|
INS Proposes Regulations to Restore
212(c) Relief
July 18, 2000
The Immigration and Naturalization Service has issued proposed regulations
that would restore section 212(c) relief for persons in proceedings prior to
April 24, 1996, the date that AEDPA was enacted. The Service really had no choice because most of the Circuit
Courts had found against the Justice Department's long-held support of the Soriano
decision.
However, under the proposed regulation, the INS would continue to apply AEDPA
section 440(d) to individuals who committed the crime or were convicted prior to
AEDPA's enactment, but whose proceedings did not commence until
after enactment. Also, there would be no restoration of rights for
those already deported. Comments on
the proposed regulation are due by August 17, 2000. The text of the proposed
regulation can be found below.
********************************************************
[Federal Register: July 18, 2000 (Volume 65, Number 138)]
[Proposed Rules]
[Page 44476-44481]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jy00-17]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
[[Page 44476]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 3 and 212
[EOIR No. 127P; AG Order No. 2315-2000]
RIN 1125-AA29
Executive Office for Immigration Review; Section 212(c) Relief
for Certain Aliens in Deportation Proceedings Before April 24, 1996
AGENCY: Executive Office for Immigration Review, Justice.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This rule would create a uniform procedure for applying the
law as enacted by the Antiterrrorism and Effective Death Penalty Act of
1996 (AEDPA). This rule would allow certain aliens in deportation
proceedings that commenced before April 24, 1996, to apply for relief
pursuant to section 212(c) of the Immigration and Nationality Act
(INA).
DATES: Written comments must be submitted on or before August 17, 2000.
ADDRESSES: Please submit written comments, original and two copies, to
Charles Adkins-Blanch, General Counsel, Executive Office for
Immigration Review, 5107 Leesburg Pike, Suite 2400, Falls Church, VA
22041, telephone (703) 305-0470. Comments are available for public
inspection at the above address by calling (703) 305-0470 to arrange
for an appointment.
FOR FURTHER INFORMATION CONTACT: Charles Adkins-Blanch, General
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike,
Suite 2400, Falls Church, VA 22041, telephone (703) 305-0470.
SUPPLEMENTARY INFORMATION:
What has Happened to Aliens Seeking Section 212(c) Relief Since
Enactment of AEDPA?
Before the comprehensive revision of the INA by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
Pub. L. No. 104-208, Div. C, 110 Stat. 3009, section 212(c) of the INA
provided that aliens who were lawfully admitted for permanent
residence, who temporarily proceeded abroad voluntarily and not under
an order of deportation, and who were returning to a lawful
unrelinquished domicile in the United States of seven consecutive
years, could be admitted to the United States in the discretion of the
Attorney General. 8 U.S.C. Sec. 1182(c) (1994). Although section 212(c)
by its terms applied only to aliens in exclusion proceedings (i.e.,
aliens seeking to enter at the border), it had been construed for many
years also to allow aliens who were placed in deportation proceedings
in the United States to apply for discretionary relief from
deportation. See Matter of Silva, 16 I. & N. Dec. 26 (Board 1976);
Gonzalez v. INS, 996 F.2d 804, 806 (6th Cir. 1993); Ashby v. INS, 961
F.2d 555, 557 & n.2 (5th Cir. 1992); Tapica-Acuna v. INS, 640 F.2d 223
(9th Cir. 1981); Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976).
In the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, Congress significantly
restricted the availability of discretionary relief from deportation
under section 212(c). Section 440(d) of AEDPA amended section 212(c) of
the INA to provide that section 212(c) ``shall not apply to an alien
who is deportable by reason of having committed any criminal offense
covered by section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense
covered by section 241(a)(2)(A)(ii) for which both predicate offenses
are, without regard to the date of their commission, otherwise covered
by section 241(a)(2)(A)(i).'' AEDPA Sec. 440(d), as amended by IIRIRA
section 306(d). The effect of section 440(d) of AEDPA was to render
ineligible for relief under INA section 212(c) aliens deportable
because of convictions for certain criminal offenses, including
aggravated felonies, controlled substance offenses, certain firearms
offenses, espionage, and multiple crimes of moral turpitude.
