[Federal Register Volume 61, Number 228 (Monday, November 25, 1996)]
[Rules and Regulations]
[Pages 59824-59825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-29996]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 212

[INS No. 1748-96; AG Order No. 2063-96]
RIN 1115-AE27


Periods of Lawful Temporary Resident Status and Lawful Permanent 
Resident Status To Establish Seven Years of Lawful Domicile

AGENCY: Immigration and Naturalization Service (INS), Executive Office 
for Immigration Review (EOIR), Justice.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This interim rule amends Department of Justice regulations 
that limit discretion to grant an application for relief under section 
212(c) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
1182(c), by expanding the class of aliens eligible for section 212(c) 
relief. This interim rule allows an alien who has adjusted to lawful 
permanent resident status pursuant to section 245A, 8 U.S.C. 1255a, or 
section 210, 8 U.S.C. 1160, of the Act to use the combined period of 
his or her status as a lawful temporary resident and lawful permanent 
resident to establish seven (7) years of lawful domicile in the United 
States for purposes of eligibility for section 212(c) relief. This 
interim rule will provide uniformity between the regulation and case 
law.

DATES: This interim rule is effective November 25, 1996. Written 
comments must be submitted on or before December 26, 1996.

ADDRESSES: Please submit written comments, in triplicate, to the Policy 
Directives and Instructions Branch, Immigration and Naturalization 
Service, 425 I Street, NW., Room 5307, Washington, DC 20536, Attention: 
Public Comment Clerk. To ensure proper handling, please reference INS 
number 1748-96 on your correspondence. Comments are available for 
public inspection at the above address by calling (202) 514-3048 to 
arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:
Margaret M. Philbin, General Counsel, Executive Office for Immigration 
Review, Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041, 
telephone (703) 305-0470; David M. Dixon, Chief Appellate Counsel, 
Immigration and Naturalization Service, Suite 309, 5113 Leesburg Pike, 
Falls Church, Virginia 22041, telephone (703) 756-6257.

SUPPLEMENTARY INFORMATION: Under recent case law, an alien who has 
acquired lawful permanent resident status under section 245A of the Act 
may accrue the seven (7) years of lawful domicile required for purposes 
of section 212(c) relief from the date of his or her application for 
temporary resident status. See Robles v. INS, 58 F.3d 1355 (9th Cir. 
1995); Avelar-Cruz v. INS, 58 F.3d 338 (7th Cir. 1995); Castellon-
Contreras v. INS, 45 F.3d 149 (7th Cir. 1995). The current regulation 
allows an alien to apply for section 212(c) relief only if he or she 
has established at least seven consecutive years of lawful permanent 
resident status immediately prior to filing the application See 8 CFR 
212.3(f)(2). The Board of Immigration Appeals (BIA) has determined 
that, in cases arising in the Ninth Circuit, an alien may use the 
period of temporary resident status to establish the requisite seven 
years. See In re Carlos Cazares-Alvarez, Interim Decision 3262 (BIA 
1996). However, in cases arising in circuits without such a temporary 
resident status rule, the BIA has determined that the current 
regulation requires seven years of lawful permanent resident status. 
See In re Hector Ponce de Leon-Ruiz, Interim Decision 3261 (BIA 1996). 
The BIA has referred these cases to the Attorney General pursuant to 8 
CFR 3.1(h)(1)(ii) to resolve the issue. The issue raised in White v. 
INS, 75 F.3d 213 (5th Cir. 1996) (whether 8 CFR 212.3(f)(2) is 
consistent with 8 U.S.C. 1182(c) and therefore is entitled to 
deference), has been addressed and rendered moot by section 304 of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 
Pub. L. 104-208, 110 Stat. 3009 (September 30, 1996) (repealing section 
212(c) and substituting other relief), effective April 1, 1997, 
codified at section 240A of the Immigration and Nationality Act as 
amended. The White court computed the years of lawful unrelinquished 
domicile (including the years of lawful temporary resident status) 
rather than lawful permanent residence in determining eligibility for 
relief.
    This interim rule will permit an alien to demonstrate lawful 
domicile for section 212(c) relief purposes by combining his or her 
status as a lawful temporary resident and as a lawful permanent 
resident under section 245A or section 210 of the Act. This rule,

[[Page 59825]]

which is necessary for consistency between the regulation and case law, 
will become effective immediately.
    The Department's implementation of this rule as a interim rule, 
with provision for post-promulgation public comment, is based upon the 
``good cause'' exception found at 5 U.S.C. 553(d)(3). The reasons and 
necessity for immediate implementation of this interim rule are as 
follows: (1) To resolve the conflict among the circuits regarding this 
issue; (2) to respond to the controversy raised by the BIA decisions; 
(3) to render moot the decisions referred to the Attorney General by 
the BIA; and (4) to provide a benefit to those aliens who meet its 
criteria. An abbreviated comment period of 30 days is necessary because 
of the passage of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996, supra, which repeals the provision for 
section 212(c) relief and substitutes other relief, effective April 1, 
1997. This regulation thus will be applicable only in the case of 
aliens in proceedings and who have filed an application for section 
212(c) relief as of the effective date. Nothing in this regulation is 
intended to affect, nor will it affect, the operation of the Illegal 
Immigration Reform and Immigrant Responsibility Act, supra, to 
applications for relief pending on the general effective date of that 
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 adverse 
economic impact on a substantial number of small entities. It will 
affect certain individual aliens, not small entities. This rule does 
not constitute significant regulatory action within the meaning of 
section 3(f) of Executive Order 12866, nor does it have federalism 
implications warranting the preparation of a Federalism Assessment in 
accordance with section 6(b) of Executive Order 12612.

List of Subjects in 8 CFR Part 212

    Administrative practice and procedure, Aliens, Immigration, 
Passports and visas, Reporting and recordkeeping requirements.
    Accordingly, part 212 of chapter I of title 8 of the Code of 
Federal Regulations is amended as follows:

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    1. 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.

    2. In Sec. 212.3 paragraph (f)(2) is revised to read as follows:


Sec. 212.3  Application for the exercise of discretion under section 
212(c).

* * * * *
    (f) * * *
    (2) The alien has not maintained lawful domicile in the United 
States, as either a lawful permanent resident or a lawful temporary 
resident pursuant to section 245A or section 210 of the Act, for at 
least seven consecutive years immediately preceding the filing of the 
application;
* * * * *
    Dated: November 19, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-29996 Filed 11-22-96; 8:45 am]
BILLING CODE 4410-10-M