[Federal Register Volume 64, Number 54 (Monday, March 22, 1999)]
[Rules and Regulations]
[Pages 13663-13667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6633]



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 Rules and Regulations
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  Federal Register / Vol. 64, No. 54 / Monday, March 22, 1999 / Rules 
and Regulations  

[[Page 13663]]


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DEPARTMENT OF JUSTICE

8 CFR Part 3

[EOIR No. 121F; AG Order No. 2214-99]
RIN 1125-AA23


Motion To Reopen: Suspension of Deportation and Cancellation of 
Removal

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Final rule.

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SUMMARY: This rule amends the regulations of the Executive Office for 
Immigration Review (EOIR) by extending the time period for the filing 
of an application of suspension of deportation and special rule 
cancellation of removal and all of the documentation supporting a 
motion to reopen filed pursuant to section 203(c) of the Nicaraguan 
Adjustment and Central American Relief Act.

DATES: Effective date: This final rule is effective March 22, 1999.

FOR FURTHER INFORMATION CONTACT: Margaret M. Philbin, General Counsel, 
Executive Office for Immigration Review, Suite 2400, 5107 Leesburg 
Pike, Falls Church, Virginia 22041, telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION:  This rule amends and adopts in final form 
an interim rule published at 63 FR 31890 on June 11, 1998. That interim 
rule amended 8 CFR Part 3 by establishing a special procedure for the 
filing and adjudication of motions to reopen to apply for suspension of 
deportation and cancellation of removal under section 203 of the 
Nicaraguan Adjustment and Central American Relief Act (Pub. L. 105-100; 
111 Stat. 2160, 2193) (NACARA). That Act, signed into law on November 
19, 1997, amended section 309 of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 (Pub. L. 104-208; 110 Stat. 3009-
625) (IIRIRA). This rule makes two changes to the interim rule. First, 
the final rule extends the February 8, 1999 deadline to submit the 
application for suspension of deportation or special rule cancellation 
of removal and all of the supporting documentation in support of the 
NACARA motion to reopen. Second, the final rule addresses certain 
eligibility problems for a dependent with a final order of deportation 
or removal who is unable to complete his or her motion to reopen until 
the principal alien is granted relief.

Background

    Section 203 of NACARA provides special rules regarding applications 
for suspension of deportation and cancellation of removal by certain 
aliens. These aliens include Guatemalan, Salvadoran, and certain former 
Soviet bloc nationals described in section 309(c)(5)(C)(i) of IIRIRA, 
as amended by section 203 of NACARA.
    On November 24, 1998, the Department of Justice published a 
proposed regulation implementing section 203 of NACARA that would 
permit certain aliens eligible for relief under section 203 of NACARA 
to submit to the INS applications for suspension of deportation or 
special rule cancellation of removal. Such applications will be 
adjudicated by asylum officers. In certain cases, aliens currently in 
immigration court proceedings would be given the opportunity to move 
for administrative closure of their cases in order to apply for relief 
before the INS. The period for public comment on the section 203 rule 
closed on January 25, 1999, and the Department will publish a rule 
implementing section 203 of NACARA after review and consideration of 
all comments. Several provisions within the proposed rule are likely to 
affect immigration court proceedings with respect to NACARA motions to 
reopen; these provisions are discussed where relevant in the following 
sections.
    Section 203(c) of NACARA also amended section 309 of IIRIRA by 
creating a provision for eligible aliens who have already received a 
final order of deportation or removal to file a motion to reopen in 
order to obtain the benefits of NACARA. Section 309(g) of IIRIRA, as 
amended, permits aliens with final orders of deportation or removal who 
have become eligible for cancellation of removal or suspension of 
deportation as a result of the amendments made by section 203 of NACARA 
to file one motion to reopen removal or deportation proceedings to 
apply for such relief, without regard to the limitations imposed by law 
on motions to reopen. That provision further required the Attorney 
General to designate a specific time period for filing such motions to 
reopen under NACARA beginning no later than 60 days after the date of 
enactment of NACARA and extending for a period not to exceed 240 days.
    Accordingly, on January 15, 1998, the Attorney General signed a 
notice that designated from January 16, 1998, to September 11, 1998, as 
the time period for filing NACARA motions to reopen. See 63 FR 3154 
(Jan. 21, 1998). That notice waived the filing fee for motions to 
reopen filed pursuant to NACARA, but did not disturb any other 
regulatory provisions with respect to the filing or adjudication of 
motions to reopen.

