[Federal Register Volume 63, Number 189 (Wednesday, September 30, 1998)]
[Rules and Regulations]
[Pages 52134-52140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26200]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 240

[EOIR No. 124I; AG Order No. 2182-98]
RIN 1125-AA25


Suspension of Deportation and Cancellation of Removal

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

ACTION: Interim rule.

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SUMMARY: This rule amends the regulations of the Executive Office for 
Immigration Review (EOIR) and the Immigration and Naturalization 
Service (Service) by eliminating the conditional grant process at 8 CFR 
240.21, and establishing a permanent procedure for processing 
suspension of deportation and cancellation of removal cases. This rule 
is necessary to implement the numerical limitation on suspension of 
deportation and cancellation of removal and adjustment of status 
imposed by the Illegal Immigration Reform and Immigrant Responsibility 
Act of 1996 (IIRIRA) and the Nicaraguan Adjustment and Central American 
Relief Act of 1997 (NACARA).

DATES: Effective Date: This interim rule is effective September 30, 
1998.
    Comment Date: Written comments must be submitted on or before 
November 30, 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: For matters relating to the Executive 
Office for Immigration Review--Margaret M. Philbin, General Counsel, 
Executive Office for Immigration Review, Suite 2400, 5107 Leesburg 
Pike, Falls Church, Virginia 22041, telephone (703) 305-0470. For 
matters relating to the Immigration and Naturalization Service--
Marguerite N. Przybylski, Associate General Counsel, Immigration and 
Naturalization Service, 425 I Street, NW, Washington, D.C. 20536, 
telephone (202) 514-2895.

SUPPLEMENTARY INFORMATION: This interim rule amends 8 CFR part 240 by 
eliminating the interim rule in section 240.21 and creating a new 
section 240.21.

Background

    On September 30, 1996, Congress enacted the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996, Public Law 104-208 
(IIRIRA). Under section 304(a)(3) of IIRIRA, the Attorney General may 
not cancel the removal and adjust the status under section 240A(b) of 
the Immigration and Nationality Act (INA), nor suspend the deportation 
and adjust the status under section 244(a) of the INA (as in effect 
before April 1, 1997) of a total of more than 4,000 aliens in any 
fiscal year. Section 309(c)(7) of IIRIRA provides that this numerical 
limitation applies regardless of when an alien has applied for the 
relief, even if before the date of IIRIRA's enactment on September 30, 
1996.
    By mid-February 1997, EOIR had determined it had essentially 
reached the fiscal year 1997 numerical limitation on suspension of 
deportation grants. On February 13, 1997, the Board of Immigration 
Appeals (Board) issued a directive to defer the adjudication of grants 
of suspension of deportation until further notice. The Immigration 
Courts received a directive to reserve decision in suspension of 
deportation cases that they intended to grant. The instructions were 
intended to be a temporary measure to give the Department time to 
consider how best to implement the statutory cap.

[[Page 52135]]

    On October 3, 1997, the Department issued an interim rule that was 
published in the Federal Register at 62 FR 51760-51762. This rule added 
8 CFR 240.21 to the regulations. The rule required immigration judges 
and the Board to grant only on a conditional basis those applications 
for suspension of deportation or cancellation of removal that meet the 
statutory requirements and warrant a favorable exercise of discretion. 
See 8 CFR 240.21(a) (in effect prior to publication of this rule). On 
October 15, 1997, EOIR instructed immigration judges to begin issuing 
conditional grants of suspension of deportation or cancellation of 
removal on decisions reserved in accordance with the February 13, 1997 
directive from the Chief Immigration Judge.
    On November 19, 1997, the President signed into law the Nicaraguan 
Adjustment and Central American Relief Act (NACARA), which modified the 
statutory provisions on the suspension of deportation and cancellation 
of removal cap. Section 204 of NACARA amended section 240A(e) of the 
INA. It reaffirmed the existence of the 4,000 annual cap, but made 
exemptions for certain aliens--those certain nationals of Guatemala, El 
Salvador, and former Soviet bloc countries as described in section 
203(a)(1) of NACARA, and those in deportation proceedings prior to 
April 1, 1997, who apply for suspension of deportation pursuant to 
section 244(a)(3) of the INA (as in effect prior to April 1, 1997). It 
also created a one-time provision for fiscal year 1998 which added to 
the statutory amount of 4,000 another 4,000 grants, less the number of 
suspensions and cancellations that were granted in fiscal year 1997 
after April 1, 1997. No cancellation of removal or suspension of 
deportation applications were granted in fiscal year 1997 after April 
1, 1997. Therefore, all 4,000 grants can be added to the 4,000 
allotment, for a total of 8,000 grants for fiscal year 1998.
    The Department has determined that the implementation of the 
numerical cap on grants of suspension of deportation and cancellation 
of removal requires resolution of three issues. The first issue 
concerns how best to convert 8,000 conditional grants to grants before 
the end of fiscal year 1998, in a way that does not contravene section 
240A(e) of the INA. The second issue is how to ensure that all those 
who received a conditional grant of suspension of deportation or 
cancellation of removal which could not be granted in fiscal year 1998, 
have an opportunity to receive a grant of relief. The third issue is 
how to establish a procedure for future implementation of the cap.