AEDPA did not contain a provision expressly stating whether section
440(d) was to be applied to criminal aliens who were placed in
deportation proceedings, were convicted, or who committed the crimes
rendering them deportable before AEDPA was passed. In Matter of
Soriano, Interim Decision 3289 (Board 1996), the Board of Immigration
Appeals (Board) held that section 440(d) of AEDPA did not apply to
aliens who had applied for section 212(c) relief before AEDPA was
passed, but did apply to all other aliens covered in the provision,
even those whose criminal conduct or conviction occurred before AEDPA
was issued.
At the request of the Immigration and Naturalization Service (INS),
the Attorney General vacated the Board's decision in Soriano and
certified the question to herself. On February 21, 1997, the Attorney
General concluded that section 440(d) applied to (and thereby rendered
ineligible for section 212(c) relief) all aliens who had committed one
of the specified offenses and who had not finally been granted section
212(c) relief before AEDPA was passed. As construed in that decision,
AEDPA section 440(d) rendered ineligible for section 212(c) relief even
those aliens who were already in deportation proceedings and who had
already applied for section 212(c) relief at the time AEDPA was passed.
How Have the Federal Courts Ruled on the Issue?
Following the Attorney General's decision in Soriano, the Board and
Immigration Court denied applications for relief under section 212(c)
filed by aliens who fell within the categories identified in AEDPA
section 440(d), regardless of the date of the alien's crime,
conviction, deportation proceedings, or application for section 212(c)
relief. Numerous aliens challenged their final orders of deportation in
both district courts and courts of appeals, arguing that AEDPA section
440(d) should not be applied ``retroactively'' to their cases, and that
the Attorney General had erred in her construction of AEDPA section
440(d) in Soriano.
The Soriano issue has given rise to widespread litigation in almost
every circuit. Only the D.C. Circuit has yet to decide a case on the
Soriano issue. Eight circuits--the First, Second, Third,
[[Page 44477]]
Fourth, Sixth, Eighth, Ninth, and Eleventh Circuits--have now disagreed
with the Attorney General's holding in Soriano. Seven of the eight
circuits have held that section 440(d) of AEDPA does not apply to
aliens who filed applications for section 212(c) relief before AEDPA
was passed. See Goncalves v. Reno, 144 F.3d 110, 126-33 (1st Cir.
1998), cert. denied, 526 U.S. 1004 (1999); Henderson v. INS, 157 F.3d
106, 128-30 (2d Cir. 1998), cert. denied sub nom. Reno v. Navas, 526
U.S. 1004 (1999); Sandoval v. Reno, 166 F.3d 225, 239-42 (3d Cir.
1999); Tasios v. Reno, 204 F.3d 544, 547-52 (4th Cir. 2000); Pak v.
Reno, 196 F.3d 666, 674-76 (6th Cir. 1999); Shah v. Reno, 184 F.3d 719,
724 (8th Cir. 1999); Magana-Pizano v. INS, 200 F.3d 603, 610-11 (9th
Cir. 1999); Mayers v. INS, 175 F.3d 1289, 1301-04 (11th Cir. 1999).
The First Circuit has gone further and held that AEDPA section
440(d) likewise does not apply to aliens who were placed in deportation
proceedings before AEDPA was passed, even if they did not actually
request section 212(c) relief until after AEDPA was passed. See Wallace
v. Reno, 194 F.3d 279, 285-88 (1st Cir. 1999). Other circuits have
either likewise so held or strongly implied in their reasoning. See
Henderson, 157 F.3d at 129-31; Sandoval, 166 F.3d at 241-42; Mayers,
175 F.3d at 1304; see also Shah, 184 F.3d at 724 (adopting reasoning of
Goncalves, Henderson, and Mayers).
By contrast, the Seventh Circuit has held, consistent with the
Attorney General's conclusion in Soriano, that section 440(d) of AEDPA
applies even to aliens who were in deportation proceedings and had
applied for section 212(c) relief when AEDPA was enacted. See Turkhan
v. Perryman, 188 F.3d 814, 824-28 (7th Cir. 1999); see also LaGuerre v.
Reno, 164 F.3d 1035, 1040-41 (7th Cir. 1998), cert. denied, 120 S. Ct.
1157 (2000).
