-881 will not become available to the public

until the effective date of the rule implementing section 203 of

NACARA. In order to minimize the number of forms an alien must submit,

the Department believes that it is reasonable to extend the February 8,

1999 deadline for NACARA motions to reopen so that applicants need only

submit the Form I-881.

Thus, the final rule permits an applicant to submit his or her

application and accompanying documents no later than 150 days after the

rule implementing section 203 of NACARA becomes effective. This

extension will permit applicants who properly filed the abbreviated

NACARA motion to reopen by September 11, 1998, to submit the Form I-881

to complete their motion to reopen. The extension will also permit

certain NACARA-eligible applicants to establish that their NACARA-

eligible parent or spouse has applied for relief under section 203 of

NACARA, as discussed below.

Dependents Under NACARA Section 203

Fourteen commenters expressed concern that the interim regulation

did not acknowledge the eligibility problems faced by certain family

members of NACARA-eligible aliens. Although NACARA extends eligibility

to the spouse, child, or unmarried son or unmarried daughter over the

age of 21 (dependent) of persons described in section 203 of NACARA,

such dependents are not eligible for suspension of deportation or

special rule cancellation of removal until the designated parent or

spouse (principal)

[[Page 13665]]

has received a grant of suspension of deportation or special rule

cancellation of removal. Consequently, even if a NACARA dependent

completes his or her motion to reopen by submitting an application and

accompanying documents, the dependent is not eligible for relief unless

and until the principal is first granted relief. Commenters noted that

the applications of the vast majority of NACARA principals would not

have been adjudicated as of the February 8, 1999 deadline established

by the interim rule. Therefore, they suggested that the final rule

permit immigration judges to grant motions to reopen for NACARA

dependents regardless of the application status of the principal

applicant.

The Department recognizes that many NACARA dependents who were

required to file motions to reopen by September 11, 1998, would not yet

know the results of the principal's application at the time of the

deadline for completing their application for suspension of deportation

or special rule cancellation of removal. The Department has identified

a similar problem with respect to NACARA dependents who are presently

in deportation or removal proceedings. The proposed rule implementing

section 203 permits the Immigration Court to administratively close the

dependent's case to allow the dependent to submit an application for

suspension of deportation or special rule cancellation of removal with

the Service if (1) the dependent has a NACARA-eligible relative who has

submitted an application for such relief with the Service, and (2) the

dependent appears otherwise eligible for discretionary relief under

section 203 of NACARA. The Board may also administratively close or

continue the dependent's appeal to permit the dependent to submit to

INS an application for suspension of deportation or special rule

cancellation of removal.

Unlike dependents currently in proceedings, dependents previously

ordered deported must have their cases reopened before they can apply

for NACARA relief. The proposed rule implementing section 203 of NACARA

does not address how the Department interprets the statute with regard

to a dependent who has already been ordered deported or removed. To

address the problem within the context of motions to reopen, the

Department has decided to modify the final rule with respect to

dependents. The dependent must comply with the deadline for filing the

application and supporting documentation. However, the dependent's case

shall be reopened if the immigration judge finds that the dependent is

prima facie eligible for suspension or cancellation relief and if the

dependent submits proof that the principal alien has applied and is

prima facie eligible for NACARA relief. Once the dependent's case is

reopened the dependent will be subject to the same procedures

established in the section 203 rule for dependents in proceedings.

Waiver of Substantive Bars to Relief

Fourteen commenters stated the interim regulations impose improper

limitations to NACARA eligibility, and that it was the intent of

Congress to waive all limitations on eligibility for relief, except the

bar for aggravated felons.

The statute states, ``notwithstanding any limitation imposed by law

on motions to reopen removal or deportation proceedings (except

limitations premised on an alien's conviction of an aggravated felony)

* * * any alien who has become eligible for cancellation of removal or

suspension of deportation as a result of the amendments * * * may file

one motion to reopen.'' See action 203(c) of NACARA. The Department

interprets this language to refer only to the time and number

limitations on motions to reopen. Section 203(c) dealt only with those

procedural aspects of filing a motion to reopen and did not alter the

substantive requirements for granting a motion to reopen. Moreover, the

requirement that an applicant establish prima facie eligibility for

relief (in this case, suspension of deportation or special rule

cancellation of removal) is a prerequisite for the granting of all

motions to reopen. The statutory language that states the alien must

have ``become eligible'' for suspension or cancellation as a result of

NACARA requires that the alien be prima facie eligible for such relief.

