[Federal Register Volume 64, Number 98 (Friday, May 21, 1999)]
[Rules and Regulations]
[Pages 27856-27882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12643]



[[Page 27855]]

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Part II





Department of Justice





_______________________________________________________________________



Immigration and Naturalization Service



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8 CFR Part 103, et al.



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

  Federal Register / Vol. 64, No. 98 / Friday, May 21, 1999 / Rules and 
Regulations  

[[Page 27856]]



DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 208, 240, 246, 274a, 299

[INS No. 1915-98; AG Order No. 2224-99]
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: Interim rule with request for comments.

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

SUMMARY: This rule implements section 203 of the Nicaraguan Adjustment 
and Central American Relief Act (NACARA). It amends the Department of 
Justice (Department) regulations by offering certain beneficiaries of 
section 203 of 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 as a lawful permanent resident 
alien. Integrating the processing of certain applications under NACARA 
into the Service's Asylum Program will provide an efficient process 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.
    This rule also codifies the relevant factors and standards for 
extreme hardship identified within existing case law, incorporates 
additional extreme hardship factors relevant to battered spouses and 
children, creates a rebuttable presumption of extreme hardship for 
NACARA-eligible ABC class members who submit completed applications, 
sets forth relevant eligibility criteria, creates procedures for 
adjudicating suspension of deportation and special rule cancellation of 
removal cases before the Service, and provides for the referral of 
certain cases to the Immigration Court.

DATES: Effective date: This interim rule is effective June 21, 1999.
    Comment date: Written comments must be submitted on or before July 
20, 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: Joanna Ruppel, 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: Chuck Adkins-Blanch, Acting General 
Counsel, Executive Office for Immigration Review, Suite 2400, 5107 
Leesburg Pike, Falls Church, VA 22041, telephone number (703) 305-0470.

SUPPLEMENTARY INFORMATION:

I. Background

What Is Section 203 of the Nicaraguan Adjustment and Central American 
Relief Act?

    Section 203 of the Nicaraguan Adjustment and Central American 
Relief Act (NACARA), enacted as title II of Pub. L. 105-100 (111 Stat. 
2160, 2193) (as amended by the Technical Corrections to the Nicaraguan 
Adjustment and Central American Relief Act, Pub. L. 105-139 (111 Stat. 
2644)), permits certain Guatemalans, Salvadorans, and nationals of 
former Soviet bloc countries to apply for suspension of deportation or 
cancellation of removal under special provisions set forth in that 
section.

How Did the Service Propose To Implement Provisions of Section 203 of 
NACARA?

    On November 24, 1998, the Department of Justice published a 
proposed rule to implement certain aspects of section 203 of NACARA in 
the Federal Register at 63 FR 64895. The proposed rule would grant 
asylum officers jurisdiction to adjudicate certain NACARA cases, create 
a new NACARA application form, and outline the eligibility criteria for 
obtaining relief, as well as the process for submitting an application 
to the Service and processing procedures. The proposed rule would also 
codify the factors from relevant case law generally considered in 
evaluating extreme hardship claims. Comments were requested from the 
public by January 25, 1999.
    In response to the proposed rule, the Department received over 400 
comments from a wide range of community organizations, legal service 
providers, advocacy groups, members of Congress, the private bar, and 
individuals. The comments offered suggestions for revising and 
streamlining the adjudication and application process, providing 
alternative legal interpretations for certain eligibility issues, and 
advocating various policy interpretations with regard to implementation 
of section 203 of NACARA. The vast majority of comments, however, urged 
the Department to create a mandatory finding of extreme hardship for 
NACARA beneficiaries, particularly for those ABC class members who are 
eligible for relief under section 203 of NACARA.

Why Is the Service Issuing an Interim Rule With Requests for Comments?

    The Department has reviewed all the comments submitted in response 
to its proposed rule carefully and, in deciding which comments to 
incorporate, has kept in mind the ameliorative purposes of NACARA. Many 
suggestions from the public have been incorporated, particularly with 
regard to streamlining the application form and clarifying certain 
aspects of the application and adjudication process. With respect to 
alternative legal interpretations of eligibility requirements and other 
substantive matters, the Department has made those changes that comport 
with the Immigration and Nationality Act (the Act) and NACARA.
    Some of the substantive legal recommendations, however, exceed the 
scope of the law and could not be included in the interim rule. This is 
particularly true with regard to the

[[Page 27857]]

resolution of the extreme hardship issue. As will be explained in 
greater detail, the Department has determined that it would be 
inconsistent with both the Act and NACARA to adopt a conclusive finding 
of extreme hardship for all NACARA applicants, as well as for the more 
limited group of ABC class members. The Department has determined, 
however, that a more limited approach is most consistent with the 
requirement that suspension of deportation and cancellation of removal 
cases be adjudicated on a case-by-case basis. This rule, therefore, 
creates a rebuttable presumption of extreme hardship for those ABC 
class members who are eligible to apply for relief under section 203 of 
NACARA. The presumption will not apply to nationals from the former 
Soviet bloc countries or any NACARA dependents.
    Because the adoption of a rebuttable presumption represents a 
significant shift from the proposed rule, the Department has determined 
that an additional comment period is needed. However, due to the 
substantial number of aliens eligible to apply for relief under section 
203 of NACARA, the Department finds that there is good cause to avoid 
further delay in allowing applications by issuing this regulation as an 
interim rule. 5 U.S.C. 553.

How Are the Comments to the Proposed Rule Addressed in This Interim 
Rule?

    Given the large number of comments and the variety of issues 
addressed, the discussion of the comments is divided into the general 
categories of jurisdiction, initial and substantive eligibility 
requirements, application procedures, adjudication procedures, and 
revisions to the form that will generally be used to request relief 
under section 203 of NACARA, Form I-881, ``Application for Suspension 
of Deportation or Special Rule Cancellation of Removal (pursuant to 
section 203 of Public Law 105-100 (NACARA)).'' Within each category, 
the discussion contains a brief summary of relevant comments, the 
Department's responses, and the changes made to the rule or form.
    Additionally, this interim rule at 8 CFR part 246 gives asylum 
office directors the same authority currently accorded district 
directors to rescind adjustment of status granted to an individual by 
an asylum officer in cases in which the individual is later found to 
have been ineligible for adjustment of status. This interim rule also 
outlines certain conditions and consequences of filing an application 
for NACARA relief at 8 CFR 240.63(d).

II. Discussion of Comments

Jurisdiction

Jurisdiction Over NACARA Applications

    Several commenters requested that the Service be given initial 
jurisdiction over all applications for suspension of deportation and 
special rule cancellation of removal under NACARA. One comment stated 
that the Service should have jurisdiction over applications of 
individuals whose asylum applications were adjudicated under the terms 
of the ABC settlement agreement while NACARA was under legislative 
consideration, but before it passed, and also over individuals who have 
no mechanism for applying with the Service, such as those who 
registered for Temporary Protected Status (TPS), but never applied for 
asylum.
    The Department will not change the jurisdictional scheme initially 
proposed, as it is the best way for ensuring timely resolution of 
NACARA applications. As explained in greater detail in the 
supplementary information published with the proposed rule, 
administrative efficiency is and has always been the Department's 
primary consideration in delineating jurisdiction. 63 FR 64895 
(November 24, 1998). Distributing the NACARA caseload between the 
Executive Office for Immigration Review (EOIR) and the Service's Asylum 
Program increases the Department's ability to resolve cases quickly, 
because, in the vast majority of cases, a NACARA application will be 
heard by the agency that also has jurisdiction over an applicant's 
pending asylum application. For those persons with asylum claims 
currently pending before the Service, the rule permits concurrent 
adjudication of the asylum and NACARA applications. If an applicant is 
granted either asylum or NACARA relief, it will be unnecessary to refer 
his or her case to the Immigration Court. It would be administratively 
inefficient to transfer the cases of individuals currently in 
immigration proceedings, including ABC class members whose asylum 
applications have already been given a de novo adjudication by the 
Service, back to the Service solely for a NACARA adjudication and would 
delay the resolution of their cases.
    The interim rule does include two exceptions to the general rule 
that individuals in proceedings before the Immigration Court may apply 
for relief under section 203 of NACARA only before the Immigration 
Court. The first exception covers those registered ABC class members 
whose proceedings before the Immigration Court or the Board of 
Immigration Appeals (Board) were administratively closed or continued, 
including those class members with final orders of deportation or 
removal who have filed and been granted NACARA motions to reopen under 
8 CFR 3.43. An individual in this category is eligible to file a NACARA 
application with the Service if the individual is eligible for the 
benefits of the ABC settlement agreement, has not already had a de novo 
adjudication of the asylum claim by the Service pursuant to the 
agreement, and has not moved for and been granted a motion to 
recalendar proceedings before the Immigration Court or the Board to 
request suspension of deportation.
    Under the second exception, a qualified family member of an 
individual who has a section 203 NACARA application pending with the 
Service, or who has been granted relief under that provision, may move 
to close the proceedings before the Immigration Court in order to apply 
with the Service. Administrative efficiency will likely be enhanced 
where family members have similar claims and there are strong policy 
reasons based on family unity to make this exception to the general 
jurisdiction rule.
    The Department also declines to adopt the proposal that the Service 
be given jurisdiction over applications of individuals who have neither 
applied for asylum with the Service nor have been placed in immigration 
proceedings before the Immigration Court. The Department is concerned 
that such an expansion of the Service's jurisdiction would result in a 
large number of fraudulent applications being filed solely for the 
purposes of obtaining employment authorization, and thereby expose the 
Asylum Program to a recurrence of the same problems that necessitated 
asylum reform in 1995.
    Concerns regarding fraud arise because an applicant for suspension 
of deportation or special rule cancellation of removal will be entitled 
to apply immediately for and be granted employment authorization. The 
determination of eligibility for employment authorization will 
necessarily be made by Service Center personnel based solely on a 
written application. However, an asylum office must accurately verify 
whether an individual is an ABC class member and registered for ABC 
benefits. Verification of ABC class membership and registration is a 
time consuming process that, because of limitations in the registration 
databases, often cannot be done without interviewing the individual. If 
the affirmative process is

[[Page 27858]]

not limited as set forth in the proposed rule, an individual who is not 
an ABC class member, or who is an unregistered class member, could 
easily submit a fraudulent application for relief under section 203 of 
NACARA and be granted employment authorization.
    Restricting the availability of the affirmative NACARA process to 
certain categories of NACARA beneficiaries who have pending asylum 
applications with the Service and those who have a qualified relative 
whose asylum application has been adjudicated by the Service or is 
pending with the Service ensures that the Service has an existing 
record of the applicant or the applicant's qualified relative before he 
or she is able to apply for affirmative relief under section 203 of 
NACARA. This restriction minimizes the Asylum Program's vulnerability 
to fraud and avoids diverting resources from the adjudication process 
in order to verify the status of each new applicant claiming to be a 
registered ABC class member. This allows the Service to focus on 
resolving the status of the approximately 240,000 registered ABC class 
members who have asylum applications pending with the Service and their 
qualified relatives.

Process for Placing NACARA Beneficiaries Ineligible to Apply With the 
Service Into Removal Proceedings

    One commenter requested that the regulations provide a mechanism 
for those who are not eligible to apply with the Service to receive 
charging documents placing them in removal proceedings where they may 
apply for special rule cancellation of removal before the Immigration 
Court.
    The Department recognizes that registered ABC class members who 
never applied for asylum and who have not been placed in immigration 
proceedings are unable to apply for special rule cancellation of 
removal unless the Service places them in removal proceedings by 
issuing charging documents. An individual may request that the district 
office with jurisdiction place him or her in proceedings, but the 
Service retains prosecutorial discretion to determine the priority 
status of such a request. The Department is considering the possibility 
of having the asylum offices issue charging documents to registered ABC 
class members who request to be placed into proceedings and who provide 
sufficient information for the Service to issue the charges. The 
preparation and service of charging documents is labor intensive and 
would require diverting resources from the adjudication of applications 
filed by the large number of individuals who have asylum applications 
pending with the Service. Therefore, an asylum office's ability to 
issue charging documents upon request necessarily depends on the 
resources of the asylum office, the number of applications for 
suspension of deportation or special rule cancellation of removal 
initially filed by NACARA beneficiaries, the number of affirmative 
asylum applications the asylum office must adjudicate within the time 
limits imposed by statute, and other program requirements, such as the 
number of credible fear and reasonable fear interviews requested of the 
office. The Department will be in a better position to determine the 
feasibility of issuing charging documents upon request after the 
affirmative program has begun and allocation of resources based on the 
number of NACARA applications filed each month can be evaluated more 
accurately.