Conversion of 8,000 Conditional Grants for Fiscal Year 1998

    Because of the statutory language, it is necessary to devise a 
procedure that will convert up to 8,000 conditional grants to grants 
before the end of fiscal year 1998. The statute states that ``[t]he 
Attorney General may not cancel the removal and adjust the status under 
this section, nor suspend the deportation and adjust the status under 
section 244(a) (as in effect before the enactment of [IIRIRA]), of a 
total of more than 4,000 aliens in any fiscal year.'' INA Sec. 240A(e). 
The phrase ``in any fiscal year'' has been interpreted to mean that 
those eligible aliens must be granted relief of suspension of 
deportation or cancellation of removal during the fiscal year in which 
they are given a grant under the cap. To implement the 8,000 cap for 
fiscal year 1998, the Department has determined that the first 8,000 
conditional grants (not including Nicaraguan and Cuban nationals with 
conditional grants) that were made since October 1997 shall be 
converted to grants of suspension of deportation or cancellation of 
removal in order of the date the conditional grant was issued by the 
Immigration Court or the Board, unless the immigration judge's decision 
is on appeal at the Board, or either party has reserved appeal of an 
immigration judge's decision and the time for appeal has not run out. 
Before the end of fiscal year 1998, EOIR will remove the condition and 
grant suspension of deportation or cancellation of removal and 
adjustment of status. Conversion from a conditional grant to a grant is 
not an appealable action. Pursuant to the interim regulation providing 
for conditional grants at 62 FR 51760 (Oct. 3, 1997), the right of 
appeal attaches at the time of entry of the conditional grant.
    Because this conversion will take place in a short period of time 
and will not involve review of the merits of the cases, this rule 
permits the Service to file a motion to reopen within 90 days after an 
alien is issued a grant of suspension of deportation or cancellation of 
removal. This rule provides that such motions to reopen are only 
permitted if, while the applicant was a conditional grantee, he or she 
committed an act that would have rendered him or her statutorily 
ineligible for such relief. Motions to reopen based upon evidence that 
might affect a discretionary finding are not authorized by this rule.

Ability To Travel for Aliens With Conditional Grants

    The Service has received several inquiries concerning the effect of 
travel on an alien's conditional grant. This interim rule, promulgated 
by the Attorney General, provides a definitive answer to this recurring 
question. As a result of delays associated with implementation of the 
statutory cap provision, a significant period of time may have elapsed 
before an alien's conditional grant is converted to a grant of 
suspension of deportation or cancellation of removal. Some aliens with 
conditional grants will have had or will have legitimate needs to 
travel. Because such aliens are determined at the time of the 
conditional grant to be statutorily eligible to receive suspension of 
deportation or cancellation of removal and to warrant a grant on the 
basis of discretion, it is likely that they will be able to remain 
permanently in the United States as lawful permanent residents once 
their conditional grants are converted to grants. Therefore, the 
Attorney General finds it reasonable to permit conditional grantees to 
return to the United States after a temporary absence abroad without 
losing their conditional grant by virtue of their departure.
    This interim rule provides that those aliens with conditional 
grants of suspension of deportation or cancellation of removal who, 
before publication of this interim rule, temporarily traveled abroad or 
who are abroad and have not returned, shall not lose their conditional 
grants as a result of their departure. The Attorney General recognizes 
the unique nature of the conditional grant and, since it is likely that 
many of these conditional grantees would not have understood the 
consequences of departing the United States without advance parole, 
finds it reasonable to grant this one-time waiver. However, upon 
publication of this rule in the Federal Register, an alien with a 
conditional grant must first obtain a grant of advance parole from the 
District Director before he or she leaves the United States. This 
requirement allows the Service to verify the alien's claims about the 
purpose of his or her travel and the duration of his or her absence, in 
order to aid in its determination of whether to grant or deny advance 
parole.

