31890 Federal Register / Vol. 63, No. 112 /Thursday, June 11, 1998 /Rules and Regulations

List of Subjects in 8 CFR Part 3

Administrative practice and

procedure, Immigration, Lawyers,

Organizations and functions

(Government agencies), Reporting and

recordkeeping requirements.

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. 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.

2. Section 3.1 is amended by revising

paragraph (a)(1) and adding paragraphs

(a) (4), (5) and (6) to read as follows:

§ 3.1 General authorities.

(a)(1) Organization. There shall be in

the Department of Justice a Board of

Immigration Appeals, subject to the

general supervision of the Director,

Executive Office for Immigration

Review. The Board shall consist of a

Chairman, a Vice Chairman, and

thirteen other members. The Board

Members shall exercise their

independent judgment and discretion in

the cases coming before the Board. A

vacancy, or the absence or

unavailability of a Board Member, shall

not impair the right of the remaining

members to exercise all the powers of

the Board. The Director may in his

discretion designate Immigration

Judges, retired Board Members, retired

Immigration Judges, and Administrative

Law Judges employed within EOIR to

act as temporary, additional Board

Members for terms not to exceed six

months. The Chairman may divide the

Board into three-member panels and

designate a Presiding Member of each

panel. The Chairman may from time to

time make changes in the composition

of such panels and of Presiding

Members. Each panel shall be

empowered to decide cases by majority

vote. A majority of the number of Board

Members authorized to constitute a

panel shall constitute a quorum for such

panel. Each three-member panel may

exercise the appropriate authority of the

Board as set out in part 3 that is

necessary for the adjudication of cases

before it. In the case of an unopposed

motion or a motion to withdraw an

appeal pending before the Board, a

single Board Member or the Chief

Attorney Examiner may exercise the

appropriate authority of the Board as set

out in part 3 that is necessary for the

adjudication of such motions before it.

* * * * *

(4) En banc Process—(i) Full Board en

Banc. A majority of the permanent

Board Members shall constitute a

quorum of the Board for purposes of

convening the full Board en banc. The

Board may on its own motion, by a

majority vote of the permanent Board

Members, or by direction of the

Chairman, consider any case as the full

Board en banc, or reconsider as the full

Board en banc any case that has been

considered or decided by a threemember panel or by a limited en banc

panel.

(ii) Limited en banc panels. The Board

may on its own motion, by a majority

vote of the permanent Board Members,

or by direction of the Chairman, assign

a case or group of cases for

consideration by a limited en banc

panel, or assign a case that has been

considered or decided by a threemember panel for reconsideration by a

limited en banc panel. Each limited en

banc panel shall consist of nine

members. Each limited en banc panel

shall contain the Chairman or Vice

Chairman (as decided by the Chairman).

If the Chairman and Vice Chairman are

both disqualified in a particular case,

then the most senior permanent Board

Member who is not disqualified shall sit

on the limited en banc panel as the

Presiding Board Member. If the

Chairman and Vice Chairman are both

unavailable to hear a case that has been

assigned to a limited en banc panel, but

the Chairman is not disqualified, then

the Chairman shall designate a

Presiding Board Member to sit on the

limited en banc panel. If the Chairman

is unavailable and disqualified, then the

Vice Chairman, if unavailable and not

disqualified, shall designate a presiding

Board Member to sit on the limited en

banc panel. Where a case that has been

considered or decided by a threemember panel is assigned for review by

a limited en banc panel, the en banc

panel shall contain all available

permanent Board Members who

considered or decided that case as part

of a three-member panel. The remaining

members of each limited en banc panel

will be randomly selected from among

the permanent Board Members. The

decision reached by a limited en banc

panel shall be considered as the final

decision of the Board in the case, unless

the Chairman or a majority of the

permanent Board Members vote to

decide to assign the case to a full en

banc panel for reconsideration in

accordance with paragraph (a)(4)(i) of

this section.

(5) Precedents. By majority vote of the

permanent Board Members, a decision

of the Board, whether rendered by a

three-member panel, a limited en banc

panel, or by the entire Board sitting en

banc, may be designated to serve as a

Board precedent pursuant to paragraph

(g) of this section.

(6) Board staff. There shall also be

attached to the Board such number of

attorneys and other employees as the

Deputy Attorney General, upon

recommendation of the Director, shall

from time to time direct.

* * * * *

Dated: June 5, 1998.

Janet Reno,

Attorney General.

