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[Federal Register Volume 65, Number 231 (Thursday, November 30, 2000)]
[Proposed Rules]
[Pages 71273-71277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30051]

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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3 and 240

[INS No. 2083-00; AG Order No. 2337-2000]
RIN 1115-AF87

Delegation of Authority to the Immigration and Naturalization 
Service To Terminate Deportation Proceedings and Initiate Removal 
Proceedings

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

ACTION: Proposed rule.

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SUMMARY: Section 309(c)(3) of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 permits the Attorney General to 
terminate certain deportation proceedings and initiate removal 
proceedings. This rule delegates this authority to the Immigration and 
Naturalization Service (Service).

DATES: Written comments must be submitted on or before January 29, 
2001.

ADDRESSES: Please submit written comments, in triplicate, to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 
20536. To ensure proper handling, please reference INS number 2083-00 
on your

[[Page 71274]]

correspondence. Comments are available for public inspection at the 
above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Kyle D. Latimer, Associate General 
Counsel, Office of the General Counsel, Immigration and Naturalization 
Service, 425 I Street, NW., Room 6100, Washington, DC 20536, telephone 
(202) 616-2604.

SUPPLEMENTARY INFORMATION:

Background

    On April 24, 1996, the President signed into law the Antiterrorism 
and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 
1214 (AEDPA). Prior to that date, under section 212(c) of the 
Immigration and Nationality Act (Act), 8 U.S.C. 1182(c) (1994), certain 
lawful permanent resident (LPR) aliens who were returning from a 
voluntary, temporary stay abroad to a lawful unrelinquished domicile of 
seven consecutive years in the United States could, in the Attorney 
General's discretion, be admitted to the United States despite 
inadmissibility under section 212(a) of the Act, 8 U.S.C. 1182(a). 
Section 440(d) of AEDPA amended section 212(c) of the Act to bar from 
applying for a section 212(c) discretionary waiver of inadmissibility 
all aliens deportable ``by reason of having committed any criminal 
offense covered in section 241(a)(2)(A)(iii) [aggravated felonies], (B) 
[controlled substances], (C) [certain firearm offenses], or (D) 
[miscellaneous crimes], or any offense covered by section 
241(a)(2)(A)(ii)[multiple criminal convictions] for which both 
predicate offenses are covered by section 241(a)(2)(A)(i).'' 110 Stat. 
1277. The Attorney General subsequently determined in Matter of 
Soriano, 21 I&N Dec. 516 (BIA 1996, A.G. 1997), that the section 212(c) 
bars in AEDPA applied to all aliens in deportation proceedings with 
applications pending on April 24, 1996. Hence, many lawful permanent 
resident aliens in deportation proceedings who were eligible for 
section 212(c) relief were rendered ineligible by AEDPA.
    On September 30, 1996, Congress enacted the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 
110 Stat. 3009 (IIRIRA). Effective April 1, 1997, IIRIRA eliminated 
section 212(c) of the Act, replacing it with a similar form of relief 
called cancellation of removal. See 110 Stat. 3009-597 (eliminating 
section 212(c); 110 Stat. 3009-594-3009-595 (adding section 240A(b) of 
the Act, 8 U.S.C. 1229(b)). A conviction for an aggravated felony 
remained as a bar to cancellation of removal. However, convictions 
covered under the remaining sections were no longer bars to relief as 
they had been under AEDPA. The result was that many of those LPR aliens 
rendered ineligible by AEDPA for section 212(c) relief after April 24, 
1996, would have been eligible for cancellation of removal had their 
removal proceedings commenced on or after April 1, 1997.
    IIRIRA also eliminated the discretionary relief of suspension of 
deportation under former section 244 of the Act, 8 U.S.C. 1254(a), and 
replaced it with a similar, separate form of cancellation of removal 
under the new section 240A(b) of the Act. See 110 Stat. 3009-615 
(eliminating former section 244); 110 Stat. 3009-594-3009-595 (adding 
section 240A(b) of the Act, 8 U.S.C. 1229(b)). Congress, moreover, 
limited the availability of both types of relief by, among other 
things, amending the rules relating to the time counted toward physical 
presence in the United States. Section 240A(d)(1) of the Act, 8 U.S.C. 
1229(b)(d)(1), as added by IIRIRA, see 110 Stat. 3009-595, provides 
that (for purposes of that section) any period of continuous residence 
or physical presence ends when an alien is served with a Notice to 
Appear or when the alien commits a crime rendering him inadmissible 
under section 212 or removable under section 237 of the Act (the 
``stop-time'' rule). Section 309(c)(5)(A) of IIRIRA, 110 Stat. 3009-
627, as amended by section 203(a)(1) of the Nicaraguan Adjustment and 
Central American Relief Act, Pub. L. No. 105-100, Title II, 111 Stat. 
2193, 2196 (NACARA), applies the stop-time rule in section 240A(d)(1) 
to Orders to Show Cause as well. Under the stop-time rule, many non-LPR 
aliens in deportation proceedings who were eligible for suspension of 
deportation were rendered ineligible by IIRIRA and NACARA because they 
had not accrued seven years of continuous physical presence prior to 
service of the Order to Show Cause. Some of these same aliens, however, 
may be eligible for relief in removal proceedings under section 
240A(b).