Eliminate the Conditional Grant Process

    In the interim rule published on October 3, 1997, which established 
a procedure for processing suspension of deportation and cancellation 
of removal

[[Page 52136]]

applications, the Department made clear in the supplementary language 
that ``[t]his rule is a transitional measure in that conditional grants 
of suspension of deportation and cancellation of removal will be 
revisited after the Department determines how best to implement 
sections 304(a)(3) and 309(c)(7) of IIRIRA.'' 62 FR at 51761. The 
Department has determined that it will no longer implement the 
conditional grant process. After review of the statutory cap provision, 
the Department does not believe that the statute supports a permanent 
regime based on conditional grants. Instead, future grants of 
suspension and cancellation of removal will be issued on a ``first in 
time'' basis, outlined further below.

Conditional Grants From Fiscal Year 1998

    Although the cap may not be reached in fiscal year 1998 (not 
including those Nicaraguans and Cubans eligible for relief under 
section 202 of NACARA as discussed below), any conditional grants which 
remain after the fiscal year 1998 grants are issued shall be converted 
to grants in fiscal year 1999 and will count against the numerical cap 
for fiscal year 1999. If there are conditional grants that could not be 
converted in fiscal year 1998 (e.g., if the time for appeal had not run 
until after the end of fiscal year 1998) such conditional grant will be 
converted in fiscal year 1999. Accordingly, this procedure will allow 
for all persons whose cases were adjudicated under the October 3, 1997 
interim regulation providing for conditional grants who remain in 
conditional grant status in fiscal year 1999 to receive a grant of 
suspension of deportation or cancellation of removal in fiscal year 
1999.