NACARA did not alter the requirement that there must be a showing of

prima facie eligibility for the relief sought.

In order to be prima facie eligible for suspension of deportation

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

to any statutory bars to such relief. Section 240A(c) of the INA, and

section 244(f) of the INA as it existed prior to April 1, 1997,

describe those aliens who are ineligible for suspension of deportation

or cancellation of removal. For example, aliens who failed to depart

voluntarily after receiving oral and written notice of the consequences

of failing to depart and those who failed to appear for their hearings

after receiving the required oral and written notices are statutorily

barred from suspension of deportation or cancellation of removal. Thus,

aliens statutorily barred from relief have no basis to reopen their

cases.

Statutory bars to eligibility for suspension of deportation or

cancellation of removal are not waived by the provisions of NACARA. The

Attorney General has no authority to waive these statutory bars in the

cases where they apply. Therefore, because those aliens subject to

statutory bars to eligibility did not ``become eligible'' under NACARA,

those additional bars to relief besides the aggravated felony bar are

properly incorporated in 8 CFR section 3.43.

Requirement to State Ineligibility Pursuant to IIRIRA Section

309(c)(5)

Section 3.43(c) of the interim NACARA motion to reopen rule

requires an alien seeking to reopen under NACARA to establish that he

or she is (i) prima facie eligible for suspension or deportation or

special rule cancellation of removal under NACARA; (ii) was or would be

ineligible for relief but for the passage of NACARA; (iii) has not been

convicted at any time of an aggravated felony; and (iv) falls within

one of the six classes described elsewhere in the regulation. Many

commenters objected to the second requirement, arguing that individuals

should not be required to state a lack of eligibility but for NACARA.

Commenters suggested that this requirement exceeded the scope of the

statute and was unduly burdensome.

The second requirement arises from the Department's determination,

based on the specific language in section 203(c), that only those

persons who have ``become eligible'' for relief under NACARA are

entitled to submit a motion to reopen under section 203(c). This

analysis, discussed at length in the supplementary information

accompanying the interim rule, requires a determination at the time the

motion to reopen is considered that an individual actually became

eligible for relief as a result of NACARA. See 63 FR 31890, 31891-92.

To facilitate this determination, the Department has requested that the

initial motion include some indication that the alien was ineligible

for relief at the time of his or her immigration proceedings and

subsequently became eligible for relief as a result of NACARA.

Such a showing results in a minimal burden. For instance, in many

cases, an alien seeking to reopen his or her case would have been

ineligible for relief as a result of the ``stop-time rule,'' discussed

previously in the supplementary information in the

[[Page 13666]]

interim rule. See also, Matter of NJB, Interim Decision 3309 (BIA

1997), vacated by the Attorney General on July 10, 1998. In those

cases, the Department anticipates that information regarding the date

of entry and the date the charging document was issued would establish

that the individual was otherwise ineligible for relief, but for

NACARA. Consequently, the showing necessary to meet this requirement

will generally be minimal and will expedite the adjudicative process.

Adjudication of Motions To Reopen Filed Under NACARA Section 203

Finally, thirteen commenters stated that all persons eligible to

file a motion to reopen were entitled to have their cases reopened. The

commenters suggest that Immigration Judges should not be allowed to

deny the motion to reopen at the outset without a hearing on the merits

of the applicant's suspension or cancellation claim. Those commenting

seek to avoid denial of inadequate motions prepared in a short time

frame. They also argue the complicated requirements of a NACARA motion

to reopen may be too difficult for pro se aliens.

The passage of NACARA did not alter the general procedures for

filing and considering motions to reopen. It made special provisions to

permit a certain group of people who would otherwise be prevented by

statute and regulation to submit a motion to reopen. Nothing in section

203(c) indicates that Congress intended for all such motions to be

automatically granted.

