Editorial Note on Part 1240
Editorial Note: Nomenclature changes to part 1240 appear at 68 FR 9846, Feb. 28, 2003, and at 68 FR 10355, Mar. 3, 2003.

§ 1240.64 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 § 1240.61. For purposes of this subpart H, a single absence of 90 days or less or absences which in the aggregate total no more than 180 days shall be considered brief. ( 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. For purposes of evaluating whether an absence is brief, single absences in excess of 90 days, or absences that total more than 180 days in the aggregate will be evaluated on a case-by-case basis. An applicant must establish that any absence from the United States was casual and innocent and did not meaningfully interrupt the period of continuous physical presence.
( 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 applicant must establish that any period of absence less than 90 days was 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.* Except as described in paragraph (d) of this section, extreme hardship shall be determined as set forth in § 1240.58.
( d ) *Rebuttable presumption of extreme hardship for certain classes of aliens* — ( 1 ) *Presumption of extreme hardship.* An applicant described in paragraphs (a)(1) or (a)(2) of § 1240.61 who has submitted a completed Form I-881 or Form EOIR-40 to either the Service or the Immigration Court, in accordance with § 1240.63, shall be presumed to have established that deportation or removal from the United States would result in extreme hardship to the applicant or to his or her spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
( 2 ) *Rebuttal of presumption.* A presumption of extreme hardship as described in paragraph (d)(1) of this section shall be rebutted if the evidence in the record establishes that it is more likely than not that neither the applicant nor a qualified relative would suffer extreme hardship if the applicant were deported or removed from the United States. In making such a determination, the adjudicator shall consider relevant factors, including those listed in § 1240.58.
( 3 ) *Burden of proof.* In those cases where a presumption of extreme hardship applies, the burden of proof shall be on the Service to establish that it is more likely than not that neither the applicant nor a qualified relative would suffer extreme hardship if the applicant were deported or removed from the United States.
( 4 ) *Effect of rebuttal.* ( i ) A determination that it is more likely than not that neither the applicant nor a qualified relative would suffer extreme hardship if the applicant were deported or removed from the United States shall be grounds for referral to the Immigration Court or dismissal of an application submitted initially to the Service. The applicant is entitled to a *de novo* adjudication and will again be considered to have a presumption of extreme hardship before the Immigration Court.
( ii ) If the Immigration Court determines that extreme hardship will not result from deportation or removal from the United States, the application will be denied.
[64 FR 27876, May 21, 1999; 64 FR 33386, June 23, 1999]