[Federal Register Volume 63, Number 226 (Tuesday, November 24, 1998)]
[Proposed Rules]
[Pages 64895-64913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31348]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 208, 240, 274a, and 299

[INS No. 1915-98; AG Order No. 2192-98]
RIN 1115-AF14


Suspension of Deportation and Special Rule Cancellation of 
Removal for Certain Nationals of Guatemala, El Salvador, and Former 
Soviet Bloc Countries

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

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Department of Justice 
(Department) regulations by offering certain beneficiaries of the 
Nicaraguan Adjustment and Central American Relief Act (NACARA) who 
currently have asylum applications pending with the Immigration and 
Naturalization Service (Service), and their qualified dependents, the 
option of applying to the Service for suspension of deportation or 
cancellation of removal under the statutory requirements set forth in 
NACARA (``special rule cancellation of removal'').
    Described in very general terms, both suspension of deportation and 
special rule cancellation of removal are forms of discretionary relief 
that, if granted, permit an individual subject to deportation or 
removal to remain in the United States. Integrating the processing of 
certain applications under NACARA into the Service's Asylum Program 
will provide an efficient mechanism for considering the suspension of 
deportation and special rule cancellation of removal applications of 
most of the approximately 240,000 registered class members of the 
American Baptist Churches v. Thornburgh (ABC) litigation and certain 
other beneficiaries of NACARA who have asylum applications pending with 
the Service, as well as their qualified family members. The Immigration 
Court will retain exclusive jurisdiction over most suspension of 
deportation and special rule cancellation of removal applications 
submitted by NACARA beneficiaries who have been placed in deportation 
or removal proceedings.
    In addition, this rule proposes to compile and codify the relevant 
factors and standards for extreme hardship identified within existing 
case law in order to provide a more uniform and focused mechanism for 
evaluating this aspect of a person's eligibility for suspension of 
deportation or special rule cancellation of removal.

DATES: Written comments must be submitted on or before January 25, 
1999.

ADDRESSES: Please submit written comments in triplicate to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 
20536. To ensure proper handling, please reference INS No. 1915-98 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: For matters relating to the 
Immigration and Naturalization Service: John Lafferty or Wenona Paul, 
International Affairs, Department of Justice, Immigration and 
Naturalization Service, 425 I Street NW., ULLICO Bldg., third floor, 
Washington, DC 20536, telephone number (202) 305-2663. 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 
number (703) 305-0470.

SUPPLEMENTARY INFORMATION:

I. Background

    What is the Nicaraguan Adjustment and Central American Relief Act? 
On November 19, 1997, President Clinton signed the Nicaraguan 
Adjustment and Central American Relief Act, enacted as title II of Pub. 
L. No. 105-100 (111 Stat. 2160, 2193) (as amended by the Technical 
Corrections to the Nicaraguan Adjustment and Central American Relief 
Act, Pub. L. No. 105-139 (111 Stat. 2644)). This new law amended the 
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) 
and the Immigration and Nationality Act (Act) by providing several 
distinct forms of relief to certain aliens who are presently residing 
unlawfully in the United States. Section 202 of NACARA permits certain 
Nicaraguan and Cuban nationals who meet the standards set forth in that 
section to apply for adjustment of status to that of lawful permanent 
resident. The interim rule governing applications for adjustment under 
section 202 was published in the Federal Register on May 21, 1998, at 
63 FR 27823.
    This proposed rule implements section 203 of NACARA, which permits 
certain Guatemalans, Salvadorans, and nationals of the former Soviet 
bloc to apply for suspension of deportation or

[[Page 64896]]

cancellation of removal under special provisions set forth in that 
section. Unlike those applying under section 202, NACARA beneficiaries 
under section 203 may not become lawful permanent residents unless they 
meet the statutory requirements for suspension of deportation or 
cancellation of removal and are found to merit such relief as a matter 
of discretion.
    Throughout the discussion of this proposed rule, the term ``NACARA 
beneficiaries'' refers to those persons listed in section 
309(c)(5)(C)(i) of IIRIRA, as amended by NACARA, who may be eligible to 
apply for suspension of deportation or cancellation of removal pursuant 
to the NACARA amendments to IIRIRA.
    How does NACARA affect applications for suspension of deportation 
and cancellation of removal? The Illegal Immigration Reform and 
Immigrant Responsibility Act, enacted by Congress on September 30, 
1996, consolidated the dual system of exclusion and deportation 
proceedings into removal proceedings for persons placed in proceedings 
on or after April 1, 1997. Individuals placed in deportation 
proceedings prior to April 1, 1997, can apply for suspension of 
deportation under former section 244 of the Act, as in effect prior to 
April 1, 1997. Suspension of deportation is a discretionary form of 
relief available to individuals who can establish continuous physical 
presence in the United States for 7 years prior to the date of 
application, good moral character during that period, and that 
deportation would result in extreme hardship to the applicant or to the 
applicant's parent, spouse, or child who is a lawful permanent resident 
or United States citizen. Different standards apply to individuals who 
are deportable on certain criminal, document fraud, or security 
grounds. Other special exceptions apply to battered spouses and 
children and to individuals who have served in the United States 
military.
    Under the new framework created by IIRIRA, the discretionary relief 
of suspension of deportation was replaced by section 240A, cancellation 
of removal. Congress limited the availability of this type of relief in 
three fundamental ways. First, Congress amended the rules relating to 
time counted toward physical presence in the United States. For persons 
seeking cancellation of removal, section 240A(d)(1) of the Act provides 
that time counted towards continuous physical presence ceases when a 
person is served with a charging document and placed in removal 
proceedings or when a person commits an offense referred to in section 
212(a)(2) of the Act that renders the person inadmissible to the United 
States under section 212(a)(2) or removable from the United States 
under section 237(a)(2) or 237(a)(4) of the Act, whichever is earlier 
(the ``stop-time'' rule). The Board of Immigration Appeals (Board) held 
that, under the transitional rules at section 309(c)(5) of IIRIRA 
governing persons in deportation proceedings, this ``stop-time'' rule 
applied equally to individuals placed in proceedings prior to April 1, 
1997, who had applied for or who may apply for suspension of 
deportation. Matter of N-J-B-, Int. Dec. #3309 (BIA 1997). In addition, 
section 240A(d)(2) addresses certain breaks in presence in the United 
States, for purposes of cancellation of removal eligibility, by 
providing that an alien shall be considered to have failed to maintain 
continuous physical presence in the United States if the alien has 
departed from the United States for any period in excess of 90 days or 
for any periods in the aggregate exceeding 180 days.
    Second, IIRIRA heightened the eligibility standards for both the 
required period of continuous physical presence in the United States 
and the degree and type of hardship that must result from removal. 
Generally, to be eligible for cancellation of removal under the Act as 
amended by IIRIRA, the applicant must establish 10 years of continuous 
physical presence in the United States, good moral character during 
that period, and that removal would result in exceptional and extremely 
unusual hardship to the applicant's spouse, parent, or child who is a 
lawful permanent resident or United States citizen.
    Third, Congress provided that no more than 4,000 aliens may have 
their deportation suspended or removal canceled, and their status 
adjusted pursuant thereto, in any fiscal year.
    With certain exceptions, section 203 of NACARA permits certain 
Guatemalans, Salvadorans, and nationals of former Soviet bloc countries 
to apply for suspension of deportation or cancellation of removal under 
the standards that existed prior to enactment of IIRIRA. Specifically, 
NACARA exempts qualified Guatemalans, Salvadorans, and nationals of 
former Soviet bloc countries from the ``stop-time'' rule. In addition, 
section 203(b) of NACARA created a special rule for cancellation of 
removal for NACARA beneficiaries who have not been placed in 
deportation proceedings. Special rule cancellation of removal permits 
these individuals to apply for cancellation of removal under standards 
that are generally the same as those for suspension of deportation.
    Section 204 of NACARA also amended the Act to exempt qualified 
NACARA beneficiaries from the limit on the number of individuals who 
may be granted suspension of deportation and cancellation of removal, 
and adjustments of status pursuant thereto, each year.
    What is suspension of deportation and special rule cancellation of 
removal? Both suspension of deportation and special rule cancellation 
of removal are forms of discretionary relief that, if granted, permit 
an individual subject to deportation or removal to remain in the United 
States. The criteria for granting such relief, in the exercise of 
discretion, are described in Part IV of this Supplementary Information.
    If an individual is granted suspension of deportation or special 
rule cancellation of removal, his or her immigration status will then 
be adjusted to that of lawful permanent resident. Suspension of 
deportation is only available to eligible persons who were placed in 
deportation proceedings prior to April 1, 1997. Special rule 
cancellation of removal is available to eligible aliens who are placed 
in removal proceedings on or after April 1, 1997, or who have not been 
placed in deportation proceedings and are eligible to apply with the 
Service under the standards set forth in this proposed rule.
    Is there a limit on the number of individuals who may be granted 
suspension of deportation or special rule cancellation of removal under 
NACARA? No. NACARA exempts individuals eligible for relief under 
section 203 of NACARA from the limit on the number of individuals who 
may be granted suspension of deportation and cancellation of removal 
each year. Because persons who qualify for relief under Section 203 are 
not subject to this annual limitation, the interim rule at 8 CFR 
240.21, published on September 30, 1998, in the Federal Register at 63 
FR 52134, does not affect their eligibility for a grant of suspension 
of deportation or special rule cancellation of removal.
    Who can apply under this new law? Unless convicted of an aggravated 
felony, the following individuals may be eligible to apply for 
suspension of deportation or special rule cancellation of removal under 
section 203 of NACARA:
    (1) any registered class member of American Baptist Churches v. 
Thornburgh (ABC), 760 F. Supp. 796 (N.D. Cal. 1991), who has not been

[[Page 64897]]

apprehended at the time of entry after December 19, 1990;
    (2) any Guatemalan or Salvadoran national who filed an application 
for asylum with the Service on or before April 1, 1990; and
    (3) any alien who entered the Untied States on or before December 
31, 1990, filed an application for asylum on or before December 31, 
1991, and at the time of filing was a national of the Soviet Union, 
Russia, any republic of the former Soviet Union, Latvia, Estonia, 
Lithuania, Poland, Czechoslovakia, Romania, Hungary, Bulgaria, Albania, 
East Germany, Yugoslavia, or any state of the former Yugoslavia.
    In addition and regardless of nationality, the spouse, child 
(unmarried and under 21 years of age), unmarried son, and unmarried 
daughter of an individual described in any of the above three 
categories who is granted cancellation of removal or suspension of 
deportation may apply for suspension of deportation or special rule 
cancellation of removal under the provisions of NACARA, unless he or 
she has been convicted of an aggravated felony. The relationship 
between the spouse, child, unmarried son, or unmarried daughter and the 
spouse or parent granted suspension of deportation or cancellation of 
removal must exist at the time that the parent or spouse is granted 
suspension of deportation or cancellation of removal. If the alien is 
an unmarried son or unmarried daughter 21 years of age or older at the 
time the parent is granted suspension of deportation or cancellation of 
removal, he or she must have entered the United States on or before 
October 1, 1990, in order to be eligible to apply for suspension of 
deportation or special rule cancellation of removal under NACARA. 
Although a spouse, child, unmarried son, or unmarried daughter is not 
statutorily eligible to apply for such relief unless the ``principal'' 
spouse or parent has been granted suspension of deportation or 
cancellation of removal, applications for relief may be submitted at 
the same time as the ``principal'' spouse or parent submits an 
application, or while the ``principal'' spouse or parent's application 
is pending. The spouse, child, unmarried son, or unmarried daughter 
will be required to independently establish each of the applicable 
statutory criteria for suspension of deportation or special rule 
cancellation of removal and that he or she merits discretionary relief.
    Would withdrawal of an asylum application make someone ineligible 
to apply under section 203 of NACARA? No, Although certain individuals 
are eligible to apply for relief under section 203 of NACARA based on 
nationality, entry date to the United States, and the filing of an 
asylum application by a requisite date, the statute does not require 
that the asylum application still be pending in order to apply for 
relief under NACARA.
    Will there be a new procedure to apply for suspension of 
deportation or special rule cancellation of removal under section 203 
of NACARA? Yes. To implement section 203 of NACARA efficiently and 
expeditiously, the Attorney General has decided to integrate the 
adjudication of suspension of deportation and special rule cancellation 
of removal applications into the affirmative asylum process. Under this 
proposed rule, the Attorney General will delegate to asylum officers 
the authority to grant suspension of deportation or special rule 
cancellation of removal to certain beneficiaries of NACARA who have 
asylum applications pending with the Service and to their qualified 
dependents. Under present regulations, only immigration judges, subject 
to review by the Board and the Attorney General, are permitted to 
adjudicate suspension of deportation or cancellation of removal 
applications within the context of deportation or removal proceedings. 
Given the large number of NACARA beneficiaries who presently have 
asylum applications pending before the Service, the Attorney General 
has determined that delegation of authority to the Service in this 
limited circumstances is the most efficient method for implementing 
section 203 of NACARA.
    Streamlining the process by permitting eligible applicants to raise 
their suspensions of deportation or special rule cancellation of 
removal claims simultaneously with their asylum claims offers an 
efficient method for resolving many of these claims at an earlier stage 
in the administrative process. The great majority of section 203 
beneficiaries are class members of the ABC settlement agreement who 
currently have asylum applications pending with the Service and are 
awaiting a de novo adjudication of their applications pursuant to the 
terms of the settlement agreement. Although the ABC class members 
previously placed in deportation proceedings could seek to recalendar 
their cases in order to apply for suspension of deportation before the 
Immigration Court, most class members were never placed in proceedings. 
Absent the proposed rule, these individuals, as well as other NACARA 
beneficiaries who have asylum applications pending before the Service, 
would be required to wait until their asylum claims had been 
adjudicated and, if ineligible for asylum, placed in removal 
proceedings before they would have an opportunity to file their 
applications for relief under section 203 of NACARA before the 
Immigration Court.
    Under the proposed rule, an asylum officer will have the authority 
to consider and grant suspension of deportation or special rule 
cancellation of removal to an applicant who is clearly eligible for 
relief from deportation or removal, thus reducing both the time and 
expense incurred by the Government and the applicant in resolving the 
claim. Consequently, the proposed rule will implement NACARA in a 
manner consistent with the humanitarian concerns expressed by Congress 
in passing this legislation.

