[Federal Register: March 22, 1999 (Volume 64, Number 54)]
[Rules and Regulations]
[Page 13663-13667]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22mr99-1]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
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under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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DEPARTMENT OF JUSTICE
8 CFR Part 3
[EOIR No. 121F; AG Order No. 2214-99]
RIN 1125-AA23
Motion To Reopen: Suspension of Deportation and Cancellation of
Removal
AGENCY: Executive Office for Immigration Review, Justice.
ACTION: Final rule.
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SUMMARY: This rule amends the regulations of the Executive Office for
Immigration Review (EOIR) by extending the time period for the filing
of an application of suspension of deportation and special rule
cancellation of removal and all of the documentation supporting a
motion to reopen filed pursuant to section 203(c) of the Nicaraguan
Adjustment and Central American Relief Act.
DATES: Effective date: This final rule is effective March 22, 1999.
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 rule amends and adopts in final form
an interim rule published at 63 FR 31890 on June 11, 1998. That interim
rule amended 8 CFR Part 3 by establishing a special procedure for the
filing and adjudication of motions to reopen to apply for suspension of
deportation and cancellation of removal under section 203 of the
Nicaraguan Adjustment and Central American Relief Act (Pub. L. 105-100;
111 Stat. 2160, 2193) (NACARA). That Act, 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). This rule makes two changes to the interim rule. First,
the final rule extends the February 8, 1999 deadline to submit the
application for suspension of deportation or special rule cancellation
of removal and all of the supporting documentation in support of the
NACARA motion to reopen. Second, the final rule addresses certain
eligibility problems for a dependent with a final order of deportation
or removal who is unable to complete his or her motion to reopen until
the principal alien is granted relief.
Background
Section 203 of NACARA provides 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.
On November 24, 1998, the Department of Justice published a
proposed regulation implementing section 203 of NACARA that would
permit certain aliens eligible for relief under section 203 of NACARA
to submit to the INS applications for suspension of deportation or
special rule cancellation of removal. Such applications will be
adjudicated by asylum officers. In certain cases, aliens currently in
immigration court proceedings would be given the opportunity to move
for administrative closure of their cases in order to apply for relief
before the INS. The period for public comment on the section 203 rule
closed on January 25, 1999, and the Department will publish a rule
implementing section 203 of NACARA after review and consideration of
all comments. Several provisions within the proposed rule are likely to
affect immigration court proceedings with respect to NACARA motions to
reopen; these provisions are discussed where relevant in the following
sections.
Section 203(c) of NACARA also amended section 309 of IIRIRA by
creating a provision for eligible aliens who have already received a
final order of deportation or removal to file a motion to reopen in
order to obtain the benefits of 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. That provision further required the Attorney
General to designate a specific time period for filing such motions to
reopen under NACARA beginning no later than 60 days after the date of
enactment of NACARA and extending for a period not to exceed 240 days.
Accordingly, on January 15, 1998, the Attorney General signed a
notice that designated from January 16, 1998, to September 11, 1998, as
the time period for filing NACARA motions to reopen. See 63 FR 3154
(Jan. 21, 1998). 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 Motion To Reopen Rule
The interim published on June 11, 1998, addressed the specific
filing process for NACARA motions to reopen in two ways. First, it
clarified who can file a motion to reopen pursuant to section 309(g) of
IlRIRA, 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, it permitted any alien who is moving to reopen
pursuant to section 309(g) of IIRIRA, as amended by section 203(c) of
NACARA, to file an abbreviated motion to reopen initially, without also
including a suspension or cancellation application and supporting
documents. This two-tiered procedure departs from the general
requirement that a motion to reopen must be accompanied by the
appropriate application for relief and supporting documents at the time
of filing. The interim rule provided that aliens who had filed a motion
to reopen by September 11, 1998, must submit an application for
suspension of deportation or special rule cancellation of removal and
all other supporting evidence and arguments in favor of reopening no
later than February 8,
[[Page 13664]]
1999, in order to complete the motion to reopen.
