[Federal Register Volume 62, Number 192 (Friday, October 3, 1997)]
[Rules and Regulations]
[Pages 51760-51762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26385]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service
Executive Office for Immigration Review

8 CFR Part 240

[EOIR No. 118I; AG Order No. 2118-97]
RIN: 1125-AA19


Suspension of Deportation and Cancellation of Removal

AGENCY: Immigration and Naturalization Service, Justice, and Executive 
Office for Immigration Review, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This rule amends the regulations of the Executive Office for 
Immigration Review (EOIR) and Immigration and Naturalization Service 
(Service) by establishing a procedure for processing suspension of 
deportation and cancellation of removal and adjustment of status cases. 
This rule is a partial and transitional measure to implement provisions 
of the Illegal Immigration Reform and Immigrant Responsibility Act of 
1996 (IIRIRA) relating to suspension of deportation and cancellation of 
removal. This transitional policy will be reevaluated after the 
Department determines how

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best to implement sections (304(a)(3) and 309(c)(7) of IIRIRA.

DATES: Effective date: This interim rule is effective October 1, 1997.
    Comment date: Written comments must be submitted on or before 
December 1, 1997.

ADDRESSES: Please submit written comments, in triplicate, to Margaret 
M. Philbin, General Counsel, Executive Office for Immigration Review, 
Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041.

FOR FURTHER INFORMATION CONTACT:
For matters relating to the Executive Office for Immigration Review--
Margaret M. Philbin, General Counsel, Executive Office for Immigration 
Review, Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041, 
telephone (703) 527-0470. For matters relating to the Immigration and 
Naturalization Service--Marguerite N. Przybylski, Associate General 
Counsel, Immigration and Naturalization Service, 425 I Street NW, 
Washington, D.C. 20536, telephone (202) 514-2895.

SUPPLEMENTARY INFORMATION: This interim rule with request for comments 
amends 8 CFR part 240 by creating new Sec. 240.21.

Background

    On September 30, 1996 Congress enacted IIRIRA. Under section 
304(a)(3) of IIRIRA, the Attorney General may not cancel the removal 
and adjust the status under section 240A(b) of the Immigration and 
Nationality Act (Act), nor suspend the deportation and adjust the 
status under section 244(a) of the Act (as in effect before April 1, 
1997) of a total of more than 4,000 aliens in any fiscal year. Section 
309(c)(7) of IIRIRA provides that this numerical limitation applies 
regardless of when an alien has applied for the relief. The limitation 
is effective beginning with fiscal year 1997.
    Because no implementing regulations were in place upon IIRIRA's 
enactment on September 30, 1996, suspension cases granted in the first 
five months of fiscal year 1997 were granted without condition and the 
statutory cap was nearly reached by mid-February. On February 13, 1997, 
EOIR issued directives to the immigration judges and the Board of 
Immigration Appeals (Board) to reserve grants of suspension until 
further notice. These directives provided a temporary mechanism to 
ensure that EOIR did not exceed the statutory cap in the remainder of 
fiscal year 1997 while the Department determined how to implement the 
cap. Over 3,000 decisions have been reserved since the issuance of 
these directives. In order to prevent this backlog of cases from 
continuing to increase, it is necessary to provide a procedure that 
will allow for the entry of a substantive determination regarding the 
merits of these cases, while allowing the Department an opportunity to 
further investigate methods to implement the cap. Therefore, immediate 
direction is required for the processing of these cases in light of 
sections 304(a)(3) and 309(c)(7) of IIRIRA.
    This regulation provides the necessary procedures for the 
processing of suspension of deportation and cancellation of removal 
cases while it is determined how the numerical limitation will be 
implemented. The rule provides that applications for suspension or 
cancellation that meet the statutory requirements and warrant a 
favorable exercise of discretion will be conditionally granted. This 
rule is a transitional measure in that conditional grants of suspension 
of deportation and cancellation of removal will be revisited after the 
Department determines how best to implement sections 304(a)(3) and 
309(c)(7) of IIRIRA. This rule provides a partial solution to the 
statutory cap in that it will provide a mechanism to eliminate the 
backlog of reserved cases. The Department intends to implement the 
statutory cap in a separate regulation within approximately six months.