II. Process for Applying With the Service

    Who will be able to apply with the Service for suspension of 
deportation or special rule cancellation of removal? The great majority 
of individuals who are eligible to apply for suspension of deportation 
or special rule cancellation of removal under NACARA will be eligible 
to apply for such discretionary relief with the Service. However, not 
all aliens covered by NACARA will be able to apply with the Service. 
Asylum officers' jurisdiction to consider applications for suspension 
of deportation or special rule cancellation of removal will be limited 
to certain eligible NACARA beneficiaries who have an asylum application 
pending with the Asylum Program and to their eligible spouses, 
children, unmarried sons, and unmarried daughters.
    The following individuals will be permitted to apply for suspension 
of deportation or special rule cancellation of removal with the 
Service:
    (1) a Guatemalan or Salvadoran national who applied for asylum with 
the Service on or before April 1, 1990, and whose asylum application is 
pending with the Service;
    (2) an ABC class member who is eligible for benefits of the ABC 
settlement agreement and who has not yet had a de novo asylum 
adjudication with the Service, under the terms of the settlement 
agreement;
    (3) a national of a former Soviet bloc country who meets the 
application eligibility criteria in section 203 of NACARA and who has 
an asylum application pending with the Service; and
    (4) the spouse, child, unmarried son, and unmarried daughter of an

[[Page 64898]]

individual described in any of the preceding three categories, as long 
as the qualified spouse or parent has pending with the Service an 
application for suspension of deportation or special rule cancellation 
of removal or has been granted suspension of deportation or special 
rule cancellation of removal by the Service and, with certain 
exceptions, the spouse, child, unmarried son, or unmarried daughter has 
not been placed in immigration proceedings. To be eligible to apply for 
suspension of deportation or special rule cancellation of removal under 
NACARA, an unmarried son or unmarried daughter 21 years of age or older 
must have first entered the United States on or before October 1, 1990, 
or have been less than 21 years of age when his or her parent was 
granted suspension of deportation or cancellation of removal.
    With respect to aliens who have been placed in deportation or 
removal proceedings, this proposed rule gives authority to asylum 
officers to consider applications for suspension of deportation or 
special rule cancellation of removal submitted by qualified applicants 
only if an immigration judge has administratively closed those 
proceedings or the Board has continued those proceedings because:
    (1) the applicant is entitled to a de novo asylum adjudication 
pursuant to the ABC settlement agreement (see next section for 
discussion of class membership and ABC eligibility requirements);
    (2) the applicant is an ABC class member with a final order of 
deportation who is entitled to a de novo asylum adjudication pursuant 
to the ABC  settlement agreement, has filed and been granted a motion 
to reopen under section 203(c) of NACARA, pursuant to the notice 
published in the Federal Register by the Attorney General on January 
21, 1998, at 63 FR 3154, or under 8 CFR 3.43 (published in the Federal 
Register on June 11, 1998, at 63 FR 31890), and has requested that the 
reopened proceedings be closed in order to file for suspension of 
deportation before the Service; or
    (3) the applicant is the spouse, child, unmarried, or unmarried 
daughter of a NACARA beneficiary who is eligible to apply for, and has 
applied for, suspension of deportation or special rule cancellation of 
removal with the Service, and the Immigration Court or the Board has 
administratively closed or continued the proceedings to permit the 
applicant to submit an application for suspension of deportation or 
special rule cancellation of removal with the Service.
    All other persons in deportation or removal proceedings who are 
eligible to apply for suspension of deportation or special rule 
cancellation of removal under section 203 of NACARA must apply for this 
relief before the Immigration Court.
    To illustrate the jurisdictional divisions between the Service and 
EOIR over applications for relief under section 203 of NACARA, the 
Department is considering creating a jurisdictional chart, in table 
format, to be published with the interim or final rule implementing 
section 203 of NACARA. The Department solicits comments on whether the 
public believes such a jurisdictional chart would be useful, and if so, 
how such a chart would be organized.
    Who is eligible for benefits of the ABC settlement agreement? A 
class member of the ABC settlement agreement is eligible for benefits 
of the agreement only if he or she registered for ABC benefits, applied 
for asylum by a specified cutoff date, has not been convicted of an 
aggravated felony, and has not been apprehended at the time of entry 
after December 19, 1990. All Guatemalan nationals who first entered the 
United States on or before October 1, 1990, and all Salvadoran 
nationals who first entered the United States on or before September 
19, 1990, are class members under the ABC settlement agreement. 
Guatemalan class members were required to register for ABC benefits on 
or before December 31, 1991, and to apply for asylum on or before 
January 3, 1995. Salvadoran class members were required to register for 
ABC benefits on or before October 31, 1991, and to apply for asylum on 
or before January 31, 1996. (The Service permitted a two-week 
administrative grace period, extending to February 16, 1996.) A class 
member was not required to file a new asylum application under the 
settlement agreement if the applicant had already filed an asylum 
application with the Service or the Immigration Court prior to the 
applicable filing deadline.
    Can an ABC class member who registered for ABC benefits, but failed 
to apply for asylum by the applicable filing deadline, apply for 
suspension of deportation or special rule cancellation of removal with 
the Service? No. Although NACARA allows a registered ABC class member 
to apply for suspension of deportation or special rule cancellation of 
removal, even if he or she failed to apply for asylum by the applicable 
date necessary to retain ABC benefits, the proposed rule requires that 
such an individual apply for relief under section 203 of NACARA in 
deportation or removal proceedings before the Immigration Court. If a 
registered ABC class member applied for asylum after the applicable ABC 
filing deadline, the Service will process the asylum application 
pursuant to current asylum regulations, but will not accept from the 
class member an application for special rule cancellation of removal. 
If such a class member is not granted asylum and appears to be 
deportable or inadmissible, the Service will initiate removal 
proceedings. The class member may then be eligible to apply for special 
rule cancellation of removal before the Immigration Court. The Service 
does not have jurisdiction over an asylum application filed by an ABC 
class member who was in proceedings that were previously 
administratively closed or continued by the Executive Office for 
Immigration Review (EOIR) and who missed the applicable asylum filing 
deadline for ABC benefits. In such cases, the Service will move to 
recalendar proceedings before EOIR, and the class member may apply for 
suspension of deportation in the context of the recalendared 
proceedings.
    This restriction permits the Service to focus its resources on the 
adjudication of the applications filed by the registered ABC class 
members who met the filing deadlines; other Guatemalans, Salvadorans, 
and nationals of former Soviet bloc countries who are qualified to 
apply under section 203 of NACARA and whose asylum applications are 
pending with the Service; and the dependents of these groups. Limiting 
the program to registered ABC class members who met the requisite 
filing deadlines will also serve to protect the integrity of the 
program by reducing the possibility of fraudulent claims of ABC class 
membership and registration. Because an applicant for suspension of 
deportation or special rule cancellation of removal will be entitled to 
immediately apply for and be granted employment authorization, the 
Service is concerned that there would be an influx of fraudulent 
applications submitted solely for the purpose of obtaining employment 
authorization, if no restrictions are placed on the submission of 
applications. Consequently, to avoid creating such a problem and to 
avoid diverting resources from the adjudication process in order to 
verify the status of each new applicant claiming to be a registered ABC 
class member, the Service has chosen to limit the group of persons 
eligible to apply with the Service for relief from deportation or 
removal under section 203 of NACARA to those persons who can more 
readily be

[[Page 64899]]

identified by the their previously filed asylum applications.
    Must a spouse, child, unmarried son, or unmarried daughter of a 
beneficiary of section 203 of NACARA have applied for asylum with the 
Service in order to be eligible to apply for suspension of deportation 
or special rule cancellation of removal with the Service? No. In the 
interest of preserving family unity and fostering administrative 
efficiency, this rule proposes to give the Service jurisdiction to 
grant or refer an application for suspension of deportation or special 
rule cancellation of removal filed by a spouse, child, unmarried son, 
or unmarried daughter of certain NACARA beneficiaries. The spouse, 
child, unmarried son, or unmarried daughter will not be required to 
apply for asylum with the Service in order to submit an application for 
discretionary relief under section 203 of NACARA, so long as the 
applicant's spouse or parent either has an application for relief under 
section 203 of NACARA pending with the Service or has been granted 
suspension of deportation or special rule cancellation of removal by 
the Service.
    If the spouse, child, unmarried son, or unmarried daughter 
(``dependent'') is in deportation or removal proceedings, he or she 
appears otherwise eligible for discretionary relief under section 203 
of NACARA, and the qualified parent or spouse has submitted an 
application for such relief with the Service, the Immigration Court may 
administratively close the dependent's case to permit the dependent to 
submit an application for suspension of deportation or special rule 
cancellation of removal with the Service. Similarly, the board may 
administratively close or continue the dependent's appeal to permit the 
dependent to submit an application for suspension of deportation or 
special rule cancellation of removal. A dependent's case that has been 
administratively closed or continued to allow the dependent to apply 
with the Service for relief under section 203 of NACARA may be 
recalendared by the Service if the dependent fails to file his or her 
application within a required period of time or if the dependent 
becomes clearly ineligible for relief under section 203 of NACARA prior 
to submitting his or her application with the Service. A dependent 
whose case has been administratively closed or continued by EOIR for 
purposes of filing an application for relief under NACARA with the 
Service will not be permitted to file an asylum application with the 
Service. Jurisdiction will remain with EOIR for all matters other than 
the initial adjudication of the NACARA application.
    Although the Service will attempt to interview the dependent and 
make an eligibility determination at the same time the Service 
considers the applications of other family members, the application 
will generally be considered as a separate application for purposes of 
the filing fee, because it will not have been filed at the same time as 
the parent's or spouse's application.
    When can an application be filed? Anyone who is eligible to apply 
for suspension of deportation or special rule cancellation of removal 
and who is in deportation or removal proceedings may apply for such 
discretionary relief before the Immigration Court in the course of 
those proceedings. Those who are eligible to apply with the Service 
will be able to apply when interim or final regulations delegating 
authority to the Service become effective. The Department expects to 
publish interim or final regulations after the notice and comment 
period for this proposed rule has been completed. There is no deadline 
for filing the application with the Service, as long as the applicant 
still meets the criteria for eligibility to apply with the Service.
    How does one submit an application to the Service? To apply with 
the Service for suspension of deportation or special rule cancellation 
of removal under section 203 of NACARA, the applicant must submit a 
Form I-881, Application for Suspension of Deportation or Special Rule 
Cancellation of Removal (pursuant to section 203 of Public Law 105-
100), with all attachments and supporting documents, in accordance with 
the instructions on that form. The Service is currently in the process 
of preparing the final version of proposed Form I-881. The Service will 
not accept applications submitted on a Form EOIR-40 or EOIR-42.
    Each applicant, including all qualified dependents, must submit a 
separate application.
    Will there be a fee? Yes. The proposed rule establishes a $215 fee 
for a single applicant, with a maximum family cap of $430 for a family 
of two or more qualified relatives who submit applications to the 
Service at the same time. Qualified relatives are limited to the 
spouse, children, unmarried sons and unmarried daughters of an 
applicant. A qualified relative who does not submit an application at 
the same time as the relative's parent or spouse will be required to 
pay the $215 fee. As with other applications for immigration benefits, 
applicants may request a fee waiver pursuant to 8 CFR 103.7(c).
    The fee for applying directly with the Immigration Court in the 
course of deportation or removal proceedings will continue to be $100, 
with a single fee of $100 whenever applications are filed by two or 
more individuals in the same proceedings. If the application filed with 
the Service is referred to the Immigration Court, the applicant will 
not be required to pay an additional fee.
    In addition to the fee required to submit an application for 
suspension of deportation or special rule cancellation of removal, each 
applicant who is required to be fingerprinted will also be required to 
include a fingerprinting fee (now $25), or request for fee waiver, when 
submitting the application to the Service, pursuant to current 
regulations.
    Why is the fee for individuals applying with the Service higher 
than the fee for individuals applying with the Immigration Court? The 
proposed fee for individuals applying with the Service is higher, 
because the cost to the Service to adjudicate applications must be 
funded from the Immigration Examinations Fee Account (IEFA). The IEFA 
was established by Congress in 1989, and the revenue deposited in the 
account is the sole source of funding for the processing of immigration 
and naturalization applications and petitions, and for other purposes 
designated by Congress, such as the processing of asylum applications 
for which no fee is required. No appropriations are provided by 
Congress from tax dollars. In contrast, the Immigration Court receives 
funds appropriated by Congress to cover the costs of court functions. 
The $100 fee to apply for suspension of deportation or cancellation of 
removal in the Immigration Court partially covers the Service's costs 
associated with litigating such applications in deportation or removal 
proceedings.
    How was the fee determined? The Service is authorized to charge 
fees for the adjudication and processing of applications and petitions 
for a wide variety of immigration and naturalization benefits. The fees 
are required to recover the cost to the Service of providing a specific 
immigration service. All fees must be reviewed regularly and adjusted 
as costs change, as more precise cost determination processes become 
available, or as directed by legislation. This rule proposes to 
establish a fee that recovers the costs to the Service associated with 
processing applications for suspension of deportation and special rule 
cancellation of removal under section 203 of NACARA.
    Revenues generated from the fee proposed in this rule will be 
deposited