[FR Doc. 98–15589 Filed 6–10–98; 8:45 am]

BILLING CODE 4410–30–M

DEPARTMENT OF JUSTICE

8 CFR Part 3

[EOIR No. 121P; AG Order No. 2162–98]

RIN 1125–AA23

Executive Office for Immigration

Review; Motion to Reopen:

Suspension of Deportation and

Cancellation of Removal

AGENCY: Executive Office for

Immigration Review, Justice.

ACTION: Interim rule with request for

comments.

SUMMARY: This rule amends the

regulations of the Executive Office for

Immigration Review (EOIR) by

establishing a special procedure for the

filing and adjudication of motions to

reopen to apply for suspension of

deportation and cancellation of removal

pursuant to section 203(c) of the

Nicaraguan Adjustment and Central

American Relief Act.

DATES: Effective date: This interim rule

is effective June 11, 1998.

Comment date: Written comments

must be submitted on or before July 13,

1998.

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:

Margaret M. Philbin, General Counsel,

Executive Office for Immigration

Review, Suite 2400, 5107 Leesburg Pike,

Falls Church, Virginia 22041, telephone

(703) 305–0470.

SUPPLEMENTARY INFORMATION: This

interim rule with request for comments

amends 8 CFR part 3 by creating new

§ 3.43.

Background

This regulation relates to a previous

notice, signed by the Attorney General
Federal Register / Vol. 63, No. 112 /Thursday, June 11, 1998 /Rules and Regulations 31891

on January 15, 1998, and published at

63 FR 3154, on January 21, 1998, which

designated the time period for filing

motions to reopen pursuant to section

203(c) of the Nicaraguan Adjustment

and Central American Relief Act (Pub.

L. 105–100; 111 Stat. 2160, 2193)

(NACARA). Section 203 of NACARA,

signed into law on November 19, 1997,

amended section 309 of the Illegal

Immigration Reform and Immigrant

Responsibility Act of 1996 (Pub. L. 104–

208; 110 Stat. 3009–625) (IIRIRA) to

provide special rules regarding

applications for suspension of

deportation and cancellation of removal

by certain aliens. These aliens include

Guatemalan, Salvadoran, and certain

former Soviet bloc nationals described

in section 309(c)(5)(C)(i) of IIRIRA, as

amended by section 203 of NACARA.

Section 203(c) of NACARA also

amended section 309 of IIRIRA by

creating a provision for motions to

reopen under NACARA. Section 309(g)

of IIRIRA, as amended, permits aliens

with final orders of deportation or

removal who have become eligible for

cancellation of removal or suspension of

deportation as a result of the

amendments made by section 203 of

NACARA to file one motion to reopen

removal or deportation proceedings to

apply for such relief, without regard to

the limitations imposed by law on

motions to reopen. Section 309(g) of

IIRIRA, as amended, further requires the

Attorney General to designate a specific

time period for filing motions to reopen

for such relief beginning no later than

60 days after the date of enactment of

NACARA and extending for a period not

to exceed 240 days.

The Attorney General’s notice in the

Federal Register designated from

January 16, 1998 to September 11, 1998

as the time period for filing NACARA

motions to reopen. See 63 FR 3154. That

notice waived the filing fee for motions

to reopen filed pursuant to NACARA,

but did not disturb any other regulatory

provisions with respect to the filing or

adjudication of motions to reopen.

The Interim Rule

The Attorney General is simplifying

the filing process for NACARA motions

to reopen in two ways. First, this rule

clarifies who can file a motion to reopen

pursuant to section 309(g) of IIRIRA, as

amended by section 203(c) of NACARA,

by defining who has become eligible for

‘‘special rule’’ cancellation of removal

or suspension of deportation as a result

of the amendments made by section 203

of NACARA. Second, the rule permits

any alien who is moving to reopen

pursuant to section 309(g) of IIRIRA, as

amended by section 203(c) of NACARA,

to file such motion initially without a

suspension or cancellation application

and supporting documents. The alien

then will have until February 8, 1999 to

file the application for suspension of

deportation or cancellation of removal

and to provide all other supporting

evidence and arguments in favor of

reopening. The alien should note at that

time that he or she is filing such

application to complete a NACARA

motion to reopen filed earlier without

an application and supporting

documentation.

The Attorney General is clarifying

who can file a motion to reopen

pursuant to section 309(g) of IIRIRA, as

amended by section 203(c) of NACARA,

to ensure a fair and efficient

administrative process. In addition, the

Attorney General has decided to permit

the initial filing of NACARA motions to

reopen to pursue relief under NACARA

without applications for relief and

supporting documents because

NACARA gives eligible aliens the

opportunity to file only one NACARAbased motion to reopen and permits a

240-day time period during which the

motion must be filed. Many potential

NACARA beneficiaries may have been

in proceedings years ago and it may take

some time to accumulate the documents

necessary to prepare an application for

suspension of deportation.