Aliens have also argued that persons who were placed in deportation
proceedings after AEDPA was enacted, but who committed their crimes and
were convicted before that date, should be eligible for section 212(c)
relief, and that AEDPA section 440(d) would be impermissibly
retroactive if applied to them.
Three circuits--the Third, Fifth and Tenth--have affirmatively held
that AEDPA section 440(d) does foreclose section 212(c) relief for
aliens who were placed in proceedings after AEDPA was enacted, even if
their criminal offenses were committed before the enactment of AEDPA.
See DeSousa v. Reno, 190 F.3d 175, 185-87 (3d Cir. 1999); Requena-
Rodriguez v. Pasquarell, 190 F.3d 299, 306-08 (5th Cir. 1999); Jurado-
Gutierrez v. Greene, 190 F.3d 1135, 1147-52 (10th Cir. 1999), cert.
denied sub nom Palaganas-Suarez v. Greene, 120 S. Ct. 1539 (2000). The
Seventh Circuit has necessarily adopted that position as well. See
Turkhan, 188 F.3d at 824-28 (holding that section 440(d) bars relief
for all criminal aliens who had not been granted section 212(c) relief
at the time AEDPA was enacted, necessarily including all those whose
convictions occurred prior to AEDPA but whose deportation proceedings
were initiated after enactment of AEDPA).
The Ninth Circuit has concluded that aliens who are deportable
based on a qualifying criminal conviction entered prior to AEDPA but
after a full trial are properly covered by AEDPA section 440(d) and
therefore ineligible for section 212(c) relief. See Magana-Pizano, 200
F.3d at 610-11. The Ninth Circuit also held, however, that because of
concerns about retroactivity and reliance, it could not exclude the
possibility that section 440(d) should not be applied to an alien who
pleaded guilty or nolo contendere to his disqualifying criminal offense
and who can show that the plea ``was entered in reliance on the
availability of discretionary waiver under Sec. 212(c).'' Id. at 613.
The court therefore remanded the case to the district court to
determine whether the alien could show such reliance. See id. at 609.
The First Circuit has issued a similar ruling, holding that section
440(d) does not apply in a case where an alien pleaded guilty to and
was convicted of a qualifying offense before AEDPA was enacted but was
placed in proceedings afterwards, if the alien could show that he
entered his guilty plea in reliance on the state of the law before
AEDPA's enactment. See Mattis versus Reno, --F.3d--, 2000 WL 554957, at
*5-*9 (1st Cir. May 8, 2000). The First Circuit found no evidence of
such reliance in that case, however. See id. at *9.
Additionally, the Fourth Circuit held that the statute is
inapplicable, because of perceived retroactivity concerns, to an alien
who pleaded guilty and was convicted before AEDPA was enacted even if
his deportation proceedings were commenced after enactment of AEDPA.
The court reasoned that the alien had detrimentally relied upon the
availability of discretionary relief from deportation when he entered
his guilty plea prior to the enactment date. See Tasios, 204 F.3d at
550-52.
Why is the Attorney General Implementing a Rule of Uniform
Implementation of AEDPA for Aliens Seeking Section 212(c) Relief?
Issues concerning the construction of AEDPA section 440(d) affect a
large number of aliens and are of considerable importance to the
Department of Justice, including the INS and the Executive Office for
Immigration Review (EOIR).
Approximately 800 aliens who have been found deportable by the
Immigration Court and the Board have filed challenges to Soriano in
federal district court. In addition, a number of cases in which the
application of Soriano may be dispositive are still pending before the
Immigration Court and the Board.
There is an important public interest in the uniform administration
of the immigration laws. The Constitution grants Congress the power to
establish ``an uniform Rule of Naturalization,'' U.S. Const. art. I,
Sec. 8, cl. 4, and it is generally desirable as well that immigration
rules be consistent throughout the country to minimize distinctions
among aliens based solely on geographical factors. There is also an
important public interest in the completion of proceedings involving
criminal aliens. The Department of Justice therefore sought to have the
Supreme Court definitively resolve the Soriano issue October Term 1998
by petitioning for a writ of certiorari from the First Circuit's
decision in Goncalves and the Second Circuit's decision in Henderson.