[[Page 64900]]

in the IEFA, which provides the sole source of funding available to the 
Service to process the applications. The Service conducted a cost 
review of its existing immigration and naturalization application and 
petition fees in accordance with statutory mandates and Federal cost 
accounting standards, using activity-based costing (ABC) methodology. 
ABC methodology provides an accurate and precise cost calculation. This 
methodology has been used successfully in the private sector and has 
been used increasingly by Federal agencies to determine the costs of 
programs, processes, products, and services. (A summary of the approach 
and methodology used in the review is explained in the proposed rule to 
adjust the fee schedule of the IEFA for 30 of the immigration 
adjudication and naturalization applications and petitions. The 
proposed rule was published in the Federal Register on January 12, 
1998, at 63 FR 1775. The final rule was published in the Federal 
Register on August 14, 1998, at 63 FR 43604.)
    Because Service adjudication of suspension of deportation and 
special rule cancellation of removal under section 203 of NACARA is a 
new process, actual historical cost data is not available for 
establishing a fee based upon actual experience. However, combining the 
information developed in the IEFA cost review with expert knowledge, it 
was determined that the application process activities for the Form I-
485, Application to Register Permanent Residence or Adjust Status, and 
the Form I-589, Application for Asylum and for Withholding of Removal, 
closely resemble the processing and adjudication of a suspension of 
deportation or special rule cancellation of removal application. Using 
data from the IEFA cost review, an activity and associated cost model 
was constructed to anticipate the actual costs of the new process. 
Integrating the applicable activity costs from the IEFA fee study, the 
Service calculated a fee of $215 for a single applicant. The maximum 
amount being proposed for families (as a family cap) is $430.
    Must the applicant be fingerprinted? Yes. Each applicant 14 years 
or older must be fingerprinted. Under current regulations, a 
fingerprinting fee (now $25), or request for fee waiver, must be 
submitted to the Service for each person who requires fingerprinting in 
order to apply for a benefit. An applicant who has previously submitted 
fingerprints for an asylum application must be fingerprinted again to 
fulfill current requirements for suspension of deportation or special 
rule cancellation of removal. The fingerprints will ordinarily be taken 
at an Application Support Center or a designated Law Enforcement 
Agency. For cases before the Service, after an application has been 
submitted, the applicant will be notified in writing of the appointment 
date and the location of the Application Support Center or designated 
Law Enforcement Agency where the applicant must go to be fingerprinted. 
The Service may not conduct an interview until the applicant has been 
fingerprinted and the Service has received a definitive response from 
the Federal Bureau of Investigation (FBI) that a full criminal 
background check has been completed. An applicant's unexcused failure 
to appear for fingerprinting may result in dismissal of the application 
for suspension of deportation or special rule cancellation of removal 
or referral of the application to the Immigration Court. For 
applications submitted to the Immigration Court, the applicant should 
proceed as directed by the immigration judge.
    How will the interview process before the Service work and what 
should the applicant bring to the interview? Each applicant will be 
notified by the Asylum Office of the date, time, and place (address) of 
a scheduled interview. The Service recommends that each applicant bring 
a copy of the application and originals of any supporting documents to 
the interview. Any documents submitted that are written in a foreign 
language must be accompanied by a certified translation pursuant to 8 
CFR 103.2(b)(3). The applicant should also bring some form of 
identification, if available, including any passport(s), other travel 
or identification documents, or Form I-94, Arrival-Departure Record.
    An asylum officer shall conduct a nonadversarial interview to 
elicit information relating to eligibility for both asylum and for 
suspension of deportation or special rule cancellation of removal, if 
the applicant has applied for both forms of relief.
    The applicant has the right to legal representation at the 
interview, at no cost to the United States Government. Any attorney or 
representative of record who is representing an applicant must file a 
G-28. Notice of Entry of Appearance as Attorney or Representative, 
signed by the applicant.
    If the applicant is unable to proceed with the interview in fluent 
English, he or she must provide, at no expense to the Service, a 
competent interpreter fluent in both English and a language that the 
applicant speaks fluently. The interpreter must be at least 18 years of 
age. The following persons cannot serve as interpreter: the attorney or 
representative of record or a witness testifying on the applicant's 
behalf at the interview. If the applicant also has an asylum 
application pending with the Service, a representative or employee of 
the applicant's country of nationality, or, if stateless, country of 
last habitual residence, may not serve as an interpreter. Failure 
without good cause to bring a competent interpreter to the interview 
may be considered an unexcused failure to appear for the interview, 
which may result in dismissal of the application or referral of the 
application to the Immigration Court.
    In most cases, the applicant will be given a notice to return to 
the Asylum Office for service of the decision and, where appropriate, 
charging documents placing the person in removal proceedings (the 
``pick-up''). Each applicant will also be advised of the requirement to 
bring an interpreter to the pick-up if the applicant is not fluent in 
English. An applicant who is not fluent in English must bring an 
interpreter to the ``pick-up,'' because the applicant may be asked at 
that time to admit inadmissibility or deportability, and may also be 
asked whether he or she intends to continue to pursue a pending 
application for asylum before the Service, if suspension of deportation 
or special rule cancellation of removal is granted. Although a grant of 
suspension of deportation or cancellation of removal will confer lawful 
permanent resident status, section 208 of the Act provides that an 
alien who is physically present in the United States, or who arrives in 
the United States, may apply for asylum irrespective of the alien's 
status.
    Must the applicant concede inadmissibility or deportability in 
order to be granted suspension of deportation or special rule 
cancellation of removal by the Service? Yes. NACARA provides that the 
Attorney General may grant suspension of deportation to a qualified 
individual who is deportable from the United States or special rule 
cancellation of removal to a qualified alien who is inadmissible or 
deportable from the United States. The Department has determined that, 
before suspension of deportation or cancellation of removal may be 
granted, there must be a finding of inadmissibility or deportability. 
Because asylum officers are not authorized to make determinations 
regarding inadmissibility or deportability in most contexts, applicants 
for suspension of deportation or special rule cancellation of removal 
before the Service will be required to concede inadmissibility or

[[Page 64901]]

deportability before the Service may grant the relief from deportation 
or removal to the applicant. The instructions for the application will 
advise the applicant of this requirement. If an asylum officer 
determines that the applicant is eligible for suspension of deportation 
or special rule cancellation of removal, the applicant will be informed 
of the preliminary decision and asked to sign a written concession of 
inadmissibility or deportability before the final decision is issued. 
If the applicant declines to admit inadmissibility or deportability and 
is not granted asylum, the applicant will be placed in immigration 
proceedings and the application for suspension of deportation or 
special rule cancellation of removal will be referred to the 
Immigration Court.
    What if an applicant does not appear for the scheduled interview 
with an asylum officer? An applicant who cannot appear for the 
scheduled interview should submit prior to the interview a written 
request to reschedule the interview, explaining the reasons the 
applicant cannot attend the interview. An unexcused failure to appear 
for the interview may result in dismissal of the application for 
suspension of deportation or special rule cancellation of removal or 
referral of the application to the Immigration Court.

III. Process for applying with EOIR

    How does one apply for suspension of deportation or special rule 
cancellation of removal before the Immigration Court? A person eligible 
to apply for suspension of deportation or special rule cancellation of 
removal under section 203 of NACARA who is presently in deportation or 
removal proceedings should follow the procedures for submitting an 
application under the regulations and as directed by the immigration 
judge. The Immigration Court is already adjudicating applications under 
section 203 of NACARA; there is no need for those who are in 
proceedings to wait for publication of an interim or final version of 
this proposed rule to submit an application to the Immigration Court. 
However, persons who apply for suspension of deportation or special 
rule cancellation of removal under section 203 of NACARA after this 
proposed rule is issued as an interim or final rule, will be required 
to submit their applications on Form I-881, Application for Suspension 
of Deportation or Special Rule Cancellation of Removal (pursuant to 
section 203 of Public Law 105-100), with all attachments and supporting 
documents, in accordance with the instructions for that form. Each 
applicant must submit a separate application.
    What if a person who is eligible to apply for special rule 
cancellation of removal is not in proceedings and either does not have 
an asylum application pending or filed for asylum after the applicable 
filing deadline? Under this proposed rule, a person who is not in 
proceedings and who is ineligible to apply with the Service for 
discretionary relief under section 203 of NACARA will not be permitted 
to submit an application unless and until he or she is placed in 
removal proceedings. Under section 203 of NACARA, there is no deadline 
for filing an application for special rule cancellation of removal. The 
decision to place an alien in proceedings lies solely with the 
discretion of the Service.

IV. Eligibility for Suspension of Deportation and Special Rule 
Cancellation of Removal

    What are the applicable statutory provisions? Statutory eligibility 
for suspension of deportation will be determined based on the criteria 
governing continuous physical presence, good moral character, and 
extreme hardship set forth in paragraph, (a) and (b) of former section 
244 of the Act, as in effect prior to April 1, 1997, and, as discussed 
below, subject to applicable bars to discretionary relief as provided 
in the Act, as in effect prior to April 1, 1997. However, persons 
eligible to apply for suspension of deportation under section 203 of 
the NACARA are exempted from the transitional rule governing continuous 
physical presence contained in section 309(c)(5) of IIRIRA. This means 
that such applicants are exempt from 240A(d)(1) of the Act, as amended 
by IIRIRA, which affects the determination of when time counted toward 
continuous physical presence in the United States stops accruing (the 
``stop-time'' rule). Specifically, section 240A(d)(1) of the Act, as 
amended by IIRIRA, provides that time counted toward physical presence 
in the United States stops accruing when a person is served a notice to 
appear under section 239(c) of the Act or commits an offense referred 
to in section 212(a)(2) of the Act that renders the person inadmissible 
to the United States under section 212(a)(2) or removable from the 
United States under section 237(a)(2) or 237(a)(4) of the Act, 
whichever is earlier. Such persons are also exempt from section 
240A(d)(2), which addresses breaks in presence in the United States.
    Applications for special rule cancellation of removal under section 
203 of NACARA are governed by statutory eligibility requirements 
contained in section 309(f)(1) of IIRIRA, as amended by NACARA. These 
requirements correspond, with certain exceptions, to the requirements 
contained in former section 244(a)(1) and (a)(2) of the Act, as in 
effect prior to April 1, 1997. Applications under section 203 of NACARA 
are otherwise subject to the provisions of section 240A of the Act, 
with the exception of sections 240A(b)(1) (the heightened standards 
relating to eligibility), (d)(1) (the ``stop-time rule''), and (e) 
(limitations on the annual number of individuals granted relief).
    Additionally, to be eligible for suspension of deportation or 
special rule cancellation of removal, the alien must not be subject to 
any of the statutory bars to seeking such relief. Section 244(f) of the 
Act, as it existed prior to April 1, 1997, and section 240A(c) of the 
Act provide that certain categories of aliens (crewmen and certain non-
immigrant exchange aliens) are ineligible for suspension of deportation 
or cancellation of removal. Pursuant to former section 242B(e)(2) of 
the Act, as in effect prior to April 1, 1997, and section 240B(d) of 
the Act, an alien who was previously granted voluntary departure and 
received notice of the consequences of failing to depart, but did not 
depart the United States within the time specified, is barred for a 
specific period of time from various forms of discretionary relief, 
including suspension of deportation and cancellation of removal. 
Similarly, former sections 242B(e)(1), (3) and (4) of the Act, as in 
effect prior to April 1, 1997, preclude the Attorney General from 
granting suspension of deportation to aliens who, under certain 
circumstances, fail at appear to a deportation or asylum hearing, or as 
ordered for deportation. Applicants for special rule cancellation of 
removal are subject, where applicable, to the bar to discretionary 
relief contained in section 240(b)(7) of the Act, relating to failure 
to appear at removal proceedings. The Attorney General has no authority 
to waive such bars in the cases in which they apply.
    What are the requirements for establishing eligibility? The burden 
is on the applicant to establish that he or she meets each of the 
statutory requirements for the relief sought and that he or she is 
entitled to relief from deportation or removal as a matter of 
discretion. As explained further below, the general requirements for 
eligibility relate to the amount of time the applicant has been

