57826 Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 

expected to be less than 1 percent of the 

total expected grower revenue. 

This action increases the assessment 

obligation imposed on handlers. While 

assessments impose some additional 

costs on handlers, the costs are minimal 

and uniform on all handlers. Some of 

the additional costs may be passed on 

to producers. However, these costs are 

offset by the benefits derived by the 

operation of the marketing order. In 

addition, the committee’s meeting was 

widely publicized throughout the 

California dried prune industry and all 

interested persons were invited to 

attend the meeting and encouraged to 

participate in committee deliberations 

on all issues. Like all committee 

meetings, the June 23, 2004, meeting 

was a public meeting and all entities, 

both large and small, were able to 

express views on this issue.

This rule imposes no additional 

reporting or recordkeeping requirements 

on either small or large California dried 

prune handlers. As with all Federal 

marketing order programs, reports and 

forms are periodically reviewed to 

reduce information requirements and 

duplication by industry and public 

sector agencies. 

USDA has not identified any relevant 

Federal rules that duplicate, overlap, or 

conflict with this rule. 

A proposed rule concerning this 

action was published in the Federal 

Register on August 16, 2004 (69 FR 

50337). Copies of the proposed rule 

were also mailed or sent via facsimile to 

all prune handlers. Finally, the proposal 

was made available through the Internet 

by USDA and the Office of the Federal 

Register. A 20-day comment period 

ending September 7, 2004, was 

provided for interested persons to 

respond to the proposal. No comments 

were received. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: http://www.ams.usda.gov/

fv/moab/html. Any questions about the 

compliance guide should be sent to Jay 

Guerber at the previously mentioned 

address in the FOR FURTHER INFORMATION

CONTACT section. 

After consideration of all relevant 

material presented, including the 

information and recommendation 

submitted by the committee and other 

available information, it is hereby found 

that this rule, as hereinafter set forth, 

will tend to effectuate the declared 

policy of the Act. 

Pursuant to 5 U.S.C. 553, it also found 

and determined that good cause exists 

for not postponing the effective date of 

this rule until 30 days after publication 

in the Federal Register because the 

2004–05 crop year began August 1, 

2004, and the marketing order requires 

that the rate of assessment for each crop 

year apply to all assessable prunes 

handled during such period. Further, 

handlers are aware of this rule which 

was unanimously recommended at a 

public meeting. Also, a 20-day comment 

period was provided for in the proposed 

rule, and no comments were received.

List of Subjects in 7 CFR Part 993 

Marketing agreements, Plums, Prunes, 

Reporting and recordkeeping 

requirements.

■ For the reasons set forth in the 

preamble, 7 CFR part 993 is amended as 

follows:

PART 993—DRIED PRUNES 

PRODUCED IN CALIFORNIA

■ 1. The authority citation for 7 CFR part 

993 continues to read as follows:

Authority: 7 U.S.C. 601–674.

■ 2. Section 993.347 is revised to read as 

follows:

§ 993.347 Assessment rate. 

On and after August 1, 2004, an 

assessment rate of $4.00 per ton is 

established for California dried prunes.

Dated: September 22, 2004. 

A.J. Yates, 

Administrator, Agricultural Marketing 

Service.

[FR Doc. 04–21627 Filed 9–27–04; 8:45 am] 

BILLING CODE 3410–02–P

DEPARTMENT OF JUSTICE

8 CFR Parts 1003, 1212, and 1240 

[EOIR No. 130F; AG Order No. 2734–2004] 

Executive Office for Immigration 

Review; Section 212(c) Relief for 

Aliens With Certain Criminal 

Convictions Before April 1, 1997

AGENCY: Executive Office for 

Immigration Review, Justice.

ACTION: Final rule.

SUMMARY: This final rule adopts without 

substantial change the proposed rule to 

establish procedures for lawful 

permanent residents with certain 

criminal convictions arising from plea 

agreements reached prior to a verdict at 

trial to apply for relief from deportation 

or removal pursuant to former section 

212(c) of the Immigration and 

Nationality Act. The final rule also sets 

forth procedures and deadlines for filing 

motions to seek such relief before an 

immigration judge or the Board of 

Immigration Appeals for eligible aliens 

currently in proceedings or under final 

orders of deportation or removal.

DATES: This rule is effective on October 

28, 2004.

FOR FURTHER INFORMATION CONTACT:

Mary Beth Keller, General Counsel, 

Executive Office for Immigration 

Review, 5107 Leesburg Pike, Suite 2600, 

Falls Church, Virginia 22041, telephone 

(703) 305–0470.

SUPPLEMENTARY INFORMATION:

Introduction 

Response to Comments Received 

A. Ineligibility of Aliens Outside the 

United States 

B. Ineligibility of Aliens Convicted After a 

Trial 

C. Stay of Deportation or Removal 

D. The 180-Day Deadline To File a Special 

Motion To Seek Section 212(c) Relief 

E. Date of the Plea Agreement 

F. Retroactivity of IIRIRA’s Definition of 

‘‘Aggravated felony’’

G. Applicability of AEDPA 

H. The Accrual of Seven Consecutive Years 

of Lawful Unrelinquished Domicile 

I. Eligibility for Aliens Who Are Deportable 

on Grounds for Which There Do Not 

Exist Corresponding Grounds of 

Exclusion or Inadmissibility 

J. Notification to Affected Individuals 

K. Proof of Permanent Residence 

L. Applicability of the Soriano Rule 

M. Filing New Motions To Reopen After 

Previously Filing Motions To Reopen

Introduction 

On August 13, 2002, the Department 

of Justice (Department) published a 

proposed rule to permit certain lawful 

permanent residents (LPRs) to apply for 

relief under former section 212(c) of the 

Immigration and Nationality Act, 8 

U.S.C. 1182(c) (1994 Supp. II 1996), 

from deportation or removal based on 

certain criminal convictions before 

April 1, 1997 (‘‘section 212(c) relief’’). 

67 FR 52627. The proposed rule 

described procedures implementing the 

Supreme Court’s decision in INS v. St. 

Cyr, 533 U.S. 289 (2001). 

This final rule adopts the proposed 

rule without substantial change. Certain 

LPRs who pleaded guilty or nolo 

contendere to crimes before April 1, 

1997, may seek section 212(c) relief 

from being deported or removed from 

the United States on account of those 

pleas. Under this rule, eligible LPRs 

currently in immigration proceedings 

(and former LPRs under a final order of 

deportation or removal) who have not 

departed from the United States may file 

a request to apply for relief under 

former section 212(c) of the Act, as in 

effect on the date of their plea, 

regardless of the date the plea agreement 

was entered by the court. This rule is 

applicable only to certain eligible aliens 

who were convicted pursuant to plea 

agreements made prior to April 1, 1997. 

Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 57827

1On February 28, 2003, the Attorney General 

published a technical rule that reorganized title 8 

of the Code of Federal Regulations to reflect the 

transfer of these functions. See Aliens and 

Nationality; Homeland Security; Reorganization of 

Regulations, 68 FR 9824 (February 28, 2003); see 

also 68 FR 10349 (March 5, 2003). This technical 

rule created a new chapter V in 8 CFR as part of 

the Department of Justice regulations, beginning 

with 8 CFR 1001; the existing regulations in chapter 

I of 8 CFR now pertain to DHS. Among other 

changes, the February 28 rule transferred part 3 and 

most of part 240 to part 1003 and part 1240, 

respectively, and duplicated part 212 (in the current 

DHS regulations) as part 1212 in the Department of 

Justice regulations. Thus, while the proposed rule 

and the comments received cited the regulations 

prior to the reorganization of the regulations, this 

final rule will reflect the revised section numbers 

in the regulations.

The Department reiterates and adopts 

the Supplementary Information in the 

proposed rule, and the subsequent 

correction to the proposed rule 

published on August 22, 2002, as 

explaining the final rule. 67 FR 52627; 

67 FR 54360. The following sections 

respond to the public comments, and 

provide additional discussion 

explaining the final rule and some 

clarifying amendments.