The Interim Motion To Reopen Rule

    The interim published on June 11, 1998, addressed the specific 
filing process for NACARA motions to reopen in two ways. First, it 
clarified who can file a motion to reopen pursuant to section 309(g) of 
IlRIRA, as amended by section 203(c) of NACARA, by defining who has 
become eligible for ``special rule'' cancellation of removal or 
suspension of deportation as a result of the amendments made by section 
203 of NACARA. Second, it permitted any alien who is moving to reopen 
pursuant to section 309(g) of IIRIRA, as amended by section 203(c) of 
NACARA, to file an abbreviated motion to reopen initially, without also 
including a suspension or cancellation application and supporting 
documents. This two-tiered procedure departs from the general 
requirement that a motion to reopen must be accompanied by the 
appropriate application for relief and supporting documents at the time 
of filing. The interim rule provided that aliens who had filed a motion 
to reopen by September 11, 1998, must submit an application for 
suspension of deportation or special rule cancellation of removal and 
all other supporting evidence and arguments in favor of reopening no 
later than February 8,

[[Page 13664]]

1999, in order to complete the motion to reopen.

The Final Rule

    This final NACARA motion to reopen rule amends two aspects of the 
interim NACARA motion to reopen rule based on consideration of public 
comments, as well as the Department's review of the process during the 
interim rule period.
    First, the final rule extends the February 8, 1999 deadline to 
submit the application for suspension of deportation or special rule 
cancellation of removal and all of the supporting documentation in 
support of the NACARA motion to reopen. An alien who timely filed the 
abbreviated NACARA motion to reopen will have 150 days from the 
effective date of the rule implementing section 203 of NACARA to 
complete the motion by submitting the application for suspension of 
deportation or special rule cancellation of removal accompanied by any 
supporting evidence.
    Second, the final motion to reopen rule and addresses certain 
eligibility problems for a dependent with a final order of deportation 
or removal who is unable to complete his or her motion to reopen until 
the principal alien is granted relief. The final rule continues to 
require a dependent to meet NACARA motion to reopen filing deadlines, 
however, it now enables the dependent to reopen his or her case upon a 
showing that he or she is prima facie eligible for suspension of 
deportation or special rule cancellation of removal pursuant to NACARA. 
Prima facie eligibility requires that the dependent show he or she 
meets the statutory requirements for suspension of deportation or 
special rule cancellation of removal relief and requires proof that the 
principal has applied for NACARA relief.
    The Department received sixteen comments following publication of 
the interim rule. The sixteen comments contained six themes, all of 
which are addressed below.

September 11, 1998 Deadline

    Fourteen commenters suggested that the September 11, 1998 deadline 
for submitting motions to reopen should be extended to account for the 
size of the affected population, the difficulty of verifying the 
existence of many final orders issued prior to 1989, and the lagtime 
between announcing the designated period and publication of the interim 
rule.
    Section 203(c) of NACARA directed the Attorney General to designate 
a time period up to 240 days in which an eligible alien could file a 
NACARA motion to reopen without regard to the time limits generally 
imposed by statute or regulation. Section 203(c) also required that the 
Attorney General designated such a period beginning no later that 60 
days after the passage of NACARA. Consequently, the Attorney General 
designated the period from January 16, 1998, to September 11, 1998, as 
the statutory period in which a NACARA motion to reopen could be filed. 
The period for filing motions to reopen was set by Congress and, 
accordingly, cannot be extended by rule.
    The Department recognized, however, that it would be difficult for 
many individuals to complete their applications for relief within that 
time frame. The Department sought to address this apparent difficulty 
by permitting applicants to file an abbreviated motion to reopen that 
could be supplemented with a full application no later than February 8, 
1999. See 63 FR 31890 (June 11, 1998). This final rule further extends 
the time for filing the application and accompanying material in 
support of the motion to reopen. Any alien who filed an abbreviated 
NACARA motion to reopen by September 11, 1998, under section 203 of 
NACARA will receive the benefit of this rule.
    The Department continues to believe that this two-step approach 
adequately addresses the concerns raised regarding the initial filing 
deadline, while adhering to the statute.
    The expiration of the special NACARA filing period, however, does 
not preclude individuals who believe they are eligible for relief under 
NACARA from seeking to reopen their final orders under the standard 
rules governing motions to reopen. The INS will consider on a case by 
case basis whether to join in a motion to reopen raised by an otherwise 
eligible applicant who has missed the statutory deadline. See 8 CFR 
3.23(b)(4)(iv).