[[Page 64902]]

continuously physically present in the United States, whether the 
applicant is and has been of good moral character during the requisite 
period of continuous physical presence, and the degree of hardship to 
the applicant or qualified relative resulting from removal. There are 
two basic standards both for eligibility for suspension of deportation 
and for special rule cancellation of removal, and the applicable 
standard is determined by the grounds of deportability or 
inadmissibility that apply. Aliens who are inadmissible or deportable 
on certain criminal or other grounds are subject to a higher standard 
that requires the applicant to establish a longer period of continuous 
physical presence and a higher degree of hardship resulting from 
removal. In addition, special eligibility provisions may apply to 
certain individuals who have been battered or subject to extreme 
cruelty, or whose children have been subject to such abuse, and to 
certain individuals who have served in the United States Armed Forces.
    To be eligible for suspension of deportation under the general 
standard set forth in former section 244(a)(1) of the Act, as in effect 
prior to April 1, 1997, an applicant must not have been convicted of an 
aggravated felony, must not be deportable for having participated in 
Nazi persecution or in genocide, and must be deportable under any law 
of the United States other than paragraph (a)(2) (criminal grounds), 
paragraph (3) (failure to register and falsification of documents), or 
paragraph (4) (security and related grounds) of the former section 
241(a) of the Act, as in effect prior to April 1, 1997. To be eligible 
for special rule cancellation of removal under the general standard set 
forth in section 309(f)(1)(A) of IIRIRA, as amended by NACARA, an 
applicant must not be inadmissible to the United States under paragraph 
(2) (criminal and related grounds) or paragraph (3) (security and 
related grounds) of section 212(a) of the Act, or deportable under 
paragraph (2) (criminal grounds), paragraph (3) (failure to register 
and falsification of documents), or paragraph (4) (security and related 
grounds) of section 237(a) of Act, and may not be an alien who has been 
convicted of an aggravated felony or has been to be a persecutor.
    An applicant for either form of relief who meets the foregoing 
eligibility requirements must also establish that:
    (1) the applicant has been physically present in the United States 
continuously for at least 7 years before applying for the relief;
    (2) the applicant is and has been a person of good moral character 
during those 7 years of physical presence; and
    (3) removal from the United States would result in extreme hardship 
to the applicant, or to the applicant's spouse, parent, or child, who 
is a United States citizen or alien lawfully admitted for permanent 
residence.
    The applicant must also establish that the applicant merits relief 
as a matter of discretion.
    Generally, persons who are inadmissible or deportable on the basis 
of the grounds previously described (other than those who have been 
convicted of an aggravated felony or involved in the persecution of 
others) may still be eligible for suspension of deportation under 
former section 244(a)(2) of the Act, as in effect prior to April 1, 
1997, or for special rule cancellation of removal under section 
309(f)(1)(B) of IIRIRA, as amended by NACARA, under a higher standard. 
To be eligible under the higher standard, the applicant must establish 
that:
    (1) the applicant has been physically present in the United States 
continuously for not less than 10 years immediately following the 
commission of an act, or the assumption of a status, constituting a 
ground for deportation or removal;
    (2) the applicant is and has been a person of good moral character 
during that period; and
    (3) deportation or removal would result in exceptional and 
extremely unusual hardship to the applicant or to the applicant's 
spouse, parent, or child, who is a citizen of the United States or an 
alien lawfully admitted for permanent residence. The applicant must 
also establish that the applicant merits relief as a matter of 
discretion.
    What factors are considered in evaluating continuous physical 
presence? For persons covered by section 203 of NACARA who are 
presently in deportation proceedings, the primary impact of NACARA is 
the elimination of the transitional rules contained in section 
309(c)(5) of IIRIRA relating to the ``stop-time'' rule and certain 
breaks in presence. A person eligible to apply for suspension of 
deportation under NACARA must establish the required period of 
continuous physical presence by the date on which the application is 
filed. A person who is already subject to a final order of deportation 
and must reopen his or her proceedings under 8 CFR 3.43 must establish 
the required period of physical presence by no later than September 11, 
1998, regardless of the date on which service of the charging document 
was completed.
    The proposed rule repeats the statutory requirement that an 
applicant for suspension of deportation must establish that any break 
in continuous physical presence was brief, casual, and innocent, and 
did not meaningfully interrupt the applicant's period of continuous 
physical presence in the United States. The proposed rule also reflects 
conclusions set forth in case law that departures under an order of 
deportation, departures under an order of voluntary departure, or 
departures during which the applicant formed the intent to commit a 
crime meaningfully interrupt continuous physical presence.
    Although applicants for special rule cancellation of removal are 
exempt from the ``stop-time'' provision of section 240A(d)(1) of the 
Act, they are not exempt from section 240A(d)(2) of the Act, relating 
to breaks in continuous physical presence. Under section 309(f)(2) of 
IIRIRA, as amended by section 203(b) of NACARA, an applicant for 
special rule cancellation of removal will be considered to have failed 
to maintain continuous physical presence in the United States if he or 
she is absent from the United States for any period in excess of 90 
days or for any periods that in the aggregate exceed 180 days. The 
proposed rule specifies that periods of shorter duration may be found 
to terminate continuous physical presence if the absence is a 
meaningful interruption.
    What factors are considered in evaluating good moral character? To 
be eligible for suspension of deportation or special rule cancellation 
of removal, the person will have to establish good moral character 
during the requisite period of continuous physical presence in the 
United States. Good moral character is decided on a case-by-case basis, 
taking into account the provisions of section 101(f) of the Act, which 
identify reasons a person cannot be found to be of good moral 
character, and precedent decisions by the Board and Federal courts.
    What factors are considered in evaluating extreme hardship? An 
applicant for suspension of deportation under former section 244(a)(1) 
of the Act, as in effect prior to April 1, 1997, or special rule 
cancellation of removal under section 309(f)(1)(A) of IIRIRA, as 
amended by section 203 of NACARA, must establish that his or her 
deportation or removal would result in extreme hardship to the 
applicant, or to a parent, child or spouse who is a United States 
citizen or lawful permanent resident alien. In adopting the same 
standards for special rule cancellation of removal as were required for 
suspension of deportation under

[[Page 64903]]

former section 244(a)(1) of the Act, prior to amendments by IIRIRA, 
Congress appears to have intended the same standard for extreme 
hardship to apply to both forms of relief. The phrase ``extreme 
hardship'' is not defined in the Act, and NACARA provides no additional 
guidelines for interpretation of this requirement. Instead, ``extreme 
hardship'' has acquired specific legal meaning through interpretation 
by the Board and Federal courts.
    The Board has not set forth a bright line test for determining 
``extreme hardship,'' finding that ``extreme hardship'' within the 
meaning of section 244(a)(1) of the Act ``is not a definable term of 
fixed and inflexible content or meaning. It necessarily depends upon 
the facts and circumstances peculiar to each case.'' Matter of Hwang, 
10 I & N Dec. 448, 451 (BIA 1964). Over time, however, precedent 
decisions issued by the Board and federal courts have created a body of 
case law that has provided a framework for analyzing claims of extreme 
hardship. See Matter of Anderson, 16 I & N Dec. 596 (BIA 1978); Matter 
of Ige, 20 I & N Dec. 880 (BIA 1994); Matter of O-J-O), Int. Dec. #3280 
(BIA 1996); Matter of L-O-G, Int Dec. #3281 (BIA 1996); Matter of 
Pilch, Int. Dec. #3298 (BIA 1996). In these decisions and others, the 
Board has enumerated a series of factors that are relevant to a 
determination of extreme hardship. These precedent decisions are 
binding on the Service and EOIR.
    Under this proposed rule, asylum officers will be required to 
consider suspension of deportation and special rule cancellation of 
removal applications under the same legal standards that govern 
adjudication by the Immigration Court. Because of the breadth of the 
case law governing the ``extreme hardship'' standard, the Department 
has concluded that a regulatory compilation of the relevant factors and 
standards identified within this body of law would provide a more 
uniform and focused source for evaluating extreme hardship claims. This 
proposed rule is not intended, however, to overturn or modify existing 
case law. Nor does it intend to limit the development through case law 
of other relevant factors. Instead, codification is intended to assist 
adjudicators, attorneys, and applicants to identify factors that may be 
relevant to an extreme hardship determination in the context of an 
application for suspension of deportation or special rule cancellation 
of removal. This regulation, however, does not codify the higher 
standard of ``exceptional and extremely unusual hardship'' required 
under former section 244(a)(2) of the Act, as in effect prior to April 
1, 1997, section 240A(b)(1) of the Act for persons seeking cancellation 
of removal, or section 309(f)(1)(B) of IIRIRA, as amended by NACARA, 
for persons seeking special rule cancellation of removal.
    This proposed rule maintains the flexibility of the existing 
standard by identifying broad factors that have been cited in existing 
precedent decisions as relevant to the evaluation of whether 
deportation would result in extreme hardship to the alien or to his or 
her qualified relative. These factors are (1) the age of the alien, 
both at the time of entry to the United States and at the time of 
application for suspension of deportation; (2) the age, number, and 
immigration status of the alien's children and their ability to speak 
the native language and adjust to life in another country; (3) the 
health condition of the alien or the alien's child, spouse, or parent 
and the availability of any required medical treatment in the country 
to which the alien would be returned; (4) the alien's ability to obtain 
employment in the country to which the alien would be returned; (5) the 
length of residence in the United States; (6) the existence of other 
family members who will be legally residing in the United States; (7) 
the financial impact of the alien's departure; (8) the impact of a 
disruption of educational opportunities; (9) the psychological impact 
of the alien's deportation or removal; (10) the current political and 
economic conditions in the country to which the alien would be 
returned; (11) family and other ties to the country to which the alien 
would be returned; (12) contributions to and ties to a community in the 
United States, including the degree of integration into society; (13) 
immigration history, including authorized residence in the United 
States; and (14) the availability of other means of adjusting to 
permanent resident status.
    Ultimately, ``extreme hardship'' must be evaluated on a case-by-
case basis after a review of all the circumstances in the case, and 
none of the listed factors alone, or taken together, automatically 
establishes a claim of extreme hardship. Nor is the list exhaustive, as 
there may be other factors relevant to the issue of extreme hardship in 
a particular case. The listed factors should not preclude consideration 
of other factors raised by an applicant, nor is an applicant required 
to show that each of the listed factors applies in the applicant's 
case, in order to establish extreme hardship. Conversely, an 
adjudicator is not required to consider factors that have not been 
raised in making an extreme hardship determination.
    Generally, no single factor will be dispositive in making an 
extreme hardship determination. Matter of Anderson, 16 I & N Dec. 596. 
To establish extreme hardship, an applicant must demonstrate that 
deportation or removal would result in a degree of hardship beyond that 
typically associated with deportation or removal. For example, extreme 
hardship requires more than the mere economic deprivation that might 
result from an alien's deportation from the United States. Davidson v. 
INS, 558 F.2d 1361, 1363 (9th Cir. 1977), and Matter of Sipus, 14 I & N 
Dec. 229, 231 (BIA 1972). Loss of a job and the concomitant financial 
loss is not synonymous with extreme hardship. Matter of Pilch, Int. 
Dec. #3298. Similarly, readjustment to life in the native country after 
having spent a number of years in the United States is not the type of 
hardship that has been characterized as extreme, since most aliens who 
have spent time abroad suffer this kind of hardship. Matter of 
Chumpitazi, 16 I & N 629 (BIA 1978). The birth of a United States 
citizen child does not in itself provide a basis for a finding of 
extreme hardship. Davidson v. INS, 558 F.2d at 1363; Matter of Kim, 15 
I & N Dec. 88 (BIA 1974). Nor does a significant reduction in one's 
standard of living or inability to pursue one's profession, in itself, 
compel a finding of extreme hardship. Matter of Pilch, Int. Dec. #3298.
    The Board has also found that ``a claim of persecution may not 
generally be presented as a means of demonstrating extreme hardship, 
for purposes of suspension of deportation.'' Matter of L-O-G, Int. Dec. 
#3281. In those cases in which a claim of persecution is raised, 
however, it must be examined from the perspective of extreme hardship, 
rather than on the basis of the criteria used to identify a refugee 
under asylum law. Ordonez v. INS, 137 F.3d 1120, 1123 (9th Cir. 1998). 
Consequently, issues such as the circumstances under which an 
individual left his or her country or the political consequences of 
such a return may be relevant to the discussion of listed factors such 
as the psychological impact of deportation or removal, current country 
conditions, immigration history, or remaining ties to the country of 
deportation or removal. See Matter of O-J-O, Int. Dec. #3280 (family's 
history of conflict with Sandinistas factored into evaluation of effect 
of current country conditions).
    Thus, a factor that may not in itself be determinative may become 
significant, or even critical, when weighed with all