On March 8, 1999, the Supreme Court denied those certiorari petitions.
In light of the Supreme Court's denial of certiorari in Goncalves,
Henderson/Navas, and LaGuerre in February 2000, the decisions of eight
circuits rejecting the decision in Soriano, and the large number of
aliens who are affected by the issue, the Attorney General has
considered whether the government's interest in the uniform
administration of the immigration laws, avoiding unnecessary delays in
the completion of proceedings involving criminal aliens, and the
reasoning of the courts that have rejected her construction of AEDPA
section 440(d) in Soriano, warrant a change in the Department's
application of AEDPA section 440(d). In the interest of the uniform and
expeditious administration of the immigration laws, the Attorney
General proposes to acquiesce on a nationwide basis in those appellate
decisions holding that AEDPA section 440(d) is not to be applied in the
cases of aliens whose deportation proceedings were commenced before
AEDPA was enacted.
[[Page 44478]]
In particular, the Attorney General proposes to acquiesce in the
courts' conclusion, as a matter of statutory construction, that
Congress intended that section 440(d) of AEDPA not be applied to
deportation proceedings that had been commenced before AEDPA was
enacted into law. In reaching that conclusion, the courts generally
have applied the first step of the two-step retroactivity analysis set
forth by the Supreme Court in Landgraf v. USI Film Products, 511 U.S.
244 (1994). In the first step of that analysis, the courts inquire
whether Congress has specifically addressed the temporal application of
a statute. The courts that have rejected Soriano have generally relied
on two factors to reach the conclusion that Congress specifically
addressed the temporal application of AEDPA section 440(d). First, they
have observed that Congress expressly made other provisions of AEDPA,
such as section 413(f), applicable to pending deportation proceedings,
and they have drawn a negative inference from that fact that Congress
did not intend section 440(d) to be applied to pending proceedings.
Second, examining the legislative history of AEDPA, they have noted
that an earlier version of AEDPA in Congress would have applied what
became section 440(d) to pending cases, but that provision was deleted
by the conference committee. See Magana-Pizano, 200 F.3d at 611; Pak,
196 F.3d at 676; Shah, 184 F.3d at 724; Mayers, 175 F.3d at 1302-03;
Sandoval, 166 F.3d at 241; Henderson, 157 F.3d at 129-30; Goncalves,
144 F.3d at 128-33.
These factors are specific to AEDPA and concern only the first step
of the Landgraf analysis. They do not concern the question of whether
application of section 440(d) to pending deportation proceedings would
be regarded as retroactive under the second step of the Landgraf
analysis. As to that question, the Attorney General maintains the
Department of Justice's longstanding position that questions about an
alien's deportability or eligibility for discretionary relief from
deportation are matters inherently prospective in nature.
In the absence of adverse appellate precedent, the Attorney General
will continue to apply AEDPA section 440(d) in the cases of aliens
whose deportation proceedings were commenced after AEDPA was enacted
into law, even if the alien committed his crime or was convicted of the
crime before that date. The appellate decisions rejecting Soriano have
concluded only that Congress did not intend to apply AEDPA section
440(d) to the cases of aliens whose deportation proceedings were
commenced before AEDPA was enacted, and do not (with the exception of
the Mattis, Tasios, and Magana-Pizano decisions from the First, Fourth,
and Ninth Circuits, respectively) question its applicability to cases
commenced after that date.
The interpretation of AEDPA that would be changed by this proposed
rule has, of course, affected many aliens whose deportation proceedings
were commenced before enactment of AEDPA but who were unable to obtain
section 212(c) relief in those proceedings because of the Soriano
decision. This rule provides a mechanism for such aliens who now have a
final order of deportation to reopen their immigration proceedings if
they would have been eligible to apply for section 212(c) relief but
for the Soriano decision.