Treatment of Certain Nicaraguan and Cuban Nationals With 
Conditional Grants

    In fiscal year 1998, over 1,000 nationals of Nicaragua and Cuba 
were given conditional grants of suspension of deportation or 
cancellation of removal. On November 19, 1997, the enactment of NACARA 
made certain Nicaraguan and Cuban nationals eligible for adjustment of 
status in addition to other forms of relief. See NACARA section 202. In 
an effort to preserve as many grants as possible under the cap in 
fiscal year 1998 for aliens for whom suspension of deportation or 
cancellation of removal was truly the only avenue for relief, the 
Attorney General has determined that it is appropriate to offer those 
nationals of Nicaragua and Cuba who have already received a conditional 
grant of suspension or cancellation an opportunity to first pursue 
adjustment of status under section 202 of NACARA (NACARA adjustment). 
These Nicaraguan and Cuban nationals who are processed for adjustment 
will receive the benefit of an immediate adjudication of their 
adjustment of status requests before a Service officer on or before 
December 31, 1998. Further, Nicaraguan and Cuban national spouses and 
children, including certain unmarried sons and daughters, of NACARA-
adjusted aliens, may be immediately eligible for NACARA adjustment 
themselves. No such derivative benefit accrues from a grant of 
suspension of deportation or cancellation of removal.
    To be eligible for adjustment of status pursuant to NACARA section 
202, an alien must be a person who: (1) Is a national of Nicaragua or 
Cuba; (2) has been physically present in the United States for a period 
commencing not later than December 1, 1995 and ending not earlier than 
the date of adjustment (excluding absences totaling not more than 180 
days); (3) is not inadmissible under any provision of INA section 212 
not specifically excepted by NACARA (e.g., public charge, lack of labor 
certification, illegal entry, lack of immigrant visa/entry document, 
and unlawful presence); and (4) applies for such adjustment before 
April 1, 2000.
    By virtue of having received a conditional grant of suspension of 
deportation or cancellation of removal, which entails successfully 
demonstrating a lengthy period of continuous physical presence in the 
United States as well as good moral character during this period, most 
Nicaraguans and Cubans in this position should easily be able to 
satisfy the similar eligibility requirements for NACARA adjustment. As 
a result, the Attorney General has determined that this alternative 
avenue of relief to suspension/cancellation must be explored by all 
Cuban and Nicaraguan conditional grantees identified by EOIR. To that 
end, the Attorney General, in this regulation, deems the application 
for suspension of deportation or cancellation of removal filed by a 
national of Nicaragua or Cuba who has received a conditional grant of 
suspension of deportation or cancellation of removal on or before 
September 30, 1998 to be a concurrent request for NACARA adjustment.
    In order to provide relief in the form of NACARA adjustment to as 
many conditional suspension/cancellation grantees as possible, the 
Attorney General has directed the Service to give individual notice to 
all Cuban and Nicaraguan conditional grantees identified by EOIR. The 
notice shall inform them of the date, time, and place at which they 
must appear before a Service officer to perfect their request for 
NACARA adjustment. Since the file of an applicant for suspension of 
deportation or cancellation of removal will not invariably contain all 
of the information necessary to determine an alien's eligibility for 
NACARA adjustment, the alien will be required to complete a form in 
which the alien must attest to certain facts regarding his or her 
eligibility for NACARA adjustment. If the alien is inadmissible to the 
United States, he or she may apply for any applicable waivers of 
inadmissibility. Given that this application process has been mandated 
by the Attorney General, no fees will be charged for perfecting a 
NACARA adjustment request or for any applications for a waiver of 
inadmissibility submitted in conjunction with these NACARA adjustment 
requests. To the extent that a Cuban or Nicaraguan national who 
received a conditional grant of suspension or cancellation on or before 
September 30, 1998, applied for NACARA adjustment through the 
preexisting channels prior to the effective date of this regulation, no 
refund of the application fees shall be issued.
    If the Service officer grants NACARA adjustment, he or she shall 
create a record of lawful permanent residence, the order granting 
suspension of deportation or cancellation of removal on a conditional 
basis shall be vacated, and the alien's deportation or removal 
proceedings shall be terminated automatically. If, at the time of the 
alien's appearance before a Service officer, the alien expresses a 
desire not to be processed for NACARA adjustment, is unable to complete 
the attestation, or if the Service officer determines that the alien is 
ineligible for such adjustment, the alien's conditional grant of 
suspension or cancellation shall be automatically converted to a final 
grant and the Service will create a record of lawful permanent 
residence on the basis of that grant. The Service will then notify EOIR 
that a suspension/cancellation grant has been allotted. For that 
reason, there is no appeal from a Service officer's determination that 
an alien is not eligible for NACARA adjustment. If an alien fails to 
appear before a Service officer when scheduled, his or her conditional 
grant of suspension of deportation or cancellation of removal shall be 
automatically converted to a final grant

[[Page 52137]]

effective December 31, 1998. After December 31, 1998, an application 
for suspension of deportation or cancellation of removal filed by a 
national of Nicaragua or Cuba who received a conditional grant of 
suspension or cancellation on or before September 30, 1998, shall cease 
to be considered a request for NACARA adjustment.
    The Attorney General has directed that all NACARA eligibility 
determinations, as outlined above, be completed on or before December 
31, 1998, to ensure that covered conditional grantees obtain lawful 
permanent residence status as soon as possible, be it pursuant to 
section 202 of NACARA or through a grant of suspension/cancellation. In 
order to minimize the processing time for these applicants, the 
Attorney General has deemed the documentary requirements applicable to 
other NACARA adjustment applicants to be satisfied by the completion of 
the attestation form noted above. As a result, these applicants will 
not be required to submit medical examination records or a new set of 
fingerprints. In addition, the Attorney General has directed that, 
absent contrary evidence developed in an interview or otherwise, the 
Service will accept the attestation form as sufficient evidence of an 
alien's admissibility, including health-related grounds and/or 
continuous physical presence. The Attorney General has determined that 
these extraordinary measures are justified in this limited instance 
because these aliens have already been found eligible to obtain lawful 
permanent resident status, and in fact will obtain such status on the 
basis of suspension of deportation or cancellation of removal even if 
they do not seek or are found ineligible for NACARA adjustment. As a 
result, there will be little incentive for an alien to misrepresent his 
or her circumstances to the Service officer. However, any alien found 
to have misrepresented his or her eligibility for NACARA adjustment 
will be subject to prosecution and removal from the United States.