[[Page 64904]]

the other circumstances and factors presented. Matter of L-O-G, Int. 
Dec. #328. Relevant factors that may not be considered extreme in 
themselves must be considered in the aggregate to determine whether 
extreme hardship exists. Matter of Ige, 20 I & N Dec. at 882. ``In all 
cases, the particular degree of personal hardship resulting from each 
of the factors must be taken into account.'' Matter of L-O-G, Int. Dec. 
#328. Similarly, an adjudicator should not discount the effect of a 
factor simply because it is not unique to the individual. The Board has 
noted that the ``word `extreme' should not be equated with `unique' and 
hardship for suspension purposes need not be unique to be extreme.'' 
Id.

V. Adjudication by the Service

    How will a decision be made if a person has applied for both asylum 
and suspension of deportation or special rule cancellation of removal? 
An asylum officer will determine eligibility for suspension of 
deportation or special rule cancellation of removal concurrently with 
the determination of eligibility for asylum if an applicant who is 
eligible to apply with the Service under NACARA has applied for both 
forms of relief. After considering the information and documents 
submitted by the applicant, the testimony of the applicant and any 
witnesses presented at the interview, relevant country conditions 
information, and other information available to the asylum officer, the 
asylum officer will determine whether the applicant is eligible for 
suspension of deportation or special rule cancellation of removal or 
asylum. The Service will grant suspension of deportation or special 
rule cancellation of removal if the applicant is clearly eligible for 
the relief sought. If the Service finds that the applicant is not 
clearly eligible for suspension of deportation or special rule 
cancellation of removal and is ineligible for asylum, the asylum 
officer will refer the application for suspension of deportation or 
special rule cancellation of removal to the Immigration Court (or 
dismiss the application without prejudice, if the applicant is in valid 
non-immigrant or immigrant status). The Service will also process the 
asylum application under the terms of the settlement agreement for 
eligible ABC class members or under 8 CFR 208.14 for all other NACARA 
beneficiaries.
    When will the Service refer an application to the Immigration 
Court? Under the proposed rule, asylum officers will not have the 
authority to deny an application for suspension of deportation or 
special rule cancellation of removal. Instead, an asylum officer will 
refer an application to the Immigration Court, if the applicant appears 
to be inadmissible or deportable and any of the following circumstances 
apply:
    (1) The applicant appears to be statutorily ineligible for the 
relief sought;
    (2) It appears that relief should be denied as a matter of 
discretion;
    (3) The applicant appears to be eligible for relief only under the 
higher standards set forth in former section 244(a)(2) of the Act, as 
in effect prior to April 1, 1997, or section 309(f)(1)(B) of IIRIRA, as 
amended by NACARA (requiring, among other things, 10 years continuous 
physical presence and a showing of exceptional and extremely unusual 
hardship resulting from removal);
    (4) The applicant appears eligible for relief only under the 
provisions that apply to battered spouses and children in former 
section 244(a)(3) of the Act, as in effect prior to April 1, 1997, or 
section 240A(b)(2) of the Act;
    (5) The applicant declines to concede inadmissibility or 
deportability; or
    (6) The applicant fails to appear for an interview or for a 
fingerprint appointment, and such failure to appear is unexcused. In 
the case of an unexcused failure to appear for an interview or for 
fingerprinting, the Service may refer the application to the 
Immigration Court without conducting an interview, or the Service may 
dismiss the application.
    Generally, referrals to the Immigration Court will occur after the 
Service has evaluated the application and determined that the applicant 
is not clearly eligible for suspension of deportation or special rule 
cancellation of removal. In the case of applicants who are only 
eligible under the higher standard for either form of relief, referral 
is necessary to avoid complex determinations regarding admissibility or 
deportability that are more appropriately made by an immigration judge. 
Other grounds for referral are related to administrative efficiency and 
parallel provisions in 8 CFR part 208 with respect to the referral of 
asylum applications.
    What happens if the Service finds that the applicant is eligible 
for suspension of deportation or special rule cancellation of removal, 
but is not eligible for asylum? If the Service determines that the 
applicant is eligible for a grant of suspension of deportation or 
special rule cancellation of removal by the Service and makes a 
preliminary determination that the applicant is not eligible for 
asylum, The Service will grant the applicant suspension of deportation 
or special rule cancellation of removal and adjust the applicant's 
status to that of lawful permanent resident. When the Services notifies 
the applicant of the decision to grant suspension of deportation or 
special rule cancellation of removal, the Service will notify the 
applicant that the Service has made a preliminary determination that 
the applicant is not eligible for asylum, but that the applicant has 
the right to continue to pursue the request for asylum. At the same 
time, the Service will give the applicant the opportunity to request to 
pursue the asylum application or to request in writing to withdraw the 
asylum application. If the applicant requests in writing to withdraw 
the asylum application, the application will be dismissed without 
prejudice. If the applicant wishes to pursue the asylum application and 
the applicant is eligible for ABC benefits, the Service will send the 
applicant a Notice of Intent to Deny the asylum application and provide 
an opportunity to rebut the Notice of Intent to Deny pursuant to the 
terms of the settlement agreement. If the applicant is not eligible for 
ABC benefits and wishes to pursue the asylum application, the Service 
will send the applicant a Notice of Intent to Deny in accordance with 
current asylum procedures for applicants who are in valid immigration 
status.
    What happens if the Service determines that the applicant is 
eligible for both suspension of deportation or special rule 
cancellation of removal and for asylum? If the asylum officer 
determines that the applicant is eligible for both asylum and a grant 
of suspension of deportation or special rule cancellation of removal by 
the Service, the Service will grant the applicant suspension of 
deportation or special rule cancellation of removal and adjust his or 
her status to that of lawful permanent resident. After the Service has 
adjusted the applicant's status to that of lawful permanent resident, 
the applicant will still be eligible for asylum. Section 208 of the Act 
provides that an alien who is physically present in the United States, 
or who arrives in the United States, may apply for asylum irrespective 
of the alien's status. Therefore, if an asylum officer has found that 
the applicant is eligible for asylum, the Service will grant the 
applicant's asylum application.
    What happens if the Service finds that the applicant is eligible 
for asylum, but not suspension of deportation or special rule 
cancellation of removal? If the Service determines that the applicant 
is

[[Page 64905]]

eligible for asylum, but appears ineligible for suspension of 
deportation or special rule cancellation of removal, the Service will 
grant the application for asylum and dismiss the application for 
suspension of deportation or special rule cancellation of removal 
without prejudice.
    What happens if the Service finds that the applicant is ineligible 
for asylum, suspension of deportation, or special rule cancellation of 
removal? If the Service determines that the applicant is not eligible 
for a grant of asylum, suspension of deportation, or special rule 
cancellation of removal by the Service, and the applicant is not in 
valid immigrant or non-immigrant status, the Service will place the 
applicant in removal proceedings or move to recalendar or resume 
proceedings before EOIR if such proceedings were administratively 
closed or continued. The Service will refer the application for 
suspension of deportation or special rule cancellation of removal to 
the Immigration Court or, if proceedings before the Board and been 
administratively closed or continued, to the Board. The asylum 
application filed with the Service will also be referred to the 
Immigration Court, if the application is governed by current asylum 
regulations. The application for asylum will be denied, if the 
application is governed by the ABC settlement agreement.
    What happens to a pending asylum application if the Service adjusts 
the applicant's status to that of lawful permanent resident? Some 
asylum applicants may be eligible to adjust their status to lawful 
permanent resident through means other than section 203 of NACARA. For 
example, Nicaraguans and Cubans who have adjusted status under section 
202 of NACARA may no longer wish to seek asylum in the United States. 
To avoid unnecessary scheduling of such persons for asylum interviews 
and unnecessary adjudications, the Service may notify the applicant 
that it intends to dismiss without prejudice the asylum application 
unless the applicant notifies the Service in writing within 30 days of 
the date of the notice that the applicant would like to pursue the 
asylum request.
    The process for adjudicating eligible ABC class members' asylum 
applications is governed by the ABC settlement agreement and the 1990 
asylum regulations. Accordingly, this provision does not apply to them, 
and the Service will not presume their applications abandoned. However, 
if the Service grants an eligible ABC class member suspension of 
deportation or special rule cancellation of removal and makes a 
preliminary determination that the class member is not eligible for 
asylum, the Service may notify the class member of the negative 
preliminary assessment regarding asylum eligibility and give the class 
member the opportunity to withdraw the asylum request.
    How will an application be processed if the applicant was in 
proceedings in Immigration Court that were administratively closed 
under the ABC settlement agreement? Pursuant to the ABC settlement 
agreement, EOIR already has administratively closed proceedings for ABC 
class members who were in proceedings before the Immigration Court. 
This action was taken to afford the class members the opportunity to 
pursue a de novo asylum adjudication with the Service. Because these 
class members were in deportation proceedings prior to April 1, 1997, 
they may be eligible to apply for suspension of deportation. If the 
Service grants either asylum or suspension of deportation to a 
registered ABC class member whose proceedings with the Immigration 
Court were administratively closed, such grant of asylum or suspension 
of deportation will terminate those proceedings under this regulation. 
(The Department currently is engaged in efforts to clarify language in 
the ABC settlement agreement in accordance with this proposal for 
automatic termination of proceedings before EOIR upon a grant of 
asylum). If the Service denies asylum to a registered ABC class member 
whose previous proceedings were administratively closed and the asylum 
officer determines that the applicant is not clearly eligible for 
suspension of deportation, the Service will move to recalendar 
proceedings before the Immigration Court, pursuant to the settlement 
agreement. At the same time, the Service will refer to the Immigration 
Court the application for suspension of deportation.
    How will applications be processed for applicants who have an 
appeal pending with the Board of Immigration Appeals, which was 
continued under the ABC settlement? Pursuant to the ABC settlement 
agreement, the Board stayed or continued indefinitely appeals that had 
been filed by ABC class members in order to give them the opportunity 
to pursue the benefits of the settlement agreement. If the Service 
grants either asylum or suspension of deportation to a registered ABC 
class member whose proceedings with the Board were administratively 
closed or continued, such grant of asylum or suspension of deportation 
will terminate those proceedings under this regulation. (As noted 
above, the Department currently is engaged in efforts to clarify 
language in the ABC settlement agreement in accordance with this 
proposal for automatic termination of proceedings before EOIR upon a 
grant of asylum.) If the Service denies asylum to an eligible ABC class 
member and does not grant suspension of deportation, the Board shall 
resume proceedings upon notice from the Service, under the terms of the 
ABC settlement agreement. The Service will refer the application for 
suspension of deportation to the Board. The Board will remand 
proceedings to the immigration judge solely for adjudication of the 
application for suspension of deportation unless the eligible ABC class 
member also moves for, and is granted, a remand of the asylum 
application pursuant to the terms of the ABC settlement agreement.
    How will applications be processed for class members eligible for 
ABC benefits who have been issued a final order of deportation? Section 
203(c) of NACARA permits eligible NACARA beneficiaries with final 
orders to file a motion to reopen in order to pursue suspension of 
deportation or special rule cancellation of removal under NACARA. 
Section 203(c) requires that all NACARA beneficiaries who are under 
final orders of deportation, including ABC class members, must have 
filed a motion to reopen no later than September 11, 1998, in order to 
obtain relief under section 203 of NACARA. (The applicable rule, 8 CFR 
3.43, was published in the Federal Register on June 11, 1998, at 63 FR 
31890.)
    An ABC class member who has been issued a final order, but 
currently has an asylum application pending before the Service, may 
file an application for suspension of deportation with the Service only 
if he or she has filed a motion to reopen with EOIR, and the motion has 
been granted. Unless the case is reopened, the alien will remain 
subject to the order of deportation, which will be enforceable if the 
alien is denied asylum under the terms of the ABC settlement agreement. 
If the motion is granted, the ABC class member may move to have his or 
her deportation proceedings administratively closed in order to apply 
for suspension of deportation with the Service. As is the case for all 
NACARA beneficiaries with final orders, eligible ABC class members who 
have challenged their immigration proceedings in Federal court must 
file and be granted a motion to reopen by EOIR in order to seek relief 
under section 203 of NACARA. If the applicant

[[Page 64906]]

has pending in Federal court a case that was stayed so that the 
applicant could pursue ABC benefits, the Government will wait until the 
application for suspension of deportation is adjudicated before 
requesting that court proceedings be resumed or dismissed.
    All motions to reopen under section 203(c) of NACARA must have been 
filed on or before September 11, 1998. Therefore, any alien who did not 
file a motion to reopen by that date is no longer eligible to file a 
motion to reopen proceedings under section 203(c) of NACARA.