In addition, this final rule reflects 

several technical and structural changes 

as a result of the establishment of the 

Department of Homeland Security 

(DHS), the transfer of the functions of 

the Immigration and Naturalization 

Service (INS) to DHS, and the abolition 

of the INS. On March 1, 2003, the 

functions of the former INS were 

transferred from the Department of 

Justice to DHS pursuant to the 

Homeland Security Act of 2002 (HSA), 

Pub. L. 107–296, 116 Stat, 2135, 2178 

(Nov. 25, 2002). The HSA also provided 

that the functions of the immigration 

judges and the Board of Immigration 

Appeals within the Executive Office for 

Immigration Review (EOIR) remain in 

the Department of Justice under the 

authority of the Attorney General. The 

technical changes in this final rule 

comport with the structural 

reorganization of the regulations 

accomplished by the Department of 

Justice in previous rulemakings 

establishing a new 8 CFR chapter V 

containing the regulations relating to 

immigration adjudications before the 

immigration judges and the Board of 

Immigration Appeals, and the 

administrative functions of EOIR.1 The 

final rule also eliminates from 8 CFR 

1212.3 the current provisions in 

paragraphs (a)(1) and (c), which relate to 

the authority of a district director to 

grant section 212(c) relief. To the extent 

that those provisions are still relevant at 

this time, they are already codified in 

DHS regulations at 8 CFR 212.3(a)(1) 

and (c). Consistent with the process for 

reducing the overlapping regulations 

between the Department and DHS, the 

Department is eliminating unnecessary 

regulations in § 1212.3 that relate solely 

to the authority of DHS.

The final rule also makes some 

stylistic changes to simplify the 

language of the existing regulations—for 

example, revising the language of 8 CFR 

1212.3(e)(2) from ‘‘grant or deny an 

application for advance permission to 

return to an unrelinquished domicile 

under section 212(c)’’ to read ‘‘grant or 

deny an application for section 212(c) 

relief’’. Lastly, as explained in the 

proposed rule, if the Board has 

jurisdiction and grants a special motion 

to seek section 212(c) relief, it will 

remand the case to an immigration 

judge solely for a determination of the 

section 212(c) application. The 

Department recognizes that an alien 

who files a special motion to seek 

section 212(c) relief under this rule may 

have a petition for review pending 

before a Federal court of appeals. If the 

Board grants the alien’s special motion 

to seek section 212(c) relief while the 

case is pending before a Federal court of 

appeals, the Department anticipates that 

the government will request that the 

court hold the case in abeyance pending 

the resolution of the alien’s section 

212(c) application before EOIR. 

Response to Comments Received 

The Department received 60 

comments on the proposed rule and will 

respond to them by subject matter. The 

Department appreciates the analytical 

detail of these comments, which were 

received from aliens and their family 

members, community organizations and 

special interest groups, immigration 

attorneys, professors, and other 

members of the public. The issues 

raised in the submissions were largely 

devoted to eligibility concerns, with a 

majority of the commenters 

recommending that eligibility for 

section 212(c) relief be broadened to 

encompass several categories of aliens 

who were not eligible for relief under 

the proposed rule. Other recurring 

issues raised by the commenters dealt 

with procedural concerns, such as the 

need for an automatic stay provision, in 

addition to concerns about the 180-day 

deadline applicable to aliens subject to 

a final order of deportation or removal. 

A. Ineligibility of Aliens Outside the 

United States 

Approximately 80 percent of the 

commenters stated that aliens who have 

already been deported and are currently 

outside the United States should be 

eligible to apply for section 212(c) relief. 

Of these comments, virtually all argued 

that many aliens were deported without 

being given a hearing with respect to 

their eligibility for a waiver under 

section 212(c). These comments state 

that because these individuals did not 

have a ‘‘sufficient opportunity’’ to 

challenge their deportation order, and 

since the Supreme Court mandated such 

a hearing for section 212(c) eligibility in 

the St. Cyr decision, their deportation 

cannot be conceived as lawful. 

Accordingly, these commenters 

recommended that the Department 

rectify this situation by allowing such 

aliens who are abroad as a result of 

deportation to apply for section 212(c) 

relief, in order to avoid what they see 

as a continuing impermissible 

retroactive effect. Other commenters 

asserted that because such aliens were 

improperly removed, they should be 

paroled or admitted into the United 

States in order to reinitiate their 

application process for section 212(c) 

relief. One commenter also argued that 

the Equal Protection Clause requires 

that both aliens who are currently in the 

United States and those abroad be 

allowed to apply for section 212(c) 

relief. 

Under the proposed rule, aliens 

would have been ineligible for section 

212(c) relief if they: (1) Departed the 

United States and are currently outside 

the United States; (2) returned illegally 

to the United States after being issued 

a final order of deportation or removal; 

or (3) are present in the United States 

without having been admitted or 

paroled. As previously stated in the 

proposed rule, the Department finds 

that as a general rule, aliens who have 

been deported or departed, and for 

whom the period of time for filing a 

petition for review of their removal 

orders closed may not challenge their 

prior immigration proceedings. See 8 

U.S.C. 1231(a)(5); 8 CFR 1003.2(d); 67 

FR at 52629. 

After considering the public 

comments, the Department adheres to 

the position stated in the proposed rule. 

Under 8 CFR 1003.2(d), a motion to 

reopen or to reconsider ‘‘shall not be 

made by or on behalf of a person who 

is the subject of deportation or removal 

proceedings subsequent to his or her 

departure from the United States.’’ The 

existing regulations thus treat an 

executed deportation or removal order 

as administratively complete, thereby 

eliminating any possibility of 

challenging a proceeding that resulted 

in the departure of an alien. 

Similarly, the Department believes 

that this distinction is reasonable and 

fair because aliens who have been 

deported had a sufficient opportunity to 

challenge the denial of their 

applications for section 212(c) relief in 

57828 Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 

administrative and judicial proceedings. 

See 67 FR at 52629. Generally, aliens 

who were deported prior to the 

Supreme Court’s decision in St. Cyr had 

an opportunity to challenge the denial 

of their section 212(c) application before 

the Board or a Federal court. These 

aliens also had the opportunity to apply 

for stays of deportation in anticipation 

of the Supreme Court’s ruling in St. Cyr. 

Therefore, aliens who were deported 

had the opportunity to continue to 

exhaust administrative and judicial 

remedies that could have enabled them 

to remain in the United States. 

Accordingly, the Department finds the 

distinction precluding section 212(c) 

eligibility for aliens abroad as a result of 

a deportation or removal order to be fair 

and reasonable. 

The Department also believes that the 

decision to distinguish between those 

aliens who are in the United States and 

those aliens who have been deported is 

reasonable and consistent with the 

plenary authority of the political 

branches of the government in the 

immigration area. See Fiallo v. Bell, 430 

U.S. 787, 792 (1977); Mathews v. Diaz, 

426 U.S. 67, 80–82 (1976). As 

previously noted in the proposed rule, 

this distinction is reasonable because 

the aliens who never departed from the 

United States are not ‘‘similarly 

situated’’ to those who have had their 

deportation or removal orders executed, 

since the administrative deportation 

process with the latter group has been 

completed (and aliens in this category 

are further subject to at least a five-year 

bar against reentry). 

The Department believes that 

declining to allow aliens who have been 

deported from the United States to 

obtain relief under the regulation is 

consistent with Congress’s intent as 

demonstrated by the language in former 

section 212(c). See 67 FR at 52629. 

Former section 212(c) of the Act 

explicitly made aliens under a 

deportation order ineligible for relief: 

‘‘[a]liens * * * not under an order of 

deportation * * * may be admitted in 

the discretion of the Attorney General 

***’’ 8 U.S.C. 1182(c) (1994) 

(emphasis added). Thus, Congress stated 

unequivocally whom it sought to benefit 

in legislating the section 212(c) waiver. 

Accordingly, the decision to preclude 

aliens under a deportation or removal 

order from obtaining section 212(c) 

relief is grounded in Congress’s intent to 

limit its availability to those not under 

deportation orders.

Moreover, the United States Court of 

Appeals for the Ninth Circuit has 

upheld this distinction against 

constitutional challenge in the context 

of addressing the identical distinction 

under 8 CFR 1003.44(i). AlvarengaVillalobos v. Ashcroft, 271 F.3d 1169 

(9th Cir. 2001). In upholding the 

distinction from an equal protection 

challenge, the court reasoned that ‘‘the 

government has a legitimate interest in 

discouraging aliens who have already 

been deported from illegally 

reentering,’’ and concluded that ‘‘this 

distinction is rationally related to that 

purpose.’’ Id. at 1174. See also RobledoGonzales v. Ashcroft, 342 F.3d 667, 

676–683 (7th Cir. 2003) (equal 

protection challenge to 8 CFR 1003.44 

fails because distinction between illegal 

reentrants from those eligible under 

regulation was rational). Thus, the 

Department declines to grant eligibility 

to those who have departed the United 

States and are currently outside the 

United States, returned illegally to the 

United States after being issued a final 

order of deportation or removal, or are 

present in the United States without 

having been admitted or paroled. Other 

LPRs who are currently in the country, 

however, are allowed to apply for such 

relief. 