Jurisdiction--``Still Pending Adjudication by the Service''

    Several commenters requested that the regulations clarify what is 
meant by ``still pending adjudication by the Service'' for purposes of 
determining who is eligible to apply with the Service.
    Section 240.62(a) of the proposed rule provides for Service 
jurisdiction over certain applicants whose asylum applications are 
``pending adjudication by the Service'' at the time the applicants 
apply for relief under NACARA. For the sake of clarity, the interim 
rule contains a definition of this phrase at Sec. 240.60. An asylum 
application will be considered ``pending adjudication by the Service,'' 
if the Service has not served the applicant with a final decision or 
referred the application to the Immigration Court. This means that, 
unless the Service has served the applicant with a final decision to 
grant asylum or deny asylum, or has served the applicant with documents 
referring his or her application to the Immigration Court, the asylum 
application will be considered pending with the Service, even if a 
final decision has been made by the Service, but not yet served on the 
applicant.

Jurisdiction--Scope of ABC Class Members' Eligibility to File With the 
Service

    Several commenters requested that the regulations clarify the 
statement ``otherwise met the asylum filing deadline pursuant to the 
ABC settlement agreement,'' contained in Sec. 240.62(a). The commenters 
recommended that the phrase be interpreted to mean that certain ABC 
class members can still apply for asylum under the settlement agreement 
if the Service failed to serve them properly with required notices.
    Paragraphs (a)(1) and (2) of Sec. 240.62 give the Service 
jurisdiction over applications for suspension of deportation or special 
rule cancellation of removal filed by registered ABC class members who, 
in the Service's determination, are eligible for benefits of the 
settlement agreement and whose asylum applications are still pending 
adjudication by the Service. To be eligible for the benefits of the 
settlement agreement, a registered class member must have filed for 
asylum by a specified date. Consistent with the settlement agreement, 
the Service has allowed a very small number of Salvadoran class members 
who registered for ABC benefits, but missed the requisite asylum filing 
date, to apply for asylum under the terms of the settlement agreement. 
Such applications are permissible where the Service determines that it 
failed to send those individuals a copy of Notice 5, as required by the 
settlement agreement. Under the settlement agreement, the Service was 
obligated to send Notice 5, which informed class members that they had 
to apply for asylum on or before January 31, 1996, in order to retain 
benefits of the settlement agreement, to Salvadoran class members who 
had applied for TPS. To date, the Service has not excepted any other 
class members from the asylum filing deadlines for any other reason. 
However, the Department included the broad language in 
Sec. 240.62(a)(1) and (2), ``or otherwise met the asylum application 
filing deadline pursuant to the ABC settlement agreement,'' to enable 
the Service to maintain jurisdiction over a class member who 
demonstrates that he or she did not meet the requisite filing deadline 
because of some fault of the Service, such as failure to serve certain 
required notices. The burden is on the class member, however, to 
establish that the Service was at fault.
    The Department declines to adopt the definition recommended in the 
comments because it would not afford the necessary flexibility that may 
benefit the ABC class. The Department takes this action with the 
understanding that, pursuant to current practice and as documented in 
the ABC Procedures Manual that is used by field personnel in 
implementing the ABC settlement agreement, the Service will extend the 
asylum filing deadline if it determines that a Salvadoran class member 
who applied for temporary protected status was not properly sent Notice 
5.

[[Page 27859]]

Initial Eligibility

Advance Parole and Eligibility to Apply for NACARA

    Several commenters disagreed with the Department's determination 
that NACARA beneficiaries in deportation proceedings who had previously 
left the country and returned under a grant of advance parole are 
ineligible for NACARA relief. They argued that, while such persons may 
be ineligible for suspension of deportation, they should be eligible to 
apply for special rule cancellation of removal by virtue of their 
status of inadmissibility.
    For aliens present in the United States, a grant of advance parole 
under section 212(d)(5) of the Act permits the individual to leave the 
United States temporarily with advance permission to return to the 
United States. Upon expiration of parole, however, the statute requires 
that an applicant must be ``dealt with in the same manner as that of 
any other applicant for admission to the United States.'' Consequently, 
an applicant who was previously considered deportable would be 
considered inadmissible for purposes of determining eligibility for any 
form of relief. As a practical matter, very few individuals in 
deportation proceedings were ever granted advance parole, but those who 
did receive permission to depart would have been subject, upon return, 
to termination of the deportation proceedings along with receipt of new 
charging documents placing them in exclusion proceedings. A very small 
number of ABC class members whose deportation proceedings were 
administratively closed pursuant to the settlement agreement received 
advance parole. Upon their return, they were then technically 
inadmissible to the United States rather than deportable. In the normal 
course of events, those persons denied asylum at their de novo ABC 
adjudication would have been placed in exclusion proceedings once their 
parole was terminated. Because ABC asylum adjudications did not begin 
until 1997 and were subsequently suspended in 1998, as a result of 
NACARA, many, if not all of these cases have not yet been adjudicated.
    For purposes of a NACARA adjudication before the Service, this 
small group of ABC class members might be ineligible for suspension of 
deportation based solely on their change in status from deportable to 
inadmissible, if their deportation proceedings are still pending when 
their NACARA applications are adjudicated. Though temporary absences 
from the United States ordinarily would not automatically terminate or 
nullify previously commenced deportation proceedings, they likely would 
in this circumstance because these individuals became applicants for 
admission upon their return to the United States under advance parole, 
and the deportation charges contained in the show cause orders 
previously issued in their cases are no longer applicable. See Matter 
of Brown, 18 I & N Dec. 324 (BIA 1982). In these narrow set of 
circumstances, it is appropriate to consider the deportation 
proceedings against an individual who departed and returned to the 
United States under a grant of advance parole while those deportation 
proceedings were pending as having terminated as of the date of the 
person's departure from the United States. If the Service determines 
that such an applicant is eligible for relief under section 203 of 
NACARA, the applicant will be granted special rule cancellation of 
removal. If the applicant is not granted NACARA relief and is not 
granted asylum, the Service will issue charging documents placing the 
person into removal proceedings.
    To the best of the Department's knowledge, only ABC class members 
will be affected by this provision. However, the rule permits asylum 
officers to follow the same procedure for any other applicant within 
their jurisdiction who received advance parole while in deportation 
proceedings.

Eligibility To Apply for NACARA in Exclusion Proceedings

    Another issue raised by the commenters is whether section 203 of 
NACARA and the implementing regulations apply to NACARA beneficiaries 
who were in exclusion proceedings as of April 1, 1997, including those 
ABC class members who were in exclusion proceedings and had those 
proceedings administratively closed or continued by EOIR to allow the 
class members to pursue de novo adjudications of their asylum claims by 
the Service, as provided by the ABC settlement agreement. These 
commenters argued that Congress indicated its clear intent to make 
NACARA relief available to persons in exclusion proceedings, because 
the statute provides that NACARA's special rules apply ``regardless of 
whether the alien is in exclusion or deportation proceedings.* * * '' 
IIRIRA section 309(c)(5)(C)(i), as amended by section 203(a)(1) of 
NACARA. Several commenters suggested that the intent of Congress can be 
carried out by placing individuals currently in exclusion proceedings 
into removal proceedings by: (1) electing to proceed under new removal 
procedures in those cases where an evidentiary hearing in the exclusion 
process had not commenced prior to April 1, 1997, pursuant to section 
309(c)(2) of IIRIRA; or (2) terminating exclusion proceedings where 
there has not been a final administrative decision and reinitiating 
them as removal proceedings, as provided for under section 309(c)(3) of 
IIRIRA.
    Courts have consistently stated that suspension of deportation is 
unavailable to persons in exclusion proceedings, see Matter of Torres, 
19 I & N 371, 372-73 (BIA 1986); Landon v. Plasencia, 459 U.S. 21, 26-
27, 103 S.Ct. 321, 325-26, 74 L.Ed.2d 21 (1982) (``[T]he alien who 
loses his right to reside in the United States in a deportation hearing 
has a number of substantive rights not available to the alien who is 
denied admission in an exclusion proceeding'[including the right to] 
seek suspension of deportation.''), even if the person has been present 
in the United States for an extended period of time under a grant of 
parole. Yuen Sang Low v. Attorney General of U.S., 479 F.2d 820, 822 
(9th Cir.), cert. denied, 414 U.S. 1039 (1973). This principle has 
recently withstood statutory and constitutional challenges, despite the 
recognition that IIRIRA eliminated the distinction between deportation 
and exclusion for proceedings initiated on or after April 1, 1997, by 
replacing them with a single removal process. See Patel v. McElroy, 143 
F.3d 56 (2nd Cir. 1998) (statutory challenge); Skelly v. INS, 168 F.3d 
88 (2nd Cir. 1999) (constitutional challenge based on equal protection 
principles).
    The general rule laid out in IIRIRA for the transition from 
exclusion and deportation procedures to a unified removal process is 
that, for ``an alien who is in exclusion or deportation proceedings as 
of [April 1, 1997],'' the amendments to the procedures for removing 
individuals from the United States instituted by IIRIRA ``shall not 
apply,'' and exclusion and deportation proceedings ``shall continue to 
be conducted without regard to such amendments.'' IIRIRA section 
309(c)(1). The IIRIRA transitional rules dealing with suspension of 
deportation, as amended by section 203 of NACARA, are directed solely 
to outlining the circumstances under which the new cancellation of 
removal rules regarding continuous residence and physical presence, 
found in section 240A(d)(1) and (2) of the Act, apply to individuals 
who were placed in exclusion or deportation proceedings prior to April 
1, 1997.

[[Page 27860]]

    Under the transitional rules for suspension of deportation cases, 
section 309(c)(5)(A) of IIRIRA, as amended by NACARA, states that the 
rules regarding continuous residence and physical presence generally 
apply to orders to show cause regardless of when the orders to show 
cause are issued, thus making these rules applicable to requests for 
suspension of deportation. The first exception to this rule, located at 
section 309(c)(5)(B) of IIRIRA, as amended by NACARA, provides that the 
new continuous residence and physical presence rules found at section 
240A(d)(1) and (2) of the Act will not apply to an order to show cause 
issued prior to April 1, 1997, when the Attorney General decides to 
terminate a pending exclusion or deportation proceeding under section 
309(c)(3) of IIRIRA and reinitiate the proceeding under removal 
provisions. The exception described in section 309(c)(5)(C)(i) of 
IIRIRA, as amended by NACARA, states that these new rules regarding 
continuous residence and physical presence will not apply to NACARA 
beneficiaries who request suspension of deportation or cancellation of 
removal. While the first exception simply prevents the application of 
the new continuous residence and physical presence rules to an order to 
show cause in one particular situation, the second exception exempts 
NACARA beneficiaries from the continuous residence and physical 
presence rules whenever they file for suspension of deportation under 
the pre-IIRIRA section 244 of the Act, or for regular cancellation of 
removal under section 240A of the Act (additional rules establishing 
eligibility for NACARA special rule cancellation of removal are covered 
separately in section 309(f) of IIRIRA, as amended by NACARA), 
``regardless of whether the alien is in exclusion or deportation 
proceedings before [April 1, 1997].'' IIRIRA section 309(c)(5)(C)(i), 
as amended by NACARA.
    Contrary to showing a congressional intent that NACARA relief be 
made available to persons in exclusion proceedings, the phrase quoted 
above and cited in several comments simply indicates that Congress did 
not want the new continuous residence and physical presence rules to 
apply to NACARA beneficiaries who are eligible to apply for suspension 
of deportation or cancellation of removal no matter what charging 
documents, if any, may have been issued to them prior to April 1, 1997. 
This language makes clear that the initiation of exclusion proceedings 
against NACARA beneficiaries prior to April 1, 1997, does not result in 
the application of the new continuous residence and physical presence 
rules to their cases, acknowledging the possibility that such 
individuals may have their exclusion proceedings changed into removal 
proceedings under the transitional rules covered in section 309(c)(2) 
and (3) of IIRIRA.
    None of these transitional rules dealing with suspension of 
deportation override the general transition rule that subjects a person 
placed into exclusion proceedings prior to April 1, 1997, to the rules 
governing exclusion that were in place before IIRIRA was enacted. 
IIRIRA section 309(c)(1). Included among those rules is the long-
standing principle that persons in exclusion proceedings are ineligible 
to apply for suspension of deportation. As noted by certain comments, 
the IIRIRA transitional rules provide a way to allow such individuals 
to apply for special rule cancellation of removal under NACARA. This 
could be done by applying removal procedures to those cases in which an 
evidentiary hearing has not commenced as of April 1, 1997, as allowed 
under section 309(c)(2) of IIRIRA, or by terminating the exclusion 
proceedings and reinitiating proceedings under section 240 of the Act, 
as provided for under section 309(c)(3) of IIRIRA. For purposes of this 
interim rule, the Department declines to pursue these options at this 
time, but invites additional comments on this point.