Aliens Eligible To File a Motion To

Reopen Pursuant to NACARA

Section 309(g) of IIRIRA, as amended

by section 203(c) of NACARA, permits

an alien who has a final order of

deportation or removal to file one

motion to reopen only if he or she has

become eligible for cancellation of

removal or suspension of deportation as

a result of the amendments made by

section 203 of NACARA. Section 203(c)

of NACARA provides:

‘‘[N]otwithstanding any limitation

imposed by law on motions to reopen

removal or deportation proceedings

(except limitations premised on an

alien’s conviction of an aggravated

felony (as defined in section 101(a) of

the Immigration and Nationality Act)),

any alien who has become eligible for

cancellation of removal or suspension of

deportation as a result of the

amendments made by section 203 of the

Nicaraguan Adjustment and Central

American Relief Act may file one

motion to reopen removal or

deportation proceedings to apply for

cancellation of removal or suspension of

deportation.’’ See Public Law 105–100,

§ 203(c).

This rule clarifies who can file a

motion to reopen pursuant to NACARA

by defining ‘‘who has become eligible

for cancellation of removal or

suspension of deportation as a result of

the amendments made by section 203 of

the Nicaraguan Adjustment and Central

American Relief Act.’’ Several

provisions of IIRIRA must be examined

to determine ‘‘who has become eligible’’

for cancellation of removal or

suspension of deportation as a result of

the amendments made by NACARA.

IIRIRA consolidated deportation and

exclusion proceedings into one unified

removal proceeding and abolished the

relief from deportation known as

‘‘suspension of deportation’’ contained

in section 244(a) of the Immigration and

Nationality Act (INA) (as it existed prior

to April 1, 1997). Persons placed in

removal proceedings after April 1, 1997

may, instead, apply for cancellation of

removal pursuant to section 240A of the

INA, as amended. While cancellation of

removal resembles suspension of

deportation, an applicant for

cancellation must generally establish

continuous physical presence for ten

years instead of seven years, must

establish ‘‘exceptional and extremely

unusual hardship’’ instead of ‘‘extreme

hardship,’’ and must establish hardship

to the applicant’s United States citizen

or lawful permanent resident spouse,

parent, or child rather than hardship to

the applicant or a United States citizen

or lawful permanent resident spouse,

parent, or child.

Special rules terminating continuous

physical presence also apply to

cancellation of removal relief. Section

240A(d) (1) and (2) provides three rules

relating to the termination of continuous

residence or physical presence. Any

period of continuous residence or

continuous physical presence in the

United States shall be deemed to end

when the alien is: (1) served a notice to

appear under section 239(a); or (2) has

committed an offense referred to in

section 212(a)(2) that renders the alien

inadmissible to the United States under

section 212(a)(2) or removable from the

United States under section 237(a)(2) or

237(a)(4), whichever is earlier. See

section 240A(d)(1) of the INA, as

amended. In addition, an alien shall be

considered to have failed to maintain

continuous physical presence in the

United States if the alien has departed

the United States for any period in

excess of 90 days or for any periods in

the aggregate exceeding 180 days. See

section 240A(d)(2) of the INA, as

amended. These ‘‘stop-time rules’’ of

IIRIRA apply to all aliens in removal

proceedings under section 240A of the

INA, as amended.

Section 309(c)(5) of IIRIRA as in effect

prior to amendment by NACARA

contained a transitional rule providing
31892 Federal Register / Vol. 63, No. 112 /Thursday, June 11, 1998 /Rules and Regulations

that paragraphs (1) and (2) of section

240A(d) of the INA (which established

these ‘‘stop-time rules’’ relating to

continuous physical presence) shall

apply to notices to appear issued before,

on, or after the date of enactment of

IIRIRA. This transitional rule has been

interpreted as applying the ‘‘stop-time

rules’’ of IIRIRA also to orders to show

cause issued against persons in

deportation proceedings seeking

suspension of deportation relief. Under

this interpretation, an alien affected by

any of the ‘‘stop-time rules’’ relating to

continuous physical presence—for

example, an alien who failed to accrue

seven years of continuous physical

presence before being served with an

order to show cause—was made

ineligible for suspension of deportation.