B. Ineligibility of Aliens Convicted After 

a Trial 

Approximately 25 percent of 

commenters recommended that the rule 

should provide eligibility for those 

aliens who were convicted as a result of 

a trial, in addition to those who made 

plea agreements. Of these commenters, 

most argued that the reliance interests of 

those who went to trial rather than 

accept plea bargains should be similarly 

respected. Specifically, these 

commenters suggested that, because the 

Supreme Court in St. Cyr recognized the 

reliance interests of those aliens who 

made plea agreements with prosecutors 

while relying on the availability of the 

existing waiver of deportation under the 

former section 212(c), a similar analysis 

for those who decided to go to trial with 

the expectation that they would be 

eligible to apply for section 212(c) relief 

should result in preserving their 

interests. For example, one commenter 

suggested that because ‘‘an immigrant 

who chose not to enter a plea * * * 

may have relied upon the availability of 

section 212(c) when deciding how to 

proceed,’’ the Supreme Court’s 

reasoning in St. Cyr ‘‘applies in both 

[the trial and plea agreement] cases.’’

Other commenters under this category 

argued that a fundamental unfairness 

would result to aliens who were 

unrepresented or detained because they 

were not aware of the possible 

consequences of a conviction from a 

plea agreement, as opposed to that from 

a trial. 

The Supreme Court in St. Cyr

specifically focused on plea agreements 

in deciding that section 212(c) relief 

remained available for aliens ‘‘who, 

notwithstanding those convictions, 

would have been eligible for section 

212(c) relief at the time of their plea 

under the law then in effect.’’ 533 U.S. 

at 326. The Court recognized that plea 

agreements involve a quid pro quo

between the defendant and the 

government, and that defendants who 

waive several of their constitutional 

rights (including the right to a trial) and 

consequently grant the government 

numerous tangible benefits are likely 

doing so in reliance on the availability 

of section 212(c) relief. Id. at 325. As a 

result of the benefit to the prosecutor 

bestowed by a plea agreement, and the 

reliance interest in seeking section 

212(c) relief that an alien develops at 

the time of the guilty plea, it would be 

contrary to ‘‘ ‘familiar considerations of 

fair notice, reasonable reliance, and 

settled expectations’’ ’ to deprive him or 

her of the benefit due from the quasicontractual exchange of benefits entered 

into with the government. Id. at 323–24 

(quoting Landgraf v. USI Film Products,

511 U.S. 244 (1994)). Thus, according to 

St. Cyr, only the reliance interests of 

those aliens pleading guilty to crimes 

when section 212(c) was available were 

sufficiently strong to warrant continued 

eligibility for such relief. 

This issue has been heavily litigated 

in the federal courts, and every circuit 

that has addressed the question has held 

that an alien who is convicted after trial 

is not eligible for section 212(c) relief 

under St. Cyr. Rankine v. Reno, 319 

F.3d 93, 100 (2d Cir. 2003); 

Theodoropoulos v. INS, 313 F.3d 732, 

739–40 (2d Cir. 2002); Dias v. INS, 311 

F.3d 456, 458 (1st Cir. 2002); Chambers

v. Reno, 307 F.3d 284, 293 (4th Cir. 

2002), reh’g denied (April 1, 2003); 

Armendariz-Montoya v. Sonchik, 291 

F.3d 1116, 1121–22 (9th Cir. 2002), cert. 

denied, 539 U.S. 902 (2003); see also 

Lara-Ruiz v. INS, 241 F.3d 934, 945 (7th 

Cir. 2001) (pre-St. Cyr decision 

distinguishing between aliens who 

pleaded guilty and those who are 

convicted after trial). These courts have 

recognized that aliens who exercise 

their constitutional right to go to trial do 

not have the kind of reliance interests 

that the Supreme Court focused on in 

St. Cyr.

Accordingly, the Department has 

determined to retain the distinction 

between ineligible aliens who were 

convicted after criminal trials, and those 

convicted through plea agreements. 

Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 57829

C. Stay of Deportation or Removal 

Approximately 15 percent of 

commenters recommended that an 

automatic stay provision should be 

inserted into the final rule. One 

commenter stated that a motion to 

reopen to file for section 212(c) relief 

should automatically stay the 

deportation or removal of the alien, 

while others said that any alien who is 

eligible for section 212(c) relief should 

have his or her removal stayed. Further, 

another commenter proposed that filing 

a special motion to seek section 212(c) 

relief should ‘‘also serve as an 

application for a stay’’ of removal, while 

another contended that it should be 

treated ‘‘in the same way that a motion 

to reopen in absentia proceedings is 

currently treated,’’ thereby 

automatically staying the execution of a 

final order of deportation or removal 

upon filing. The general rationale of 

these commenters was that the 

consequence of the lack of an automatic 

stay provision in the final rule would 

lead to the deportation of eligible aliens 

before they had the opportunity to apply 

for section 212(c) relief. 

The proposed rule laid out procedures 

for applying for a stay of deportation or 

removal for aliens seeking to apply for 

section 212(c) relief. Requests for a stay 

of the execution of a final order must be 

made in accordance with the prevailing 

regulatory requirements in 8 CFR 241.6, 

if made with DHS, or 8 CFR 1003.2(f) or 

1003.23(b)(1)(v), if made with EOIR. The 

Department does not find the 

application of prevailing regulatory 

requirements to section 212(c) 

applicants to be unreasonably 

burdensome. Accordingly, the 

Department does not find it necessary to 

include an automatic stay provision 

under this rule. 

D. The 180-Day Deadline To File a 

Special Motion To Seek Section 212(c) 

Relief

Approximately 15 percent of the 

commenters recommended that the 180-

day period to file a special motion to 

seek section 212(c) relief for aliens 

under a final order of deportation or 

removal be extended or eliminated. One 

commenter stated that this time period 

allotted to file a special motion is 

‘‘unreasonably short,’’ given that many 

LPRs will likely not be aware of this 

time constraint. Another commenter 

stated that this time period is 

inadequate and the Department should 

‘‘provide additional time to apply,’’

particularly if the Department does not 

‘‘individually notify affected people.’’

Similarly, another commenter stated 

simply that the time period is 

‘‘insufficient,’’ and should be extended 

to one year. 

The Department finds the 180-day 

requirement in which to file a special 

motion to seek section 212(c) relief for 

those aliens subject to a final 

administrative order of deportation or 

removal to be a reasonable time 

constraint. Publication in the Federal 

Register unequivocally constitutes 

sufficient notice for due process 

purposes. Congress has specified this 

form of notice and made that notice 

binding on all who are within the 

jurisdiction of the United States. 44 

U.S.C. 1507 (publication in Federal 

Register ‘‘is sufficient to give notice of 

the contents of the document to a 

person subject to or affected by it’’). The 

courts have clearly relied upon the 

adequacy of notice by publication in the 

Federal Register since the Federal 

Register’s inception. See, e.g., Lyng v. 

Payne, 476 U.S. 926, 942–943 (1986); 

Dixson v. United States, 465 U.S. 482, 

489 n.6 (1984); Federal Crop Ins. Corp.

v. Merrill, 332 U.S. 380, 385 (1947). The 

Department rejects the notion that more 

notice is required as a matter of law. 

The Department does not accept the 

premise of the commenters’ arguments 

that it, or any other agency, is required 

to provide individual notice of the 

content of the law. Like citizens, aliens 

have a duty to know the law and abide 

by the law. The Department does note, 

moreover, that the immigrant 

community and immigrant advocacy 

organizations possess a well-established 

network for providing information to 

the immigrant community. 

Additionally, the Department notes that 

the 180-day deadline is double the 

normal amount of time within which an 

immigration judge or the Board has 

jurisdiction over motions to reopen. 8 

CFR 1003.2, 1003.23. This is in addition 

to the 30-day effective date delay period 

mandated by the Administrative 

Procedure Act. 5 U.S.C. 553. 

Accordingly, the Department is not 

persuaded that more time is appropriate 

and will retain the 180-day deadline as 

stated in the proposed rule. 

E. Date of the Plea Agreement 

One commenter argued that proposed 

§ 1003.44(b) would create ‘‘proof 

problems’’ for the immigration judges 

and the Board with respect to the date 

on which an alien made a plea 

agreement. Proposed § 1003.44(b) lists 

the eligibility requirements that an alien 

must establish in seeking section 212(c) 

relief. Paragraph (b)(4) of this section 

states that an alien must be ‘‘otherwise 

eligible to apply for section 212(c) relief 

under the standards that were in effect 

at the time the alien’s plea was made, 

regardless of when the plea was entered 

by the court.’’ The commenter suggested 

that it would be difficult for the 

immigration judges or the Board to 

determine when the alien made his or 

her plea, as the record of criminal 

proceedings ‘‘often does not include 

[this] information.’’ Instead, the 

commenter suggested that the date the 

court accepted the plea should be the 

operative date. The commenter 

contended that a defendant in criminal 

proceedings, both at the State and 

Federal level, has an absolute right to 

withdraw a plea until it is accepted, and 

accordingly, he or she has no legitimate 

expectations of entitlement to section 

212(c) relief until the court accepts it. 