What Is ``Repapering''?

    Section 309(c)(3) of IIRIRA grants the Attorney General the 
discretion ``to terminate [deportation] proceedings in which there has 
not been a final administrative decision and to reinitiate [removal] 
proceedings under [IIRIRA].'' 110 Stat. 3009-626 This procedure is 
commonly referred to as repapering.
    The Attorney General has decided to exercise the discretion granted 
to her in section 309(c)(3) of IIRIRA in individual cases on behalf of 
certain lawful permanent residents who are caught in the window of 
disadvantage between the enactments of AEDPA and IIRIRA and certain 
non-LPR aliens negatively affected by the stop-time rule in section 
240A(d)(1) of the Act. This rule will permit an alien rendered 
ineligible for relief in deportation proceedings by the statutory 
changes described above, but who would be eligible for relief in 
removal proceedings, to seek termination of his or her deportation 
proceeding and initiation of removal proceedings in order to apply for 
relief under the current legal standards.

Who Is Eligible for Repapering?

    In order to qualify for repapering under either category, a 
repapering applicant must be in deportation proceedings at the time of 
the application. By the express terms of the statute, repapering cannot 
occur when a final administrative decision has been made. Therefore, 
only aliens in deportation proceedings currently pending before the 
Immigration Court or the Board of Immigration Appeals (Board) are 
eligible for repapering. Furthermore, a deportation proceeding shall 
not be reopened for the purpose of repapering. However, if a 
deportation proceeding is reopened for an independent reason, an 
eligible alien may apply for repapering.
    An LPR alien who seeks repapering must meet the eligibility 
requirements of former section 212(c) of the Act at the time of 
application for repapering but for the AEDPA bars to eligibility. 
Likewise, a non-LPR repapering applicant must meet the eligibility 
requirements for suspension of deportation under former section 244 of 
the Act at the time of application for repapering but for the 
application of the stop-time rule in section 240A(d)(1) of the Act. 
Repapering is intended to benefit those aliens rendered ineligible for 
relief by AEDPA or the stop-time rule. If an alien was statutorily 
ineligible for section 212(c) relief or suspension of deportation on 
some other basis or was denied relief as a matter of discretion, he or 
she will not be given a second opportunity for relief through 
repapering.
    Repapering applicants must also be statutorily eligible for 
cancellation of removal under section 240A(a) or (b) of the Act at the 
time of application. If the alien is not eligible for cancellation of 
removal under current law in removal proceedings, there is no purpose 
for the alien to seek repapering. Although the requirements for 
cancellation of removal under section 240A(b) of the Act are