Congress has the power to affect motions practice, and in fact has

done so. In enacting IIRIRA in 1996, Congress statutorily codified

EOIR's regulatory 90 day time limit on motions to reopen. Congress,

when it passed NACARA, gave no guidance, nor did it amend procedural

matters for motions to reopen before EOIR, except to set a statutory

deadline to file motions to reopen under section 203 of NACARA. It

could have made additional changes, other than lifting the one-time

filing rule, but it did not. Accordingly, there is no reason to believe

that Congress intended to treat differently those existing procedural

matters on motions to reopen. Therefore, it is the obligation of the

Immigration Court to comply with the existing regulations and assess

prima facie eligibility under NACARA prior to granting a motion to

reopen.

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility

Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving

it, certifies that this rule will not have a significant economic

impact on a substantial number of small entities because it affects

individual aliens, not small entities.

Unfunded Mandates Reform Act of 1995

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

tribal governments, in the aggregate, or by the private sector, of $100

million or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

Small Business Regulatory Reinforcement Fairness Act of 1996

This rule is not a major rule as defined by section 251 of the

Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This

rule will not result in an annual effect on the economy of $100 million

or more; a major increase in costs or prices; or significant adverse

effects on competition, employment, investment, productivity,

innovation, or on the ability of United States-based companies to

compete with foreign-based companies in domestic and export markets.

Executive Order 12866

This regulation has been drafted and reviewed in accordance with

Executive Order 12866, section 1(b), Principles of Regulation. The

Attorney General has determined that this rule is a ``significant

regulatory action'' under Executive Order 12866, section 3(f) and

accordingly this rule has been reviewed by the Office of Management and

Budget.

Executive Order 12612

The regulation adopted herein will not have substantial direct

effects on the States, on the relationship between National Government

and the States, or on the distribution of power and responsibilities

among the various levels of government. Therefore, in accordance with

Executive Order 12612, it is determined that this rule does not have

sufficient federalism implications to warrant the preparation of a

Federalism Assessment.

Executive Order 12988: Civil Justice Reform

This interim rule meets the applicable standards set forth in

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

List of Subjects in 8 CFR Part 3

Administrative practice and procedure, Immigration, Organization

and functions (Government agencies).

Accordingly, part 3 of chapter I of Title 8 of the Code of Federal

Regulations is amended as follows:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

1. The authority citation for part 3 continues to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.. 1103, 1252 note, 1252b, 1324b,

1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950; 3

CFR, 1949-1953 Comp., p. 1002; section 203 of Public Law 105-100.

2. Section 3.43 is amended by:

a. Revising paragraph (b)(4)(v);

b. Revising paragraph (b)(4)(vi);

c. Revising paragraph (c)(2), and

d. Adding paragraph (c)(3) to read as follows:

Sec. 3.43 Motion to reopen of suspension of deportation and

cancellation of removal pursuant to section 203(c) of the Nicaraguan

Adjustment and Central American Relief Act (NACARA).

* * * * *

(b)(4) * * *

(v) The spouse or child of a person who is described in paragraphs

(b)(4)(i) through (b)(4)(iv) of this section and such person is prima

facie eligible for and has applied for suspension of deportation or

special rule cancellation of removal under section 203 of NACARA.

(vi) An unmarried son or daughter of a person who is described in

paragraph (b)(4)(i) through (b)(4)(iv) of this section and such person

is prima facie eligible for and has applied for suspension of

deportation or special rule cancellation of removal under section 203

of NACARA. If the son or daughter is 21 years of or older, the son or

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

1990.

(c) * * *

(2) A motion to reopen filed pursuant to paragraph (c)(1) shall be

considered complete at the time of submission of an application for

suspension of deportation or special rule cancellation of removal and

accompanying documents. Such application must be submitted no later

than 150 days after the effective date of the rule implementing section

203 of NACARA. Aliens described in paragraph (b)(4)(v) or (b)(4)(vi) of

this section must include, as part of their submission, proof that

their parent or spouse is prima facie eligible and has applied for

relief under section 203 of NACARA.

(3) The Service shall have 45 days from the date the alien serves

the

[[Page 13667]]

Immigration Court with either the EOIR Form 40 or the Form I-881

application for suspension of deportation or special rule cancellation

of removal to respond to that completed motion. If the alien fails to

submit the required application within 150 days after the effective

date of the rule implementing section 203 of NACARA, the motion will be

denied as abandoned.

Dated: March 4, 1999.

Eric H. Holder, Jr.,

Deputy Attorney General.

[FR Doc. 99-6633 Filed 3-19-99; 8:45 am]

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