The Department declines to accept the 

commenter’s recommendation. The 

operative language for section 212(c) 

eligibility—throughout the rule, not just 

for filing special motions to seek section 

212(c) relief—focuses on the ‘‘date the 

plea was agreed to by the parties.’’ 67 

FR at 52633. The Department finds that, 

consistent with the Supreme Court’s 

decision in St. Cyr, the key in deciding 

the extent to which an alien is eligible 

for section 212(c) relief rests on the 

available relief at the time the alien and 

the prosecutor made the plea agreement. 

The Court stressed the importance of 

respecting the quasi-contractual 

agreement between the alien and 

prosecutor in deciding that the alien’s 

reliance interests in making a plea 

agreement for a ‘‘perceived 

[immigration] benefit’’ must be 

preserved. St. Cyr, 533 U.S. at 322. In 

doing so, the Court did not conclude 

that the date the criminal court accepts 

the plea agreement is the time to 

determine whether the alien is eligible 

for section 212(c) relief. Thus, the 

commenter’s proposal is not supported 

by the Supreme Court’s ruling in St. Cyr.

The Department intends to continue to 

rely on this judicial interpretation. 

Further, in any plea agreement in 

which the government receives 

‘‘numerous ‘tangible benefits * * * 

without the expenditure of prosecutorial 

resources,’ ’’ the benefits acquired by the 

prosecutor occur at the moment that the 

agreement is made given that he or she 

is relieved of the burdens of preparing 

the case for trial. St. Cyr, 533 U.S. at 322 

(quoting Newton v. Rumery, 480 U.S. 

386, 393 n.3 (1987)). Similarly, the 

moment when the alien enters into an 

agreement for the exchange of benefits 

with the prosecutor in reliance on 

section 212(c) relief eligibility should be 

the time at which the alien can begin 

accruing the benefit of the agreement. 

Accordingly, the Department disagrees 

with the commenter and will retain the 

language in the proposed rule specifying 

57830 Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 

that the date the plea was agreed to by 

the parties will be the time to determine 

whether an alien is eligible for section 

212(c) relief. 

The alien seeking section 212(c) relief 

has the burden of establishing his or her 

eligibility. This burden of proof 

includes establishing the date on which 

the alien entered into a plea agreement 

with the prosecution that resulted in the 

conviction from which section 212(c) 

relief is sought. The nature of the 

comment concerning ‘‘proof problems,’’

however, underscores the need to make 

clear that the alien seeking section 

212(c) relief has the burden of 

establishing the plea agreement date, 

and the alien is in the best position to 

do so because the alien was present (not 

DHS or the immigration judge) and is 

most likely to possess the documents 

reflecting the plea agreement. 

Accordingly, the Department has 

inserted a specific statement of that 

burden in section 1003.44(b) to make 

this clear. The Department does not 

believe that the requirement will impose 

a burden on the immigration judges or 

the Board. 

F. Retroactivity of IIRIRA’s Definition of 

‘‘Aggravated Felony’’

One commenter suggested that the 

Department’s implementation of the St. 

Cyr decision should preclude a 

retroactive application of the definition 

of an aggravated felony as expanded by 

the Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996 

(IIRIRA), Pub. L. 104–208, Div. C, 110 

Stat. 3009–546. The commenter 

suggested that the Department allow a 

section 212(c) applicant to ‘‘invoke the 

law as it was at the time’’ when the 

applicant made his or her plea, thereby 

using the then-existing definitions of 

aggravated felonies rather than applying 

retroactively the expanded definitions 

enacted in IIRIRA. In support of this 

suggestion, the commenter asserted that 

‘‘Congress has never had and could not 

have had the intent to subject [section] 

212(c) to the retroactive application of 

the expanded version of the definition 

of aggravated felony under IIRIRA.’’ The 

commenter also asserted that ‘‘if the 

retroactive application of the new 

definition of aggravated felony would be 

extended to relief under the pre-IIRIRA 

regime then the [DHS] could reopen 

cases to remove aliens who had been 

granted relief pre-IIRIRA.’’

The Department disagrees with this 

analysis. St. Cyr makes clear that the 

Court accepted the retroactive 

application of the definition of 

aggravated felony in connection with 

the availability of section 212(c) relief. 

In contrast to its finding that there was 

no unmistakable congressional intent to 

apply the repeal of section 212(c) 

retroactively, the Supreme Court in St. 

Cyr clearly reiterated that Congress 

indicated unambiguously its intention 

to apply the definition of ‘‘aggravated 

felony’’ retroactively under IIRIRA 

section 321(b). 533 U.S. at 319. Thus, 

IIRIRA’s amended definition of 

‘‘aggravated felony’’ applies to all 

convictions, regardless of when they 

occurred, in determining whether the 

alien is deportable on account of 

committing an aggravated felony. 

Further, as noted in the proposed rule, 

this amended definition ‘‘also applies to 

determine the eligibility for section 

212(c) relief in those cases where an 

alien is deportable as an aggravated 

felon. See Matter of Fortiz, 21 I&N Dec. 

1199 (BIA 1998).’’ 67 FR at 52630. 

Accordingly, the Department disagrees 

with the commenter’s contention that 

the IIRIRA’s expanded definition of 

aggravated felony should not apply to 

pre-IIRIRA convictions or for purposes 

of section 212(c) eligibility.

This rule, however, retains the 

position of the proposed rule that aliens 

who have not been charged and found 

deportable as aggravated felons would 

not be affected by the retroactivity of the 

aggravated felony definition under 

IIRIRA section 321. The Department 

agrees with the Board’s finding in Fortiz

that ‘‘in order for an alien to qualify as 

one who is ‘deportable’ under 

[AEDPA’s] amendment to section 

212(c), he or she must be charged with, 

and found deportable, on the requisite 

ground of deportability.’’ Fortiz, 21 I&N 

Dec. at 1212 n.3. Therefore, the 

expanded definition of aggravated 

felony enacted in IIRIRA renders 

ineligible for section 212(c) relief only 

those aliens who were charged with an 

aggravated felony as the basis for their 

deportability. For clarity, this rule 

revises § 1212.3(f)(4) to reflect the 

Department’s interpretation of the 

aggravated felony definition, in addition 

to retaining the language of the 

proposed rule in amending § 1003.44. 

With respect to the commenter’s 

further assertion that the DHS could 

reopen cases to remove aliens who were 

granted relief before IIRIRA’s effective 

date if IIRIRA’s amended definition of 

aggravated felony is retroactively 

applied, the regulations are clear in 

prohibiting such a result. 8 CFR 

1212.3(d) states that ‘‘[o]nce an 

application [for section 212(c) relief] is 

approved, that approval is valid 

indefinitely.’’ Thus, unless an exception 

relating to omissions in the application 

for section 212(c) applies (as described 

in 8 CFR 1212.3(d)), an approved 

section 212(c) application cannot be 

subsequently revoked. Accordingly, the 

Department will not incorporate the 

suggestions from this commenter. 

It is also worth noting here that the 

effect of section 212(c) relief is very 

limited. For example, a single criminal 

conviction for a crime involving moral 

turpitude waived under section 212(c) 

may still be relied upon at a later date 

as one of two crimes to establish 

excludability under section 

212(a)(2)(A)(II) of the Act (8 U.S.C. 

1182(a)(2)(A)(II)). Matter of Balderas, 20 

I&N Dec. 389 (BIA 1991). Thus, section 

212(c) relief should not be considered a 

‘‘pardon’’ and does not eliminate the 

conviction for any other purpose, such 

as later applications for discretionary 

relief. Balderas, at 391. 

However, the Department has made a 

change in the final rule in response to 

the Ninth Circuit’s recent decision in 

Toia v. Fasano, 334 F.3d 917 (9th Cir. 

2003). In Toia, the court of appeals 

concluded that the amendment made by 

the Immigration Act of 1990, Pub. L. 

101–649, section 511(a), 104 Stat. 4978, 

5052 (1990)—which rendered aliens 

ineligible for section 212(c) relief if they 

had been convicted of an aggravated 

felony and had served a term of 

imprisonment of at least five years—did 

not apply to an alien who had pleaded 

guilty to a criminal offense prior to the 

enactment of that amendment. The 

court of appeals, in reliance on St. Cyr,

overruled its own prior precedent, 

Samaniego-Meraz v. INS, 53 F.3d 254 

(9th Cir. 1995), which had previously 

held that the 1990 limitation on the 

availability of section 212(c) relief 

properly applied to convictions entered 

prior to its enactment. 

