[Federal Register Volume 62, Number 157 (Thursday, August 14, 1997)]
[Rules and Regulations]
[Pages 43466-43467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21458]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 212

[INS No. 1748-96; AG Order No. 2104-97]
RIN 1115-AE27


Executive Office for Immigration Review; Periods of Lawful 
Temporary Resident Status and Lawful Permanent Resident Status to 
Establish Seven Years of Lawful Domicile

AGENCY: Immigration and Naturalization Service (INS), Executive Office 
for Immigration Review (EOIR), Justice.

ACTION: Final rule.

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SUMMARY: This rule adopts without change an interim rule published in 
the Federal Register by the Immigration and Naturalization Service and 
the Executive Office for Immigration Review on November 25, 1996, which 
amended Department of Justice regulations that limit discretion to 
grant an application for relief under section 212(c) of the Immigration 
and Nationality Act (the Act) by expanding the class of aliens eligible 
for section 212(c) relief. Although Congress recently limited the 
availability of section 212(c) relief, certain classes of aliens remain 
eligible. This rule allows a 212(c) eligible alien who has adjusted to 
lawful permanent resident status, pursuant to sections 245A or 210 of 
the Act, to use the combined period of his or her status as a lawful 
temporary resident and lawful permanent resident to establish seven (7) 
years of lawful domicile in the United States for purposes of 
eligibility for section 212(c) relief. This rule will provide 
uniformity between the regulation and case law.

DATES: This final rule is effective August 14, 1997.

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; David M. Dixon, Chief Appellate Counsel, 
Immigration and Naturalization Service, Suite 309, 5113 Leesburg Pike, 
Falls Church, Virginia 22041, telephone (703) 756-6257.

SUPPLEMENTARY INFORMATION: Two recent enactments affect the 
availability of relief under section 212(c). The Antiterrorism and 
Effective Death Penalty Act of 1996 (AEDPA) restricts the classes of 
alien criminals eligible for section 212(c) relief. The Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996 repeals and 
replaces section 212(c), but only for proceedings commenced on or after 
April 1, 1997. This rule only affects the cases not covered by these 
new restrictions, i.e., those commenced before April 1, 1997, and not 
barred by AEDPA.
    Under recent 212(c) case law, an alien who has acquired lawful 
permanent resident status under section 245A of the Act may accrue the 
seven (7) years of lawful domicile required for purposes of section 
212(c) relief from the date of his or her application for temporary 
resident status. See Robles v. INS, 58 F.3d 1355 (9th Cir. 1995); 
Avelar-Cruz v. INS, 58 F.3d 338 (7th Cir. 1995); Castellon-Contreras v. 
INS, 45 F.3d 149 (7th Cir. 1995). The current regulation allows an 
alien to apply for section 212(c) relief only if he or she has 
established at least seven consecutive years of lawful permanent 
resident status immediately prior to filing the application. See 8 CFR 
212.3(f)(2). The Board of Immigration Appeals (BIA) has determined 
that, in cases arising in the Ninth Circuit, an alien may use the 
period of temporary resident status to establish the requisite seven 
years. See In re Carlos Cazares-Alvarez, Interim Decision 3262 (BIA 
1996). However, in cases arising in circuits without such a temporary 
resident status rule, the BIA has determined that the current 
regulation requires seven years of lawful permanent resident status. 
See In re Hector Ponce de Leon-Ruiz, Interim Decision 3261 (BIA 1996). 
The BIA has referred these cases to the Attorney General pursuant to 8 
CFR 3.1(h)(1)(ii) to resolve the issue. The issue raised in White v. 
INS, 75 F.3d 213 (5th Cir. 1996) (whether 8 CFR 212.3(f)(2) is 
consistent with 8 U.S.C. 1182(c) and therefore is entitled to 
deference), has been addressed and rendered moot by section 304 of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 
Public Law 104-208, 110 Stat. 3009 (September 30, 1996) (repealing 
section 212(c) and substituting other relief), effective April 1, 1997, 
codified at section 240A of the Immigration and Nationality Act as 
amended. The White court computed the years of lawful unrelinquished 
domicile (including the years of lawful temporary resident status) 
rather than lawful permanent residence in determining eligibility for 
relief.
    The Service published an interim rule with request for comments in 
the Federal Register on November 25, 1996, at 61 FR 59824. The interim 
rule permitted an alien to demonstrate lawful domicile for section 
212(c) relief purposes by combining his or her status as a lawful 
temporary resident and as a lawful permanent resident under sections 
245A or 210 of the Act. Since no comments were received, the Service 
and EOIR are adopting the interim rule as final without changes.

Effective Date

    Since there are no changes between the interim rule and this final 
rule, the Service believes that ``good cause'' exists to implement this 
rule effective upon date of publication in the Federal Register.

Regulatory Flexibility Act

    The Attorney General, in accordance with 5 U.S.C. 605(b) has 
reviewed this regulation and, by approving it, certifies that this rule 
will not have a significant adverse economic impact on a substantial 
number of small entities. The affected parties are individuals not 
small entities, and the impact of the regulation is not an economic 
one.

Unfunded Mandates Reform Act

    This rule will not result in the expenditure by State, local, and 
tribunal 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 804 of the 
Small Business Regulatory Enforcement Act of 1996. 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 rule is not considered by the Department of Justice, 
Immigration and

[[Page 43467]]

Naturalization Service and the Executive Office for Immigration Review, 
to be a ``significant regulatory action'' under Executive Order 12866, 
section 3(f), Regulatory Planning and Review, and the Office of 
Management and Budget has waived its review process under section 
6(a)(3)(A).

Executive Order 12612

    The regulation adopted herein will not have substantial direct 
effects on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. 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

    This final 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 212

    Administrative practice and procedure, Aliens, Immigration, 
Passports and visas, Reporting and recordkeeping requirements.
    Accordingly, the interim rule amending 8 CFR part 212 which was 
published at 61 FR 59824 on November 25, 1996, is adopted as a final 
rule without change.

    Dated: August 7, 1997.
Janet Reno,
Attorney General.
[FR Doc. 97-21458 Filed 8-13-97; 8:45 am]
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