The Attorney General has considered the important interest in
avoiding delays in deportation proceedings and, on balance, has decided
to define the class of aliens eligible for reopening under this
proposed rule in categorical terms. For aliens who have a final order
of deportation, based on established principles requiring exhaustion of
all available administrative remedies, this rule could properly be
written to limit relief on reopening only to those aliens who can show
that they had affirmatively applied for relief under section 212(c) in
their prior immigration proceedings and had appealed an immigration
judge's adverse decision to the Board of Immigration Appeals. However,
this rule does not require that eligible aliens make a specific factual
showing that they previously applied for section 212(c) relief
notwithstanding the Soriano decision, or appealed an immigration
judge's adverse decision to the Board. Instead, this proposed rule is
drafted in order to relieve both the government and the alien of the
burdens of litigating such factual issues in each case at the motion to
reopen stage. In light of the highly unusual circumstances of the
Soriano litigation, the interest in expeditious enforcement of the
immigration laws will be more effectively served by focusing attention
on the merits of the claims for discretionary relief from deportation
with respect to aliens in the defined class who otherwise would have
been eligible to seek section 212(c) relief in their immigration
proceedings but for the Soriano precedent.
Who is Eligible to Apply for Section 212(c) Relief?
Under this proposed rule, eligible aliens in pending immigration
proceedings may apply for section 212(c) relief if their immigration
proceedings were commenced prior to the enactment of AEDPA. This rule
also provides a 90-day period for a defined class of aliens who had
been adversely affected by the Soriano decision to file a motion to
reopen in order to apply for section 212(c) relief. This special
reopening rule would cover aliens who:
(1) had deportation proceedings before the Immigration Court
commenced before April 24, 1996;
(2) are subject to a final order of deportation;
(3) would presently be eligible to apply for section 212(c) relief
if proceedings were reopened and section 212(c) as in effect on April
23, 1996 were applied; and
(4) either,
(i) applied for and were denied section 212(c) relief by the Board
on the basis of the 1997 decision of the Attorney General in Soriano
(or its rationale), and not any other basis;
(ii) applied for and were denied section 212(c) relief by the
Immigration Court and did not appeal the denial to the Board (or
withdrew an appeal), and would have been eligible to apply for section
212(c) relief at the time the deportation became final but for the 1997
decision of the Attorney General in Soriano (or its rationale); or
(iii) did not apply for section 212(c) relief but would have been
eligible to apply for such relief at the time the deportation order
became final but for the 1997 decision of the Attorney General in
Soriano (or its rationale).
This rule is not intended to apply to an alien who filed an
application for section 212(c) relief that was denied by an immigration
judge or the Board for reasons other than Soriano or its rationale. For
example, an alien whose section 212(c) application was denied on the
merits or before the AEDPA statute was enacted is not covered by this
rule.
This rule is also not intended to apply to aliens outside the
United States or aliens with a final order of deportation who have
returned to the United States illegally. Moreover, this rule does not
provide a basis for such aliens to seek or secure admission or parole
into the United States to file a section 212(c) application.
What is Required to be Statutorily Eligible for Section 212(c)
Relief?
The alien must be a lawful permanent resident, returning to a
lawful, unrelinquished domicile of seven consecutive years, who may be
admitted in the discretion of the Attorney General without regard to
section 212(a) (other than paragraphs (3) and (9)(C)), who is
deportable on a ground that has a
[[Page 44479]]
corresponding ground of exclusion, and who has not been convicted of
one or more aggravated felonies for which he or she has served an
aggregate term of imprisonment of at least five years. See INA section
212(c).
How is 7 Years Lawful, Unrelinquished Domicile in the United States
Defined in this Rule?
The alien must have lived in the United States as either a lawful
permanent resident or a lawful temporary resident pursuant to section
245A or section 210 of the INA for at least seven years, as defined in
8 CFR 212.3(f). For purposes of this rule, an alien begins accruing
time as of the date of entry or admission as either a lawful permanent
resident or lawful temporary resident and the accrual of time ceases
when there is a final administrative order in the alien's case, as
defined in 8 CFR 240.52 and 3.1(d)(2). When a motion to reopen is filed
pursuant to this rule, the alien must have accrued seven years of
lawful unrelinquished domicile as of the date of his or her final
administrative order which the alien seeks to reopen.
Is There a Fee for Filing this Application?
If the alien has already filed a section 212(c) application and
only needs to update the application, no fee is required. If the alien
has not filed a section 212(c) application and has a final
administrative order, he or she must file a motion to reopen. If the
motion to reopen is granted, he or she must pay the fee required by 8
CFR 103.7(b)(1) for Form I-191 (currently $170). See 8 CFR 103.7.