Effect of ``Apprehended at Time of Entry'' Limit on Eligibility

    Several commenters requested that the regulations define the term 
``apprehended at time of entry'' to promote consistency in 
interpretation. The commenters also proposed the following definition: 
``The phrase ``apprehended at time of entry'' means a person who was 
arrested at a United States port-of-entry between December 19, 1990, 
the preliminary approval date of the settlement agreement, and January 
31, 1991, the date the court approved the settlement agreement.''
    The interim rule will not be amended to include this definition. 
Section 203 of NACARA provides that a registered ABC class member who 
``was not apprehended after December 19, 1990, at the time of entry,'' 
may apply for suspension of deportation or special rule cancellation of 
removal under the provisions enacted by NACARA. The language 
``apprehended * * * at time of entry'' was derived from paragraph 2 of 
the ABC settlement agreement, which states, ``Class members apprehended 
at the time of entry after the date of preliminary approval of this 
agreement shall not be eligible for the benefits hereunder.'' See 
American Baptist Churches v. Thornburgh, 760 F. Supp. 796, 800 (N.D. 
Cal. 1991). The date of preliminary approval of the settlement 
agreement was December 19, 1990. There is no provision in either the 
settlement agreement or section 203 of NACARA limiting this provision 
to those registered class members apprehended at time of entry between 
December 19, 1990, and January 31, 1991, nor is there any provision 
that excludes from the applicability of this provision registered class 
members apprehended after January 31, 1991. The Service consistently 
has implemented the plain meaning of the language in the settlement 
agreement in denying ABC benefits to class members apprehended at the 
time of entry after December 19, 1990. There is no indication that 
Congress intended to redefine the exclusionary ground included in the 
settlement agreement or to limit the corresponding statutory provision 
only to registered class members apprehended at the time of entry prior 
to January 31, 1991. Therefore, the Department does not believe that 
the interpretation suggested in the comments is permitted by NACARA.
    The Department has carefully considered the value of including a 
definition of ``apprehended at time of entry'' within the rule, but 
does not believe that it is appropriate to do so. The Service has 
issued and continues to provide policy guidance to its officers 
explaining that a class member who has been apprehended after the class 
member has effected an entry (consistent with the former ``entry 
doctrine'') cannot be considered to have been apprehended at the time 
of entry. Deriving guidance from the definition of ``entry'' under the 
Act, as it existed prior to April 1, 1997, and as developed by case 
law, the Service has instructed officers that the determination of 
whether an entry has been effected involves consideration of the 
following three factors: (1) whether the class member has crossed into 
the territorial limits of the United States; (2) whether the class 
member has been inspected or admitted by an immigration officer, or has 
actually and intentionally evaded inspection at the nearest inspection 
point; and (3) whether the class member crossed into the territorial 
limits of the United States free from official restraint, including 
free from surveillance. Because these factors necessarily are dependent 
on the individualized factors of each case, the Department has 
determined that it is more appropriate

[[Page 27861]]

to continue to provide internal guidance on the factors to consider in 
evaluating whether an entry has been effected than to attempt to codify 
a definition that would cover the wide variety of facts that may be 
present in an individual case.

Guatemalans and Salvadorans Filing for Asylum by April 1, 1990

    Several commenters suggested that the proposed rule reads too 
narrowly the eligibility requirement contained at section 
309(c)(5)(C)(i)(II) of IIRIRA, as amended by NACARA. This sections 
permits Salvadorans and Guatemalans who ``filed an application for 
asylum with the Immigration and Naturalization Service'' prior to April 
1, 1990, to apply for relief under NACARA. Section 240.61(a)(2) of the 
proposed rule would limit eligibility to those persons who filed an 
application for asylum directly with the Service. The commenters note 
that the proposed rule fails to account for those persons who filed for 
asylum by April 1, 1990, before the Immigration Court. The comments 
argue that the critical factor in section 309(c)(5)(C)(i)(II) of the 
statute relates to asylum filing date, rather than the forum of filing. 
The comments further note that any application filed with the 
Immigration Court was necessarily served on the Service. They argue 
that a restrictive reading of the statute unnecessarily limits 
eligibility, and that filing for purposes of this section should be met 
whenever an applicant filed for asylum with the Department of Justice.
    The Department agrees that section 309(c)(5)(C)(i)(II) of IIRIRA is 
subject to different interpretations. In drafting the proposed rule, 
the Department contrasted the wording of this section with that of 
section 309(c)(5)(C)(i)(V) of IIRIRA, as amended by NACARA, which 
permits certain nationals of former Soviet bloc countries to apply for 
relief under NACARA if they ``filed for asylum on or before December 
31, 1991.'' The proposed rule reflected the Department's initial 
interpretation that subclauses (II) and (V) should be read together, 
such that subclause (II) should be read to limit eligibility to those 
who filed an affirmative asylum application with the Service, while an 
individual could be eligible for relief under subclause (V) as long as 
an asylum application was filed before either the Service or before the 
Immigration Court.
    Although this interpretation is consistent with the literal wording 
of the statute, the Department recognizes that, in determining 
eligibility to apply for suspension of deportation or special rule 
cancellation of removal under NACARA, ``filed'' could be read more 
broadly to mean either submitted to or served on the Service. This 
interpretation is supported by several factors. First, it is more 
appropriate to track subclauses (I) and (II) rather than subclauses 
(II) and (V). Section 309(c)(5)(C)(i) of IIRIRA contains two provisions 
specifically relating to Salvadorans and Guatemalans. Subclause (I) 
permits Salvadorans and Guatemalans who entered the United States prior 
to September 19, 1990, and October 1, 1990, respectively, to file for 
NACARA relief if they registered for benefits under the ABC agreement 
by the dates specified in the agreement. Subclause (II) relates to 
Salvadorans and Guatemalans who filed for asylum by April 1, 1990, 
regardless of whether they also registered for ABC benefits. When 
subclause (I) and (II) are read together, the application of the 
statute creates inconsistent results unless subclause (II) is 
interpreted to cover both Service and EOIR asylum filings. For 
instance, a Salvadoran placed in immigration proceedings who filed an 
application for asylum with the Immigration Court by April 1, 1990 is, 
by definition, a member of the ABC class because he or she entered the 
United States prior to September 19, 1990. If he or she registered for 
ABC benefits, he or she would be eligible to apply for relief under 
subclause (I), even though he or she did not initially file the asylum 
application with the Service. Given that subclause (II) essentially 
concerns ABC class members who failed to register for ABC benefits, it 
is inconsistent with the ameliorative purposes of NACARA to limit 
eligibility solely to those persons who filed directly with the 
Service.
    Second, NACARA makes use of either ABC registration deadlines or 
asylum filing deadlines to identify eligible aliens. A grant of asylum 
confers the same benefits regardless of whether the grant is conferred 
by an asylum officer or an Immigration Court. It is the act of filing 
for asylum or registering for ABC benefits, rather than the forum, that 
distinguishes subclause (II) applicants from those Salvadorans and 
Guatemalans in the United States who never applied for asylum or 
registered for ABC benefits.
    Consequently, 8 CFR 240.61(a)(2) has been amended to include a 
Guatemalan or Salvadoran national who filed an application for asylum 
with the Service on or before April 1, 1990, either by filing an 
application directly with the Service or filing the application with 
the Immigration Court and serving a copy of that application on the 
Service.

Determining When an Application for Asylum is Filed

    Though not included in the proposed rule, the Department has 
included in Sec. 240.60 of this interim rule a definition for 
determining when a person is considered to have ``filed an application 
for asylum.'' This definition is necessary in order to determine 
eligibility to apply for relief under section 203 of NACARA. The 
definition will also be used to determine the date a dependent included 
in an asylum application is considered to have ``filed'' for asylum. 
Under this definition, any dependent spouse or child who was present in 
the United States and included in the principal's asylum application at 
the time it was filed will be considered to have filed an application 
for asylum on the date the principal's asylum application was filed. 
Any dependent who is added to the principal's asylum application after 
it was initially filed will be considered to have filed an application 
for asylum on the date the dependent was added to principal's asylum 
application.

Eligibility--NACARA Dependents

    One commenter requested that the regulations specify that children 
and spouses can file for relief under NACARA after they have attained 7 
years of continuous physical presence in the United States, even if 
they had not been continuously present in the United States for 7 years 
at the time the statute was enacted, or have not reached 7 years by the 
time the rule implementing section 203 of NACARA becomes effective.
    The Department agrees with this interpretation. Both section 203 of 
NACARA and the interim rule allow children and spouses to apply for 
relief under NACARA, even if they had not been continuously physically 
present in the United States for 7 years at the time NACARA was enacted 
or implemented. To meet the physical presence requirement, the spouse 
or child must have 7 years of continuous physical presence in the 
United States (10 years, if certain inadmissibility or deportability 
grounds apply) as of the date the application for relief was filed. 
Unlike section 202 of NACARA, there is no deadline for applying for 
relief under section 203 of NACARA.

Eligibility of Dependents Who Have Turned 21 Years of Age Since NACARA 
Was Enacted

    Several commenters expressed concern about children who have lost 
or will lose eligibility to apply for relief pursuant to section 
309(c)(5)(C)(i)(III) of

[[Page 27862]]

IIRIRA, as amended by section 203(a) of NACARA, because they turned 21 
years of age between November 19, 1997, the date NACARA was enacted, 
and the effective date of this regulation. Several commenters suggested 
that the regulations ``grandfather'' in all unmarried sons and 
unmarried daughters who have turned 21 years of age since November 19, 
1997. The commenters compare the current situation to that faced by 
juveniles eligible for special immigration status under section 153 of 
the Immigration Act of 1990 (IMMACT 90), Pub. L. 101-649 (104 Stat. 
4978), who aged out prior to the publication of regulations 
implementing that section of the law. Under the rule, juveniles who met 
the statutory requirements on the date the statute was enacted, but who 
had aged out prior to implementation of regulations, were permitted to 
apply for and receive special immigrant status.
    Comparison to the rule implementing section 153 of IMMACT 90 is not 
persuasive, as the statutes and circumstances in question are not 
analogous. Regulations implementing section 153 of the Immigration Act 
of 1990, governing special eligibility provisions for juveniles to 
adjust to lawful permanent resident status, ``grandfathered'' in 
certain juveniles who met eligibility requirements on November 29, 
1990. This was done because IMMACT 90 did not originally exempt special 
immigrant juvenile aliens from the normal statutory requirements for 
adjustment of status. Recognizing that most special immigrant juvenile 
alien adjustment applicants were statutorily ineligible for adjustment 
of status, for reasons unrelated to their age, Service offices were 
directed to accept and hold in abeyance applications filed by juveniles 
who appeared to meet the statutory requirements for special immigrant 
juvenile classification, but who may have been precluded based on 
statutory requirements for adjustment of status. This policy was 
adopted because the Service had put forward technical amendments that 
would exempt these applicants from many of the ineligibility grounds 
contained in sections 245 (a) and (c) of the Act. The technical 
amendments to the Act were enacted at the end of 1991. The 
supplementary information published as a final rule in the Federal 
Register on August 12, 1993, at 58 FR 42843, explained that the rule 
would apply the exemptions contained in the technical amendments to 
aliens who could establish that they otherwise met the eligibility 
criteria on November 29, 1990, ``to ensure that special immigrant 
juveniles are not precluded from obtaining lawful permanent residence 
because of the passage of time while the Service was awaiting 
Congressional action to amend the adjustment of status provisions * * 
*.''
    Unlike the special immigrant cases, NACARA predicates eligibility 
for dependents of a NACARA principal applicant on a grant of suspension 
of deportation or cancellation of removal to the principal applicant. 
The Department may not extend eligibility to qualified individuals who 
were 21 years of age or older on the date of enactment of NACARA, or 
prior to promulgation of regulations implementing the affirmative 
application process because it exceeds the scope of eligibility 
permitted by the statute. In section 309(c)(5)(C)(i)(IV)(bb) of IIRIRA, 
as amended by NACARA, Congress explicitly linked the age of the 
unmarried son or daughter to the date the parent is granted suspension 
of deportation or cancellation of removal, not to the date the 
unmarried son or daughter's application is adjudicated or any other 
date.
    In contrast to individuals covered by section 153 of IMMACT 90, 
nothing in NACARA precludes qualified children of NACARA beneficiaries 
from applying for relief once the parent or spouse has been granted 
suspension of deportation or special rule cancellation of removal. Any 
NACARA beneficiary who has a NACARA-eligible dependent nearing the age 
of 21 years old, and who has had an asylum application pending with the 
Service, has been afforded the opportunity to request an expedited 
adjudication of the asylum application. In such a case, if the asylum 
application were not granted, the applicant would be placed in removal 
proceedings where he or she could apply for relief under section 203 of 
NACARA with the Immigration Court. Alternatively, the parent could 
request that his or her pending asylum application be withdrawn in 
order to apply with the Immigration Court for both asylum and relief 
under section 203 of NACARA. In such cases, if the dependent was listed 
on the parent's asylum application and was included in the request for 
asylum, he or she would also be placed in proceedings and could file a 
NACARA application with the Immigration Court. The Service has outlined 
these options to the public in previous section 203 of NACARA 
information materials issued through the Service's Office of Public 
Affairs. (``Questions and Answers about NACARA and Cancellation of 
Removal,'' February 10, 1998; ``Nicaraguan Adjustment and Central 
American Relief Act of 1997,'' April 1, 1998; and ``Section 203 of the 
Nicaraguan Adjustment and Central American Relief Act of 1997,'' 
November 24, 1998.)