Future Implementation of the Cap

    Under the first in time process established in this interim rule, 
the Immigration Court and the Board will issue grants of suspension of 
deportation or cancellation of removal in chronological order until 
grants are no longer available in a fiscal year. A grant will be 
counted against the cap for the fiscal year in which a grant of 
suspension of deportation or cancellation of removal is final as set 
forth in 8 CFR 3.1(d)(2) and 3.39. To ensure that the cap is not 
exceeded in any fiscal year, the Immigration Court and the Board, 
except as described below, will reserve all decisions on suspension of 
deportation or cancellation of removal when grants are no longer 
available in any fiscal year. Those reserved decisions will be 
completed in the next fiscal year if there are grants available under 
the cap. If grants are not available in the next fiscal year, decisions 
will be completed in a fiscal year when grants are available. Persons 
with reserved decisions will be considered to still be ``in 
proceedings'' while their decision is reserved. They normally cannot be 
removed from the country while they are still in proceedings. Neither 
can they receive any form of relief until the Immigration Court or the 
Board takes further action.
    The requirement to reserve decision once grants are no longer 
available in a fiscal year will not apply in the following 
circumstances. Immigration judges and the Board may deny without 
reserving decision or may pretermit suspension of deportation or 
cancellation of removal applications because the applicant has failed 
to establish statutory eligibility for relief. The following is a 
partial list of examples in which the Immigration Court and the Board 
may deny without reserving decision or may pretermit suspension of 
deportation or cancellation of removal applications, because the 
applicant is ineligible for relief based on statutory bars: (1) The 
alien is an aggravated felon pursuant to section 101(a)(43) of the INA; 
(2) the mandatory bar to establishing good moral character pursuant to 
section 101(f) of the INA applies to the alien; (3) the alien failed to 
voluntarily depart, was found deportable or removable in absentia, or 
failed to appear for deportation or removal at the time and place 
ordered as set forth in section 242B(e) of the INA (as in effect prior 
to April 1, 1997), and sections 240B(d) and 240(b)(7) of the INA; (4) 
the alien does not have the requisite continuous physical presence for 
suspension of deportation or cancellation of removal relief pursuant to 
section 244(a) of the INA (as in effect prior to April 1, 1997) or 
section 240A(b) of the INA; or (5) (for cancellation cases only) the 
alien cannot demonstrate that he or she has a qualifying relative as to 
whom exceptional or extremely unusual hardship must be shown.
    However, such denial or pretermission of a suspension or 
cancellation application shall not be based on any of the following: an 
unfavorable exercise of discretion, a finding of no good moral 
character on a ground not specifically noted in section 101(f) of the 
INA, a failure to establish exceptional or extremely unusual hardship 
to a qualifying relative in cancellation cases, or a failure to 
establish extreme hardship to the applicant and/or qualifying relative 
in suspension cases.

Those Eligible for Other Forms of Relief

    Whether or not the cap has been reached, the Immigration Court or 
the Board shall adjudicate concurrently all other forms of relief for 
which the alien has applied. If the Immigration Court or the Board 
grants asylum or adjustment of status, the application for suspension 
or cancellation shall be denied in the exercise of discretion. If the 
Immigration Court denies as a matter of discretion an application for 
suspension of deportation or cancellation of removal on such basis, 
such decision will be reconsidered if an appeal of the decision 
granting asylum or adjustment is sustained by the Board.

Interim Rule

    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, procedure, 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) and 553(d)(3). Immediate implementation is 
necessary before the end of the fiscal year, because the 8,000 grants 
under the cap for fiscal year 1998 must be distributed before October 
1, 1998 (the beginning of the next fiscal year), or the grants will be 
lost. The Department has provided for a public comment period on this 
interim rule of 60 days.

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.