An alien in deportation proceedings who has not filed an
application shall submit the Form I-191 to the Immigration Court with
the appropriate fee receipt attached.
If the case is pending before the Board, the alien must file a copy
of the application with the motion and if the motion is granted and the
case is remanded to the Immigration Court, the alien must then file the
application with the appropriate fee. Nothing in this rule changes the
requirements and procedures in 8 CFR 3.31(b), 103.7(b)(1), and
240.11(f) for paying the application fee for a section 212(c)
application after a motion to reopen is granted if such an application
was not previously filed. Fees must be submitted to the local office of
the INS in accordance with 8 CFR 3.31. An applicant who is deserving of
section 212(c) relief and is unable to pay the filing fee may request a
fee waiver in accordance with 8 CFR 103.7(c).
What is the Procedure for an Applicant who is Currently in
Deportation Proceedings Before the Immigration Court or the Board
of Immigration Appeals?
Immigration Court. An eligible alien who has a deportation
proceeding pending before the Immigration Court should file a section
212(c) application pursuant to this rule, or request a reasonable
period of time to submit an application pursuant to this rule. If the
alien already has an application on file, he or she may file a
supplement to the existing section 212(c) application.
Board of Immigration Appeals. An eligible alien who has a
deportation proceeding pending before the Board should file with the
Board a motion to remand to the Immigration Court to file a section
212(c) application or to supplement his or her existing section 212(c)
application on the basis of his or her eligibility for such relief
pursuant to this rule. If the alien appears to be statutorily eligible
for relief and meets the other eligibility requirements defined in this
rule, the Board shall remand the case to the Immigration Court for
adjudication of the section 212(c) application.
What if an Applicant is the Subject of a Final Order of
Deportation?
Aliens who have final administrative orders. An alien who is the
subject of a final order of deportation who is eligible to apply for
section 212(c) relief pursuant to this rule must file a motion to
reopen with the Immigration Court or the Board of Immigration Appeals,
whichever last held jurisdiction. The front page of the motion and any
envelope containing the motion should include the notation ``Special
212(c) Motion.'' The fee for motions to reopen (currently $110) will be
waived for aliens eligible for section 212(c) relief pursuant to this
rule. The waiver of the fee is only applicable to motions to reopen
seeking section 212(c) relief pursuant to this rule. The reopening and
remand will be limited to issues concerning the alien's eligibility for
relief under section 212(c) and may not address the alien's
deportability or any other basis for relief from deportation, unless
the Board is also reopening under other applicable provisions of law,
in which case the issues may be consolidated for hearing as appropriate
and all appropriate motions fees will apply.
If the alien previously filed an application for section 212(c)
relief, he or she must file a copy of that application or a copy of a
new application and supporting documents with the motion to reopen. If
the motion to reopen is granted, an alien who previously filed an
application will not be required to pay a new filing fee for the
section 212(c) application, Form I-191.
If the alien has not previously filed an application for section
212(c) relief, the alien must submit a copy of his or her completed
application and supporting documents with the motion to reopen. If the
motion is granted, the alien must then file the application with the
appropriate fee.
Cases remanded to the Board. If a case has been remanded to the
Board by a federal court based on a judicial decision rejecting the
Attorney General's decision in Soriano, the Board will comply with the
order of the district or circuit court.
What happens if an applicant currently has a Motion to Reopen or
motion to reconsider pending before the Immigration Court or the
Board?
Immigration Court. If an alien has a pending motion to reopen or
reconsider filed with the Immigration Court, he or she must file a new
motion to reopen with the Immigration Court to apply for section 212(c)
relief on the basis of his or her eligibility pursuant to this rule.
Board of Immigration Appeals. If an alien has a pending motion to
reopen or reconsider filed with the Board the alien must file a new
motion to reopen with the Board to apply for section 212(c) relief on
the basis of his or her eligibility pursuant to this rule.
New Motion to Reopen. An alien may file only one motion to reopen
for purposes of establishing eligibility under this rule. A new motion
to reopen filed pursuant to this rule either before the Immigration
Court or the Board, as appropriate, must specify whether the alien has
any pending motions before the Immigration Court or the Board. All
motions to reopen to apply for section 212(c) relief filed pursuant to
this rule are subject to the restrictions specified in this rule. The
usual time and number restrictions on motions, as articulated in 8 CFR
3.2 and 3.23, shall apply to all other motions.