Initial Eligibility and ABC Class Members

    One commenter stated that registered ABC class members who did not 
apply for asylum by the dates required to retain eligibility for 
benefits of the ABC settlement agreement should not be allowed to apply 
for relief under NACARA. The commenter argued that NACARA was intended 
to provide ABC class members with the opportunity to apply for 
suspension of deportation under the rules that existed before IIRIRA 
was enacted, and that if an ABC class member did not comply with the 
requirements of the ABC settlement agreement, the class member should 
not be allowed to apply for relief under NACARA.
    Section 309(c)(5)(C)(i)(I) of IIRIRA, as amended by section 203(a) 
of NACARA, provides that any registered ABC class member who has not 
been apprehended, after December 19, 1990, at time of entry or 
convicted of an aggravated felony may apply for suspension of 
deportation or special rule cancellation of removal under the 
provisions enacted by NACARA. In contrast to sections 
309(c)(5)(C)(i)(II) and (V) of IIRIRA, as amended by NACARA, there is 
no statutory language in section 309(c)(5)(C)(i)(I) of IIRIRA 
connecting eligibility to apply for relief under NACARA to the filing 
of an asylum application. Section 309(c)(5)(C)(i)(I) of IIRIRA contains 
no requirement that the registered class member have applied for asylum 
on any particular date, or ever have applied for asylum, but instead 
predicates eligibility to apply solely on nationality and entry date 
(which correspond to ABC class membership) and registration for ABC 
benefits. Therefore, the Department believes it would be improper to 
include in the regulations a substantive restriction on eligibility 
that is not reflected in the statute.

Substantive Eligibility

Eligibility-Continuous Physical Presence

    Several commenters suggested revisions to Sec. 240.64, regarding 
the calculation of continuous physical presence. With respect to 
Sec. 240.64(b)(1), concerning continuous physical presence for 
suspension of deportation cases, the commenters suggested modifying the 
``brief, casual, and innocent'' standard by defining single absences 
not exceeding 90 days or

[[Page 27863]]

aggregate absences not exceeding 180 days to be considered ``brief'' in 
order to parallel the standard used in cancellation of removal cases. 
The commenters further proposed that absences of greater duration 
should be evaluated on a case-by-case basis, and that the applicant 
should still be required to establish that any departure was casual or 
innocent.
    With respect to Sec. 240.64(b)(2), relating to special rule 
cancellation of removal, several commenters objected to the requirement 
that an applicant must establish that single absences of 90 days or 
less were brief, casual, and innocent. These commenters argued that 
such a requirement was inconsistent with the Act. Similarly, these 
commenters objected to the language contained in Sec. 240.64(b)(3), 
which states that a departure incident to a final order of deportation 
or removal, or an order of voluntary departure, or with the intent to 
commit a crime terminates continuous physical presence. The commenters 
suggested amending the provision for special rule cancellation of 
removal to delete the mandatory finding and substitute language 
providing that such absences may be the basis for finding that 
continuous physical presence has been terminated.
    The Department will adopt certain suggestions regarding the 
definition of a ``brief'' absence from the United States. As proposed, 
Sec. 240.64(b)(1) reiterates former section 244(b)(2) of the Act, as in 
effect prior to IIRIRA, which establishes that for purposes of 
continuous physical presence, absences from the United States will be 
evaluated based on a determination of whether the absence was brief, 
casual, and innocent. Initially, the Department chose to adopt this 
language without further clarification in the rule, based on the body 
of case law interpreting this provision, as well as the greater 
flexibility inherent in the phrase ``brief, casual, and innocent.'' 
Because the concept of ``brief, casual, and innocent,'' however, goes 
to the nature of a departure, it is consistent with section 244(d)(2) 
of the Act, as in effect prior to IIRIRA, to provide some guidance 
within the rule regarding one or more of these factors. Given the use 
of the 90/180-day rule within the context of both cancellation of 
removal and special rule cancellation of removal, it is reasonable to 
adopt these timeframes for purposes of suspension of deportation under 
NACARA. To assist adjudicators and to ensure consistent determinations 
regarding the length of a departure, the Department will revise the 
rule to define a ``brief'' absence as one of 90 days or less or an 
aggregate of 180 days or less. Absences of greater duration will still 
be considered on a case-by-case basis in suspension cases in order to 
comply with the broader language of ``brief, casual, and innocent'' 
contained in the statute. All absences will be evaluated, however, to 
determine whether or not they were casual and innocent.
    The Department will also amend Sec. 240.64(b)(2) of the proposed 
rule relating to special rule cancellation of removal to reflect the 
definition of ``brief'' adopted in Sec. 240.64(b)(1). It is not 
appropriate, however, to adopt the remaining suggestions relating to 
special rule cancellation of removal. The commenters suggest that it is 
contrary to the statute to disqualify a special rule cancellation of 
removal applicant based on the nature of his or her absences. Neither 
NACARA nor the Act, as amended by IIRIRA, precludes such an evaluation, 
and when the 90/180-day rule is read within the context of immigration 
reform under IIRIRA, it is apparent that Congress intended certain 
kinds of departures, such as those made in furtherance of criminal 
offenses, to terminate continuous physical presence. Similarly, through 
reinstatement under section 241(a)(5) of the Act, Congress severely 
limited the opportunity to seek relief for aliens who illegally reenter 
the United States after previously being removed, or departing 
voluntarily under final orders.
    The interim rule resolves the apparent inconsistency by clarifying 
the effect of certain absences of 90 days or less in a manner 
consistent with suspension of deportation. Specifically, the second 
sentence of Sec. 240.64(b)(2) retains the analytical framework of the 
brief, casual, and innocent standard to account for those situations in 
which a relatively brief absence nonetheless meaningfully interrupts 
continuous physical presence. The burden of proof remains on the 
applicant to establish the ``casual and innocent'' nature of such 
departures in order to conform with the burden of proof required under 
suspension of deportation. While Sec. 240.64(b)(2) attempts to account 
for departures generally, Sec. 240.64(b)(3) identifies specific 
departures that have long been considered to break continuous physical 
presence in the context of suspension of deportation adjudications. It 
is, therefore, both reasonable and necessary to place the same 
restrictions on special rule cancellation applicants.

Eligibility-Statutory Bars

    Several commenters asserted that the regulations should not subject 
NACARA beneficiaries to bars to eligibility for suspension of 
deportation or special rule cancellation of removal, such as section 
242B(e) of the Act, as in effect prior to April 1, 1997, and current 
section 240(b)(7) of the Act. The commenters maintain that Congress 
intended to waive substantive bars relating to eligibility. Citing 
section 203(c) of NACARA, which allows beneficiaries to file a motion 
to reopen ``[n]otwithstanding any limitation imposed by law,'' the 
commenters argue that the plain language of the statute indicates that 
the goal of section 203 of NACARA was to waive all limitations on 
relief. The commenters note that Congress excepted from this provision 
limitations premised on an alien's conviction of an aggravated felony. 
The commenters argue that, because there is no provision of law that 
bars an individual convicted of an aggravated felony from filing a 
motion to reopen, Congress must have intended this provision to apply 
to all other limitations to relief, not just to limitations on motions 
to reopen.
    The regulatory requirements reflecting the statutory bars will 
remain unchanged. The Department's analysis of the statutory bars has 
been fully set out in both the supplemental information in the proposed 
rule, at 63 FR 64895, and in the supplemental information in the 
interim rule concerning NACARA motions to reopen, at 63 FR 31890. The 
parenthetical relating to aggravated felonies contained in section 
203(c) of NACARA does not overcome the definitive statutory language 
indicating that the paragraph is directed at statutory limitations on 
motions to reopen. The parenthetical is more properly read as a 
reiteration of the basic eligibility requirement rather than a 
rejection of all other substantive eligibility requirements. This 
parenthetical in no way exempts NACARA beneficiaries from the statutory 
bars to suspension of deportation or cancellation of removal.

Eligibility-Battered Spouses and Children

    A significant number of commenters requested that the Department 
address the special circumstances of battered spouses and children who 
are eligible for suspension of deportation under section 244(a)(3) of 
the Act, prior to IIRIRA, or cancellation of removal under section 
240A(b)(2) of the Act. Those provisions permit the battered spouse and 
child(ren) of a United States citizen or lawful permanent resident 
spouse or parent to qualify for suspension of deportation or 
cancellation of removal by showing 3, rather than 7 years of continuous 
physical presence, good

[[Page 27864]]

moral character, and extreme hardship to the alien, the alien's child, 
or in the case of an alien who is a child, to the child's parent. 
Specifically, the commenters asked that the special criteria used to 
evaluate extreme hardship in adjustment of status self-petitions 
submitted by battered spouses and children should also be made 
explicitly applicable to those individuals seeking relief through 
suspension of deportation or cancellation of removal. The commenters 
noted that the Violence Against Women Act (VAWA), a component of the 
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322 
(108 Stat. 1902-1955), created provisions to aid battered immigrants 
whose ability to remain permanently in the United States may be 
threatened by abusive spouses or parents.
    In the context of self-petitioning, provided for in sections 
204(a)(1)(A)(iii) and (iv) and 204(a)(1)(B)(ii) and (iii) of the Act, 
the Service has issued guidance instructing adjudicators to consider 
certain factors when evaluating a claim of extreme hardship based on 
domestic abuse. These factors are:
    (1) The nature and extent of the physical or psychological 
consequences of abuse;
    (2) The impact of loss of access to the United States courts and 
criminal justice system (including, but not limited to, the ability to 
obtain and enforce orders of protection, criminal investigations and 
prosecutions, and family law proceedings or court orders regarding 
child support, maintenance, child custody, and visitation);
    (3) The likelihood that the batterer's family, friends, or others 
acting on behalf of the batterer in the home country would physically 
or psychologically harm the applicant or the applicant's child(ren);
    (4) The applicant's needs and/or needs of the applicant's 
child(ren) for social, medical, mental health, or other supportive 
services for victims of domestic violence that are unavailable or not 
reasonably accessible in the home country;
    (5) The existence of laws and social practices in the home country 
that punish the applicant or the applicant's child(ren) because they 
have been victims of domestic violence or have taken steps to leave an 
abusive household; and
    (6) The abuser's ability to travel to the home country and the 
ability and willingness of authorities in the home country to protect 
the applicant and/or the applicant's child(ren) from future abuse.
    The commenters requested inclusion of these factors in the 
regulation in order to ensure consistent application of these 
considerations, whether the applicant seeks relief through the self-
petitioning process, under NACARA, or in the course of non-NACARA 
immigration proceedings. Many commenters expressed concern that 
omission of the factors would suggest that domestic violence issues 
were irrelevant in the context of suspension or cancellation 
adjudications. The commenters also noted that many applicants who had 
experienced domestic violence would be reluctant to raise such issues 
on their own, and that including these factors would assist attorneys 
and adjudicators in eliciting information, and would help applicants to 
understand that fears of domestic abuse or other repercussions were 
legitimate issues for the adjudicator to consider.
    The commenters correctly note that the suspension and cancellation 
provisions pertaining to domestic abuse are part of a broader series of 
initiatives to protect battered spouses and children within the 
immigration laws. Most notably, sections 204(a)(1)(A) and (B) of the 
Act, as amended, permit victims of domestic violence to self-petition 
for adjustment of status so that their ability to reside permanently in 
the United States is not conditioned on submission of a petition on 
their behalf by the abusive spouse or parent. The criteria for 
adjustment of status under this provision is similar to that required 
in the suspension or cancellation context, except that the spouse or 
child must be able to establish 3 years of residence in the United 
States. To assist adjudicators in evaluating extreme hardship to these 
self-petitioners, the Service has issued guidance regarding the special 
nature of domestic abuse cases and the kind of hardship that may be 
present. See Supplementary Information to the interim rule, published 
on March 26, 1996, at 61 FR 13061, ``Petition to Classify Alien as 
Immediate Relative of a United States Citizen or as a Preference 
Immigrant; Self-Petitioning for Certain Battered or Abused Spouses and 
Children;'' Memorandum for Terrance M. O'Reilly, Director, 
Administrative Appeals Office, from Paul Virtue, Office of General 
Counsel, `` `Extreme Hardship' and Documentary Requirements Involving 
Battered Spouses and Children,'' (October 16, 1998), reprinted at 76 
Interpreter Releases 162 (January 25, 1999).
    Nothing in the proposed rule prohibits an applicant from raising 
the VAWA factors in support of a suspension of deportation or 
cancellation of removal application. The Department agrees, however, 
that the factors should be included in the interim rule to avoid 
confusion. The addition of these factors also affirms the Department's 
commitment to aiding victims of domestic violence and will assist 
adjudicators, attorneys, and applicants in eliciting and developing 
relevant facts.
    Consequently, new Sec. 240.58(c) lists the VAWA factors and also 
clearly states that these factors are relevant in any extreme hardship 
determination in the context of a request for suspension of 
deportation, whether or not it is within the context of section 
244(a)(3) of the Act, as in effect prior to IIRIRA. Sections 240.64(c) 
and 240.20(c) of the interim rule will also reflect that domestic 
violence factors are relevant to the extreme hardship determination 
with regards to requests for special rule cancellation of removal and 
cancellation of removal under section 240A(b)(2) of the Act, 
respectively.