Although the Department does not 

concede that Toia is the better 

interpretation of the 1990 amendment, 

and the issue has been the subject of 

conflicting interpretations as the court 

acknowledged (see Toia, 334 F.3d at 

919–920), the Department recognizes 

that, because the issue is one of only 

limited practical significance, it is 

unlikely that this issue will reach the 

Supreme Court in the future. In Toia the 

plea agreement and the entry of the plea 

agreement occurred prior to the 1990 

Act, and the only issue was the 

applicability of the 1990 Act. 

Accordingly, in order to apply a 

uniform rule in the implementation of 

section 212(c), the Department will 

acquiesce in the result of Toia. The final 

rule is amended to provide that the 1990 

amendment barring the availability of 

section 212(c) relief for aggravated 

felons who have served a term of at least 

five years for one or more aggravated 

felonies will not be applied to bar the 

eligibility of aliens with respect to any 

Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 57831

aggravated felony conviction pursuant 

to a plea agreement that was made prior 

to November 29, 1990, the date that 

amendment was enacted. However, the 

immigration judges and the Board retain 

the authority to consider the nature and 

circumstances of any such aggravated 

felony or felonies as a substantial 

negative factor weighing against 

granting relief under former section 

212(c) as a matter of discretion. See e.g., 

Matter of Marin, 16 I&N Dec. 581 (BIA 

1978); Matter of Arrequin, 21 I&N Dec. 

38 (BIA 1995); Matter of Burbano, 20 

I&N Dec. 872 (BIA 1994); see also Matter 

of Jean, 23 I&N Dec. 373 (AG 2002); cf., 

Matter of Y–L, A–G–, R–S–R–, 23 I&N 

Dec. 270 (AG 2002). 

In making this change, the 

Department is limiting its effect to those 

cases in which the alien was convicted 

pursuant to a plea agreement. Aliens 

who were convicted of one or more 

aggravated felonies after trial, whether 

before or after the enactment of the 

Immigration Act of 1990, will continue 

to be subject to the limitations on 

eligibility for section 212(c) relief. As 

discussed above, the Supreme Court in 

St. Cyr was careful to limit the impact 

of its decision only to aliens who had 

entered into a plea agreement, since 

only those individuals had sufficient 

reliance interests to be able to insist on 

the benefit of their bargain. The Ninth 

Circuit’s decision in Toia was based 

exclusively on the same retroactivity 

analysis as in St. Cyr, and limited its 

holding to the availability of section 

212(c) relief for ‘‘aliens who pleaded 

guilty with the expectation that they 

would be eligible for such relief.’’ 334 

F.3d at 920. 

This change is reflected in 

§ 1212.3(f)(4)(ii). This rule also revises 

the language of § 1212.3(f)(4)(i) to 

conform to the language of section 

212(c) of the Act, regarding aliens who 

have served a term of imprisonment of 

five years or more for one or more 

aggravated felonies. 

Finally, the language of § 1212.3(f)(5) 

has been clarified. The final rule adjusts 

the language to specifically cite the 

relevant statutory provisions to make 

clear that there must be a statutory 

counterpart in proceedings under 

section 237 or former section 241 of the 

Act for section 212(c) relief to reach 

those convictions. 

G. Applicability of AEDPA 

Several commenters suggested that 

the proposed rule should be modified so 

that the date the alien committed the 

crime rather than the date of conviction 

is used to determine the applicability of 

the Antiterrorism and Effective Death 

Penalty Act of 1996 (AEDPA), Pub. L. 

104–132, 110 Stat. 1214. One 

commenter asserted that ‘‘LPRs * * * 

had a right to know that they were 

endangering their entire future with 

their family in the United States by 

breaking the law, but the gravity of their 

acts was impossible to predict before the 

passage of the 1996 laws.’’ The 

commenter continued, ‘‘[t]hose whose 

crimes occurred before the enactment of 

AEDPA face the exact same situation as 

those who were convicted before that 

date: they could not have been aware of 

the immigration consequences of their 

crimes.’’

The Department disagrees with the 

commenters. The effect of section 440(d) 

of AEDPA rendered aliens ineligible for 

section 212(c) relief if they became 

deportable for certain criminal 

convictions. The Department adheres to 

the interpretation set forth in the 

proposed rule: ‘‘This narrower version 

of section 212(c) relief is available to 

aliens who made pleas on or after April 

24, 1996, and before April 1, 1997, 

regardless of when the plea was entered 

by the court.’’ 67 FR at 52629. It should 

be noted that the date of the plea 

agreement, not the conviction date, is 

the operative date to determine the 

availability of section 212(c), as well as 

the applicability of AEDPA. Thus, if an 

alien makes a plea agreement on or after 

April 24, 1996 (the effective date of 

AEDPA), and before April 1, 1997 (the 

effective date of IIRIRA), he or she may 

be eligible for section 212(c) relief, as 

the plea agreement was made before 

IIRIRA eliminated this form of relief, but 

he or she is subject to the narrower 

version of section 212(c) relief as 

implemented by AEDPA. 

To hold the date the crime was 

committed as the operational date 

would be contrary to the St. Cyr

decision, as the Court was explicit in 

preserving the reliance interests of those 

aliens that made guilty pleas when 

section 212(c) was still available. See St. 

Cyr, 533 U.S. at 326 (‘‘We therefore hold 

that § 212(c) relief remains available for 

aliens * * * who * * * would have 

been eligible for § 212(c) relief at the 

time of their plea under the law then in 

effect.’’). The phrase ‘‘under the law 

then in effect’’ clearly conditions the 

scope of section 212(c) relief that 

remains available, thereby giving effect 

to AEDPA and consequently its 

narrowed availability of section 212(c) 

relief. Id. Accordingly, the Department 

will retain the date of the plea 

agreement as the operational date in 

determining both the availability and 

scope of section 212(c) relief for an 

alien. 

H. The Accrual of Seven Consecutive 

Years of Lawful Unrelinquished 

Domicile 

Several commenters criticized 

§ 1003.44(b), relating to how the 

requisite seven years of lawful 

unrelinquished domicile should be 

calculated in order to determine 

eligibility for section 212(c) relief. They 

asserted that § 1003.44(b)(3) should be 

amended to provide that an alien must 

have seven consecutive years of lawful 

unrelinquished domicile in the United 

States as determined ‘‘at the time the 

plea was entered,’’ rather than as of ‘‘the 

date of the final administrative order of 

deportation or removal.’’ They argued 

that an alien who did not have the 

requisite seven years of lawful 

unrelinquished domicile at the time of 

making the plea could not have relied 

upon the availability of section 212(c) 

relief because he or she would not have 

been eligible for such relief at that time. 

The Department disagrees with these 

comments. The Board has long held that 

an alien’s lawful domicile terminates 

upon the entry of the final 

administrative order of deportation. See 

Matter of Cerna, 20 I&N Dec. 399 (BIA 

1991). Although Congress has altered a 

number of provisions of the Act to limit 

eligibility for relief by the occurrence of 

specific events, the Department declines 

the commenters’ suggestion to alter the 

rule in this limited class of cases. 

I. Eligibility for Aliens Who Are 

Deportable on Grounds for Which There 

Do Not Exist Corresponding Grounds of 

Exclusion or Inadmissibility

One commenter stated that the 

proposed rule should clarify that an 

alien charged and found deportable as 

an aggravated felon is not eligible for 

section 212(c) relief ‘‘if there is no 

comparable ground of inadmissibility 

for the specific category of aggravated 

felony charged.’’ The commenter 

continues, ‘‘[f]or example, the rule 

should not apply to aggravated felons 

charged with deportability under 

specific types or categories of aggravated 

felonies such as ‘Murder, Rape, or 

Sexual Abuse of a Minor’ or ‘Crime of 

Violence’ aggravated felonies.’’ Thus, 

the commenter states that § 1212.3(f)(4) 

should include those aliens who have 

been charged with aggravated felonies 

for which there is no corresponding 

ground of inadmissibility as being 

ineligible for section 212(c) relief. 