[[Page 71275]]

more restrictive than the requirements for suspension of deportation 
under prior law, through repapering these non-LPR aliens will at least 
have an opportunity to apply for relief under current law.
    The alien must still be able to demonstrate the requisite existence 
of hardship in order to obtain relief--``extreme'' hardship under 
former section 244(a)(1) of the Act or ``exceptional and extremely 
unusual'' hardship under former section 244(a)(2) of the Act and 
current section 240A(b) of the Act. This will be a matter to be 
determined by the immigration judge. Therefore, this rule does not 
require a non-LPR alien to demonstrate hardship at the time of applying 
for repapering. However, in order to be eligible for repapering, such 
an alien must have a spouse, parent, or child who is a United States 
citizen or lawful permanent resident. After repapering has been granted 
and removal proceedings have begun, the alien will have the burden of 
demonstrating the requisite hardship to that family member at that 
time.

What Is the Relationship Between This Rule and the Recently-Published 
Rule on Section 212(c) Relief for Aliens in Deportation Proceedings 
Before April 24, 1996?

    As discussed above, the enactment of AEDPA on April 24, 1996, 
substantially limited the availability of discretionary relief from 
deportation under former section 212(c) of the Act for lawful permanent 
resident aliens. However, in light of judicial decisions interpreting 
the language of AEDPA, certain lawful permanent resident aliens may be 
able to seek section 212(c) relief if they are eligible, 
notwithstanding the enactment of AEDPA. See Section 212(c) Relief for 
Certain Aliens in Deportation Proceedings Before April 24, 1996, 65 FR 
44476 (July 18, 2000) (proposed Department of Justice rule concerning 
section 212(c) relief for lawful permanent residents who were already 
in deportation proceedings prior to the enactment of AEDPA).
    Aliens who are eligible for relief under the more favorable 
standards of former section 212(c) of the Act in effect prior to the 
enactment of AEDPA are not eligible for repapering under this rule. 
Repapering only applies to aliens in deportation proceedings who are 
subject to the restrictions imposed by AEDPA and IIRIRA, as it is the 
repapering procedure that will allow them to apply for cancellation of 
removal under current law in removal proceedings.

How Does the Stop-Time Rule Apply to Repapered Cases?

    Section 309(c)(5)(B) of IIRIRA states that, in a repapered 
proceeding, section 240A(d)(1) of the Act ``shall not apply to an order 
to show cause issued before April 1, 1997.'' 111 Stat. 2196. At first 
glance, this phrase may appear to be somewhat redundant, since all 
Orders to Show Cause were issued before April 1, 1997. However, this 
provision does not mean the stop-time rule is inapplicable in repapered 
proceedings.
    Rather, the Department interprets section 309(c)(5)(B) of IIRIRA to 
mean that, once a proceeding is repapered, the fact that an Order to 
Show Cause had been issued in the terminated deportation proceeding is 
not relevant in determining whether the alien satisfies the time 
requirements for cancellation of removal in the new removal proceeding. 
However, the stop-time rule does apply with reference to the service of 
a Notice to Appear for the initiation of removal proceedings. A lawful 
permanent resident must still demonstrate 7 years of continuous 
residence--and a non-LPR alien must demonstrate 10 years of continuous 
physical presence--prior to service of the Notice to Appear or 
commission of the crime.

How Does One Apply for Repapering?

    The Service has sole discretion in determining whether or not to 
repaper in a particular case. An alien shall apply for repapering by 
making a written request with the district counsel's office responsible 
for the proceeding. Neither the immigration judge nor the Board may 
terminate a deportation proceeding for the purpose of repapering absent 
a written motion from Service counsel.
    Upon motion by Service counsel to terminate a deportation 
proceeding pending before the Immigration Court or the Board, for the 
purpose of repapering, the immigration judge or the Board shall 
terminate the proceeding. However, this rule provides that the 
immigration judge or the Board will not grant a Service motion to 
terminate deportation proceedings for repapering with respect to an 
alien who is granted relief from deportation.
    In any case where a deportation proceeding is terminated for the 
purpose of repapering, the Service shall then expeditiously commence 
removal proceedings by preparing and serving a Notice to Appear on the 
alien and filing the Notice to Appear with the Immigration Court.
    The application period to apply for repapering shall expire one 
year from the date that the Service publishes this rule as a final rule 
in the Federal Register. This deadline is necessary to ensure that 
deportation proceedings are not delayed for the purpose of accruing 
time in status, residence, or presence for eligibility for relief.