The Final Rule
This final NACARA motion to reopen rule amends two aspects of the
interim NACARA motion to reopen rule based on consideration of public
comments, as well as the Department's review of the process during the
interim rule period.
First, the final rule extends the February 8, 1999 deadline to
submit the application for suspension of deportation or special rule
cancellation of removal and all of the supporting documentation in
support of the NACARA motion to reopen. An alien who timely filed the
abbreviated NACARA motion to reopen will have 150 days from the
effective date of the rule implementing section 203 of NACARA to
complete the motion by submitting the application for suspension of
deportation or special rule cancellation of removal accompanied by any
supporting evidence.
Second, the final motion to reopen rule and addresses certain
eligibility problems for a dependent with a final order of deportation
or removal who is unable to complete his or her motion to reopen until
the principal alien is granted relief. The final rule continues to
require a dependent to meet NACARA motion to reopen filing deadlines,
however, it now enables the dependent to reopen his or her case upon a
showing that he or she is prima facie eligible for suspension of
deportation or special rule cancellation of removal pursuant to NACARA.
Prima facie eligibility requires that the dependent show he or she
meets the statutory requirements for suspension of deportation or
special rule cancellation of removal relief and requires proof that the
principal has applied for NACARA relief.
The Department received sixteen comments following publication of
the interim rule. The sixteen comments contained six themes, all of
which are addressed below.
September 11, 1998 Deadline
Fourteen commenters suggested that the September 11, 1998 deadline
for submitting motions to reopen should be extended to account for the
size of the affected population, the difficulty of verifying the
existence of many final orders issued prior to 1989, and the lagtime
between announcing the designated period and publication of the interim
rule.
Section 203(c) of NACARA directed the Attorney General to designate
a time period up to 240 days in which an eligible alien could file a
NACARA motion to reopen without regard to the time limits generally
imposed by statute or regulation. Section 203(c) also required that the
Attorney General designated such a period beginning no later that 60
days after the passage of NACARA. Consequently, the Attorney General
designated the period from January 16, 1998, to September 11, 1998, as
the statutory period in which a NACARA motion to reopen could be filed.
The period for filing motions to reopen was set by Congress and,
accordingly, cannot be extended by rule.
The Department recognized, however, that it would be difficult for
many individuals to complete their applications for relief within that
time frame. The Department sought to address this apparent difficulty
by permitting applicants to file an abbreviated motion to reopen that
could be supplemented with a full application no later than February 8,
1999. See 63 FR 31890 (June 11, 1998). This final rule further extends
the time for filing the application and accompanying material in
support of the motion to reopen. Any alien who filed an abbreviated
NACARA motion to reopen by September 11, 1998, under section 203 of
NACARA will receive the benefit of this rule.
The Department continues to believe that this two-step approach
adequately addresses the concerns raised regarding the initial filing
deadline, while adhering to the statute.
The expiration of the special NACARA filing period, however, does
not preclude individuals who believe they are eligible for relief under
NACARA from seeking to reopen their final orders under the standard
rules governing motions to reopen. The INS will consider on a case by
case basis whether to join in a motion to reopen raised by an otherwise
eligible applicant who has missed the statutory deadline. See 8 CFR
3.23(b)(4)(iv).
February 8, 1999 Deadline
Fourteen commenters stated that the February 8, 1999 deadline for
submitting the application and supporting documentation should be
extended for those aliens with outstanding Freedom of Information Act
(FOIA) requests. They argue that applicants will not have enough
information and may be missing critical information contained in the
FOIA documentation to determine whether they should complete the motion
to reopen. Most commenters stated that the deadline should be extended
until 60 after the alien receives the Department's final response to a
FOIA request.
The existence of a pending FOIA request would not, of itself,
suffice to extend the filing deadline. However, the Department
recognizes that much time has elapsed since some of the orders were
issued, and it may be difficult to obtain the information necessary to
complete in application.