Is an Alien with a Final Administrative Order of Deportation
Required to File a Motion to Reopen under this Rule Within the 90-
day Period in Order to Seek Section 212(c) Relief?
This rule is intended to provide a single, straightforward process
for the defined class of aliens who were adversely affected by Soriano
to reopen their immigration proceedings based on the interpretive
change announced in this rule.
[[Page 44480]]
Accordingly, 8 CFR 3.44 is intended to provide the sole process for
eligible aliens who have a final administrative order of deportation to
reopen their cases on account of the change in the governing law
announced in this rule in order to apply for section 212(c) relief.
However, the existing reopening rules in 8 CFR 3.2 and 3.23 allow
aliens to seek to reopen their cases notwithstanding the time limits on
certain other grounds unrelated to a change in the law. As provided in
8 CFR 3.44(h), this rule would not prevent an alien from filing a
motion to reopen under the existing rules based on any other basis or
exception.
Does the Filing of an Application for Section 212(c) Relief stay
the Execution of a Final Order?
The mere filing of a motion to reopen to apply for section 212(c)
relief with the Immigration Court or the Board does not stay the
execution of the final order of deportation. To request that execution
of the final order be stayed by the INS, the alien must file an
Application for Stay of Removal (Form I-246), following the procedures
set forth in 8 CFR 241.6.
What Happens if an Application is Denied by the Immigration Court?
If the Immigration Court denies the section 212(c) application of
an alien in deportation proceedings before the Immigration Court, the
decision may be appealed to the Board along with, and under the same
procedures as apply to, other issues, if any, properly before the Board
on appeal.
What Happens if an Alien Fails to Appear for a Hearing Before the
Immigration Court on a Section 212(c) Application?
An alien must appear for all scheduled hearings before an
Immigration Court, unless his or her appearance is waived by the
Immigration Court. An alien who is in deportation proceedings before
the Immigration Court, and who fails to appear for a hearing regarding
a section 212(c) application, will be subject to the applicable
statutory and regulatory in absentia procedures (i.e., section 242B of
the INA as it existed prior to amendment by IIRIRA).
Regulatory Flexibility Act
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule will not, if promulgated, have a significant adverse
economic impact on a substantial number of small entities. This rule
allows certain aliens to apply for INA section 212(c) relief; it has 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 provision 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 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996. See 5
U.S.C. 804(2). 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 Executive Order 12866, section
3(f), Regulatory Planning and Review. Accordingly, this regulation has
been submitted to the Office of Management and Budget for review.
Executive Order 13132
The regulation 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 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 proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Plain Language Instructions
We try to write clearly. If you can suggest how to improve the
clarity of these regulations, call or write Charles Adkins-Blanch,
General Counsel, Executive Office for Immigration Review, Suite 2400,
5107 Leesburg Pike, Falls Church, VA 22041, telephone: (703) 305-0470.
Paperwork Reduction Act
This rule will increase the use of Form I-191 but will not result
in a material change in the form, and the INS is adjusting the total
burden hours of the form accordingly.
List of Subjects
8 CFR Part 3
Administrative practice and procedure, Immigration, Organization
and functions (Government agencies).
8 CFR Part 212
Administrative practice and procedure, Aliens, Passports and visas,
Immigration, Reporting and recordkeeping requirements.
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 will continue to read as
follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note, 8 U.S.C. 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 3.44 is added to subpart C to read as follows:
Sec. 3.44 Motion to reopen to apply for section 212(c) relief for
certain aliens in deportation proceedings before April 24, 1996.
(a) Standard for Adjudication. Except as provided in this section,
a motion to reopen proceedings to apply for relief under section 212(c)
of the Act will be adjudicated under applicable statutes and
regulations governing motions to reopen.