What Is the Procedure for Those Cases Previously Administratively 
Closed for Repapering?

    Pursuant to instructions from the Service and the Executive Office 
for Immigration Review, many deportation proceedings involving aliens 
determined to be eligible to apply for repapering have already been 
administratively closed. To apply for repapering, once this rule is 
published as final, an alien shall make a request in writing with the 
district counsel's office responsible for his or her proceeding. If 
upon review the Service determines that the alien is eligible for 
repapering, the Service shall prepare and serve a Notice to Appear on 
the alien and file the Notice to Appear with the Immigration Court. The 
previous deportation proceeding before the Immigration Court or the 
Board shall be terminated as a matter of law on the date the Service 
files the Notice to Appear with the Immigration Court. If upon review 
the Service determines the alien is not eligible for repapering, then 
the deportation proceeding should be recalendared and continue.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving 
it, certifies that this rule will not have a significant impact on a 
substantial number of small entities because of the following reason: 
This rule allows the Service to terminate deportation proceedings 
involving certain aliens and reinitiate removal proceedings, in order 
to allow these aliens to apply for cancellation of removal under 
current law. It will have no effect on small entities, as that term is 
defined in 5 U.S.C. 601(6).

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.

[[Page 71276]]

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 Act of 1996. 5 U.S.C. 804. This 
rule will not result in an annual effect on the economy of $100 million 
or more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Executive Order 12866

    This rule is considered by the Department of Justice to be a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866. Accordingly, this regulation has been submitted to the Office of 
Management and Budget for review.

Executive Order 13132

    The 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 responsibility among the various levels 
of government. Therefore, in accordance with section six of Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of 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, Civil Justice Reform.

List of Subjects

8 CFR Part 3

    Administrative practice and procedure, Immigration, Organization 
and functions (Government agencies).

8 CFR Part 240

    Administrative practice and procedure, Immigration.
    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is proposed to be amended as follows:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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

    Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note, 1103, 1252 note, 
1324b, 1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 
1950, 3 CFR, 1949-1953 Comp., p. 1002.

    2. Section 3.2(c)(1) is amended by adding a sentence at the end of 
the paragraph, to read as follows:

Sec. 3.2  Reopening or reconsideration before the Board of Immigration 
Appeals.

* * * * *
    (c) * * *
    (1) * * * A motion to reopen for the purpose of repapering under 
subpart I of part 240 of this chapter shall not be granted.
* * * * *
    3. Section 3.23(b)(3) is amended by adding a sentence at the end of 
the paragraph, to read as follows:

Sec. 3.23  Reopening or reconsideration before the Immigration Court.

* * * * *
    (b) * * *
    (3) * * * A motion to reopen for the purpose of repapering under 
subpart I of part 240 of this chapter shall not be granted.
* * * * *

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

    4. 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; secs. 202 and 203, Pub. L. 105-
100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277 (112 Stat. 
2681); 8 CFR part 2.

    5. In part 240, subpart I is added to read as follows:

Subpart I--Termination of Deportation Proceedings and Initiation of 
Removal Proceedings (Repapering) Under Section 309(c)(3) of Public 
Law 104-208

Sec.
240.80   Authority.
240.81   Eligibility to request repapering.
240.82   Application for repapering.

Sec. 240.80  Authority.

    The sole authority and discretion to terminate pending deportation 
proceedings and initiate removal proceedings against an alien (known as 
repapering), as granted to the Attorney General under section 309(c)(3) 
of the Illegal Immigration Reform and Immigrant Responsibility Act of 
1996 (IIRIRA), Div. C, Public Law 104-208, is delegated to the Service. 
Neither an immigration judge nor the Board of Immigration Appeals shall 
terminate a deportation proceeding for the purpose of repapering absent 
a written motion from the Service counsel. No appeal shall lie from the 
Service's denial of an application for repapering.