Moreover, the Department recognizes that some of the individuals
who have filed motions to reopen under NACARA may want to file under
the new program at the INS. Many aliens are eligible to have their
applications reviewed by asylum officers, as described in the proposed
rule implementing section 203 of NACARA, published on November 24,
1998. See 63 FR 64895. Under the section 203 proposed rule, which
establishes the procedure to apply for suspension of deportation or
special rule cancellation of removal for aliens defined as NACARA-
eligible, applications submitted to the INS must be filed on proposed
Form I-881. The Form I-881 will not become available to the public
until the effective date of the rule implementing section 203 of
NACARA. In order to minimize the number of forms an alien must submit,
the Department believes that it is reasonable to extend the February 8,
1999 deadline for NACARA motions to reopen so that applicants need only
submit the Form I-881.
Thus, the final rule permits an applicant to submit his or her
application and accompanying documents no later than 150 days after the
rule implementing section 203 of NACARA becomes effective. This
extension will permit applicants who properly filed the abbreviated
NACARA motion to reopen by September 11, 1998, to submit the Form I-881
to complete their motion to reopen. The extension will also permit
certain NACARA-eligible applicants to establish that their NACARA-
eligible parent or spouse has applied for relief under section 203 of
NACARA, as discussed below.
Dependents Under NACARA Section 203
Fourteen commenters expressed concern that the interim regulation
did not acknowledge the eligibility problems faced by certain family
members of NACARA-eligible aliens. Although NACARA extends eligibility
to the spouse, child, or unmarried son or unmarried daughter over the
age of 21 (dependent) of persons described in section 203 of NACARA,
such dependents are not eligible for suspension of deportation or
special rule cancellation of removal until the designated parent or
spouse (principal)
[[Page 13665]]
has received a grant of suspension of deportation or special rule
cancellation of removal. Consequently, even if a NACARA dependent
completes his or her motion to reopen by submitting an application and
accompanying documents, the dependent is not eligible for relief unless
and until the principal is first granted relief. Commenters noted that
the applications of the vast majority of NACARA principals would not
have been adjudicated as of the February 8, 1999 deadline established
by the interim rule. Therefore, they suggested that the final rule
permit immigration judges to grant motions to reopen for NACARA
dependents regardless of the application status of the principal
applicant.
The Department recognizes that many NACARA dependents who were
required to file motions to reopen by September 11, 1998, would not yet
know the results of the principal's application at the time of the
deadline for completing their application for suspension of deportation
or special rule cancellation of removal. The Department has identified
a similar problem with respect to NACARA dependents who are presently
in deportation or removal proceedings. The proposed rule implementing
section 203 permits the Immigration Court to administratively close the
dependent's case to allow the dependent to submit an application for
suspension of deportation or special rule cancellation of removal with
the Service if (1) the dependent has a NACARA-eligible relative who has
submitted an application for such relief with the Service, and (2) the
dependent appears otherwise eligible for discretionary relief under
section 203 of NACARA. The Board may also administratively close or
continue the dependent's appeal to permit the dependent to submit to
INS an application for suspension of deportation or special rule
cancellation of removal.
Unlike dependents currently in proceedings, dependents previously
ordered deported must have their cases reopened before they can apply
for NACARA relief. The proposed rule implementing section 203 of NACARA
does not address how the Department interprets the statute with regard
to a dependent who has already been ordered deported or removed. To
address the problem within the context of motions to reopen, the
Department has decided to modify the final rule with respect to
dependents. The dependent must comply with the deadline for filing the
application and supporting documentation. However, the dependent's case
shall be reopened if the immigration judge finds that the dependent is
prima facie eligible for suspension or cancellation relief and if the
dependent submits proof that the principal alien has applied and is
prima facie eligible for NACARA relief. Once the dependent's case is
reopened the dependent will be subject to the same procedures
established in the section 203 rule for dependents in proceedings.