(b) Aliens eligible to reopen proceedings to apply for section
212(c) relief. A motion to reopen proceedings to seek section 212(c)
relief under this section must establish that the alien:
(1) Had deportation proceedings before the Immigration Court
commenced before April 24, 1996;
(2) Is subject to a final order of deportation,
(3) Would presently be eligible to apply for section 212(c) as in
effect on or before April 23, 1996; and
(4) Either--
(i) Applied for and was denied section 212(c) relief by the Board
on the basis of the 1997 decision of the Attorney General in Matter of
Soriano (or its rationale), and not any other basis;
[[Page 44481]]
(ii) Applied for and was denied section 212(c) relief by the
Immigration Court, did not appeal the denial to the Board (or withdrew
an appeal), and would have been eligible to apply for section 212(c)
relief at the time the deportation became final but for the 1997
decision of the Attorney General in Matter of Soriano (or its
rationale); or (iii) Did not apply for section 212(c) relief but would
have been eligible to apply for such relief at the time the deportation
order became final but for the 1997 decision of the Attorney General in
Matter of Soriano (or its rationale).
(c) Scope of reopened proceedings. Proceedings shall be reopened
under this section solely for the purpose of adjudicating the
application for section 212(c) relief, but if the Immigration Court or
the Board reopens on other applicable grounds, all issues encompassed
within the reopening proceedings may be considered together, as
appropriate.
(d) Procedure for filing a motion to reopen to apply for section
212(c) relief. An eligible alien must file either a copy of the
original Form I-191 application, and supporting documents, or file a
copy of a newly completed Form I-191, plus all supporting documents. An
alien who has a pending motion to reopen or reconsider before the
Immigration Court or the Board must file a new motion to reopen to
apply for section 212(c)relief pursuant to this section. The new motion
to reopen shall specify any other motions currently pending before the
Immigration Court or the Board that should be consolidated. The Service
shall have 45 days from the date of service of the motion to reopen to
respond. In the event the Service does not respond to the motion to
reopen, the Service retains the right in the reopened proceedings to
contest any and all issues raised.
(e) Fee and number restriction for motion to reopen waived. No
filing fee is required for a motion to reopen to apply for section
212(c) relief under this section. An eligible alien may file one motion
to reopen to apply for section 212(c) relief under this section, even
if a motion to reopen was filed previously in his or her case.
(f) Deadline to file a motion to reopen to apply for section 212(c)
relief under this section. An alien with a final administrative order
of deportation must file a motion to reopen within 90 days of the
effective date of the final rule.
(g) Jurisdiction over motion to reopen to apply for section
212(c)relief and remand of appeals.
(1) Notwithstanding any other provisions, any motion to reopen
filed pursuant to this section to apply for section 212(c) relief shall
be filed with the Immigration Court or the Board, whichever last held
jurisdiction over the case.
(2) If the Immigration Court has jurisdiction, and grants only the
motion to reopen to apply for section 212(c) relief pursuant to this
section, it shall adjudicate only the section 212(c) application.
(3) If the Board has jurisdiction and grants only the motion to
reopen to apply for section 212(c) relief pursuant to this section, it
shall remand the case to the Immigration Court solely for adjudication
of the section 212(c) application (Form I-191).
(h) Applicability of other exceptions to motions to reopen. Nothing
in this section shall be interpreted to preclude or restrict the
applicability of any other exception to the motion to reopen provisions
of this part as defined in 8 CFR 3.2(c)(3) and 3.23(b).
(i) Limitations on eligibility for reopening under this rule. This
special reopening rule does not apply to:
(1) Aliens who have departed the United States;
(2) Aliens with a final order of deportation who have illegally
returned to the United States; or
(3) Aliens who have not been admitted or paroled.
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
3. The authority citation for part 212 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184,1187, 1225,
1226, 1227, 1228, 1252; 8 CFR part 2.
4. Paragraph (g) is added to Section 212.3 to read as follows:
Sec. 212.3 Application for the exercise of discretion under section
212(c).
* * * * *
(g) Relief for certain aliens who were in deportation proceedings
before April 24, 1996. Section 440(d) of Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) shall not apply to any applicant for
relief under this section whose deportation proceedings were commenced
before the Immigration Court before April 24, 1996.
Dated: July 12, 2000.
Janet Reno,
Attorney General.
[FR Doc. 00-18210 Filed 7-17-00; 8:45 am]
BILLING CODE 4410-30-U
|