Rebuttable Presumption of Extreme Hardship for Certain NACARA 
Beneficiaries

    Virtually all public commenters contained a request that the 
Department extend some form of a presumption of extreme hardship to 
principal NACARA applicants, including nationals of the former Soviet 
bloc. In particular, the majority of commenters asked the Department to 
extend a presumption to those Salvadorans and Guatemalans who are class 
members of the ABC lawsuit. Many of the commenters requested that 
evidence of class membership should be considered sufficient to 
establish extreme hardship based on the conditions in El Salvador and 
Guatemala, particularly after Hurricane Mitch. Additionally, commenters 
argued that the class had been protected for prolonged periods of time 
from deportation as a result of the ABC settlement agreement and other 
measures staying deportation, including TPS for Salvadorans, such that 
class members had established ties to the United States, a significant 
factor in evaluating hardship.
    Some commenters discussed at great length factors the authors 
believed to be relevant to an extreme hardship determination for the 
ABC class. The commenters noted, for instance, that many class members 
have children who were either born in the United States or who came to 
this country at such a young age that they have little or no memory of 
El Salvador or Guatemala. The commenters also identified other factors, 
including the circumstances under which the class members fled

[[Page 27865]]

their countries, the quality of health care and educational opportunity 
in those countries, the psychological effects of returning to a country 
where an individual or a family member may have suffered persecution, 
the lack of sufficient employment opportunities in those countries, and 
the possibility of significant financial loss, as the commenters 
believe that many class members have purchased homes or started 
businesses in the United States. Many of the public comments also noted 
that a mandatory finding would enhance administrative efficiency by 
eliminating the need to make individual determinations of extreme 
hardship for the approximately 240,000 ABC class members who are 
eligible to apply for relief under section 203 of NACARA. As a further 
matter of administrative convenience, many commenters urged that the 
mandatory presumption should also be extended to nationals of the 
former Soviet bloc and all spouses, children, and unmarried sons and 
daughters over the age of 21 eligible for NACARA on the basis of a 
grant of relief to a parent or spouse (NACARA dependents).
    One commenter objected to a presumption of extreme hardship on the 
grounds that it was contrary to NACARA and the Act, arguing that 
suspension of deportation or special rule cancellation of removal 
requires individualized determinations of extreme hardship in all 
cases.
    The Department declines to adopt a blanket finding that all NACARA 
beneficiaries will suffer extreme hardship if they are deported or 
removed to their home countries, as such a finding would be contrary to 
the specific requirements of both NACARA and the Act, as well as the 
body of administrative and judicial interpretations that have been 
adopted regarding the meaning of ``extreme hardship.'' The Department 
has concluded, however, that strong factual evidence exists to support 
an evidentiary presumption of extreme hardship for those ABC class 
members who are eligible to apply for NACARA relief, as defined in 
Sec. 240.61(a) or (b) of this interim rule. This conclusion is based on 
a determination that the ABC class shares certain characteristics that 
give rise to a strong likelihood that an ABC class member or qualified 
relative would suffer extreme hardship if the class member were 
deported or removed. Such a presumption may be rebutted by the Service 
if evidence in the record establishes that it is more likely than not 
that extreme hardship would not result from removal or deportation.
    The creation of a presumption will not, however, eliminate the 
necessity of examining the evidence of extreme hardship in each case. 
An applicant will be required to submit a completed application that 
includes answers to questions relating to extreme hardship and to 
answer questions regarding hardship at the interview or hearing. 
Adjudicators will determine whether there is anything to disprove the 
presumption of extreme hardship and may ask additional questions at the 
interview or hearing, if necessary. The burden of proof will lie with 
the Service to overcome the presumption, if supported by evidence in 
the record. In this way, the likelihood that ABC class members will 
suffer extreme hardship is balanced against the necessity of a case-by-
case evaluation of the individual application. Eligibility criteria for 
the presumption, and the burden and standard of proof that will apply 
in presumption cases, are described in new Sec. 240.64(d).
    As noted in the supplemental material in the proposed rule, extreme 
hardship is determined on a case-by-case basis, taking into account the 
particular circumstances of the individual applicant. Matter of Hwang, 
10 I & N Dec. 448, 451 (BIA 1964). While each application must be 
assessed on its own merits, and each applicant must be found 
statutorily eligible before being considered for this discretionary 
form of relief, neither NACARA nor the Act limits the Attorney 
General's authority to create appropriate rules and procedures for 
determining eligibility for suspension of deportation or special rule 
cancellation of removal. The Attorney General may elect to create a 
rebuttable presumption of extreme hardship as part of the adjudication 
of such cases. Initially, the Department believed that including a list 
of relevant factors and general guidance regarding a determination of 
extreme hardship would be sufficient to address concerns raised by the 
public. The concerns outlined in comments to the proposed rule have led 
the Department to assess whether further measures, consistent with the 
statute, are appropriate based on the unique circumstances of NACARA 
beneficiaries. The Department has concluded that such measures would be 
appropriate and would further an interest in greater administrative 
efficiency.
    Further examination of the issue yields two conclusions. First, 
certain factors routinely noted in evaluations of extreme hardship may 
serve as strong predictors of the likelihood of extreme hardship in a 
given case. For instance, under the relevant case law, the longer an 
individual has lived in the United States beyond the requisite 7 years, 
the more likely he or she is to develop significant ties to the United 
States, and the more likely it is that the adjudicator will find 
extreme hardship. See Matter of O-J-O, Int. Dec. 3280 (BIA 1996) 
(dissenting opinion listing all published suspension cases). Similarly, 
the longer an applicant lives in the United States under protection 
from deportation, the more likely it is that he or she has developed 
long-term ties to the United States. See Matter of L-O-G, Int. Dec. 
3281 (BIA 1996).
    Second, the unique immigration history and circumstances of the ABC 
class has given rise to a group of approximately 240,000 NACARA-
eligible individuals who share the general predictors of extreme 
hardship described in the preceding paragraph, as well as other 
predictors that are unique to this class. The composition of the group 
itself is unusual, as it is composed of Salvadorans and Guatemalans who 
either entered the United States and filed for asylum prior to April 1, 
1990, or entered the United States prior to September 19, 1990, or 
October 1, 1990, respectively, and registered for benefits under the 
terms of the ABC settlement. These individuals fled circumstances of 
civil war and political violence in their homelands during the 1980s, 
and some applied for asylum in the United States. In 1985, advocates 
for Guatemalan and Salvadoran refugees, church groups, and refugees 
themselves brought suit against the United States Government for 
allegedly discriminatory treatment of Guatemalan and Salvadoran asylum 
applicants. The Department settled the litigation in 1990, following 
significant developments in its asylum and refugee law and procedures, 
including the creation of a professionally trained asylum officer corps 
and Congress's grant of TPS to Salvadorans.
    As a result of the settlement, ABC class members who complied with 
all registration requirements were entitled to remain in the United 
States until such time as they received either a de novo review of 
their asylum applications, or, for those whose cases had not been 
adjudicated previously, a determination under special procedures. For 
administrative reasons and because of provisions in the settlement 
agreement regarding asylum filing deadlines, these adjudications were 
postponed during the period of time in which Salvadorans, who comprise 
approximately 80 percent of the class, were protected from deportation 
under TPS (January 1, 1991, to June 30, 1992) and Deferred Enforced 
Departure (DED)

[[Page 27866]]

(June 30, 1992, to December 31, 1994). The special adjudications were 
further postponed to provide registered class members who had not yet 
applied for asylum an opportunity to do so under the terms of the 
settlement. Consequently, Guatemalans and Salvadorans who wished to 
continue to remain eligible for ABC benefits (and also free from the 
fear of deportation) were required to file an asylum application if 
they had not previously done so. Guatemalans had to have filed for 
asylum on or before January 4, 1995, while Salvadorans were required to 
have filed their applications no later than January 31, 1996 (with an 
administrative extension until February 16, 1996). Although ABC 
adjudications began in April 1997, they were suspended in February 1998 
in order to permit those ABC class members with pending asylum 
applications to apply for NACARA relief with the Service.
    Yet another shared characteristic pertaining to immigration history 
is the difficulty many Salvadorans and Guatemalans might have faced had 
they repatriated during the early 1990s. Although the Salvadoran 
government and opposition were engaged in peace negotiations throughout 
1990 and 1991, the United States recognized the need to provide special 
protection to Salvadorans residing in the United States. Congress first 
gave Salvadorans protection through TPS, and then, even after peace 
accords had been signed, the President extended protection through DED 
until the end of 1994. While these special protections were only 
formally accorded to Salvadorans, registered Guatemalan class members 
also benefited from these protections because it was not 
administratively efficient to conduct ABC interviews solely for 
Guatemalans. Furthermore, the Guatemalan peace accords were not signed 
until 1996, making it less likely that Guatemalan class members in the 
United States would have sought to repatriate prior to that time.
    The result of this unusual immigration history is the creation of a 
large class of individuals who share certain strong predictors of 
extreme hardship. By the time NACARA adjudications before the Service 
begin, all NACARA-eligible ABC class members will have been in the 
United States at least 9 years, while more than two-thirds will have 
lived here for a decade or more. Most NACARA-eligible ABC class members 
will also have lived in the United States for a prolonged period of 
time without fear of deportation, and will have done so continuously 
from the date of the settlement agreement to the present day, if they 
maintained their eligibility for ABC benefits by filing an asylum 
application by the relevant deadline. As previously noted, length of 
stay, coupled with some form of authorized presence, can be a strong 
indicator that an applicant is likely to suffer extreme hardship.
    Additional characteristics of the ABC class appear to add to the 
likelihood of extreme hardship. All NACARA-eligible class members who 
applied for asylum were entitled to work authorization in conjunction 
with their asylum applications. Similarly, all Salvadorans protected 
under TPS and DED were also entitled to work lawfully while under that 
protection. Recognizing that the expiration of DED in 1994 could harm 
those Salvadoran class members who had not yet filed an asylum 
application to maintain their eligibility for the benefits of the ABC 
settlement because the deadline for filing had not yet passed, the 
Government extended DED-based work authorization for Salvadorans until 
April 30, 1996. As a practical matter, ABC class members with work 
authorization are more likely to have access to steady employment, 
career opportunities, and reasonable wages than someone working in the 
United States unlawfully. Thus, it is more likely that ABC class 
members are participating more fully in the economy and would 
experience extreme hardship upon deportation or removal. While work 
authorization alone may not be a clear predictor of extreme hardship, 
the fact that class members were entitled to receive it, when viewed in 
addition to their long-term and authorized presence in the United 
States, adds to the likelihood that they have built strong ties to this 
country and would suffer extreme hardship if returned to El Salvador or 
Guatemala. For those class members with steady employment in the United 
States, the possibility of extreme hardship might be further compounded 
by reportedly significant underemployment in Guatemala and El Salvador.
    Consequently, ABC class members eligible for relief under section 
203 of NACARA will be presumed to satisfy the requirements for extreme 
hardship upon submission of a completed Form I-881. Although the 
Department has carefully considered requests to include other NACARA-
eligible applicants within the presumption, the facts do not appear to 
justify a presumption for those applicants. The ABC class is 
distinguished from other NACARA applicants by its distinct legal 
identity and the specific characteristics identified in this 
discussion. This interim rule will, therefore, continue to require 
applicants who are not ABC class members to bear the burden of proof in 
establishing extreme hardship. However, the Department recognizes that 
these predictive characteristics may be present in other cases. 
Accordingly, the rule will provide that evidence of an extended stay in 
the United States without fear of deportation and with the benefit of 
work authorization shall be considered relevant to the determination of 
whether deportation will result in extreme hardship.
    The Form I-881 and Instructions have been modified to address these 
changes. The form will explain that an applicant who is either a 
registered member of the ABC class, as described in Part II (a) of the 
form, or a Salvadoran or Guatemalan who applied for asylum prior to 
April 1, 1990, as described in Part II (b) of the form, will be 
presumed to meet the extreme hardship requirement unless evidence in 
the record establishes that neither the applicant nor a qualified 
relative is likely to experience extreme hardship. To qualify for the 
presumption, an applicant must answer all questions on the Form I-881 
regarding extreme hardship, but will not initially be required to 
attach documentary evidence to support his or her answers. The 
instructions will note, however, that the Service may request 
additional documents for any aspect of the application, including 
extreme hardship, at the time of the interview.
    The lack of one or more factors will not lead to a conclusion that 
the presumption has been overcome. Instead, adjudicators will evaluate 
an application on the basis of whether, given the presumption, the 
application contains evidence of factors associated with extreme 
hardship (as set forth in Sec. 240.58). Generally, the presumption will 
be overcome only under two circumstances. First, the presumption might 
be overcome in those cases where there is no evidence of factors 
associated with extreme hardship (for example, an applicant who has no 
family in the United States, no work history, and no ties to the 
community). Second, evidence contained in the record could 
significantly undermine the basic assumptions on which the presumption 
is based. For example, if an individual has acquired significant 
resources or property in his or her home country, the individual and 
his or her qualified family members may be able to return without 
experiencing extreme hardship, in the absence of other hardship factors 
in the case (such as a serious medical treatment for which there is no 
treatment in the home country).