Sec. 240.81  Eligibility to request repapering.

    (a) An alien may request repapering under this subpart if an alien 
is barred from obtaining relief from deportation in his or her pending 
deportation proceedings, but would be eligible to seek relief from 
removal if the alien were in removal proceedings. To be eligible to 
request repapering under section 309(c)(3) of IIRIRA, an alien must 
meet the following standards:
    (1) If the alien is a lawful permanent resident, the alien must be:
    (i) In deportation proceedings at the time of application for 
repapering without a final administrative order of deportation;
    (ii) Statutorily eligible for relief under former section 212(c) of 
the Act at the time of application for repapering but for the 
eligibility bars imposed by the Antiterrorism and Effective Death 
Penalty Act of 1996 (AEDPA), Public Law 104-132; and
    (iii) Statutorily eligible for cancellation of removal under 
section 240A(a) of the Act at the time of application for repapering.
    (2) If the alien is not a lawful permanent resident, the alien must 
be:
    (i) In deportation proceedings at the time of application for 
repapering without a final administrative order of deportation;
    (ii) Statutorily eligible for suspension of deportation under 
former section 244 of the Act at the time of application for repapering 
but for the application of the stop-time rule in section 240A(d)(1) of 
the Act; and
    (iii) Statutorily eligible for cancellation of removal under 
section 240A(b) of the Act at the time of application for repapering.
    (b) An applicant for repapering who is a lawful permanent resident 
is not required to have filed an application for relief under former 
section 212(c) of the Act. An applicant for repapering who is not a 
lawful permanent resident is not required to have filed an application 
for suspension of deportation, or to demonstrate the requisite hardship 
at the time he or she applies for repapering.
    (c) The burden of proof is on the applicant to establish by a 
preponderance of the evidence that he or she is eligible for 
repapering.

Sec. 240.82  Application for repapering.

    (a) To apply for repapering, an alien shall make a request in 
writing with the district counsel's office responsible for his or her 
proceeding. The request must include sufficient proof of eligibility 
for repapering. A request for repapering must be received by the 
district counsel's office no later than 1 year after

[[Page 71277]]

the Service publishes this rule in final form in the Federal Register.
    (b) Should the district counsel's office determine that an alien 
requesting repapering is statutorily eligible and that his or her 
request warrants a favorable exercise of discretion, the Service will 
file a motion to terminate the deportation proceeding with the 
Immigration Court, or with the Board if the proceeding is pending with 
the Board. Upon the filing of such a motion, the immigration judge or 
the Board shall terminate the deportation proceeding, except as 
provided in paragraph (c) of this section.
    (c) The immigration judge (or the Board, if the proceeding is 
pending before the Board) shall deny a motion to terminate the 
deportation proceeding for repapering if the alien is granted relief 
from deportation.
    (d) In any deportation proceeding that was administratively closed 
because the alien was determined to be eligible to apply for 
repapering, the alien shall apply for repapering in accordance with 
paragraph (a) of this section. If upon review the Service determines 
that the alien is eligible for repapering, the Service shall prepare 
and serve a Notice to Appear on the alien and file the Notice to Appear 
with the Immigration Court. The previous deportation proceeding before 
the Immigration Court or the Board shall be terminated as a matter of 
law on the date the Service files the Notice to Appear with the 
Immigration Court.
    (e) Once a deportation proceeding is terminated, the Service shall 
expeditiously initiate removal proceedings against the alien. No 
determination or action in the terminated deportation proceeding shall 
be binding in the removal proceeding.

    Dated: November 15, 2000.
Janet Reno,
Attorney General.
[FR Doc. 00-30051 Filed 11-29-00; 8:45 am]
BILLING CODE 4410-10-U
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