February 8, 1999 Deadline

    Fourteen commenters stated that the February 8, 1999 deadline for 
submitting the application and supporting documentation should be 
extended for those aliens with outstanding Freedom of Information Act 
(FOIA) requests. They argue that applicants will not have enough 
information and may be missing critical information contained in the 
FOIA documentation to determine whether they should complete the motion 
to reopen. Most commenters stated that the deadline should be extended 
until 60 after the alien receives the Department's final response to a 
FOIA request.
    The existence of a pending FOIA request would not, of itself, 
suffice to extend the filing deadline. However, the Department 
recognizes that much time has elapsed since some of the orders were 
issued, and it may be difficult to obtain the information necessary to 
complete in application.
    Moreover, the Department recognizes that some of the individuals 
who have filed motions to reopen under NACARA may want to file under 
the new program at the INS. Many aliens are eligible to have their 
applications reviewed by asylum officers, as described in the proposed 
rule implementing section 203 of NACARA, published on November 24, 
1998. See 63 FR 64895. Under the section 203 proposed rule, which 
establishes the procedure to apply for suspension of deportation or 
special rule cancellation of removal for aliens defined as NACARA-
eligible, applications submitted to the INS must be filed on proposed 
Form I-881. The Form I-881 will not become available to the public 
until the effective date of the rule implementing section 203 of 
NACARA. In order to minimize the number of forms an alien must submit, 
the Department believes that it is reasonable to extend the February 8, 
1999 deadline for NACARA motions to reopen so that applicants need only 
submit the Form I-881.
    Thus, the final rule permits an applicant to submit his or her 
application and accompanying documents no later than 150 days after the 
rule implementing section 203 of NACARA becomes effective. This 
extension will permit applicants who properly filed the abbreviated 
NACARA motion to reopen by September 11, 1998, to submit the Form I-881 
to complete their motion to reopen. The extension will also permit 
certain NACARA-eligible applicants to establish that their NACARA-
eligible parent or spouse has applied for relief under section 203 of 
NACARA, as discussed below.

Dependents Under NACARA Section 203

    Fourteen commenters expressed concern that the interim regulation 
did not acknowledge the eligibility problems faced by certain family 
members of NACARA-eligible aliens. Although NACARA extends eligibility 
to the spouse, child, or unmarried son or unmarried daughter over the 
age of 21 (dependent) of persons described in section 203 of NACARA, 
such dependents are not eligible for suspension of deportation or 
special rule cancellation of removal until the designated parent or 
spouse (principal)

[[Page 13665]]

has received a grant of suspension of deportation or special rule 
cancellation of removal. Consequently, even if a NACARA dependent 
completes his or her motion to reopen by submitting an application and 
accompanying documents, the dependent is not eligible for relief unless 
and until the principal is first granted relief. Commenters noted that 
the applications of the vast majority of NACARA principals would not 
have been adjudicated as of the February 8, 1999 deadline established 
by the interim rule. Therefore, they suggested that the final rule 
permit immigration judges to grant motions to reopen for NACARA 
dependents regardless of the application status of the principal 
applicant.
    The Department recognizes that many NACARA dependents who were 
required to file motions to reopen by September 11, 1998, would not yet 
know the results of the principal's application at the time of the 
deadline for completing their application for suspension of deportation 
or special rule cancellation of removal. The Department has identified 
a similar problem with respect to NACARA dependents who are presently 
in deportation or removal proceedings. The proposed rule implementing 
section 203 permits the Immigration Court to administratively close the 
dependent's case to allow the dependent to submit an application for 
suspension of deportation or special rule cancellation of removal with 
the Service if (1) the dependent has a NACARA-eligible relative who has 
submitted an application for such relief with the Service, and (2) the 
dependent appears otherwise eligible for discretionary relief under 
section 203 of NACARA. The Board may also administratively close or 
continue the dependent's appeal to permit the dependent to submit to 
INS an application for suspension of deportation or special rule 
cancellation of removal.
    Unlike dependents currently in proceedings, dependents previously 
ordered deported must have their cases reopened before they can apply 
for NACARA relief. The proposed rule implementing section 203 of NACARA 
does not address how the Department interprets the statute with regard 
to a dependent who has already been ordered deported or removed. To 
address the problem within the context of motions to reopen, the 
Department has decided to modify the final rule with respect to 
dependents. The dependent must comply with the deadline for filing the 
application and supporting documentation. However, the dependent's case 
shall be reopened if the immigration judge finds that the dependent is 
prima facie eligible for suspension or cancellation relief and if the 
dependent submits proof that the principal alien has applied and is 
prima facie eligible for NACARA relief. Once the dependent's case is 
reopened the dependent will be subject to the same procedures 
established in the section 203 rule for dependents in proceedings.