[[Page 27867]]

    The adjudicator must evaluate all the evidence in the record and 
weigh it accordingly in making a determination as to whether the 
presumption has been overcome. In the case of applications submitted to 
the Service, a determination that the presumption has been overcome 
will result in referral to the Immigration Court or dismissal of the 
application, while such a determination by an Immigration Court will 
result in denial of the application.

Eligibility--Other Comments Regarding Extreme Hardship

    Several commenters requested that the Department modify 
Sec. 240.58(b) by deleting the sentence, ``To establish extreme 
hardship, an applicant must demonstrate that deportation would result 
in a degree of hardship beyond that typically associated with 
deportation.'' The commenters argued that this phrase could allow an 
adjudicator to discount an individual's particular hardship claim if it 
was similar to that of other applicants from the same country.
    The Department believes it is not appropriate to delete this 
sentence. The discussion of extreme hardship contained in 
Sec. 240.58(b) is based on the general principles set forth in numerous 
administrative law opinions and federal case law. These cases routinely 
note that extreme hardship must be something greater than the kind of 
disruption in a person's life that is likely to occur whenever someone 
is deported. As the supplemental discussion in the proposed rule 
explained, hardship does not have to be unique to be extreme, but the 
effect of deportation or removal on the individual or a qualified 
relative must be sufficiently clear to show that the hardship would be 
extreme.
    Several commenters asked the Department to modify the list of 
extreme hardship factors contained in Sec. 240.58 by providing expanded 
definitions for each factor. For instance, the commenters requested 
that Sec. 240.58(b)(4), regarding an alien's ability to find employment 
in the proposed country of removal, should be further modified to 
indicate that the employment must pay a living wage. Similarly, 
commenters requested that Sec. 240.58(b)(9), regarding the 
psychological effect of removal, list specific types of psychological 
harm, such as that which may be caused by an inability to support one's 
family. Other suggestions included specifically discussing membership 
in the ABC class as a relevant immigration history factor, as well as 
including remittances sent to family members abroad as a relevant 
factor under contributions to a community in the United States or to 
the United States, the impact of an environmental disaster within the 
proposed country of removal, and the difficulty of readjusting to one's 
country of origin.
    Section 240.58(b) contains a non-exclusive and broadly worded list 
of factors that have been found relevant by adjudicators when 
determining whether extreme hardship would result from an individual's 
deportation. The present rule specifically notes that the listed 
factors are those that have generally been recognized in case law, but 
that other factors that have not been listed may be particularly 
significant in an individual applicant's case. It would be difficult to 
list all of the factors that may arise in a particular case. 
Additionally, the attempt to do so could be counter-productive because, 
as the description of each factor becomes more detailed, it could 
restrict the focus of the inquiry to the more narrow description of 
each factor. Moreover, some of the suggested modifications, if included 
in the rule, would exceed the scope of the current understanding of 
extreme hardship and, therefore, exceed the intended purpose of 
codifying these factors. The broader language of the present rule 
permits greater flexibility for applicants and adjudicators and will 
allow the assessment of new factors to occur within the context of 
specific adjudications. As previously explained, the Department has 
made an exception only in the case of the factors related to VAWA, 
which have been independently developed in the course of the self-
petitioning process and are already in use in immigration proceedings.

Eligibility--Discretion

    Several commenters requested that Sec. 240.64(a) provide that 
status as an ABC class member or as a recipient of TPS or DED be 
considered a discretionary factor that weighs positively in favor of 
granting relief. The commenters further requested that the regulations 
explicitly provide that such authorized presence in the United States 
will outweigh all but the most egregious adverse discretionary factors.
    Although the fact that an applicant has received TPS or DED may be 
considered in the discretionary decision to grant suspension of 
deportation or special rule cancellation of removal, the Department 
believes that it should not be given any more weight than other 
discretionary considerations. Immigration history, including the 
receipt of TPS or DED, is an appropriate factor to consider when 
evaluating extreme hardship during the eligibility determination. As 
such, it is unnecessary to require an adjudicator to give additional 
weight to immigration history in making a final determination.

Eligibility--Evidence

    Several commenters requested that the regulations provide that the 
applicant's credible testimony by itself may be sufficient to satisfy 
the eligibility requirements. Other commenters stated that the 
regulation must include reference to the use of ``any credible 
evidence'' in any case involving battered spouses and children under 
section 244(a)(3) of the Act, as in effect prior to IIRIRA, or section 
240A(b)(2) of the Act.
    The Department declines to provide that credible testimony may be 
sufficient to establish eligibility for suspension of deportation or 
special rule cancellation of removal. In contrast to an applicant for 
asylum for whom credible testimony may be sufficient to establish 
eligibility, an applicant for suspension of deportation or special rule 
cancellation of removal may reasonably be expected to provide 
corroborating evidence of certain eligibility criteria. An asylum 
applicant understandably may not be able to provide documentary 
evidence of the circumstances that caused flight, given the nature of 
the claim. However, an individual who has lived in the United States 
for at least 7 years should be able to provide, where necessary, some 
form of documentary evidence of physical presence in the United States 
and, where necessary, corroboration of community ties or other evidence 
establishing that removal would result in extreme hardship.
    With respect to applicants for suspension of deportation or 
cancellation of removal who are eligible to apply for relief under the 
special standards of section 244(a)(3) of the Act, as in effect prior 
to IIRIRA, or section 240A(b)(2) of the Act, those statutory provisions 
already provide that credible testimony may be sufficient to establish 
material facts in a case. Because the interim rule affects these cases 
only with respect to extreme hardship, it is unnecessary and 
potentially confusing to carve out a special provision within the 
NACARA implementing rule to address this issue.

Application Process

Fee for Filing NACARA Application

    Comments regarding the proposed fee structure ($215 for individual 
applications, with a $430 family cap) ranged from adopting the $100 fee 
required for an application filed with the Immigration Court to 
expanding the

[[Page 27868]]

family cap to include family members who do not submit their 
applications simultaneously. One commenter requested that the 
regulations explain the fee requirements for someone who already paid a 
$100 application fee to submit an application for suspension of 
deportation or cancellation of removal in Immigration Court 
proceedings, but then requested that the Immigration Court or Board 
administratively close the case to allow the individual to apply with 
the Service.
    As explained in greater detail in the supplementary information to 
the proposed rule, the Service is required by statute to fund the 
processing of applications through user fees. No appropriations have 
been provided by Congress from tax dollars to adjudicate applications 
for relief under section 203 of NACARA. The cost to the Service to 
adjudicate applications must be funded from the Immigration 
Examinations Fee Account, which 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. Having 
carefully studied the estimated costs of adjudicating applications 
under section 203 of NACARA, the Service calculated that a fee of $215 
for a single applicant, or $430 for a family filing at the same time, 
is necessary to recover costs associated with processing the 
applications. Therefore, the filing fee cannot be lowered to $100.
    Similarly, the benefit of the family cap cannot be extended to 
those persons who do not file simultaneously because the $430 family 
cap takes into account administrative cost savings achieved by 
processing and adjudicating multiple cases as a single unit. Permitting 
applicants who file separately to take advantage of the cap undermines 
the projected savings and creates additional administrative costs. The 
only way to account for those costs would be to increase the fee for 
individual applications or to increase the family cap. The current fee 
represents an appropriate balance between the need to cover the costs 
of adjudication and avoiding prohibitively expensive filing fees.
    The Department believes the current language in the regulation 
addresses the fee requirements for applying with the Service. 
Regardless of any fees an individual has paid in the past in the course 
of immigration proceedings, each individual who submits an application 
with the Service will be required to pay the full $215 application fee 
or the $430 family fee, as applicable. This includes any NACARA 
beneficiary who has already paid $100 to pursue an application for 
suspension of deportation or special rule cancellation of removal in 
immigration proceedings.
    There are two general categories of NACARA beneficiaries who may be 
in immigration proceedings that have been administratively closed to 
allow the beneficiary to apply for relief with the Service. The first 
category comprises dependents of NACARA beneficiaries who have applied 
for section 203 NACARA relief with the Service. An individual in the 
first category may or may not have already submitted a fee to EOIR, 
depending on whether the individual has applied for any relief that 
requires an application fee. In such cases, the individual may opt to 
remain within the jurisdiction of the Immigration Court, rather than 
pay a higher fee to apply with the Service.
    The second category comprises individuals who had final orders of 
deportation or removal that were reopened to allow the individuals to 
apply for benefits under section 203 of NACARA, and who then move to 
administratively close the proceedings to apply for benefits with the 
Service. An applicant is not required to pay the $100 filing fee for a 
suspension of deportation or special rule cancellation of removal 
application submitted in order to perfect a motion to reopen. The 
applicant is required only to submit to EOIR a copy of the application 
and supporting documents that would be filed if the case is reopened. 
The applicant is not required to pay the application fee until after a 
motion to reopen has been granted and the applicant has thus been 
allowed to apply for relief. At that time, the applicant will have a 
choice to either pay the fee and submit the original application to 
EOIR for adjudication by an Immigration Court, or ask that the case be 
administratively closed so that the applicant may apply with the 
Service. If the applicant has already paid the $100 to apply with EOIR 
and wishes to apply with the Service, the applicant will nonetheless be 
required to pay the full $215 application fee.

Filing the Form I-881 With the Service To Perfect a NACARA Motion To 
Reopen

    One commenter requested that the rule should permit an applicant 
who must file a motion to reopen under section 203(c) of NACARA to 
submit the Form I-881 directly to the Service before his or her case 
has been reopened. Proof of filing with the Service would then permit 
the Immigration Court to reopen the case. The Department declines to 
adopt this procedure because it is contrary to 8 CFR 3.43, which 
establishes the procedure for NACARA motions to reopen. Additionally, 
this proposal, if adopted, would create an inefficient process for the 
Service and might result in applicants paying fees to the Service for 
applications that are never adjudicated. The proposed procedure to 
allow an individual to first submit an application to the Service 
before an Immigration Court has granted a motion to reopen would lead 
to instances in which an applicant pays $215 to the Service, but then 
is not allowed to proceed on the application, because an Immigration 
Court denies the motion to reopen or denies the motion to close the 
case once it has been reopened.