Therefore, under IIRIRA an alien

generally must establish seven years of

continuous physical presence in the

United States prior to service of a

charging document, along with good

moral character and extreme hardship,

in order to qualify for suspension of

deportation. (Aliens who cannot

establish continuous physical presence

because of commission of an offense, or

because the continuity of their physical

presence was interrupted by a departure

from the United States exceeding 90

days (or 180 days in the aggregate),

would also be ineligible for suspension

of deportation.)

Section 203 of NACARA amends

section 309(c)(5) of IIRIRA by

eliminating this transitional restriction

on suspension of deportation for six

classes of aliens in deportation

proceedings and similarly exempts

persons in removal proceedings who are

within those six categories from

operation of the ‘‘stop-time rules’’

contained in section 240A(d)(1) of the

INA. Section 203 also creates a ‘‘special

rule’’ for cancellation of removal which

generally restores pre-IIRIRA

suspension rules for those who are

applying for cancellation of removal and

fall within the six classes of aliens.

Generally, an alien within one of the

six classes who would have been

ineligible for suspension of deportation

at the time of adjudication as a result of

section 309(c)(5) of IIRIRA may now be

eligible for suspension under the

NACARA amendments. Thus, an alien

who was served with an order to show

cause before being physically present in

the United States for a continuous

period of seven years may now be

eligible for suspension of deportation as

a result of the amendments made by

section 203 of NACARA. Similarly, an

alien within one of the six classes who

was ineligible for cancellation of

removal under the heightened standard

of ‘‘exceptional and extremely unusual

hardship’’ may now be eligible under

the special rule for cancellation of

removal. For example, an alien served

with a notice to appear before being

physically present in the United States

for a continuous period of 10 years, or

an alien who could not establish that his

removal would result in exceptional and

extremely unusual hardship to a United

States citizen or lawful permanent

resident spouse, parent, or child, may

now be eligible for the special rule for

cancellation of removal as a result of the

amendments made by section 203 of

NACARA.

This rule provides that a motion to

reopen pursuant to section 309(g) of

IIRIRA, as amended by section 203(c) of

NACARA, must establish that the alien:

(1) is prima facie eligible for suspension

of deportation pursuant to section

244(a) of the INA (as in effect prior to

April 1, 1997) or the special rule for

cancellation of removal pursuant to

section 309(f) of IIRIRA, as amended by

section 203(b) of NACARA; and (2) was

or would be ineligible (a) for suspension

of deportation by operation of section

309(c)(5) of IIRIRA (as in effect prior to

November 19, 1997); or (b) for

cancellation of removal pursuant to

section 240A of the INA, but for

operation of section 309(f) of IIRIRA, as

amended by section 203(b) of NACARA;

and (3) has not been convicted at any

time of an aggravated felony; and (4)

falls within one of the six classes of

aliens described in section 203(a)(1) of

NACARA.

Prima Facie Eligibility and Statutory

Bars

As mentioned above, an alien

reopening pursuant to NACARA must

establish prima facie eligibility for

suspension of deportation or

cancellation of removal under the

applicable standards governing such

forms of discretionary relief pursuant to

section 244 of the INA, as in effect prior

to April 1, 1997. In general, the alien

must have been physically present in

the United States for a continuous

period of at least seven years

immediately preceding the date of such

application; must be a person of good

moral character during such period; and

must establish that deportation or

removal would result in extreme

hardship to the alien or to the alien’s

spouse, parent, or child who is a citizen

of the United States or an alien lawfully

admitted for permanent residence.

Different standards apply to aliens who

are deportable because of a criminal

conviction or certain other grounds. See

section 244(a)(2) of the INA, as in effect

prior to April 1, 1997. The period of

continuous physical presence must be

established as of no later than

September 11, 1998.

Further, to be prima facie eligible to

apply for suspension of deportation or

cancellation of removal, the alien must

not be subject to any of the statutory

bars to seeking such relief. Section

240A(c) of the INA, and section 244(f)

of the INA as it existed prior to April 1,

1997, provide that certain categories of

aliens are ineligible for cancellation of

removal or suspension of deportation.

Moreover, an alien who was previously

granted voluntary departure and

received oral and written notice of the

consequences of failing to depart, but

did not depart the United States

voluntarily within the time specified, is

barred for a specific period of time from

various forms of discretionary relief,

including cancellation of removal and

suspension of deportation, pursuant to

section 240B(d) of the INA and section

242B(e)(2) of the INA as it existed prior

to April 1, 1997. Sections 242B(e)(1), (3)

and (4) of the INA as it existed prior to

April 1, 1997, also bar eligibility for

such relief for certain aliens who, after

receiving the required oral and written

notices, failed to appear at their removal

or deportation hearings, failed to appear

as ordered for deportation, or failed to

appear at an asylum hearing. These and

any other statutory bars to eligibility for

suspension of deportation or

cancellation of removal are not waived

by the provisions of NACARA.