The commenter is correct in stating 

this limitation on the scope of relief 

available under section 212(c). Matter of 

Granados, 16 I&N Dec. 726, 728 (BIA 

1979) (‘‘[I]f a ground of deportation is 

also a ground of inadmissibility, section 

57832 Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 

212(c) can be invoked in a deportation 

hearing.’’); Cabasug v. INS, 847 F.2d 

1321 (9th Cir. 1988); Matter of 

Hernandez-Casillas, 20 I&N Dec. 262 

(BIA 1990; A.G. 1991). In describing the 

eligibility requirements, the 

supplementary information of the 

proposed rule noted that ‘‘[a]n applicant 

must, at a minimum, meet the following 

criteria to be considered for a waiver 

under section 212(c): * * * [t]he alien 

is deportable or removable on a ground 

that has a corresponding ground of 

exclusion or inadmissibility * * *’’ 67 

FR at 52628–52629. However, this 

requirement was not included in the 

regulatory language of the proposed 

rule. As a result, the Department will 

effectuate the commenter’s suggestion 

by adding this requirement for section 

212(c) eligibility. Accordingly, the final 

rule provides that an alien who is 

deportable or removable on a ground 

that does not have a corresponding 

ground of exclusion or inadmissibility is 

ineligible for section 212(c) relief. 

J. Notification to Affected Individuals 

Several commenters suggested that 

the proposed rule is flawed because it 

does not provide a mechanism for 

identifying and notifying LPRs who are 

eligible to apply for section 212(c) relief. 

For example, one commenter proposed 

that the Department ‘‘identify 

individuals who were denied an 

opportunity to apply for relief on the 

basis of St. Cyr and notify them of this 

change [because otherwise] many 

affected individuals will not learn of 

these rules and will miss the 

opportunity to resolve their cases.’’

The Department disagrees with these 

recommendations. As noted above in 

relation to other comments, the 

Department finds that publishing the 

current rule in the Federal Register is 

the well-established and accepted 

method of informing the entire public of 

a change in the law. See Federal Crop 

Ins. Corporation, 332 U.S. at 384–85 

(‘‘Just as everyone is charged with 

knowledge of the United States Statutes 

at Large, Congress has provided that the 

appearance of rules and regulations in 

the Federal Register gives legal notice of 

their contents.’’) (citing 44 U.S.C. 307). 

The Department does not accept the 

premise of these arguments that it, or 

any other agency, is required to provide 

individual notice of the content of the 

law. Like citizens, aliens have a duty to 

know the law and abide by the law. 

Immigration judges routinely inform 

aliens who appear before them of the 

types of relief for which they may be 

eligible. 8 CFR 1240.11(a)(2); cf. 8 CFR 

1240.49(a) (narrower provision 

applicable to deportation proceedings). 

Thus, the Department finds that there 

exist ample opportunities for aliens 

affected by this final rule to become 

aware of its contents. Therefore, the 

Department declines to accept these 

recommendations. 

K. Proof of Permanent Residence 

One commenter stated that the 

Department should eliminate the 

‘‘burdensome paperwork requirements’’

of compelling potentially eligible aliens 

to submit proof of permanent residence. 

The commenter suggested that ‘‘[i]t is 

inappropriate and impractical to require 

an individual to provide proof of 

permanent residence or a copy of the 

Form I–90 when the EOIR and/or the 

[DHS] have that information and control 

access to it.’’

The Department disagrees with the 

commenter. Similar to other avenues of 

petitioning for relief, the alien has the 

burden of proving that he or she is 

eligible for, and merits, a form of relief. 

In the context of section 212(c) in 

particular, the alien bears the burden of 

proof to demonstrate LPR status as an 

essential element of establishing 

eligibility for such relief. The language 

of the rule merely reflects the fact that 

the alien bears this burden of proof. 

L. Applicability of the Soriano Rule 

One commenter expressed concern 

that the proposed rule would delete a 

previous rule issued by the Department 

that created a procedure for eligible 

aliens to apply for section 212(c) relief. 

The previous rule, sometimes referred to 

as the ‘‘Soriano rule,’’ was published on 

January 22, 2001, at 66 FR 6436, and is 

presently codified at 8 CFR 1212.3(g) 

(and the related motion to reopen rule, 

which is being replaced by this final 

rule, is presently codified at 8 CFR 

1003.44). The Department adopted the 

Soriano rule in response to the 

substantial judicial precedent rejecting 

the interpretation of section 212(c) set 

forth in Matter of Soriano, 21 I&N Dec. 

516 (BIA 1996, A.G. 1997). 

Briefly, the Soriano rule provided that 

the limitations of section 440(d) of 

AEDPA are not applicable to section 

212(c) applicants whose deportation 

proceedings commenced prior to April 

24, 1996, the effective date of AEDPA. 

Under the Soriano rule, such section 

212(c) applicants may apply for relief, if 

eligible, under the pre-AEDPA version 

of section 212(c), irrespective of 

whether their convictions resulted from 

plea agreements or criminal trials. The 

commenter suggested that the 

‘‘provision set forth in 8 CFR [1]212.3(g) 

should be retained in its entirety’’

because of pending cases before the 

immigration judges and the Board that 

were commenced based on the Soriano

rule. 

In this rule, the Department is 

implementing the Supreme Court’s 

ruling in St. Cyr by providing eligibility 

and procedural requirements for section 

212(c) relief for aliens whose 

convictions were entered after a plea 

agreement. This rule both amends 8 CFR 

1212.3 and replaces the special motion 

to reopen provisions adopted at the time 

of the Soriano rule, 8 CFR 1003.44 

(which is no longer relevant since the 

time to submit a motion to reopen under 

that rule has long since expired). 

The commenter is correct in observing 

that the issue addressed in current 

§ 1212.3(g) continues to be relevant to 

aliens whose deportation proceedings 

were commenced prior to the enactment 

of AEDPA. The Department will 

therefore leave intact the existing 

provision of 8 CFR 1212.3(g), which will 

continue to govern cases falling within 

its parameters.

Any motions that were filed pursuant 

to the Soriano rule that are still pending 

before the immigration judges or the 

Board will be adjudicated under the 

requirements of either the Soriano rule 

or this final rule. However, if a motion 

under Soriano was denied, and the alien 

desires to seek section 212(c) relief 

under this rule, he or she will need to 

file a new special motion, as described 

in 8 CFR 1003.44, as revised. Even if the 

motion was denied because the alien 

did not satisfy the requirements of 8 

CFR 1212.3(g) (for deportation 

proceedings commenced prior to April 

24, 1996), that ineligibility will not bar 

him or her from timely applying for 

section 212(c) relief under this rule if he 

or she is eligible under 8 CFR 1003.44 

and 1212.3, as revised. 

Aliens who were eligible to file for 

section 212(c) relief under the Soriano

rule but failed to do so will be able to 

file for section 212(c) relief under this 

rule, but only if they meet the eligibility 

requirements contained in this final 

rule—that is, with respect to convictions 

entered pursuant to a plea agreement 

made prior to April 1, 1997. This rule 

does not provide any additional relief to 

aliens whose convictions were entered 

after a trial. Accordingly, this rule does 

not extend the deadline of July 23, 2001, 

for aliens to submit a motion to reopen 

to apply for section 212(c) relief 

pursuant to the pre-existing provisions 

of § 1003.44, with respect to convictions 

entered after a trial. 

M. Filing New Motions To Reopen After 

Previously Filing Motions To Reopen 

One commenter inquired whether 

attorneys representing aliens should file 

new special motions to seek section 

Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 57833

212(c) relief under this rule if they 

previously filed a motion to reopen 

under 8 CFR 1003.2 or 1003.23 in order 

to seek relief based on the St. Cyr

decision. 

The Department does not require an 

alien to file a new special motion to 

seek section 212(c) relief if he or she 

previously filed a motion to reopen 

under 8 CFR 1003.2 or 1003.23 based on 

the St. Cyr decision and the previous 

motion is still pending. An eligible alien 

who has already filed a motion with an 

immigration judge or the Board based 

on the St. Cyr decision may supplement 

that motion if it is still pending. 

If the alien’s previous motion to 

reopen based on the St. Cyr decision 

was found to be barred solely because 

of time or number limits on motions to 

reopen, this rule makes clear that an 

eligible alien will be able to file a 

special motion under this rule to 

address the merits of the alien’s St. Cyr

claims. However, if the previous motion 

to reopen under St. Cyr was denied for 

any reason other than because of the 

time or number limitations for motions 

to reopen, § 1003.44(g)(3) precludes the 

filing of a new special motion under this 

rule. In that instance, the alien has 

already had the opportunity to raise the 

St. Cyr issues on the merits through a 

motion to reopen, and there is no reason 

to give the respondent a second 

opportunity to raise issues related to St. 

Cyr through another motion to reopen. 

See also 8 CFR 1003.44(d). 

Moreover, as stated in the proposed 

rule, if the alien under a final order of 

deportation or removal previously filed 

a motion to reopen or a motion to 

reconsider with EOIR on ‘‘other 

grounds,’’ he or she is still required to 

file a separate special motion to seek 

section 212(c) relief to receive the 

benefits under this rule as provided in 

§ 1003.44(g)(1). 