Waiver of Substantive Bars to Relief
Fourteen commenters stated the interim regulations impose improper
limitations to NACARA eligibility, and that it was the intent of
Congress to waive all limitations on eligibility for relief, except the
bar for aggravated felons.
The statute states, ``notwithstanding 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)
* * * any alien who has become eligible for cancellation of removal or
suspension of deportation as a result of the amendments * * * may file
one motion to reopen.'' See action 203(c) of NACARA. The Department
interprets this language to refer only to the time and number
limitations on motions to reopen. Section 203(c) dealt only with those
procedural aspects of filing a motion to reopen and did not alter the
substantive requirements for granting a motion to reopen. Moreover, the
requirement that an applicant establish prima facie eligibility for
relief (in this case, suspension of deportation or special rule
cancellation of removal) is a prerequisite for the granting of all
motions to reopen. The statutory language that states the alien must
have ``become eligible'' for suspension or cancellation as a result of
NACARA requires that the alien be prima facie eligible for such relief.
NACARA did not alter the requirement that there must be a showing of
prima facie eligibility for the relief sought.
In order to be prima facie eligible for suspension of deportation
or special rule cancellation of removal, the alien must not be subject
to any statutory bars to such relief. Section 240A(c) of the INA, and
section 244(f) of the INA as it existed prior to April 1, 1997,
describe those aliens who are ineligible for suspension of deportation
or cancellation of removal. For example, aliens who failed to depart
voluntarily after receiving oral and written notice of the consequences
of failing to depart and those who failed to appear for their hearings
after receiving the required oral and written notices are statutorily
barred from suspension of deportation or cancellation of removal. Thus,
aliens statutorily barred from relief have no basis to reopen their
cases.
Statutory bars to eligibility for suspension of deportation or
cancellation of removal are not waived by the provisions of NACARA. The
Attorney General has no authority to waive these statutory bars in the
cases where they apply. Therefore, because those aliens subject to
statutory bars to eligibility did not ``become eligible'' under NACARA,
those additional bars to relief besides the aggravated felony bar are
properly incorporated in 8 CFR section 3.43.
Requirement to State Ineligibility Pursuant to IIRIRA Section
309(c)(5)
Section 3.43(c) of the interim NACARA motion to reopen rule
requires an alien seeking to reopen under NACARA to establish that he
or she is (i) prima facie eligible for suspension or deportation or
special rule cancellation of removal under NACARA; (ii) was or would be
ineligible for relief but for the passage of NACARA; (iii) has not been
convicted at any time of an aggravated felony; and (iv) falls within
one of the six classes described elsewhere in the regulation. Many
commenters objected to the second requirement, arguing that individuals
should not be required to state a lack of eligibility but for NACARA.
Commenters suggested that this requirement exceeded the scope of the
statute and was unduly burdensome.
The second requirement arises from the Department's determination,
based on the specific language in section 203(c), that only those
persons who have ``become eligible'' for relief under NACARA are
entitled to submit a motion to reopen under section 203(c). This
analysis, discussed at length in the supplementary information
accompanying the interim rule, requires a determination at the time the
motion to reopen is considered that an individual actually became
eligible for relief as a result of NACARA. See 63 FR 31890, 31891-92.
To facilitate this determination, the Department has requested that the
initial motion include some indication that the alien was ineligible
for relief at the time of his or her immigration proceedings and
subsequently became eligible for relief as a result of NACARA.
Such a showing results in a minimal burden. For instance, in many
cases, an alien seeking to reopen his or her case would have been
ineligible for relief as a result of the ``stop-time rule,'' discussed
previously in the supplementary information in the
[[Page 13666]]
interim rule. See also, Matter of NJB, Interim Decision 3309 (BIA
1997), vacated by the Attorney General on July 10, 1998. In those
cases, the Department anticipates that information regarding the date
of entry and the date the charging document was issued would establish
that the individual was otherwise ineligible for relief, but for
NACARA. Consequently, the showing necessary to meet this requirement
will generally be minimal and will expedite the adjudicative process.