The Interim Rule

    This interim rule provides that neither the immigration judges nor 
the Board shall make an unconditional grant of any application for 
suspension of deportation pursuant to section 244(a) of the Act (as it 
existed prior to April 1, 1997) or cancellation of removal and 
adjustment of status pursuant to section 240A(b) of the Act. If the 
immigration judge or the Board finds that an alien is statutorily 
eligible for suspension of deportation or cancellation of removal and 
adjustment of status and that the case warrants a favorable exercise of 
discretion, the immigration judge or the Board shall enter a 
conditional grant of suspension or cancellation. The Board shall enter 
a conditional grant of suspension or cancellation even if the 
immigration judge granted that application without condition. A 
conditional grant of suspension or cancellation may be appealed to the 
Board pursuant to the rules and time frames specified in 8 CFR part 3.
    The conditional grant of suspension of deportation or cancellation 
of removal and adjustment of status shall specify which paragraph of 
section 244(a) of the Act (as in effect before April 1, 1997) or 
section 240A(b) of the Act applies, and shall include an alternate 
order of deportation, removal or voluntary departure. Thus the alien is 
conditionally granted suspension or cancellation and that conditional 
grant will be revised after the Department determines how best to 
implement sections 304(a)(3) and 309(c)(7) of IIRIRA.
    The Department's implementation of this rule as an interim rule, 
with provision for post-promulgation public comment, is based upon the 
exception for rules of agency organization, procedure or practice in 5 
U.S.C. 553(b)(3)(A) and upon the ``good cause'' exception found at 5 
U.S.C. 553(b)(3)(B) and 553(d)(3). Immediate implementation is 
necessary because EOIR has directed that suspension of deportation 
grants be reserved until further notice and over 3,000 decisions have 
been so reserved over the last few months. These cases must be resolved 
on the merits while the Department determines how to implement the 
statutory cap on suspension and cancellation. The Department has 
provided a public comment period on this interim rule of 60 days.

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, certified 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 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-

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based companies in domestic and export markets.

Executive Order 12866

    The Attorney General has determined that this rule is a significant 
regulatory action under Executive Order 12866, 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 the National 
Government and States, or on the distribution or 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 E.O. 12988.

List of Subjects in 8 CFR Part 140

    Administrative practice and procedure, Aliens, Immigration.

    Accordingly, part 240 of chapter I of Title 8 of the Code of 
Federal Regulations is amended as follows:

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

    1. The authority citation for part 240 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 
1251, 1252 note, 1252a, 1252b, 1362; 8 CFR part 2.

    2. Section 240.21 is added to read as follows:


Sec. 240.21  Suspension of deportation and adjustment under section 
244(a) of the Act (as in effect before April 1, 1997) and cancellation 
of removal and adjustment under section 240A(b) of the Act for certain 
nonpermanent residents.

    (a) Applications for suspension of deportation under section 244(a) 
of the Act (as in effect before April 1, 1997) or cancellation of 
removal and adjustment of status under section 240A(b) of the Act that 
meet the statutory requirements and warrant a favorable exercise of 
discretion may be granted only on a conditional basis. The order 
conditionally granting relief shall state which paragraph of section 
244(a) of the Act (as in effect before April 1, 1997) or section 
240A(b) of the Act applies. No application for suspension or 
cancellation shall receive a favorable exercise of discretion where the 
applicant has been granted asylum or adjustment of status while the 
suspension or cancellation application is pending. A decision to deny 
as a matter of discretion an application for suspension or cancellation 
on this basis shall be reconsidered where an appeal of a decision 
granting asylum or adjustment is sustained by the Board of Immigration 
Appeals.
    (b) An alternate order of voluntary departure, deportation, or 
removal must be entered when there is a conditional grant of suspension 
or cancellation. The alternate order shall take effect if the condition 
is not ultimately removed.
    (c) An order conditionally granting an application for suspension 
or cancellation is appealable to the Board pursuant to the procedures 
set forth in this chapter, and the time for appeal by the Service of 
the conditional grant or for appeal by the alien of the finding of 
deportability or of any denial of other relief by the immigration judge 
shall run from the date of such order.
    (d) If, on appeal, the Board determines that an application for 
suspension of deportation or cancellation of removal meets the 
statutory requirements and warrants a favorable exercise of discretion, 
such application shall be granted on a conditional basis, even if an 
immigration judge granted the application without condition.

    Dated: October 1, 1997.
Janet Reno,
Attorney General.
[FR Doc. 97-26385 Filed 10-1-97; 11:36 am]
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