In view of the fact-specific nature of 

the determination whether or not to 

grant section 212(c) relief, this final rule 

provides that, if the Board grants a 

special motion to seek section 212(c) 

relief in a case in which it last had 

jurisdiction, the Board will remand the 

case to an immigration judge for 

adjudication of those issues. 8 CFR 

1003.44(j); see also 8 CFR 1003.1(d)(3). 

Regulatory Flexibility Act 

The Attorney General, in accordance 

with 5 U.S.C. 605(b), has reviewed this 

rule and, by approving it, certifies that 

it affects only Departmental employees 

and aliens or their representatives who 

appear in proceedings before the 

immigration judges or the Board. 

Therefore, this rule does not have a 

significant economic impact on a 

substantial number of 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 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. 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 foreignbased companies in domestic and 

export markets. 

Executive Order 12866 

This rule has been drafted and 

reviewed in accordance with Executive 

Order 12866, section 1(b), Principles of 

Regulation. The Department has 

determined that this rule is a 

‘‘significant regulatory action’’ under 

section 3(f) of Executive Order 12866, 

Regulatory Planning and Review. 

Accordingly, this rule has been 

submitted to the Office of Management 

and Budget (OMB) for review. 

Executive Order 13132 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, the Department has 

determined that this rule does not have 

sufficient federalism implications to 

warrant a federalism summary impact 

statement. 

Executive Order 12988 

This rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 

Paperwork Reduction Act of 1995 

Under the Paperwork Reduction Act 

of 1995, Pub. L. 104–13, all Departments 

are required to submit to OMB for 

review and approval any reporting 

requirements inherent in a final rule. 

This rule does not impose any new 

reporting or recordkeeping requirements 

under the Paperwork Reduction Act.

List of Subjects 

8 CFR Part 1003

Administrative practice and 

procedure, Aliens, Immigration, Legal 

services, Organization and functions 

(Government agencies). 

8 CFR Part 1212

Administrative practice and 

procedure, Aliens, Immigration, 

Passports and visas, Reporting and 

recordkeeping requirements. 

8 CFR Part 1240 

Administrative practice and 

procedure, Aliens, Immigration.

■ Accordingly, chapter V of title 8 of the 

Code of Federal Regulations is amended 

as follows:

PART 1003—EXECUTIVE OFFICE FOR 

IMMIGRATION REVIEW

■ 1. The authority citation for part 1003 

continues to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1101 

note, 1103, 1252 note, 1252b, 1324b, 1362; 28 

U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 

2 of 1950; 3 CFR, 1949–1953 Comp., p. 1002; 

section 203 of Pub. L. 105–100, 111 Stat. 

2196–200; sections 1506 and 1510 of Pub. L. 

106–386, 114 Stat. 1527–29, 1531–32; section 

1505 of Pub. L. 106–554, 114 Stat. 2763A–

326 to –328.

■ 2. Revise 8 CFR 1003.44 to read as 

follows:

§ 1003.44 Special motion to seek section 

212(c) relief for aliens who pleaded guilty or 

nolo contendere to certain crimes before 

April 1, 1997. 

(a) Standard for adjudication. This 

section applies to certain aliens who 

formerly were lawful permanent 

residents, who are subject to an 

administratively final order of 

deportation or removal, and who are 

eligible to apply for relief under former 

section 212(c) of the Act and 8 CFR 

1212.3 with respect to convictions 

obtained by plea agreements reached 

prior to a verdict at trial prior to April 

1, 1997. A special motion to seek relief 

under section 212(c) of the Act will be 

adjudicated under the standards of this 

section and 8 CFR 1212.3. This section 

is not applicable with respect to any 

conviction entered after trial. 

(b) General eligibility. The alien has 

the burden of establishing eligibility for 

relief, including the date on which the 

alien and the prosecution agreed on the 

57834 Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 

plea of guilt or nolo contendere. 

Generally, a special motion under this 

section to seek section 212(c) relief must 

establish that the alien: 

(1) Was a lawful permanent resident 

and is now subject to a final order of 

deportation or removal; 

(2) Agreed to plead guilty or nolo 

contendere to an offense rendering the 

alien deportable or removable, pursuant 

to a plea agreement made before April 

1, 1997; 

(3) Had seven consecutive years of 

lawful unrelinquished domicile in the 

United States prior to the date of the 

final administrative order of deportation 

or removal; and 

(4) Is otherwise eligible to apply for 

section 212(c) relief under the standards 

that were in effect at the time the alien’s 

plea was made, regardless of when the 

plea was entered by the court. 

(c) Aggravated felony definition. For 

purposes of eligibility to apply for 

section 212(c) relief under this section 

and 8 CFR 1212.3, the definition of 

aggravated felony in section 101(a)(43) 

of the Act is that in effect at the time 

the special motion or the application for 

section 212(c) relief is adjudicated 

under this section. An alien shall be 

deemed to be ineligible for section 

212(c) relief if he or she has been 

charged and found deportable or 

removable on the basis of a crime that 

is an aggravated felony, except as 

provided in 8 CFR 1212.3(f)(4). 

(d) Effect of prior denial of section 

212(c) relief. A motion under this 

section will not be granted with respect 

to any conviction where an alien has 

previously been denied section 212(c) 

relief by an immigration judge or by the 

Board on discretionary grounds. 

(e) Scope of proceedings. Proceedings 

shall be reopened under this section 

solely for the purpose of adjudicating 

the application for section 212(c) relief, 

but if the immigration judge or the 

Board grants a motion by the alien to 

reopen the proceedings on other 

applicable grounds under 8 CFR 1003.2 

or 1003.23 of this chapter, all issues 

encompassed within the reopened 

proceedings may be considered 

together, as appropriate. 

(f) Procedure for filing a special 

motion to seek section 212(c) relief. An 

eligible alien shall file a special motion 

to seek section 212(c) relief with the 

immigration judge or the Board, 

whichever last held jurisdiction over the 

case. An eligible alien must submit a 

copy of the Form I–191 application, and 

supporting documents, with the special 

motion. The motion must contain the 

notation ‘‘special motion to seek section 

212(c) relief.’’ The Department of 

Homeland Security (DHS) shall have 45 

days from the date of filing of the 

special motion to respond. In the event 

the DHS does not respond to the 

motion, the DHS retains the right in the 

proceedings to contest any and all 

issues raised. 

(g) Relationship to motions to reopen 

or reconsider on other grounds. (1) 

Other pending motions to reopen or 

reconsider. An alien who has previously 

filed a motion to reopen or reconsider 

that is still pending before an 

immigration judge or the Board, other 

than a motion for section 212(c) relief, 

must file a separate special motion to 

seek section 212(c) relief pursuant to 

this section. The new motion shall 

specify any other motions currently 

pending before an immigration judge or 

the Board. An alien who has previously 

filed a motion to reopen under 8 CFR 

1003.2 or 1003.23 based on INS v. St. 

Cyr is not required to file a new special 

motion under this section, but he or she 

may supplement the previous motion if 

it is still pending. Any motion for 

section 212(c) relief described in this 

section pending before the Board or an 

immigration judge on the effective date 

of this rule that would be barred by the 

time or number limitations on motions 

shall be deemed to be a motion filed 

pursuant to this section, and shall not 

count against the number restrictions for 

other motions to reopen. 

(2) Motions previously filed pursuant 

to prior provision. If an alien previously 

filed a motion to apply for section 

212(c) relief with an immigration judge 

or the Board pursuant to the prior 

provisions of this section, as in effect 

before October 28, 2004, and the motion 

is still pending, the motion will be 

adjudicated pursuant to the standards of 

this section, both as revised and as 

previously in effect, and the alien does 

not need to file a new special motion 

pursuant to paragraph (g)(1) of this 

section. However, if a motion filed 

under the prior provisions of this 

section was denied because the alien 

did not satisfy the requirements 

contained therein, the alien must file a 

new special motion pursuant to this 

section, if eligible, in order to apply for 

section 212(c) relief based on the 

requirements established in this section.

(3) Effect of a prior denial of a motion 

to reopen or motion to reconsider filed 

after the St. Cyr decision. A motion 

under this section will not be granted 

where an alien has previously submitted 

a motion to reopen or motion to 

reconsider based on the St. Cyr decision 

and that motion was denied by an 

immigration judge or the Board (except 

on account of time or number 

limitations for such motions). 

(4) Limitations for motions. The filing 

of a special motion under this section 

has no effect on the time and number 

limitations for motions to reopen or 

reconsider that may be filed on grounds 

unrelated to section 212(c). 