Employment Authorization

    Are applicants for suspension of deportation or special rule 
cancellation of removal eligible for employment authorization? Yes. 
Under current regulations, applicants for suspension of deportation or 
cancellation of removal are eligible to apply for and be granted 
employment authorization. 8 CFR 274a.12(c)(10). Applicants for 
suspension of deportation or special rule cancellation of removal under 
section 203 of NACARA will also be eligible to apply for and be granted 
employment authorization under this provision at the time of filing an 
application with the Service or EOIR.

Travel Outside the United States

    Is an applicant permitted to travel outside the United States while 
an application for suspension of deportation or special rule 
cancellation of removal is pending? Applicants for suspension of 
deportation or special rule cancellation of removal under NACARA are 
subject to present rules and procedures governing advance parole. 
Nothing in NACARA authorizes travel outside the United States for 
beneficiaries. Those NACARA beneficiaries who leave the country without 
first obtaining advance parole and who are inadmissible under section 
212(a)(C) or 212(a)(7) may be subject on their return to expedited 
removal under section 235(b) of the Act.
    NACARA beneficiaries who leave the country and are paroled back in 
will no longer be eligible for suspension of deportation since they 
would be inadmissible to the United States, rather than deportable from 
the United States.

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 impact on a 
substantial number of small entities because of the following reason: 
This rule would provide new administrative procedures for the Service 
to consider applications from certain Guatemalans, Salvadorans, 
nationals of former Soviet Bloc countries, and their qualified 
relatives who are applying for suspension of deportation or special 
rule cancellation of removal and, if granted, to adjust their status to 
that of lawful permanent resident. It will have 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 provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 
Sec. 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 the 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 section 3(f) of Executive Order 
12866, Regulatory Planning and Review. Accordingly, this regulation has 
been submitted to the Office of Management and Budget for review.

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 
responsibility 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 proposed rule meets the applicable standards set forth in 
sections 3(a) and (3)(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    This rule requires applicants to provide biographical data and 
information regarding eligibility for relief under section 203 of 
NACARA on an application form (Form I-881). This requirement is 
considered an information collection that is subject to review by OMB 
under the Paperwork Reduction Act of 1995. The Service issued a 60-day 
notice in the Federal Register on May 8, 1998, at 63 FR 25523, 
requesting comments on this new information collection. No comments 
were received during that initial 60-day comment period. On July 23, 
1998, the Service issued a notice in the Federal Register, at 63 FR 
39596, extending the comment period by 30 days. Comments were received 
and considered, and certain changes made to the proposed Form I-881 in 
light of those comments.
    The Service solicits additional public comments on the information 
collection requirements in order to:
    (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 appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.
    In calculating the overall burden this requirement will place upon 
the public, the Service estimates that no more than 100,000 individuals 
will apply for relief under section 203 of NACARA in any single year. 
The Service also estimates that it will take each applicant 
approximately 12 hours to comply with the information collection 
requirement. This amounts to 1,200,000 total burden hours, which 
equates to an annual cost to the public of $33.5 million a year.

[[Page 64907]]

The following is the formula for determining the cost to the public: 
(100,000 respondents  x  $215 application fee = $21,500,000)+(100,000 
respondents  x  12 hours per response  x  $10+$12,000,000)=$33,500,000.
    Organizations and individuals desiring to submit comments on the 
information collection requirements should direct them to the Office of 
Information and Regulatory Affairs, OMB, Room 10235, New Executive 
Office Building, Washington, DC 20503; Attention: Stuart Shapiro, Desk 
Officer for the Immigration and Naturalization Service.
    If you have additional comments, suggestions, or need a copy of the 
proposed information collection instrument with instructions, or 
additional information, please contact Richard A. Sloan, (202) 514-
3291, Director, Policy Directives and Instructions Branch, Immigration 
and Naturalization Service, U.S. Department of Justice, Room 5307, 425 
I Street, NW., Washington, DC 20536.
    As required by section 3507(d) of the Paperwork Reduction Act of 
1995, the Service has submitted a copy of the Form I-881 and this 
proposed rule to OMB for its review of the information collection 
requirements. OMB is required to make a decision concerning the 
collection of information contained in the proposed regulation between 
30 and 60 days after publication of this document in the Federal 
Register. Therefore, a comment to OMB is best assured of having its 
full effect if OMB receives it within 30 days of publication. This does 
not affect the deadline for the public to comment to the Service on the 
proposed regulation.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Freedom of information, Privacy, Reporting and 
recordkeeping requirements, Surety bonds.

8 CFR Part 208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 240

    Administrative practice and procedure, Immigration.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

8 CFR Part 299

    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 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF 
SERVICE RECORDS

    1. The authority citation for part 103 continues to read as 
follows:

    Authority: 5 U.S.C. 552, 552a, 8 U.S.C. 1101, 1103, 1201, 1252 
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 
15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

    2. In Sec. 103.1, the last sentence in paragraph (g)(3)(ii) is 
revised to read as follows:


Sec. 103.1  Delegations of authority.

* * * * *
    (g) * * *
    (3) * * *
    (ii) Asylum officers. * * * Asylum officers are delegated the 
authority to hear and adjudicate credible fear of persecution 
determinations under section 235(b)(1)(B) of the Act, applications for 
asylum and for withholding of removal, as provided under 8 CFR part 
208, and applications for suspension of deportation and special rule 
cancellation of removal, as provided under 8 CFR part 240, subpart H.
* * * * *
    3. In Sec. 103.7, paragraph (b)(1) is amended by adding the entry 
for ``Form I-881'' to the listing of fees, in proper numerical 
sequence, to read as follows:


Sec. 103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
* * * * *
    Form I-881. For filing an application for suspension of 
deportation or special rule cancellation of removal (pursuant to 
section 203 of Public Law 105-100):
    --$215 for adjudication by the Service, except that the maximum 
amount payable by family members (related as husband, wife, 
unmarried child under 21, unmarried son, or unmarried daughter) who 
submit applications of the same time shall be $430.
    --$100 for adjudication by the Immigration Court (a single fee 
of $100 will be charged whenever applications are filed by two or 
more aliens in the same proceedings). The $100 fee is not required 
if the Form 1-881 is referred to the Immigration Court by the 
Service.
* * * * *

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

    4. The authority citation for part 208 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282, 8 CFR part 2.

    5. Section 208.14 is amended by revising the section heading and by 
adding a new paragraph (f), to read as follows:


Sec. 208.14  Approval, denial, referral or dismissal of application.

* * * * *
    (f) If an asylum applicant is granted adjustment of status to 
lawful permanent resident, the Service may notify the applicant that 
his or her asylum application will be presumed abandoned and dismissed 
without prejudice, unless the applicant requests in writing within 30 
days of the notice that the asylum application be adjudicated. If an 
applicant does not respond within 30 days of the date of the notice, 
the Service may presume the asylum application abandoned and dismiss it 
without prejudice.

PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
UNITED STATES

    6. The authority citation for part 240 is revised to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 
1251, 1252 note, 1252a, 1252b, 1362; secs. 202, 203, and 204 of Pub. 
L. 105-100 (111 Stat. 2160, 2193); 8 CFR part 2.

    7. In subpart F, a new Sec. 240.58 is added to read as follows:


Sec. 240.58  Extreme hardship.

    (a) To be eligible for suspension of deportation under former 
section 244(a)(1) of the Act, as in effect prior to April 1, 1997, the 
alien must meet the requirements set forth in the Act, which include a 
showing that deportation would result in extreme hardship to the alien 
or to the alien's spouse, parent, or child, who is a citizen of the 
United States or an alien lawfully admitted for permanent residence. 
Extreme hardship is evaluated on a case-by-case basis, taking into 
account the particular facts and circumstances of each case. Applicants 
are encouraged to cite in their applications and to document all 
applicable factors, as the presence or absence of any one factor is not 
determinative in evaluating extreme hardship. Adjudicators should weigh 
all relevant factors presented and consider them in light of the 
totality of the circumstances, but are not required to

[[Page 64908]]

offer an independent analysis of each listed factor when rendering a 
decision.
    (b) To establish extreme hardship, an applicant shall demonstrate 
that deportation would result in a degree of hardship beyond that 
typically associated with deportation. Factors that may be considered 
in evaluating whether deportation would result in extreme hardship to 
the alien or to the alien's qualified relative include, but are not 
limited to, the following:
    (1) The age of the alien, both at the time of entry to the United 
States and at the time of application for suspension of deportation;
    (2) The age, number, and immigration status of the alien's children 
and their ability to speak the native language and to adjust to life in 
another country;
    (3) The health condition of the alien or the alien's children, 
spouse, or parents and the availability of any required medical 
treatment in the country to which the alien would be returned;
    (4) The alien's ability to obtain employment in the country to 
which the alien would be returned;
    (5) The length of residence in the United States;
    (6) The existence of other family members who will be legally 
residing in the United States;
    (7) The financial impact of the alien's departure;
    (8) The impact of a disruption of educational opportunities;
    (9) The psychological impact of the alien's deportation;
    (10) The current political and economic conditions in the country 
to which the alien would be returned;
    (11) Family and other ties to the country to which the alien would 
be returned;
    (12) Contributions to and ties to a community in the United States, 
including the degree of integration into society;
    (13) Immigration history, including authorized residence in the 
United States; and
    (14) The availability of other means of adjusting to permanent 
resident status.
    (c) Nothing in paragraph (a) of this section shall be construed as 
creating any right, interest, or entitlement that is legally 
enforceable by or on behalf of any party against the United States or 
its agencies, officers, or any other person.
    8. Part 240 is amended by adding Subpart H to read as follows:

Subpart H--Applications for Suspension of Deportation or Special Rule 
Cancellation of Removal Under Section 203 of Public Law 105-100

Sec.
240.60  Definitions.
240.61  Applicability.
240.62  Jurisdiction.
240.63  Application process.
240.64  Eligibility--general.
240.65  Eligibility for suspension of deportation.
240.66  Eligibility for special rule cancellation of removal.
240.67  Procedure for interview before an asylum officer.
240.68  Failure to appear at an interview before an asylum officer 
or failure to follow requirements for fingerprinting.
240.69  Reliance on information compiled by other sources.
240.70  Decision by the Service.

Subpart H--Applications for Suspension of Deportation or Special 
Rule Cancellation of Removal Under Section 203 of Public Law 105-
100


Sec. 240.60  Definitions.

    As used in this subpart the term:
    ABC refers to American Baptist Churches v. Thornburgh, 760 F. Supp. 
796 (N.D. Cal. 1991).
    ABC class member refers to:
    (1) Any Guatemalan national who first entered the United States on 
or before October 1, 1990; and
    (2) Any Salvadoran national who first entered the United States on 
or before September 19, 1990.
    IIRIRA refers to the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996, enacted as Public Law 104-208 (110 Stat. 
3009-625).
    NACARA refers to the Nicaraguan Adjustment and Central American 
Relief Act (NACARA), enacted as title II of Public Law 105-100 (111 
Stat. 2160, 2193), as amended by the Technical Corrections to the 
Nicaraguan Adjustment and Central American Relief Act, Public Law 105-
139 (111 Stat. 2644).
    Registered ABC class member refers to an ABC class member who:
    (1) In the case of an ABC class member who is a national of 
Guatemala, properly submitted an ABC registration form to the Service 
on or before December 31, 1991; or
    (2) In the case of an ABC class member who is a national of El 
Salvador, properly submitted an ABC registration form to the Service on 
or before October 31, 1991, or applied for temporary protected status 
on or before October 31, 1991.