Limited Submission of the Form EOIR-40 to the Service

    Many commenters requested that the regulations allow the limited 
submission to the Service of an already completed Form EOIR-40, for 
those applicants who submitted the Form EOIR-40 in proceedings that 
have been administratively closed.
    The Department agrees that it would be unnecessarily burdensome for 
an applicant who had submitted a completed Form EOIR-40 to the 
Immigration Court to then complete a Form I-881 in order to apply with 
the Service. Most of the information requested on the Form I-881 is 
also requested on the Form EOIR-40. However, the information on the 
first page of the Form I-881 is necessary for the Service to determine 
jurisdiction, eligibility to apply, and for completion of data entry 
when accepting the application. Therefore, an applicant who filed a 
Form EOIR-40 before the date that the Form I-881 is available may apply 
with the Service by submitting the Form EOIR-40 attached to a completed 
first page of the Form I-881.
    Also, any applicant who is filing with the Service a Form I-881 or 
Form EOIR-40 (with page 1 of the Form I-881 attached), and was 
previously in proceedings before EOIR that have been administratively 
closed or continued should attach to the application a copy of the 
order to administratively close the proceedings issued by the 
Immigration Court or Board. This documentation requirement has now been 
added to the instructions to the Form I-881.

[[Page 27869]]

E. Adjudication

Procedure for Interview Before an Asylum Officer--Fingerprinting, 
Rescheduling of Fingerprint and Interview Appointments

    There were several comments regarding provisions governing 
fingerprinting and the rescheduling of fingerprinting appointments and 
interviews. Several commenters requested that fingerprinting 
appointments should be scheduled at the designated Application Support 
Center (ASC) nearest to applicant's home. Others requested that the 
regulation specify that an applicant may submit a request to reschedule 
the interview or fingerprinting appointment and should also provide a 
procedure for rescheduling the interview or the fingerprinting 
appointment. The comments suggested that the regulation allow 
applicants to make the requests either in writing or by phone and that 
the Service should assign staff to answer the phone. One commenter 
requested that all notices to applicants explain the procedure for 
canceling and rescheduling fingerprinting appointments and interviews. 
Another commenter suggested that the regulations incorporate paragraph 
13 of the ABC settlement agreement, which provides special procedures 
to reschedule interviews for class members eligible for ABC benefits. 
Many commenters suggested that the ABC settlement procedures governing 
failure to appear for interviews should be applied to all NACARA 
adjudications.
    The Service recognizes that an applicant must sometimes reschedule 
interviews and fingerprint appointments and intends to accommodate all 
reasonable requests, as long as resources permit and applicants do not 
appear to be abusing the process for purposes of delay.
    With respect to initial fingerprint appointments, each applicant 
will be scheduled for fingerprinting at the ASC having jurisdiction 
over the applicant's place of residence. Only certain ASCs presently 
have the capability to accept requests for rescheduling. For an 
applicant scheduled for a fingerprint appointment at an ASC with the 
capability of rescheduling fingerprint appointments, the appointment 
notice will provide the applicant with the information necessary to 
request a rescheduling. For an applicant scheduled for an appointment 
at ASCs without this capability, the applicant will automatically be 
rescheduled by the Service for another fingerprint appointment if the 
Service does not receive confirmation that the applicant appeared for 
fingerprinting during the time period designated on the appointment 
notice.
    The proposed rule required an applicant to show good cause in order 
to reschedule a missed interview. In order to avoid conflicts with the 
ABC settlement requirements, language governing the rescheduling of 
interviews contained in Sec. 240.68 of the proposed rule has been 
amended to mirror the language of paragraph 13 of the ABC settlement 
agreement. A reasonable excuse provided to the Service will be 
sufficient to obtain a rescheduling of the fingerprint appointment or 
NACARA interview. A request to reschedule an interview should be 
submitted in writing to the asylum office having jurisdiction over the 
case before the date of the interview, where the need to reschedule is 
known by the applicant prior to the interview date, or immediately 
after the scheduled interview when the circumstances that led the 
applicant to miss the interview could not be foreseen in advance. Any 
significant delay by an applicant in submitting a written request to 
reschedule an interview increases the risk that the Service will find 
the applicant's failure to appear for an interview as unexcused, thus 
resulting in dismissal of the NACARA application or referral of the 
application to EOIR.
    It is the applicant's duty to provide the Service with a mailing 
address to which the fingerprint and interview notice can be delivered. 
For cases in which the Service fails to send the appointment notice to 
the applicant's current address, the regulation continues to treat the 
failure to appear for fingerprinting or interview that results from the 
Service error as excused, provided that the applicant properly 
submitted his or her current address to the Service prior to the date 
the notice was mailed. In such circumstances, the Service would move to 
regain jurisdiction, if the case has already been referred to EOIR.
    The Service does not presently have the capability to take requests 
to reschedule fingerprint appointments or interviews over the phone, 
and believes that a written record of such requests is in the 
applicant's best interests, because it creates a record of the 
applicant's attempt to comply with application requirements. The 
Department also does not agree with the comment that applicants should 
not be sanctioned for failure to appear unless they have been notified 
of the interview by certified mail or personal service. An asylum 
interview can be sent by regular mail to an individual's last address 
properly provided to the Service. A failure to appear for the asylum 
interview without prior authorization may result in dismissal of the 
application or waiver of the right to an interview. 8 CFR 208.10.
    One commenter requested that fingerprinting delays not be permitted 
to delay the adjudication and approval by the Service of an application 
for relief under section 203 of NACARA. The Service intends to make no 
change in its plan to schedule NACARA applicants for interviews on 
their applications for suspension of deportation or special rule 
cancellation of removal only after the Service has received a 
definitive response from the Federal Bureau of Investigation (FBI) that 
a full criminal background check has been completed. This will allow an 
asylum officer to make a decision on the eligibility for NACARA relief 
at the time of the interview and give the Service the ability to grant 
an applicant who has an approvable NACARA claim legal permanent 
resident status on the day of the interview, where appropriate. Unlike 
the affirmative asylum process, there will be no need to issue 
recommended approvals to applicants for NACARA relief while the Service 
awaits fingerprint clearance.
    Recent improvements in fingerprint processing were designed to 
reduce delays and should not affect interview scheduling and the 
adjudication of applications for suspension of deportation or special 
rule cancellation of removal under NACARA. Among the improvements in 
fingerprint processing are the automatic scheduling of a second 
fingerprint appointment for an applicant whose fingerprints are 
rejected upon first submission to the FBI, and the notification of 
asylum offices when an applicant's fingerprint submission has been 
rejected by the FBI for a second time.

Consequences for Failure to Appear

    Several commenters requested amendments to the provisions regarding 
the consequences for failure to appear for an interview. Many 
commenters maintained that dismissal of an application for failure to 
appear for fingerprinting is a disproportionate penalty and that, 
instead, the applicant should have to pay the $25 fingerprinting fee 
again and be rescheduled for another fingerprinting appointment. 
Several commenters proposed that the regulations be amended to require 
the Service to grant suspension of deportation or special rule 
cancellation if it is clear from the application that the application 
should be granted, even if the person fails to appear for an interview. 
However, if the applicant is not clearly eligible for relief

[[Page 27870]]

and has not shown ``good cause'' for failure to appear, the 
application, in the view of the commenters, should be referred to the 
Immigration Court and not dismissed.
    The Department declines to adopt these suggestions for minimizing 
the consequences of failing to appear for fingerprinting or for an 
interview. A proper determination of eligibility for suspension of 
deportation or special rule cancellation of removal cannot be made 
without interviewing the applicant. Suspension of deportation and 
special rule cancellation of removal are discretionary forms of relief 
with several substantive requirements that cannot be evaluated based 
upon a paper record. Therefore, the Service cannot properly grant an 
application for relief under section 203 of NACARA if an applicant 
fails to appear for an interview.
    The Department believes that it is appropriate to adopt procedures 
restricting access to the Service application process when individuals 
fail to comply with procedural requirements. To do otherwise would 
disrupt the system and create delays that unfairly penalize applicants 
who complied with the requirements. The provisions allowing referral or 
dismissal are not only reasonable, but also more generous than other 
immigration provisions that permit denial of applications for failure 
to comply with interviewing or fingerprinting requirements.
    In almost all cases in which an applicant fails to appear for an 
interview or fingerprinting appointment, the Service will refer the 
application to an Immigration Court for a decision. Therefore, the 
applicant will still have the opportunity to apply for suspension of 
deportation or special rule cancellation of removal before the 
Immigration Court.
    The Service will not refer an application to the Immigration Court 
when the applicant does not appear inadmissible or removable. In such 
cases, the Service will dismiss the application without prejudice so 
that it does not remain pending indefinitely with the Service. If the 
application were to remain pending indefinitely with the Service, the 
applicant would continue to be eligible for employment authorization, 
even though he or she was not pursuing the application. To avoid such a 
procedural loophole, the Service must be able to dismiss the 
application. If the applicant still wishes to pursue relief under 
section 203 of NACARA and is otherwise still eligible to file for 
relief with the Service, he or she could file a new application.

Consequences for Failing to Bring an Interpreter

    One commenter stated that the failure to bring an interpreter to 
the interview should not be treated as a failure to appear for the 
interview and that, instead, the case should be rescheduled.
    As in the case of asylum interviews, the Service intends to include 
in the interview notice notification that the applicant is required to 
bring an interpreter to the interview if the applicant is not fluent in 
English. Therefore the applicant will be given notice of the need to 
bring a qualified interpreter to the interview.
    It has been the practice of the Asylum Program to reschedule all 
asylum interviews in which an applicant fails, for the first time, to 
bring an interpreter to the interview or, for the first time, brings an 
incompetent interpreter to the interview. The Service intends to 
continue this practice with interviews conducted pursuant to NACARA, as 
long as resources permit the liberal rescheduling policy. However, to 
retain the administrative flexibility necessary to continue processing 
a large number of applications should a large number of applicants 
begin to appear for interviews without interpreters, the Department 
does not believe it appropriate to mandate such rescheduling by 
regulation.

Access to Interpreters

    Several commenters requested that the Service provide Spanish 
speaking-asylum officers at various points in the NACARA interview and 
decision-issuing process to relieve applicants of the burden of having 
to provide interpreters and to help applicants understand the decisions 
they receive. The Service is unable to change the present requirement 
that an applicant provide his or her own interpreter if unable to 
proceed in English. The Service has neither the qualified staff nor the 
resources to provide Spanish-speaking asylum officers at all steps of 
the NACARA process.

F. Decisions by the Service

Concessions of Inadmissibility and Deportability

    One commenter requested that the Service not ask a NACARA applicant 
to sign a concession of inadmissibility or deportability until the last 
stage of the decision-making process, after fingerprints have cleared. 
One commenter requested that the explanation given to the applicant 
regarding the consequences of certain decisions an applicant will need 
to make regarding concession of inadmissibility and deportability and 
whether to continue to pursue a pending asylum request should not be 
delayed until the day the applicant returns to receive the decision.
    The Department agrees with these comments. Section 240.70(b) of the 
interim rule provides that, ``[i]f 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 will be 
asked to sign an admission of deportability or inadmissibility.'' This 
is the last step before an individual is granted relief, because no 
preliminary decision may be made until after the fingerprints have been 
cleared. Pursuant to Sec. 240.67(a) of the rule, an applicant subject 
to the fingerprinting requirements will be interviewed only after the 
individual has complied with the fingerprinting requirements, and the 
Service has received a definitive response from the FBI that a full 
criminal background check has been completed.
    PART III, section (F) of the instructions to Form I-881 presently 
contains an explanation of the requirement that an applicant sign an 
admission of inadmissibility or deportability before he or she can be 
granted suspension of deportation or special rule cancellation of 
removal by the Service. The Service also intends to present the 
applicant with a further explanation of the requirement to admit 
inadmissibility or deportability, as well as the opportunity to 
continue to pursue a request for asylum or to withdraw the asylum 
application should the application for suspension or special rule 
cancellation be approved at the time of the interview. The Service will 
also continue to consider the feasibility of providing this important 
information to the applicant prior to the interview.

Timing of Approval of NACARA Application

    Many commenters requested that the regulations permit an asylum 
officer to grant an application at the time of interview. The 
Department intends to do so in appropriate cases. The interim rule, at 
Sec. 240.70(a), will permit an asylum officer to grant an application 
at the time of the interview. The Service will have the discretion to 
determine the circumstances under which it is appropriate for an asylum 
officer to grant an application at the time of the interview.

Notice of Reasons for Referral or Dismissal

    Many commenters requested that the regulations require the Service 
to justify

[[Page 27871]]

the reason for not granting suspension of deportation or special rule 
cancellation of removal. One comment stated that the Service should, at 
a minimum, include in a decision a list of factors considered in 
evaluating whether removal would result in extreme hardship.
    The Department agrees that the referral or dismissal letter served 
on an applicant should include notification of the reason or reasons 
for the decision, and the Service intends to include such notification 
in all referral and dismissal letters. The decision will not contain a 
list of all the factors considered in evaluating whether removal would 
result in extreme hardship. Rather, the contents of such letters will 
model the referral letters issued after an asylum interview, briefly 
indicating the basis for the decision. This process will allow the 
Service to adjudicate NACARA applications in an efficient and timely 
fashion, while also requiring the deciding officer to give the 
applicant an explanation for why the claim is being referred to the 
Immigration Court. Section 240.70(d) and (e) now provides that the 
applicant will be given written notice of the statutory or regulatory 
basis for the referral or dismissal.