[[Page 52138]]

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by 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

    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.

Paperwork Reduction Act of 1995

    Section 240.21(b)(2) of this rule requires certain nationals of 
Nicaragua and Cuba who were granted suspension of deportation or 
cancellation of removal on a conditional basis on or before September 
30, 1998 to complete a new Service Form I-895, Attestation of Alien and 
Memorandum of Creation of Record of Lawful Permanent Residence. This 
form is considered an information collection. A delay in issuing this 
interim rule could have a negative effect on the ability of certain 
aliens to obtain lawful permanent resident status in a timely manner. 
Accordingly, the Department of Justice, Immigration and Naturalization 
Service has submitted an information collection request (ICR) utilizing 
emergency review procedures to the Office of Management and Budget 
(OMB) for review and clearance in accordance with the Paperwork 
Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35).
    Emergency review and approval of this collection has been requested 
from OMB by October 15, 1998. If granted, the emergency approval is 
only valid for 180 days. Comments and questions concerning the ICR 
should be directed to: Office of Information and Regulatory Affairs 
(OMB), OMB Desk Officer for the Immigration and Naturalization Service, 
Office of Management and Budget, Room 10235, Washington, DC 20503.
    Your comments should address one or more of the following points:
    (1) Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the proposed collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of technological 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of responses.
    The Service, in calculating the overall burden this requirement 
will place upon the public, estimates that approximately 1,000 
respondents will be completing this form. The Service also estimates 
that it will take approximately two hours to complete the form. This 
amounts to 2,000 total burden hours.

List of Subjects in 8 CFR Part 240

    Administrative practice and procedure, Aliens, Immigration.

    Accordingly, part 240 of chapter I of title 8 of the Code of 
Federal Regulations is amended as follows:

PART 240--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

    1. The authority citation for part 240 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 
1251, 1252 note, 1252a, 1252b, 1362; sec. 202, Pub. L. 105-100 (111 
Stat. 2160, 2193); 8 CFR part 2.

    2. Section 240.21 is revised in its entirety to read as follows:


Sec. 240.21  Suspension of Deportation and Adjustment of Status Under 
Section 244(a) of the Act (as in effect before April 1, 1997) and 
Cancellation of Removal and Adjustment of Status Under Section 240A(b) 
of the Act for Certain Nonpermanent Residents.

    (a) Applicability of annual cap on suspension of deportation or 
cancellation of removal. (1) As used in this section, the term cap 
means the numerical limitation of 4,000 grants of suspension of 
deportation or cancellation of removal in any fiscal year (except 
fiscal year 1998, which has a limitation of 8,000 grants) pursuant to 
section 240A(e) of the Act.
    (2) The provisions of this section apply to grants of suspension of 
deportation pursuant to section 244(a) of the Act (as in effect before 
April 1, 1997) or cancellation of removal pursuant to section 240A(b) 
of the Act that are subject to a numerical limitation in section 
240A(e) of the Act for any fiscal year. This section does not apply to 
grants of suspension of deportation or cancellation of removal to 
aliens described in section 309(c)(5)(C)(i) of the Illegal Immigration 
Reform and Immigrant Responsibility Act (IIRIRA), as amended by section 
203(a)(1) of the Nicaraguan Adjustment and Central American Relief Act 
(NACARA), or aliens in deportation proceedings prior to April 1, 1997, 
who apply for suspension of deportation pursuant to section 244(a)(3) 
of the Act (as in effect prior to April 1, 1997). The Immigration Court 
and the Board shall no longer issue conditional grants of suspension of 
deportation or cancellation of removal as provided in 8 CFR 240.21 (as 
in effect prior to September 30, 1998).
    (b) Conditional grants of suspension of deportation or cancellation 
of removal in fiscal year 1998 cases. (1) Conversion to grants. Except 
with respect to cases described in paragraphs (b)(2) and (b)(3) of this 
section, EOIR shall grant suspension of deportation or cancellation of 
removal without condition prior to October 1, 1998, to the first 8,000 
aliens given conditional grants of suspension of deportation or 
cancellation of removal (as determined by the date of the immigration 
judge's order or, if the order was appealed to the Board, the date such 
order was entered by the Board.)
    (2) Treatment of certain nationals of Nicaragua and Cuba who 
received conditional grants of suspension of deportation or 
cancellation of removal on or before September 30, 1998. (i) NACARA 
adjustment request. An application for suspension of deportation or 
cancellation of removal filed by a national of Nicaragua or Cuba