Sec. 240.61  Applicability.

    (a) Except as provided in paragraph (b) of this section, this 
subpart H applies to the following aliens:
    (1) A registered ABC class member who has not been apprehended at 
the time of entry after December 19, 1990;
    (2) A Guatemalan or Salvadoran national who filed an application 
for asylum with the Service on or before April 1, 1990;
    (3) An alien who entered the United States on or before December 
31, 1990, filed an asylum application on or before December 31, 1991, 
and, at the time of filing the application was a national of the Soviet 
Union, Russia, any republic of the former Soviet Union, Latvia, 
Estonia, Lithuania, Poland, Czechoslovakia, Romania, Hungary, Bulgaria, 
Albania, East Germany, Yugoslavia, or any state of the former 
Yugoslavia;
    (4) An alien who is the spouse or child of an individual described 
in paragraph (a)(1), (a)(2), or (a)(3) of this section, at the time a 
decision is made to suspend the deportation, or cancel the removal, of 
the individual described in paragraph (a)(1), (a)(2), or (a)(3) of this 
section;
    (5) An alien who is:
    (i) The unmarried son or unmarried daughter of an individual 
described in paragraph (a)(1), (a)(2), or (a)(3) of this section and is 
21 years of age or older at the time a decision is made to suspend the 
deportation, or cancel the removal, of the parent described in 
paragraph (a)(1), (a)(2), or (a)(3) of this section; and
    (ii) Entered the United States on or before October 1, 1990.
    (b) This subpart H does not apply to any alien who has been 
convicted at any time of an aggravated felony, as defined in section 
101(a)(43) of the Act.


Sec. 240.62  Jurisdiction.

    (a) Office of International Affairs. Except as provided in 
paragraph (b) of this section, the Office of International Affairs 
shall have initial jurisdiction to grant or refer to the Immigration 
Court or Board an application for suspension of deportation or special 
rule cancellation of removal filed by an alien described in 
Sec. 240.61, provided:
    (1) In the case of a national of El Salvador described in 
Sec. 240.61(a)(1), the alien filed a complete asylum application on or 
before January 31, 1996 (with an administrative grace period extending 
to February 16, 1996), or otherwise met the asylum application filing 
deadline pursuant to the ABC settlement agreement, and the application 
is still pending adjudication by the Service;
    (2) In the case of a national of Guatemala described in 
Sec. 240.61(a)(1), the alien filed a complete asylum application on or 
before January 3, 1995, or otherwise met the asylum application filing 
deadline pursuant to the ABC settlement agreement, and the application 
is still pending adjudication by the Service;

[[Page 64909]]

    (3) In the case of an individual described in Sec. 240.61(a) (2) or 
(3), the individual's asylum application is pending adjudication by the 
Service;
    (4) In the case of an individual described in Sec. 240.61(a) (4) or 
(5), the individual's parent or spouse has an application pending with 
the Service under this subpart H or has been granted relief by the 
Service under this subpart.
    (b) Immigration Court. The Immigration court shall have exclusive 
jurisdiction over an application for suspension of deportation or 
special rule cancellation of removal filed pursuant to section 
309(f)(1) (A) or (B) of IIRIRA, as amended by NACARA, by an alien who 
has been served Form I-221, Order to Show Cause, or Form I-862, Notice 
to Appear, after a copy of the charging document has been filed with 
the Immigration court, unless the alien is covered by one of the 
following exceptions:
    (1) Certain ABC class members. (i) The alien is a registered ABC 
class member for whom proceedings before the immigration judge or the 
Board were administratively closed or continued (including those aliens 
who had final orders of deportation or removal who have filed and been 
granted a Motion to Reopen as required under 8 CFR 3.43);
    (ii) The alien is eligible for benefits of the ABC settlement 
agreement and has not had the de novo asylum adjudication under the 
settlement agreement; and
    (iii) The alien has not moved for and been granted a motion to 
recalendar proceedings before the Immigration Court or the Board to 
request suspension of deportation.
    (2) Spouses, children, unmarried sons, and unmarried daughters. (i) 
The alien is described in Sec. 240.61(a)(4) or (5);
    (ii) The alien's spouse or parent is described in 
Sec. 240.61(a)(1), (a)(2), or (a)(3) and has Form I-881 pending with 
the Service; and
    (iii) The alien's proceedings before the Immigration Court have 
been administratively closed, or the alien's proceedings before the 
Board have been continued, to permit the alien to file an application 
for suspension of deportation or special rule cancellation of removal 
with the Service.


Sec. 240.63   Application process.

    (a) Except as provided in paragraph (b) of this section, the 
application must be made on a Form I-881, Application for Suspension of 
Deportation or Special Rule Cancellation of Removal (pursuant to 
section 203 of Public Law 105-100 (NACARA)), and filed in accordance 
with the instructions for that form. Each application must be filed 
with the filing and fingerprint fees as provided in Sec. 103.7(b) of 
this subchapter, or request for fee waiver, as provided in 
Sec. 103.7(c) of this subchapter. The fact that an applicant has also 
applied for asylum does not exempt the applicant from the 
fingerprinting fees associated with the Form I-881.
    (b) Applications filed with EOIR. If jurisdiction rests with the 
Immigration Court under Sec. 260.62(b), the application must be made on 
the Form I-881, if filed subsequent to the effective date of the 
interim or final rule. The application form, along with any supporting 
documents, must be filed with the Immigration Court and served on the 
Service's district counsel in accordance with the instructions for the 
form. Applications for suspension of deportation or special rule 
cancellation of removal filed prior to the effective date of the 
interim or final rule shall be filed on Form EOIR-40, Application for 
Suspension of Deportation.
    (c) Applications filed with the Service. If jurisdiction rests with 
the Service under Sec. 240.62(a), the Form I-881 and supporting 
documents must be filed at the appropriate Service Center in accordance 
with the instructions for the form.


Sec. 240.64   Eligibility--general.

    (a) Burden and standard of proof. The burden of proof is on the 
applicant to establish by a preponderance of the evidence that he or 
she is eligible for suspension of deportation or special rule 
cancellation of removal and that discretion should be exercised to 
grant relief.
    (b) Calculation of continuous physical presence and certain breaks 
in presence. For purposes of calculating continuous physical presence 
under this section, section 309(c)(5)(A) of IIRIRA and section 
240A(d)(1) of the Act shall not apply to persons described in 
Sec. 240.61.
    (1) For applications for suspension of deportation made under 
former section 244 of the Act, as in effect prior to April 1, 1997, the 
burden of proof is on the applicant to establish that any breaks in 
continuous physical presence were brief, casual, and innocent and did 
not meaningfully interrupt the period of continuous physical presence 
in the United States.
    (2) For applications for special rule cancellation of removal made 
under section 309(f)(1) of IIRIRA, as amended by NACARA, the applicant 
shall be considered to have failed to maintain continuous physical 
presence in the United States if he or she has departed from the United 
States for any period in excess of 90 days or for any periods in the 
aggregate exceeding 180 days. The burden is on the applicant to 
establish that any period of absence less than 90 days was brief, 
casual, and innocent and did not meaningfully interrupt the period of 
continuous physical presence in the United States.
    (3) For all applications made under this subpart, a period of 
continuous physical presence is terminated whenever an alien is removed 
from the United States under an order issued pursuant to any provision 
of the Act or the alien has voluntarily departed under the threat of 
deportation or when the departure is made for purposes of committing an 
unlawful act.
    (4) The requirements of continuous physical presence in the United 
States under this subpart shall not apply to an alien who:
    (i) Has served for a minimum period of 24 months in an active-duty 
status in the Armed Forces of the United States and, if separated from 
such service, was separated under honorable conditions, and
    (ii) At the time of the alien's enlistment or induction was in the 
United States.
    (c) Factors relevant to extreme hardship. Extreme hardship is 
decided on a case-by-case basis, taking into account the particular 
facts and circumstances of the claim and considering the factors 
enumerated in Sec. 240.58. For purposes of evaluating eligibility for 
special rule cancellation of removal under this subpart, the factors 
enumerated in Sec. 240.58 pertaining to extreme hardship resulting from 
deportation shall apply equally to extreme hardship resulting from 
removal.


Sec. 240.65  Eligibility for suspension of deportation.

    (a) To establish eligibility for suspension of deportation under 
this section, the applicant must be described in Sec. 240.61, must 
establish that he or she is eligible under former section 244 of the 
Act, as in effect prior to April 1, 1997, must not be subject to any 
bars to eligibility in former section 242B(e) of the Act, as in effect 
prior to April 1, 1997, or any other provisions of law, and must not 
have been convicted of an aggravated felony or be an alien described in 
former section 241(a)(4)(D) of the Act, as in effect prior to April 1, 
1997 (relating to Nazi persecution and genocide).
    (b) General rule. To establish eligibility for suspension of 
deportation under former section 244(a)(1) of the Act, as in effect 
prior to April 1, 1997, an alien must be deportable under any

[[Page 64910]]

law of the United States, except the provisions specified in paragraph 
(c) of this section, and must establish:
    (1) The alien has been physically present in the United States for 
a continuous period of not less than 7 years immediately preceding the 
date the application was filed;
    (2) During all of such period the alien was and is a person of good 
moral character; and
    (3) The alien's deportation would, in the opinion of the Attorney 
General, result in extreme hardship to the alien or to the alien's 
spouse, parent, or child, who is a citizen of the United States or an 
alien lawfully admitted for permanent residence.
    (c) Aliens deportable on criminal or certain other grounds. To 
establish eligibility for suspension of deportation under former 
section 244(a)(2) of the Act, as in effect prior to April 1, 1997, an 
alien who is deportable under paragraph (2), (3), or (4) of former 
section 241(a) of the Act, as in effect prior to April 1, 1997 
(relating to criminal activity, document fraud, failure to register, 
and security threats), must establish:
    (1) The alien has been physically present in the United States for 
a continuous period of not less than 10 years immediately following the 
commission of an act, or the assumption of a status, constituting a 
ground for deportation;
    (2) During all of such period the alien has been and is a person of 
good moral character; and
    (3) The alien's deportation would, in the opinion of the Attorney 
General, result in exceptional and extremely unusual hardship to the 
alien, or to the alien's spouse, parent, or child, who is a citizen of 
the United States or an alien lawfully admitted for permanent 
residence.
    (d) Battered spouses and children. To establish eligibility for 
suspension of deportation under former section 244(a)(3) of the Act, as 
in effect prior to April 1, 1997, an alien must be deportable under any 
law of the United States, except former section 241(a)(1)(G) of the 
Act, as in effect prior to April 1, 1997) (relating to marriage fraud), 
and except the provisions specified in paragraph (c) of this section, 
and must establish:
    (1) The alien has been physically present in the United States for 
a continuous period of not less than 3 years immediately preceding the 
date the application was filed;
    (2) The alien has been battered or subjected to extreme cruelty in 
the United States by a spouse or parent who is a United States citizen 
or lawful permanent resident (or is the parent of a child of a United 
States citizen or lawful permanent resident and the child has been 
battered or subjected to extreme cruelty in the United States by such 
citizen or permanent resident parent); and
    (3) During all of such time in the United States the alien was and 
is a person of good moral character; and
    (4) The alien's deportation would, in the opinion of the Attorney 
General, result in extreme hardship to the alien or the alien's parent 
or child.


Sec. 240.66  Eligibility for special rule cancellation of removal.

    (a) To establish eligibility for special rule cancellation of 
removal, the applicant must show he or she is eligible under section 
309(f)(1) of IIRIRA, as amended by section 203 of NACARA. The applicant 
must be described in Sec. 240.61, must be inadmissible or deportable, 
must not be subject to any bars to eligibility in sections 240(b)(7), 
240B(d), or 240A(c) of the Act, or any other provisions of law, and 
must not have been convicted of an aggravated felony or be an alien 
described in section 241(b)(3)(B)(i) of the Act (relating to 
persecution of others).
    (b) General rule. To establish eligibility for special rule 
cancellation of removal under section 309(f)(1)(A) of IIRIRA, as 
amended by section 203 of NACARA, the alien must establish:
    (1) The alien is not inadmissible under paragraph (2) or (3) of 
section 212(a) or deportable under paragraph (2), (3) or (4) of section 
237(a) of the Act (relating to criminal activity, document fraud, 
failure to register, and security threats);
    (2) The alien has been physically present in the United States for 
a continuous period of 7 years immediately preceding the date the 
application was filed;
    (3) The alien has been a person of good moral character during the 
required period of continuous physical presence; and
    (4) The alien's removal from the United States would result in 
extreme hardship to the alien, or to the alien's spouse, parent or 
child who is a United States citizen or an alien lawfully admitted for 
permanent residence.
    (c) Aliens inadmissible or deportable on criminal or certain other 
grounds. To establish eligibility for special rule cancellation of 
removal under section 309(f)(1)(B) of IIRIRA, as amended by section 203 
of NACARA, the alien must be described in Sec. 240.61 and establish:
    (1) The alien is inadmissible under section 212(a)(2) of the Act 
(relating to criminal activity), or deportable under section 237(a)(2) 
(other than section 237(a)(2)(A)(iii), relating to aggravated felony 
convictions), or 237(a)(3) of the Act (relating to criminal activity, 
document fraud, and failure to register);
    (2) The alien has been physically present in the United States for 
a continuous period of not less than 10 years immediately following the 
commission of an act, or the assumption of a status, constituting a 
ground for removal;
    (3) The alien has been a person of good moral character during the 
required period of continuous physical presence; and
    (4) The alien's removal from the United States would result in 
exceptional and extremely unusual hardship to the alien or the alien's 
spouse, parent, or child, who is a United States citizen or an alien 
lawfully admitted for permanent residence.