Although there may be only a limited

number of aliens who are affected by

these provisions, the Attorney General

has no authority to waive these statutory

bars in the cases where they do apply.

Motion To Reopen Without Application

for Relief

The Attorney General is creating an

exception to the regulatory

requirements, found at 8 CFR §§ 3.2(c)

and 3.23(b)(3), providing that ‘‘[a]ny

motion to reopen for the purpose of

acting on an application for relief must

be accompanied by the appropriate

application for relief and all supporting

documents’’ for any alien eligible to

reopen under section 309(g) of IIRIRA,

as amended by section 203 of NACARA.

Such aliens may elect to file a motion

to reopen initially without an

application for relief and supporting

documents. The alien must allege in

such motion that the alien: (1) is prima

facie eligible for suspension of

deportation pursuant to section 244(a)

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

1997) or the special rule for cancellation

of removal pursuant to section 309(f) of

IIRIRA, as amended by section 203(b) of

NACARA; and (2) was or would be
Federal Register / Vol. 63, No. 112 /Thursday, June 11, 1998 /Rules and Regulations 31893

ineligible (a) for suspension of

deportation by operation of section

309(c)(5) of IIRIRA (as in effect prior to

November 19, 1997); or (b) for

cancellation of removal pursuant to

section 240A of the INA, but for

operation of section 309(f) of IIRIRA, as

amended by section 203(b) of NACARA;

and (3) has not been convicted at any

time of an aggravated felony; and (4)

falls within one of the six classes of

aliens described in section 203(a)(1) of

NACARA. The alien will then have

until February 8, 1999 to file an

application for suspension of

deportation or cancellation of removal

and all other supporting documents that

would have been filed initially with a

standard motion to reopen. A copy of

both the motion to reopen and the

subsequently filed application for

suspension of deportation or

cancellation of removal with all other

supporting evidence must be served on

the Immigration and Naturalization

Service (INS or Service). The Service

shall have 45 days from the date of

service of the completed motion to

respond to the motion.

The motion will be adjudicated only

after it has been completed by the filing

of the required application for

suspension of deportation or

cancellation of removal and the Service

has submitted a response or the time for

response has elapsed. The completed

motion will be adjudicated under all

applicable statutory and regulatory

provisions. Persons filing a motion to

reopen under NACARA should follow

standard motion practice, as set forth in

the regulations, with the exception of

the special provisions regarding the

filing fee, the submission of the

application for relief, and the provisions

relating to Immigration Court

jurisdiction as set forth in this rule.

If the alien fails to file the required

application by February 8, 1999, the

motion will be denied as abandoned. In

that case, the alien will have lost the

alien’s one opportunity to move to

reopen under section 309(g) of IIRIRA,

as amended by section 203(c) of

NACARA, for suspension of deportation

or cancellation of removal relief.

However, an individual may still be

eligible to reopen for other reasons as

permitted by statute and regulation. The

front page of a motion to reopen

pursuant to section 309(g) of IIRIRA, as

amended by section 203(c) of NACARA,

and any envelope containing such

motion should include the notation

‘‘Special NACARA Motion.’’ The $110

filing fee is waived for these motions to

reopen pursuant to section 203(c) of

NACARA. The requirements and

procedures in 8 CFR §§ 3.31(b),

103.7(b)(1) and 240.11(f) for paying the

application fee for suspension or

cancellation after a motion to reopen is

granted, however, are not waived. The

alien should submit an Application for

Suspension of Deportation (Form EOIR–

40) whether or not he or she is in

deportation or removal proceedings.

The time period for filing the motion is

from January 16, 1998 to September 11,

1998. See 63 FR 3154.

This special provision allowing for

the filing of a motion to reopen without

the application for relief and supporting

documents applies only to motions to

reopen under the special rules of section

309(g) of IIRIRA, as amended by section

203(c) of NACARA. An alien moving to

reopen pursuant to section 309(g) of

IIRIRA, as amended by section 203(c) of

NACARA, may choose to file a complete

motion to reopen accompanied by an

application for suspension of

deportation or cancellation of removal

and all other supporting evidence

within the designated time period of

January 16, 1998 to September 11, 1998.

The Service will then have 45 days to

respond to the motion.