[[Page 52139]]

that was granted on a conditional basis on or before September 30, 
1998, shall be deemed to be a request for adjustment of status pursuant 
to section 202 of NACARA (``NACARA adjustment'') for the period 
starting September 30, 1998 and ending December 31, 1998. The Service 
shall provide the applicant with notice of the date, time, and place at 
which the applicant must appear before a Service officer to perfect the 
request for NACARA adjustment. Such notice shall include an attestation 
form, Attestation of Alien and Memorandum of Creation of Record of 
Lawful Permanent Residence, Form I-895, regarding the applicant's 
eligibility for NACARA adjustment.
    (ii) Submission of documentation. To perfect the request for NACARA 
adjustment, the applicant must appear before a Service officer on the 
date scheduled with the following documentation:
    (A) The order granting suspension of deportation or cancellation of 
removal on a conditional basis issued on or before September 30, 1998;
    (B) A completed, but unsigned Form I-895, which the applicant shall 
be required to sign and to attest to the veracity of the information 
contained therein in the presence of a Service officer;
    (C) Any applicable applications for waiver of inadmissibility; and
    (D) Two ``ADIT-style'' photographs; meeting the specifications in 
the instructions attached to Form I-895.
    (iii) Waiver of documentation and fees. The provisions of 
Sec. 245.13(e) and (f) of this chapter relating to documentary 
requirements for NACARA adjustment are waived with respect to an alien 
seeking to perfect a request for adjustment of status pursuant to 
paragraph (b)(2) of this section. In addition, the fees for the NACARA 
adjustment and for any applications for waivers of inadmissibility 
submitted in conjunction with perfecting a request for NACARA 
adjustment shall be waived.
    (iv) NACARA adjustment determination. In determining an applicant's 
eligibility for NACARA adjustment under the provisions of paragraph 
(b)(2) of this section, unless the Service officer before whom the 
applicant appears is not satisfied that the applicant is admissible to 
the United States in accordance with section 202(a)(1)(B) of NACARA, 
and has continuously resided in the United States from December 1, 
1995, through the date of appearance before the Service officer (not 
counting an absence or absences from the United States totaling 180 
days or less or any absences that occurred pursuant to advance 
authorization for parole (Form I-512 issued by the Service)), the 
Service officer shall accept an alien's attestation of admissibility 
and/or continuous physical presence as sufficient evidence that the 
applicant has met the admissibility and/or continuous physical presence 
requirement for NACARA adjustment. If the Service officer grants NACARA 
adjustment, then the Service officer shall create a record of lawful 
permanent residence and the prior order granting suspension of 
deportation or cancellation of removal on a conditional basis shall be 
automatically vacated and the deportation or removal proceedings shall 
be automatically terminated. The Service officer (whose decision in 
this regard is not subject to appeal) shall not adjust the applicant to 
lawful permanent resident status pursuant to section 202 of NACARA if:
    (A) The Service officer is not satisfied that the applicant is 
eligible for NACARA adjustment and so indicates on the attestation 
form; or
    (B) The applicant indicates on the attestation form that he or she 
does not wish to receive NACARA adjustment.
    (v) Automatic conversion. If the Service officer does not adjust 
the applicant to lawful permanent resident status pursuant to section 
202 of NACARA, the applicant's conditional grant of suspension of 
deportation or cancellation of removal shall be automatically converted 
to a grant of suspension of deportation or cancellation of removal. 
Upon such a conversion, the Service shall create a record of lawful 
permanent residence based upon the grant of suspension of deportation 
or cancellation of removal.
    (vi) Failure to appear. An alien who fails to appear to perfect his 
or her request for NACARA adjustment shall have his or her conditional 
grant of suspension of deportation or cancellation of removal 
automatically converted by the Immigration Court or the Board to a 
grant of suspension of deportation or cancellation of removal effective 
December 31, 1998.
    (3) Conditional grants not converted in fiscal year 1998. The 
provisions of paragraphs (b)(1) and (b)(2) of this section for granting 
relief shall not apply with respect to:
    (i) Any case in which a conditional grant of suspension of 
deportation or cancellation of removal is pending on appeal before the 
Board as of September 30, 1998 or, if the right to appeal to the Board 
has not been waived, the time for an appeal has not expired. After the 
Board issues its decision or the time for appeal has expired, the 
conditional grant shall be converted to a grant when a grant is 
available.
    (ii) Any other conditional grant not described in paragraphs 
(b)(1), (b)(2) or (b)(3)(i) of this section, which was not converted to 
a grant in fiscal year 1998. Such a conditional grant shall be 
converted to a grant when a grant is available.
    (4) Motion to reopen. The Service may file a motion to reopen 
within 90 days after the alien is issued a grant of suspension of 
deportation or cancellation of removal pursuant to paragraphs (b)(1), 
(b)(2), or (b)(3) of this section, if after the issuance of a 
conditional grant by the Immigration Court or the Board the applicant 
committed an act that would have rendered him or her ineligible for 
suspension of deportation or cancellation or removal at the time of the 
conversion.
    (5) Travel for aliens conditionally granted suspension of 
deportation or cancellation of removal. If the Immigration Court or the 
Board granted suspension of deportation or cancellation of removal on a 
conditional basis or, if the conditional grant by the Immigration Court 
was appealed to the Board and the Board issued such a conditional 
grant, the alien shall retain the conditional grant of suspension of 
deportation or cancellation of removal upon return to the United States 
following a temporary absence abroad and be permitted to resume 
completion of his or her case, provided that:
    (i) The alien departed on or before September 30, 1998 with or 
without a grant of advance parole from the District Director; or
    (ii) The alien, prior to his or her departure from the United 
States after September 30, 1998, obtained a grant of advance parole 
from the District Director in accordance with section 212(d)(5) of the 
Act and Sec. 212.5 of this chapter and complied with the terms and 
conditions of the advance parole.
    (c) Grants of suspension of deportation or cancellation of removal 
in fiscal years subsequent to fiscal year 1998. On and after October 1, 
1998, the Immigration Court and the Board may grant applications for 
suspension of deportation and adjustment of status under section 244(a) 
of the Act (as in effect prior to April 1, 1997) or cancellation of 
removal and adjustment of status under section 240A(b) of the Act that 
meet the statutory requirements for such relief and warrant a favorable 
exercise of discretion until the annual numerical limitation has been 
reached in that fiscal year. The awarding of such relief shall be 
determined according to