Adjudication of Motions To Reopen Filed Under NACARA Section 203
Finally, thirteen commenters stated that all persons eligible to
file a motion to reopen were entitled to have their cases reopened. The
commenters suggest that Immigration Judges should not be allowed to
deny the motion to reopen at the outset without a hearing on the merits
of the applicant's suspension or cancellation claim. Those commenting
seek to avoid denial of inadequate motions prepared in a short time
frame. They also argue the complicated requirements of a NACARA motion
to reopen may be too difficult for pro se aliens.
The passage of NACARA did not alter the general procedures for
filing and considering motions to reopen. It made special provisions to
permit a certain group of people who would otherwise be prevented by
statute and regulation to submit a motion to reopen. Nothing in section
203(c) indicates that Congress intended for all such motions to be
automatically granted.
Congress has the power to affect motions practice, and in fact has
done so. In enacting IIRIRA in 1996, Congress statutorily codified
EOIR's regulatory 90 day time limit on motions to reopen. Congress,
when it passed NACARA, gave no guidance, nor did it amend procedural
matters for motions to reopen before EOIR, except to set a statutory
deadline to file motions to reopen under section 203 of NACARA. It
could have made additional changes, other than lifting the one-time
filing rule, but it did not. Accordingly, there is no reason to believe
that Congress intended to treat differently those existing procedural
matters on motions to reopen. Therefore, it is the obligation of the
Immigration Court to comply with the existing regulations and assess
prima facie eligibility under NACARA prior to granting a motion to
reopen.
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.
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 Reinforcement 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 regulation has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Attorney General has determined that this rule is a ``significant
regulatory action'' under Executive Order 12866, section 3(f) 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 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 continues to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.. 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 Public Law 105-100.
2. Section 3.43 is amended by:
a. Revising paragraph (b)(4)(v);
b. Revising paragraph (b)(4)(vi);
c. Revising paragraph (c)(2), and
d. Adding paragraph (c)(3) to read as follows:
Sec. 3.43 Motion to reopen of suspension of deportation and
cancellation of removal pursuant to section 203(c) of the Nicaraguan
Adjustment and Central American Relief Act (NACARA).
* * * * *
(b)(4) * * *
(v) The spouse or child of a person who is described in paragraphs
(b)(4)(i) through (b)(4)(iv) of this section and such person is prima
facie eligible for and has applied for suspension of deportation or
special rule cancellation of removal under section 203 of NACARA.
(vi) An unmarried son or daughter of a person who is described in
paragraph (b)(4)(i) through (b)(4)(iv) of this section and such person
is prima facie eligible for and has applied for suspension of
deportation or special rule cancellation of removal under section 203
of NACARA. If the son or daughter is 21 years of or older, the son or
daughter must have entered the United States on or before October 1,
1990.
(c) * * *
(2) A motion to reopen filed pursuant to paragraph (c)(1) shall be
considered complete at the time of submission of an application for
suspension of deportation or special rule cancellation of removal and
accompanying documents. Such application must be submitted no later
than 150 days after the effective date of the rule implementing section
203 of NACARA. Aliens described in paragraph (b)(4)(v) or (b)(4)(vi) of
this section must include, as part of their submission, proof that
their parent or spouse is prima facie eligible and has applied for
relief under section 203 of NACARA.
(3) The Service shall have 45 days from the date the alien serves
the
[[Page 13667]]
Immigration Court with either the EOIR Form 40 or the Form I-881
application for suspension of deportation or special rule cancellation
of removal to respond to that completed motion. If the alien fails to
submit the required application within 150 days after the effective
date of the rule implementing section 203 of NACARA, the motion will be
denied as abandoned.
Dated: March 4, 1999.
Eric H. Holder, Jr.,
Deputy Attorney General.
[FR Doc. 99-6633 Filed 3-19-99; 8:45 am]