ABC Class Members

Any alien listed in section

309(c)(5)(C)(i) of IIRIRA with a final

order of deportation or removal must

file a motion to reopen pursuant to

section 309(g) of IIRIRA, as amended by

section 203(c) of NACARA, in order to

apply for suspension of deportation or

‘‘special rule’’ cancellation of removal.

This includes, but is not limited to, the

defined class of Salvadorans and

Guatemalans who are afforded de novo

asylum adjudications pursuant to the

settlement agreement in American

Baptist Churches v. Thornburgh, 760 F.

Supp. 796 (1991) (ABC class members)

who were issued final orders by the

Board or the Immigration Judge.

The Attorney General anticipates

promulgating regulations this year to

delegate to Service asylum officers the

authority to adjudicate the applications

of certain NACARA beneficiaries for

suspension of deportation and ‘‘special

rule’’ cancellation of removal. It is

anticipated that ABC class members

who are eligible for ABC benefits (that

is, are registered for ABC benefits and

have filed an asylum application by the

requisite dates: for Guatemalans, by

January 3, 1995; for Salvadorans, by

February 16, 1996) and who have a final

order of deportation will have the

option to seek adjudication of

suspension of deportation before an

asylum officer at INS if the motion to

reopen is granted. Thus, ABC class

members may request administrative

closure at the time they file their motion

to reopen or after the motion is granted.

Their cases may be administratively

closed pending promulgation of

regulations governing adjudication of

suspension of deportation or ‘‘special

rule’’ cancellation of removal before the

INS. An ABC class member who is

eligible for ABC benefits, as described

above, and whose case previously had

been administratively closed by the

Immigration Court, is not required to

file a motion to reopen under section

309(g) of IIRIRA, as amended by section

203(c) of NACARA , however, as no

final order has been issued in such a

case.

Jurisdiction Over Motions To Reopen

Under Section 203 of NACARA

All motions to reopen filed pursuant

to the special rules of section 309(g) of

IIRIRA, as amended by section 203(c) of

NACARA, shall be filed with the

Immigration Court, even if the Board of

Immigration Appeals (Board) issued an

order in the case. An alien should make

all efforts to file such motion to reopen

and the completed application for

suspension of deportation or

cancellation of removal with the

Immigration Court that last had

jurisdiction over the proceedings

because that is the Immigration Court

that will adjudicate the motion to

reopen. Any motion to reopen under the

special rules of section 309(g), as

amended by section 203(c) of NACARA,

filed with the Board or with an

Immigration Court other than the one

that last had jurisdiction over the

proceedings, will be forwarded to the

appropriate Immigration Court for

adjudication as a timely filed motion if

filed on or before September 11, 1998.

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,

procedures, 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), 553(d)(3). Immediate

implementation is necessary because

the time period has already been

designated for filing motions to reopen

under NACARA and will terminate on

September 11, 1998.

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

economic impact on a substantial

number of small entities because it

affects individual aliens, not small

entities.
31894 Federal Register / Vol. 63, No. 112 /Thursday, June 11, 1998 /Rules and Regulations

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 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

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 the States, or

on the distribution of 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 Executive Order 12988.

List of Subjects in 8 CFR Part 3

Administrative practice and

procedure, Immigration, Organization

and functions (Government agencies).

Accordingly, part 3 of chapter I of

Title 8 of the Code of Federal

Regulations is amended as follows:

PART 3—EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW

1. The authority citation for part 3 is

revised to read as follows:

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

2. Section 3.43 is added to subpart C

to read as follows:

§ 3.43 Motion to Reopen for Suspension of

Deportation and Cancellation of Removal

pursuant to Section 203(c) of the

Nicaraguan Adjustment and Central

American Relief Act (NACARA).

(a) Standard for Adjudication. Except

as provided in this section, a motion to

reopen proceedings under section 309(g)

of IIRIRA, as amended by section 203(c)

of NACARA, will be adjudicated under

applicable statutes and regulations

governing motions to reopen.