(h) Deadline to file a special motion 

to seek section 212(c) relief under this 

section. An alien subject to a final 

administrative order of deportation or 

removal must file a special motion to 

seek section 212(c) relief on or before 

April 26, 2005. An eligible alien may 

file one special motion to seek section 

212(c) relief under this section. 

(i) Fees. No filing fee is required at the 

time the alien files a special motion to 

seek section 212(c) relief under this 

section. However, if the special motion 

is granted, and the alien has not 

previously filed an application for 

section 212(c) relief, the alien will be 

required to submit the appropriate fee 

receipt at the time the alien files the 

Form I–191 with the immigration court. 

(j) Remands of appeals. If the Board 

has jurisdiction and grants the motion to 

apply for section 212(c) relief pursuant 

to this section, it shall remand the case 

to the immigration judge solely for 

adjudication of the section 212(c) 

application. 

(k) Limitations on eligibility under 

this section. This section does not apply 

to: 

(1) Aliens who have departed the 

United States and are currently outside 

the United States; 

(2) Aliens issued a final order of 

deportation or removal who then 

illegally returned to the United States; 

or 

(3) Aliens who have not been 

admitted or paroled.

PART 1212—DOCUMENTARY 

REQUIREMENTS: NONIMMIGRANTS; 

WAIVERS; ADMISSION OF CERTAIN 

INADMISSIBLE ALIENS; PAROLE

■ 3. The authority citation for part 1212 

is revised to read as follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 

1184, 1187, 1225, 1226, 1227.

■ 4. Amend § 1212.3 by:

■ A. Revising the section heading, 

paragraph (a), the second to last sentence 

of paragraph (b);

■ B. Removing and reserving paragraph 

(c);

■ C. Revising paragraph (d), paragraph 

(e), paragraph (f) introductory text, and 

paragraphs (f)(3), (f)(4), and (f)(5); and

■ D. Adding a new paragraph (h).

The revisions and addition read as 

follows:

Federal Register / Vol. 69, No. 187 / Tuesday, September 28, 2004 / Rules and Regulations 57835

§ 1212.3 Application for the exercise of 

discretion under former section 212(c). 

(a) Jurisdiction. An application by an 

eligible alien for the exercise of 

discretion under former section 212(c) 

of the Act (as in effect prior to April 1, 

1997), if made in the course of 

proceedings under section 240 of the 

Act, or under former sections 235, 236, 

or 242 of the Act (as in effect prior to 

April 1, 1997), shall be submitted to the 

immigration judge by filing Form I–191, 

Application for Advance Permission to 

Return to Unrelinquished Domicile. 

(b) * * * All material facts or 

circumstances that the applicant knows 

or believes apply to the grounds of 

excludability, deportability, or 

removability must be described in the 

application. * * * 

(c) [Reserved] 

(d) Validity. Once an application is 

approved, that approval is valid 

indefinitely. However, the approval 

covers only those specific grounds of 

excludability, deportability, or 

removability that were described in the 

application. An applicant who failed to 

describe any other grounds of 

excludability, deportability, or 

removability, or failed to disclose 

material facts existing at the time of the 

approval of the application, remains 

excludable, deportable, or removable 

under the previously unidentified 

grounds. If the applicant is excludable, 

deportable, or removable based upon 

any previously unidentified grounds a 

new application must be filed. 

(e) Filing or renewal of applications 

before an immigration judge. (1) An 

eligible alien may renew or submit an 

application for the exercise of discretion 

under former section 212(c) of the Act 

in proceedings before an immigration 

judge under section 240 of the Act, or 

under former sections 235, 236, or 242 

of the Act (as it existed prior to April 

1, 1997), and under this chapter. Such 

application shall be adjudicated by the 

immigration judge, without regard to 

whether the applicant previously has 

made application to the district director. 

(2) The immigration judge may grant 

or deny an application for relief under 

section 212(c), in the exercise of 

discretion, unless such relief is 

prohibited by paragraph (f) of this 

section or as otherwise provided by law. 

(3) An alien otherwise entitled to 

appeal to the Board of Immigration 

Appeals may appeal the denial by the 

immigration judge of this application in 

accordance with the provisions of 

§ 1003.38 of this chapter. 

(f) Limitations on discretion to grant 

an application under section 212(c) of 

the Act. An application for relief under 

former section 212(c) of the Act shall be 

denied if:

* * * * *

(3) The alien is subject to 

inadmissibility or exclusion from the 

United States under paragraphs (3)(A), 

(3)(B), (3)(C), (3)(E), or (10)(C) of section 

212(a) of the Act; 

(4) The alien has been charged and 

found to be deportable or removable on 

the basis of a crime that is an aggravated 

felony, as defined in section 101(a)(43) 

of the Act (as in effect at the time the 

application for section 212(c) relief is 

adjudicated), except as follows: 

(i) An alien whose convictions for one 

or more aggravated felonies were 

entered pursuant to plea agreements 

made on or after November 29, 1990, 

but prior to April 24, 1996, is ineligible 

for section 212(c) relief only if he or she 

has served a term of imprisonment of 

five years or more for such aggravated 

felony or felonies, and 

(ii) An alien is not ineligible for 

section 212(c) relief on account of an 

aggravated felony conviction entered 

pursuant to a plea agreement that was 

made before November 29, 1990; or 

(5) The alien is deportable under 

former section 241 of the Act or 

removable under section 237 of the Act 

on a ground which does not have a 

statutory counterpart in section 212 of 

the Act.

* * * * *

(h) Availability of section 212(c) relief 

for aliens who pleaded guilty or nolo 

contendere to certain crimes. For 

purposes of this section, the date of the 

plea agreement will be considered the 

date the plea agreement was agreed to 

by the parties. Aliens are not eligible to 

apply for section 212(c) relief under the 

provisions of this paragraph with 

respect to convictions entered after trial. 

(1) Pleas before April 24, 1996. 

Regardless of whether an alien is in 

exclusion, deportation, or removal 

proceedings, an eligible alien may apply 

for relief under former section 212(c) of 

the Act, without regard to the 

amendment made by section 440(d) of 

the Antiterrorism and Effective Death 

Penalty Act of 1996, with respect to a 

conviction if the alien pleaded guilty or 

nolo contendere and the alien’s plea 

agreement was made before April 24, 

1996. 

(2) Pleas between April 24, 1996 and 

April 1, 1997. Regardless of whether an 

alien is in exclusion, deportation, or 

removal proceedings, an eligible alien 

may apply for relief under former 

section 212(c) of the Act, as amended by 

section 440(d) of the Antiterrorism and 

Effective Death Penalty Act of 1996, 

with respect to a conviction if the alien 

pleaded guilty or nolo contendere and 

the alien’s plea agreement was made on 

or after April 24, 1996, and before April 

1, 1997. 

(3) Please on or after April 1, 1997. 

Section 212(c) relief is not available 

with respect to convictions arising from 

plea agreements made on or after April 

1, 1997.

PART 1240—PROCEEDINGS TO 

DETERMINE REMOVABILITY OF 

ALIENS IN THE UNITED STATES

■ 5. The authority citation for part 1240 

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 and 203, Pub. 

L. 105–100 (111 Stat. 2160, 2193); sec. 902, 

Pub. L. 105–277 (112 Stat. 2681).

§ 1240.1 [Amended]

■ 6. In § 1240.1, amend paragraph 

(a)(1)(ii) by removing the words ‘‘and 

section 902 of Pub. L. 105–277’’ and 

replacing them with the words ‘‘section 

902 of Pub. L. 105–277, and former 

section 212(c) of the Act (as it existed 

prior to April 1, 1997)’’.

Dated: September 20, 2004. 

John Ashcroft, 

Attorney General.

[FR Doc. 04–21605 Filed 9–27–04; 8:45 am] 

BILLING CODE 4410–30–P

FEDERAL RESERVE SYSTEM

12 CFR Part 201 

[Regulation A] 

Extensions of Credit by Federal 

Reserve Banks

AGENCY: Board of Governors of the 

Federal Reserve System.

ACTION: Final rule.

SUMMARY: The Board of Governors of the 

Federal Reserve System (Board) has 

adopted final amendments to its 

Regulation A to reflect the Board’s 

approval of an increase in the primary 

credit rate at each Federal Reserve Bank. 

The secondary credit rate at each 

Reserve Bank automatically increased 

by formula as a result of the Board’s 

primary credit rate action.

DATES: The amendments to part 201 

(Regulation A) are effective September 

28, 2004. The rate changes for primary 

and secondary credit were effective on 

the dates specified in 12 CFR 201.51, as 

amended.

FOR FURTHER INFORMATION CONTACT:

Jennifer J. Johnson, Secretary of the 

Board (202/452–3259); for users of