Waiver of Substantive Bars to Relief

    Fourteen commenters stated the interim regulations impose improper 
limitations to NACARA eligibility, and that it was the intent of 
Congress to waive all limitations on eligibility for relief, except the 
bar for aggravated felons.
    The statute states, ``notwithstanding any limitation imposed by law 
on motions to reopen removal or deportation proceedings (except 
limitations premised on an alien's conviction of an aggravated felony) 
* * * any alien who has become eligible for cancellation of removal or 
suspension of deportation as a result of the amendments * * * may file 
one motion to reopen.'' See action 203(c) of NACARA. The Department 
interprets this language to refer only to the time and number 
limitations on motions to reopen. Section 203(c) dealt only with those 
procedural aspects of filing a motion to reopen and did not alter the 
substantive requirements for granting a motion to reopen. Moreover, the 
requirement that an applicant establish prima facie eligibility for 
relief (in this case, suspension of deportation or special rule 
cancellation of removal) is a prerequisite for the granting of all 
motions to reopen. The statutory language that states the alien must 
have ``become eligible'' for suspension or cancellation as a result of 
NACARA requires that the alien be prima facie eligible for such relief. 
NACARA did not alter the requirement that there must be a showing of 
prima facie eligibility for the relief sought.
    In order to be prima facie eligible for suspension of deportation 
or special rule cancellation of removal, the alien must not be subject 
to any statutory bars to such relief. Section 240A(c) of the INA, and 
section 244(f) of the INA as it existed prior to April 1, 1997, 
describe those aliens who are ineligible for suspension of deportation 
or cancellation of removal. For example, aliens who failed to depart 
voluntarily after receiving oral and written notice of the consequences 
of failing to depart and those who failed to appear for their hearings 
after receiving the required oral and written notices are statutorily 
barred from suspension of deportation or cancellation of removal. Thus, 
aliens statutorily barred from relief have no basis to reopen their 
cases.
    Statutory bars to eligibility for suspension of deportation or 
cancellation of removal are not waived by the provisions of NACARA. The 
Attorney General has no authority to waive these statutory bars in the 
cases where they apply. Therefore, because those aliens subject to 
statutory bars to eligibility did not ``become eligible'' under NACARA, 
those additional bars to relief besides the aggravated felony bar are 
properly incorporated in 8 CFR section 3.43.

Requirement to State Ineligibility Pursuant to IIRIRA Section 
309(c)(5)

    Section 3.43(c) of the interim NACARA motion to reopen rule 
requires an alien seeking to reopen under NACARA to establish that he 
or she is (i) prima facie eligible for suspension or deportation or 
special rule cancellation of removal under NACARA; (ii) was or would be 
ineligible for relief but for the passage of NACARA; (iii) has not been 
convicted at any time of an aggravated felony; and (iv) falls within 
one of the six classes described elsewhere in the regulation. Many 
commenters objected to the second requirement, arguing that individuals 
should not be required to state a lack of eligibility but for NACARA. 
Commenters suggested that this requirement exceeded the scope of the 
statute and was unduly burdensome.
    The second requirement arises from the Department's determination, 
based on the specific language in section 203(c), that only those 
persons who have ``become eligible'' for relief under NACARA are 
entitled to submit a motion to reopen under section 203(c). This 
analysis, discussed at length in the supplementary information 
accompanying the interim rule, requires a determination at the time the 
motion to reopen is considered that an individual actually became 
eligible for relief as a result of NACARA. See 63 FR 31890, 31891-92. 
To facilitate this determination, the Department has requested that the 
initial motion include some indication that the alien was ineligible 
for relief at the time of his or her immigration proceedings and 
subsequently became eligible for relief as a result of NACARA.
    Such a showing results in a minimal burden. For instance, in many 
cases, an alien seeking to reopen his or her case would have been 
ineligible for relief as a result of the ``stop-time rule,'' discussed 
previously in the supplementary information in the

[[Page 13666]]

interim rule. See also, Matter of NJB, Interim Decision 3309 (BIA 
1997), vacated by the Attorney General on July 10, 1998. In those 
cases, the Department anticipates that information regarding the date 
of entry and the date the charging document was issued would establish 
that the individual was otherwise ineligible for relief, but for 
NACARA. Consequently, the showing necessary to meet this requirement 
will generally be minimal and will expedite the adjudicative process.