(b) Aliens eligible to reopen

proceedings under section 203 of

NACARA. A motion to reopen

proceedings to apply for suspension of

deportation or cancellation of removal

under the special rules of section 309(g)

of IIRIRA, as amended by section 203(c)

of NACARA, must establish that the

alien:

(1) Is prima facie eligible for

suspension of deportation pursuant to

section 244(a) of the INA (as in effect

prior to April 1, 1997) or the special rule

for cancellation of removal pursuant to

section 309(f) of IIRIRA, as amended by

section 203(b) of NACARA;

(2) Was or would be ineligible:

(i) For suspension of deportation by

operation of section 309(c)(5) of IIRIRA

(as in effect prior to November 19,

1997); or

(ii) For cancellation of removal

pursuant to section 240A of the INA, but

for operation of section 309(f) of IIRIRA,

as amended by section 203(b) of

NACARA;

(3) Has not been convicted at any time

of an aggravated felony; and

(4) Is within one of the following six

classes:

(i) A national of El Salvador who:

(A) First entered the United States on

or before September 19, 1990;

(B) Registered for benefits pursuant to

the settlement agreement in American

Baptist Churches, et al. v. Thornburgh,

760 F.Supp. 796 (N.D. Cal. 1991) (ABC)

on or before October 31, 1991, or

applied for Temporary Protected Status

(TPS) on or before October 31, 1991; and

(C) Was not apprehended after

December 19, 1990, at time of entry; or

(ii) A national of Guatemala who:

(A) First entered the United States on

or before October 1, 1990;

(B) Registered for ABC benefits on or

before December 31, 1991; and

(C) Was not apprehended after

December 19, 1990, at time of entry; or

(iii) A national of Guatemala or El

Salvador who applied for asylum with

INS on or before April 1, 1990; or

(iv) An alien who:

(A) Entered the United States on or

before December 31, 1990;

(B) Applied for asylum on or before

December 31, 1991; and

(c) At the time of filing such

application for asylum was a national of

the Soviet Union, Russia, any republic

of the former Soviet Union, Latvia,

Estonia, Lithuania, Poland,

Czechoslovakia, Romania, Hungary,

Bulgaria, Albania, East Germany,

Yugoslavia, or any state of the former

Yugoslavia; or

(v) The spouse or child of a person

described under paragraphs (b)(4)(i)

through (b)(4)(iv) of this section who

was a spouse or child of such person at

the time the person was granted

suspension of deportation or

cancellation of removal; or

(vi) An unmarried son or daughter of

a parent, who is described under

paragraphs (b)(4)(i) through (b)(4)(iv) of

this section, at the time the parent is

granted suspension of deportation or

cancellation of removal, provided that,

if the son or daughter is 21 years of age

or older at the time the parent is granted

suspension of deportation or

cancellation of removal, the son or

daughter must have entered the United

States on or before October 1, 1990.

(c) Motion to reopen under section

203 of NACARA. (1) An alien filing a

motion to reopen proceedings pursuant

to section 309(g) of IIRIRA, as amended

by section 203(c) of NACARA, may

initially file a motion to reopen without

an application for suspension of

deportation or cancellation of removal

and supporting documents, but the

motion must be filed no later than

September 11, 1998. The alien must

allege in such motion to reopen that the

alien:

(i) Is prima facie eligible for

suspension of deportation pursuant to

section 244(a) of the INA (as in effect

prior to April 1, 1997) or the special rule

for cancellation of removal pursuant to

section 309(g) of IIRIRA, as amended by

section 203(b) of NACARA;

(ii) Was or would be ineligible:

(A) For suspension of deportation by

operation of section 309(c)(5) of IIRIRA

(as in effect prior to November 19,

1997); or

(B) For cancellation of removal

pursuant to section 240A of the INA, but

for operation of section 309(f) of IIRIRA,

as amended by section 203(b) of

NACARA;

(iii) Has not been convicted at any

time of an aggravated felony; and
Federal Register / Vol. 63, No. 112 /Thursday, June 11, 1998 /Rules and Regulations 31895

(iv) Falls within one of the six classes

described in paragraph (b)(4) of this

section.

(2) A motion to reopen filed without

an application for suspension of

deportation or cancellation of removal

shall not be considered complete until

it has been supplemented with the

application for suspension of

deportation or cancellation of removal

and all other supporting documentation.

An alien shall have until February 8,

1999 to complete that motion. A motion

to reopen filed without an application

and supporting documents will not be

adjudicated until it is completed with

the required application for suspension

of deportation or cancellation of

removal and supporting documents. The

Service shall have 45 days from the date

of service of the application for

suspension of deportation or

cancellation of removal to respond to

that completed motion. If the alien fails

to file the required application by 150

days after September 11, 1998 the

motion will be denied as abandoned.

(c) Fee for motion to reopen waived.

No filing fee is required for a motion to

reopen to apply for suspension of

deportation or cancellation of removal

under the special rules of section 309(g)

of IIRIRA, as amended by section 203(c)

of NACARA.