[[Page 52140]]

the date the order granting such relief becomes final as defined in 
Secs. 3.1(d)(2) and 3.39 of this chapter.
    (1) Applicability of the annual cap. When grants are no longer 
available in a fiscal year, further decisions to grant or deny such 
relief shall be reserved until such time as a grant becomes available 
under the annual limitation in a subsequent fiscal year. Immigration 
judges and the Board may deny without reserving decision or may 
pretermit those suspension of deportation or cancellation of removal 
applications in which the applicant has failed to establish statutory 
eligibility for relief. The basis of such denial or pretermission may 
not be based on an unfavorable exercise of discretion, a finding of no 
good moral character on a ground not specifically noted in section 
101(f) of the Act, a failure to establish exceptional or extremely 
unusual hardship to a qualifying relative in cancellation cases, or a 
failure to establish extreme hardship to the applicant and/or 
qualifying relative in suspension cases.
    (2) Aliens applying for additional forms of relief. Whether or not 
the cap has been reached, the Immigration Court or the Board shall 
adjudicate concurrently all other forms of relief for which the alien 
has applied. Applications for suspension of deportation or cancellation 
of removal shall be denied in the exercise of discretion if the alien 
is granted asylum or adjustment of status, including pursuant to 
section 202 of NACARA, while the suspension of deportation or 
cancellation of removal application is pending. Where an appeal of a 
decision granting asylum or adjustment is sustained by the Board, a 
decision to deny as a matter of discretion an application for 
suspension of deportation or cancellation of removal on this basis 
shall be reconsidered.

    Dated: September 25, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-26200 Filed 9-29-98; 8:45 am]
BILLING CODE 4410-30-P