Sec. 240.67  Procedure for interview before an asylum officer.

    (a) Fingerprinting requirements. The Service will notify each 
applicant 14 years of age or older to appear for an interview only 
after the applicant has complied with fingerprinting requirements 
pursuant to Sec. 103.2(e) of this subchapter, and the Service has 
received a definitive response from the Federal Bureau of Investigation 
(FBI) that a full criminal background check has been completed. A 
definitive response that a full criminal background check on an 
applicant has been completed includes:
    (1) Confirmation from the FBI that an applicant does not have an 
administrative or criminal record;
    (2) Confirmation from the FBI that an applicant has an 
administrative or a criminal record; or
    (3) Confirmation from the FBI that two properly prepared 
fingerprint cards (Form FD-258) have been determined unclassifiable for 
the purpose of conducting a criminal background check and have been 
rejected.
    (b) Interview. (1) The asylum officer shall conduct the interview 
in a non-adversarial manner and, except at the request of the 
applicant, separate and apart from the general public. The purpose of 
the interview shall be to elicit all relevant and useful information 
bearing on the applicant's eligibility for suspension of deportation or 
special rule cancellation of removal. If the applicant has an asylum 
application pending with the Service, the asylum officer shall also 
elicit information relating to the application for asylum in accordance 
with Sec. 208.9 of this subchapter. At the time of the interview,

[[Page 64911]]

the applicant must provide complete information regarding the 
applicant's identity, including name, date and place of birth, and 
nationality, and may be required to register this identity 
electronically or through any other means designated by the Attorney 
General.
    (2) The applicant may have counsel or a representative present, may 
present witnesses, and may submit affidavits of witnesses and other 
evidence.
    (3) An applicant unable to proceed with the interview in English 
must provide, at no expense to the Service, a competent interpreter 
fluent in both English and a language in which the applicant is fluent. 
The interpreter must be at least 18 years of age. The following 
individuals may not serve as the applicant's interpreter: the 
applicant's attorney or representative of record; a witness testifying 
on the applicant's behalf; or, if the applicant also has an asylum 
application pending with the Service, a representative or employee of 
the applicant's country of nationality, or, if stateless, country of 
last habitual residence. Failure without good cause to comply with this 
paragraph may be considered a failure to appear for the interview for 
purposes of Sec. 240.68.
    (4) The asylum officer shall have authority to administer oaths, 
verify the identify of the applicant (including through the use of 
electronic means), verify the identify of any interpreter, present and 
receive evidence, and question the applicant and any witnesses.
    (5) Upon completion of the interview, the applicant or the 
applicant's representative shall have an opportunity to make a 
statement or comment on the evidence presented. The asylum officer may, 
in the officer's discretion, limit the length of such statement or 
comment and may require its submission in writing. Upon completion of 
the interview, the applicant shall be informed that the applicant must 
appear in person to receive and to acknowledge receipt of the decision 
and any other accompanying material at a time and place designated by 
the asylum officer, except as otherwise provided by the asylum officer.
    (6) The asylum officer shall consider evidence submitted by the 
applicant with the application, as well as any evidence submitted by 
the applicant before or at the interview. As a matter of discretion, 
the asylum officer may grant the applicant a brief extension of time 
following an interview during which the applicant may submit additional 
evidence.


Sec. 240.68  Failure to appear at an interview before an asylum officer 
or failure to follow requirements for fingerprinting.

    Failure to appear for a scheduled interview without prior 
authorization may result in dismissal of the application or waiver of 
the right to an interview. Failure to comply with fingerprint 
processing requirements without good cause may result in dismissal of 
the application or waiver of the right to an adjudication by an asylum 
officer. Failure to appear shall be excused if the notice of the 
interview or fingerprint appointment was not mailed to the applicant's 
current address and such address had been provided to the Office of 
International Affairs by the applicant prior to the date of mailing in 
accordance with section 265 of the Act and regulations promulgated 
thereunder, unless the asylum officer determines that the applicant 
received reasonable notice of the interview or fingerprinting 
appointment. Failure to appear at the interview or fingerprint 
appointment shall be excused if the applicant demonstrates that such 
failure was the result of exceptional circumstances.


Sec. 240.69  Reliance on information compiled by other sources.

    In determining whether an applicant is eligible for suspension of 
deportation or special rule cancellation of removal, the asylum officer 
may rely on material described in Sec. 208.12 of this chapter. Nothing 
in this subpart shall be construed to entitle the applicant to conduct 
discovery directed towards records, officers, agents, or employees of 
the Service, the Department of Justice, or the Department of State.


Sec. 240.70  Decision by the Service.

    (a) Service of decision. Unless otherwise provided by an Asylum 
Office, the applicant will be required to return to the Asylum Office 
to receive service of the decision on the applicant's application. If 
the applicant does not speak English fluently, the applicant shall 
bring an interpreter when returning to the office to receive service of 
the decision.
    (b) Grant of suspension of deportation. An asylum officer may grant 
suspension of deportation to an applicant eligible to apply for this 
relief with the Service who qualifies for suspension of deportation 
under former section 244(a)(1) of the Act, as in effect prior to April 
1, 1997, who is not an alien described in former section 241(a)(4)(D) 
of the Act, as in effect prior to April 1, 1997, and who admits 
deportability under any law of the United States, excluding paragraph 
(2), (3), or (4) of former section 241(a) of the Act, as in effect 
prior to April 1, 1997. If the Service has made a preliminary decision 
to grant the applicant suspension of deportation under this subpart, 
the applicant shall be notified of that decision and asked to sign an 
admission of deportability or inadmissibility. The applicant must sign 
the concession before the Service may grant the relief sought. If 
suspension of deportation is granted, the Service shall adjust the 
status of the alien to lawful permanent resident, effective as of the 
date that suspension of deportation is granted.
    (c) Grant of cancellation of removal. An asylum officer may grant 
cancellation of removal to an applicant who is eligible to apply for 
this relief with the Service, and who qualifies for cancellation of 
removal under section 309(f)(1)(A) of IIRIRA, as amended by section 203 
of NACARA, and who admits deportability under section 237(a), excluding 
paragraphs (2), (3), and (4), of the Act, or inadmissibility under 
section 212(a), excluding paragraphs (2) or (3), of the Act. If the 
Service has made a preliminary decision to grant the applicant 
cancellation of removal under this subpart, the applicant shall be 
notified of that decision and asked to sign an admission of 
deportability or inadmissibility. The applicant must sign the 
concession before the Service may grant the relief sought. If the 
Service grants cancellation of removal, the Service shall adjust the 
status of the alien to lawful permanent resident, effective as of the 
date that cancellation of removal is granted.
    (d) Referral of the application. Except as provided in paragraphs 
(e) and (f) of this section, and unless the applicant is granted asylum 
or is in lawful immigrant or non-immigrant status, an asylum officer 
shall refer the application for suspension of deportation or special 
rule cancellation of removal to the Immigration Court for adjudication 
in deportation or removal proceedings, if:
    (1) The applicant is not clearly eligible for suspension of 
deportation under former section 244(a)(1) of the Act as in effect 
prior to April 1, 1997, or for cancellation of removal under section 
309(f)(1)(A  of IIRIRA, as amended by NACARA;
    (2) The applicant does not appear to merit relief as a matter of 
discretion;
    (3) The applicant appears to be eligible for suspension of 
deportation or special rule cancellation of removal under this subpart, 
but does not admit deportability or inadmissibility; or
    (4) The applicant failed to appear for a scheduled interview with 
an asylum officer or failed to comply with

[[Page 64912]]

fingerprinting processing requirements and such failure(s) was not 
excused by the Service, unless the application is dismissed.
    (e) Dismissal of the application. An asylum officer shall dismiss 
without prejudice an application for suspension of deportation or 
special rule cancellation of removal submitted by an applicant who has 
been granted asylum, or who is in lawful immigrant or non-immigrant 
status. An asylum officer may also dismiss an application for failure 
to appear, pursuant to Sec. 240.68.
    (f) Special provisions for certain ABC class members whose 
proceedings before EOIR were administratively closed or continued. The 
following provisions shall apply with respect to an ABC class member 
who was in proceedings before the Immigration Court or the Board, and 
those proceedings were closed or continued pursuant to the ABC 
settlement agreement:
    (1) Suspension of deportation or asylum granted. If an asylum 
officer grants asylum or suspension of deportation, the previous 
proceedings before the Immigration Court or Board shall be terminated 
as a matter of law on the date relief is granted.
    (2) Asylum denied and application for suspension of deportation not 
approved. If an asylum officer denies asylum and does not grant the 
applicant suspension of deportation, the Service shall move to 
recalendar proceedings before the Immigration Court or resume 
proceedings before the Board, whichever is appropriate. The Service 
shall refer to the Immigration Court or the Board the application for 
suspension of deportation. In the case where jurisdiction rests with 
the Board, an application for suspension of deportation that is 
referred to the Board will be remanded to the immigration judge for 
adjudication.
    (g) Special provisions for dependents whose proceedings before EOIR 
were administratively closed or continued. If an asylum officer grants 
suspension of deportation or special rule cancellation of removal to an 
applicant described in Sec. 240.61(a)(4) or (a)(5), whose proceedings 
before EOIR were administratively closed or continued, those 
proceedings shall terminate as of the date the relief is granted. If 
suspension of deportation or special rule cancellation of removal is 
not granted, the Service shall move to recalendar proceedings before 
the Immigration Court or resume proceedings before the Board, whichever 
is appropriate. The Service shall refer to the Immigration Court or the 
Board the application for suspension of deportation or special rule 
cancellation of removal. In the case where jurisdiction rests with the 
Board, an application for suspension of deportation or special rule 
cancellation of removal that is referred to the Board will be remanded 
to the immigration judge for adjudication.

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

    9. The authority citation for part 274a continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.

    10. Section 274a.12 is amended by revising the first sentence in 
paragraph (c)(10), to read as follows:


Sec. 274a.12  Classes of aliens authorized to accept employment.

* * * * *
    (c) * * *
    (10) An alien who has filed an application for suspension of 
deportation under section 244 of the Act (as it existed prior to April 
1, 1997), cancellation of removal pursuant to section 240A of the Act, 
or special rule cancellation of removal under section 309(f)(1) of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 
enacted as Public Law 104-208 (110 Stat. 3009-625) (as amended by the 
Nicaraguan Adjustment and Central American Relief Act (NACARA), title 
II of Public Law 105-100 (111 Stat. 2160, 2193) and whose application 
has been accepted by the Service or EOIR. * * *
* * * * *

PART 299--IMMIGRATION FORMS

    11. The authority citation for part 299 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.

    12. Section 299.1 is amended in the table by adding the entry for 
Form ``I-881'' in proper numerical sequence, to read as follows:


Sec. 299.1  Prescribed forms.

* * * * *

------------------------------------------------------------------------
      Form No.         Edition date                  Title
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
I-881...............        10-01-98  Application for Suspension of
                                       Deportation or Special Rule
                                       Cancellation of Removal (pursuant
                                       to section 203 of Public Law 105-
                                       100).
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------

    13. Section 299.5 is amended in the table by adding the entry for 
Form ``I-881'' in proper numerical sequence, to read as follows:


Sec. 299.5  Display of control numbers.

* * * * *

----------------------------------------------------------------------------------------------------------------
          INS form No.                          INS form title                Currently assigned OMB control No.
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
I-881...........................  Application for Suspension of Deportation  1115-xxxx.
                                   or Special Rule Cancellation of Removal
                                   (pursuant to section 203 of Public Law
                                   105-100).
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------


[[Page 64913]]

    Dated: November 17, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-31348 Filed 11-23-98; 8:45 am]
BILLING CODE 4410-10-M