(d) Jurisdiction over motions to

reopen under section 203 of NACARA

and remand of appeals. (1)

Notwithstanding any other provisions,

any motion to reopen filed pursuant to

the special rules of section 309(g) of

IIRIRA, as amended by section 203(c) of

NACARA, shall be filed with the

Immigration Court, even if the Board of

Immigration Appeals issued an order in

the case. The Immigration Court that

last had jurisdiction over the

proceedings will adjudicate a motion to

reopen filed pursuant to the special

rules of section 309(g) of IIRIRA, as

amended by section 203(c) of NACARA.

(2) The Board will remand to the

Immigration Court any presently

pending appeal in which the alien

appears eligible to apply for suspension

of deportation or cancellation of

removal under the special rules of

section 309(g) of IIRIRA, as amended by

section 203 of NACARA, and appears

prima facie eligible for that relief. The

alien will then have the opportunity to

apply for suspension or cancellation

under the special rules of NACARA

before the Immigration Court.

Dated: June 5, 1998.

Janet Reno,

Attorney General.

[FR Doc. 98–15588 Filed 6–10–98; 8:45 am]

BILLING CODE 4410–30–M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 212

[INS No. 1751–96]

RIN 1115–AE29

Effect of Parole of Cuban and Haitian

Nationals on Resettlement Assistance

Eligibility

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Final rule.

SUMMARY: This rule adopts without

change an interim rule published by the

Immigration and Naturalization Service

(Service) in the Federal Register on July

12, 1996. The interim rule amended

Service regulations to clarify that, with

certain exceptions specified in the

interim rule, nationals of Cuba or Haiti

who were paroled into the United States

since October 10, 1980, are to be

considered to have been paroled in an

immigration status referred to in section

501(e)(1) of the Refugee Education

Assistance Act of 1980, Pub. L. 96–422,

dated October 10, 1980, as amended.

This amendment was necessary to

ensure that these aliens are not

inadvertently considered to hold an

immigration status other than the status

referred to in section 501(e)(1).

DATES: This rule is effective June 11,

1998.

FOR FURTHER INFORMATION CONTACT:

Janice B. Podolny, Associate General

Counsel, Chief of Examinations

Division, Office of the General Counsel,

Immigration and Naturalization Service,

Room 6100, 425 I Street NW.,

Washington, DC 20536, telephone: (202)

514–2895. This is not a toll-free number.

SUPPLEMENTARY INFORMATION: On July

12, 1996, the Service published an

interim rule in the Federal Register at

61 FR 36610–11. The interim rule

clarified that, with certain exceptions

specified in the interim rule, nationals

of Cuba and Haiti who were paroled

into the United States since October 10,

1980, are to be considered to have been

paroled in the immigration status

referred to in section 501(e)(1) of the

Refugee Education Assistance Act of

1980, as amended.

The comment period expired

September 10, 1996. The Service

received only one comment, from a

commenter who supported the

promulgation of this rule. The

commenter made further comments

regarding the expiration of the validity

of Forms I–94 issued to parolees, and

the parolees’ concomitant need to obtain

extensions of their parole and of their

employment authorization. Since these

further comments do not relate to the

purpose and substance of the interim

rule, nor of this final rule, the Service

need not address these further

comments in promulgating this final

rule.

Effective Date

Because of the urgent need to clarify

the status of the aliens affected by the

interim rule, the Commissioner found

that good cause existed to make the

interim rule effective on July 12, 1996,

the date the Service published the

interim rule in the Federal Register, as

stated at 61 FR 36611. This final rule

makes no substantive change. For this

reason, the Commissioner finds that

good cause also exists to make this final

rule effective upon publication in the

Federal Register, as permitted under 5

U.S.C. 553.

Regulatory Flexibility Act

In accordance with 5 U.S.C. 605(b),

the Commissioner certifies that this

final rule does not have a significant

economic impact on a substantial

number of small entities. The factual

basis for this certification is that this

rule simply clarifies the immigration

status that the affected aliens already

hold, and does not alter the rights or

obligations of any person or entity.

Unfunded Mandates Reform Act of

1995

This final rule is not a Federal

mandate, as defined by 2 U.S.C. 658. For

this reason, it is not necessary to

conduct the analyses provided for under

the Unfunded Mandates Reform Act of

1995.

Small Business Regulatory Enforcement

Fairness Act of 1996

This final rule is not a major rule, as

defined by 5 U.S.C. 804(2).

Executive Order 12866

The Commissioner does not consider

this rule 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 the required

review.

Executive Order 12612

This final rule will not have

substantial direct effects on the States,

on the relationship between the Federal

Government and the States, or on the

distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with Executive Order 12612,