Adjudication of Motions To Reopen Filed Under NACARA Section 203

    Finally, thirteen commenters stated that all persons eligible to 
file a motion to reopen were entitled to have their cases reopened. The 
commenters suggest that Immigration Judges should not be allowed to 
deny the motion to reopen at the outset without a hearing on the merits 
of the applicant's suspension or cancellation claim. Those commenting 
seek to avoid denial of inadequate motions prepared in a short time 
frame. They also argue the complicated requirements of a NACARA motion 
to reopen may be too difficult for pro se aliens.
    The passage of NACARA did not alter the general procedures for 
filing and considering motions to reopen. It made special provisions to 
permit a certain group of people who would otherwise be prevented by 
statute and regulation to submit a motion to reopen. Nothing in section 
203(c) indicates that Congress intended for all such motions to be 
automatically granted.
    Congress has the power to affect motions practice, and in fact has 
done so. In enacting IIRIRA in 1996, Congress statutorily codified 
EOIR's regulatory 90 day time limit on motions to reopen. Congress, 
when it passed NACARA, gave no guidance, nor did it amend procedural 
matters for motions to reopen before EOIR, except to set a statutory 
deadline to file motions to reopen under section 203 of NACARA. It 
could have made additional changes, other than lifting the one-time 
filing rule, but it did not. Accordingly, there is no reason to believe 
that Congress intended to treat differently those existing procedural 
matters on motions to reopen. Therefore, it is the obligation of the 
Immigration Court to comply with the existing regulations and assess 
prima facie eligibility under NACARA prior to granting a motion to 
reopen.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving 
it, certifies that this rule will not have a significant economic 
impact on a substantial number of small entities because it affects 
individual aliens, not small entities.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Reinforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This 
rule will not result in an annual effect on the economy of $100 million 
or more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Attorney General has determined that this rule is a ``significant 
regulatory action'' under Executive Order 12866, section 3(f) and 
accordingly this rule has been reviewed by the Office of Management and 
Budget.

Executive Order 12612

    The regulation adopted herein will not have substantial direct 
effects on the States, on the relationship between National Government 
and the States, or on the distribution of power and responsibilities 
among the various levels of government. Therefore, in accordance with 
Executive Order 12612, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

Executive Order 12988: Civil Justice Reform

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

List of Subjects in 8 CFR Part 3

    Administrative practice and procedure, Immigration, Organization 
and functions (Government agencies).

    Accordingly, part 3 of chapter I of Title 8 of the Code of Federal 
Regulations is amended as follows:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

    1. The authority citation for part 3 continues to read as follows:

    Authority: 5 U.S.C. 301; 8 U.S.. 1103, 1252 note, 1252b, 1324b, 
1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950; 3 
CFR, 1949-1953 Comp., p. 1002; section 203 of Public Law 105-100.

    2. Section 3.43 is amended by:
    a. Revising paragraph (b)(4)(v);
    b. Revising paragraph (b)(4)(vi);
    c. Revising paragraph (c)(2), and
    d. Adding paragraph (c)(3) to read as follows:


Sec. 3.43  Motion to reopen of suspension of deportation and 
cancellation of removal pursuant to section 203(c) of the Nicaraguan 
Adjustment and Central American Relief Act (NACARA).

* * * * *
    (b)(4) * * *
    (v) The spouse or child of a person who is described in paragraphs 
(b)(4)(i) through (b)(4)(iv) of this section and such person is prima 
facie eligible for and has applied for suspension of deportation or 
special rule cancellation of removal under section 203 of NACARA.
    (vi) An unmarried son or daughter of a person who is described in 
paragraph (b)(4)(i) through (b)(4)(iv) of this section and such person 
is prima facie eligible for and has applied for suspension of 
deportation or special rule cancellation of removal under section 203 
of NACARA. If the son or daughter is 21 years of or older, the son or 
daughter must have entered the United States on or before October 1, 
1990.
    (c) * * *
    (2) A motion to reopen filed pursuant to paragraph (c)(1) shall be 
considered complete at the time of submission of an application for 
suspension of deportation or special rule cancellation of removal and 
accompanying documents. Such application must be submitted no later 
than 150 days after the effective date of the rule implementing section 
203 of NACARA. Aliens described in paragraph (b)(4)(v) or (b)(4)(vi) of 
this section must include, as part of their submission, proof that 
their parent or spouse is prima facie eligible and has applied for 
relief under section 203 of NACARA.
    (3) The Service shall have 45 days from the date the alien serves 
the

[[Page 13667]]

Immigration Court with either the EOIR Form 40 or the Form I-881 
application for suspension of deportation or special rule cancellation 
of removal to respond to that completed motion. If the alien fails to 
submit the required application within 150 days after the effective 
date of the rule implementing section 203 of NACARA, the motion will be 
denied as abandoned.

    Dated: March 4, 1999.
Eric H. Holder, Jr.,
Deputy Attorney General.
[FR Doc. 99-6633 Filed 3-19-99; 8:45 am]
BILLING CODE 4410-30-M