Presumed Withdrawal of an Asylum Application

    Several commenters requested that the proposed revisions to 8 CFR 
208.14, relating to the presumption of abandonment of an asylum 
application when the applicant is granted legal permanent resident 
status, be revised to give an applicant granted adjustment of status to 
lawful permanent resident 60 days, rather than the proposed 30 days, to 
decide whether to pursue a pending asylum application, and that the 
regulations should also require the Service to provide written notice 
in Spanish and English advising the applicant of the deadline and its 
significance.
    The revisions to 8 CFR 208.14 are primarily aimed at addressing 
those circumstances in which an applicant for asylum adjusts his or her 
status to that of lawful permanent resident by some other means while 
the asylum application is pending. The revised Sec. 208.14 will not 
apply to the majority of applicants under section 203 of NACARA, 
because the vast majority of those applicants are eligible for benefits 
of the ABC settlement agreement. As such, the processing of their 
asylum applications is largely governed by the 1990 asylum regulations, 
which do not contain a similar provision allowing the Service to 
presume that an asylum application is abandoned. This revised provision 
will apply only to lawful permanent resident applicants who are not 
eligible for ABC benefits, such as those who adjust status under 
section 202 of NACARA or through other means such as relative 
petitions.
    The Department believes that it is unnecessary to increase the 
notice period to 60 days. If an individual needs additional time to 
consult with counsel, he or she may submit a request for additional 
time. If an individual's application is presumed withdrawn, but the 
individual still wishes to pursue asylum in the United States, even 
though he or she has lawful permanent resident status, the individual 
may submit a new asylum application to the Service for adjudication.
    The Department agrees that the written notice should be required 
and has incorporated that requirement into Sec. 208.14. However, the 
notice will not be translated into any other languages.

Distinction Between ABC and NACARA Adjudications

    Several commenters stated that the regulations should recognize the 
Service's obligations under paragraph 15 of the ABC settlement 
agreement regarding preliminary asylum recommendations and should apply 
those provisions to all NACARA beneficiaries.
    Paragraph 15 of the ABC settlement agreement provides very specific 
procedural requirements for making preliminary and final decisions on 
eligibility for asylum. For example, it specifies procedures for 
sending asylum assessments to the Department of State and requires the 
Service to provide a written notice of intent to deny an asylum 
application prior to issuing a final adverse decision. It is limited to 
asylum applicants who meet the criteria for eligibility for ABC 
benefits as provided in the settlement and is not relevant to the 
adjudication of applications under section 203 of NACARA, which is an 
application for a completely separate form of relief. While the 
interview for asylum eligibility and relief under NACARA may be 
combined, the decision-making process is distinct. The parties to the 
settlement agreement--the Service, EOIR and the Department of State--
remain bound by the provisions of the settlement agreement and will 
continue to comply with all aspects of the settlement agreement in 
adjudicating asylum requests filed by ABC class members who are 
eligible for the benefits of the settlement agreement. The Department 
declines to incorporate the settlement agreement requirements governing 
the processing of ABC asylum applications into regulations governing 
procedures for the unrelated benefit of suspension of deportation and 
special rule cancellation of removal, or extending the ABC settlement 
agreement provisions governing asylum adjudication to applicants not 
covered by the settlement agreement.

Effect of Mandatory Pick-up on ABC Agreement

    Several commenters assert that Sec. 240.70(a), which requires 
applicants to return to an asylum office to receive a decision, 
violates the ABC settlement agreement because the settlement agreement 
does not require this.
    The Department disagrees with this interpretation of the ABC 
settlement agreement. First, Sec. 240.70(a) provides for service of a 
decision on eligibility for suspension of deportation or special rule 
cancellation of removal, and the ABC settlement agreement has no 
bearing on any process relating to Service adjudication of a request 
for suspension of deportation or special rule cancellation of removal. 
Second, neither the ABC settlement agreement nor the 1990 regulations, 
which also govern adjudication of ABC asylum applications, contains any 
provisions governing the service of a final decision on eligibility for 
asylum. Therefore, the Department believes that requiring an ABC 
applicant to return to the Asylum Office to receive an asylum decision 
would not be inconsistent with the settlement agreement. It would make 
little sense to require an individual to return to an Asylum Office to 
receive a decision on the NACARA application, but to prohibit the 
Asylum Office from informing the applicant of any final or preliminary 
decision on the asylum application while the applicant is at the Asylum 
Office. It would be much more efficient for both the Service and the 
applicant for the Service to deliver both decisions at once, where 
appropriate.

Restriction of Asylum Officer's Authority

    Another commenter requested that the regulations provide that no 
final decision may be made by a Service officer, but can be made only 
by an Immigration Court. The commenter also stated that applicants must 
be made aware of the right to appeal a decision to the Board of 
Immigration Appeals.
    The Department declines to adopt the recommendation that the 
regulations require that the final decision can be made only by an 
Immigration Court. If an asylum officer were not given authority to 
issue a final grant of suspension of deportation or special

[[Page 27872]]

rule cancellation of removal, there would be no benefit to allowing 
NACARA beneficiaries to apply with the Service for relief under section 
203 of NACARA. The rule, however, does not give asylum officers 
authority to deny relief under section 203 of NACARA. If an asylum 
officer determines that an applicant is not eligible for a grant of 
suspension of deportation or special rule cancellation of removal and 
has not been granted asylum, the asylum officer must refer the 
application to an Immigration Court for adjudication. The exception 
would be those cases in which the applicant does not appear 
inadmissible or deportable and therefore could not be placed in removal 
proceedings. In such rare instances, the application would be 
dismissed.
    The Department does not believe it is necessary for the rule to 
require that an applicant be made aware of the right to appeal a 
decision to the Board of Immigration Appeals, because 8 CFR 3.3 already 
provides that a party affected by a decision who is entitled to appeal 
an Immigration Court's decision to the Board of Immigration Appeals 
must be given notice of the right to appeal.

G. Miscellaneous Comments

Employment Authorization

    Several commenters requested that the regulations specify where to 
file an application for employment authorization. The Department 
declines to provide this procedural information in the regulation. It 
is more appropriate that such procedural information, which is subject 
to change, be provided in the instructions to the application used to 
obtain the benefit. The instructions to the Form I-881 have been 
amended to state that an individual who does not have employment 
authorization and is eligible for employment authorization under 8 CFR 
274.12(c)(10) should submit a completed Form I-765, with his or her 
completed Form I-881, to the Service Center that has jurisdiction over 
the Form I-881.

Extension of Deadline to Perfect NACARA Motion to Reopen

    One commenter requested that the deadline to complete a motion to 
reopen be extended. On January 14, 1999, EOIR announced that it would 
extend the deadline for supplementing NACARA motions to reopen that 
were submitted on or before September 11, 1998. Under 8 CFR 3.43, as 
amended, NACARA motions to reopen must be supplemented with an 
application and supporting documents no later than 150 days after the 
effective date of the rule implementing section 203 of NACARA. 64 FR 
13663 (March 22, 1999). Because the statute limited the initial filing 
period, the September 11, 1998, deadline for submitting initial motions 
cannot be extended. The Service has agreed to consider joining in 
motions to reopen in certain cases for NACARA applicants who were prima 
facie eligible for relief as of September 11, 1998, and who can 
establish a valid reason for failing to submit a timely motion to 
reopen.

H. Comments on the Form I-881 and Instructions

    The public comments on the Form I-881, Application for Suspension 
of Deportation or Special Rule Cancellation of Removal, ranged from 
requests for simple word changes and comments of significant 
complexity, to a request that the Form EOIR-40 be used for NACARA 
applications instead of the Form I-881.
    In response to the comment that suggested that the Form EOIR-40 be 
used for NACARA applications for suspension of deportation or special 
rule cancellation of removal instead of creating a new form, the 
Department believes that the Form I-881 is useful in (1) drawing out 
the basis for an applicant's claim to eligibility for NACARA section 
203 relief, and (2) providing NACARA applicants who may submit the 
application for suspension of deportation or special rule cancellation 
of removal to the Service without the aid of an attorney or 
representative some guidance as to the type of factors that are 
relevant to the determination of extreme hardship. Despite the decision 
by the Attorney General to establish a rebuttable presumption of 
extreme hardship for certain NACARA beneficiaries, applicants will 
still need to provide responses to the questions in the Form I-881 
directed towards the extreme hardship issue in order to qualify for 
suspension of deportation or special rule cancellation of removal.
    Certain Changes to the form or instructions reflect substantive 
changes made to the regulation. For example, both PART 1(C) of the 
Instructions and Part 2(b) of the Form I-881 are amended to read ``A 
Guatemalan or Salvadoran national who filed an application for asylum 
on or before April 1, 1990,'' in light of the Department's decision, 
previously discussed, to adopt a broader interpretation of the 
eligibility language in section 309(c)(5)(C)(i)(II) of IIRIRA, as added 
by section 203 of NACARA. The Department has deleted language that 
limited eligibility to those Guatemalan or Salvadoran nationals who 
filed their asylum applications by April 1, 1990, directly with the 
Service.
    In response to several comments, PART II (C) of the Instructions is 
amended to indicate the fee required when submitting the Form I-881. 
Many comments also requested that the Service accept a Form EOIR-40 
instead of a Form I-881 when an applicant has already filed the Form 
EOIR-40 with EOIR. As stated earlier, the Service will accept a 
previously filed Form EOIR-40 as a NACARA application, so long as the 
applicant fills out page 1 of the Form I-881 and attaches it to the 
front of the Form EOIR-40 for data entry purposes. At PART III(C) and 
PART IV, the Instructions are amended to clarify when the Form I-881 
must be used and when the Form EOIR-40 may be used.
    Several commenters requested that the language in the Instructions 
and the Form I-881 be amended regarding the type of evidence of tax 
payments that should be submitted, and asked that evidence of tax 
payments be accepted at the interview or hearing and not required to be 
attached to the application, pointing out the difficulty of obtaining 
this information quickly. PART V of the Instructions and Part 4, 
question 4 of the Form I-881 now provide that an applicant may submit 
any evidence of filing a tax return, including Internal Revenue Service 
computer printouts, and does not specify that the evidence should be a 
tax return. The Instructions indicate that the Form I-881 may be 
supplemented at the time of interview or hearing. The Department 
declines to amend this section or other sections that request 
documentation be attached to the Form I-881, because the Service Center 
will not reject the application of an applicant who does not have 
records of tax payments or other documentation at the time he or she 
submits the Form I-881, and the applicant may submit this information 
at the time of the interview or hearing.
    At PART VI of the Instructions for the Form I-881, language has 
been added in response to a commenter requesting information on where a 
person should apply for employment authorization. The Instructions now 
note that an individual who wishes to work, who does not have 
employment authorization, and is eligible for employment authorization 
under 8 CFR 274.12(c)(10), should submit a completed Form I-765 with 
his or her completed Form I-881 to the Service Center that has 
jurisdiction over the Form I-881.
    Part 4 of the Form I-881 includes a change in the order of the 
subdivisions in that Part in response to a number of

[[Page 27873]]

comments requesting a more logical flow of the elicited information. 
Several other changes have been made in Part 4 of the Form I-881 in 
response to comments. Section 1 has been amended to clarify that 
periods of ``unpaid employment'' may include work as a homemaker, 
intern, etc. In section 2, the order of the types of assets has been 
changed. In response to a number of comments, the term ``motor 
vehicles'' replaces ``autos,'' and a column for spouse's assets is now 
included. Also, the section now requests that information on assets 
owned by ``self'' include those assets jointly owned with ``spouse or 
others.''
    Several commenters urged that the question relating to receipt of 
public benefits, contained at Part 4, question 3 of the form, be 
deleted or limited to requesting information regarding only the receipt 
of cash benefits. The commenters stated that the case law permits but 
does not require that the receipt of public benefits be considered as a 
discretionary factor. The commenters argued that the presence of such a 
question on the form would have a chilling effect on the legitimate 
access and use of programs promoting public health and well-being by 
NACARA beneficiaries and their United States citizen family members.
    The Department initially included the question on the form to avoid 
surprise to an applicant who might be asked about receipt of public 
benefits at the hearing or interview, and to give the applicant an 
opportunity to prepare a statement of the circumstances that led to the 
receipt of public benefits. However, in light of forthcoming guidance 
from the Department regarding the broader public charge issues, the 
question will be deleted from the Form I-881. Omission of the question, 
however, does not mean that an adjudicator cannot raise the issue in 
the course of an interview or hearing in appropriate cases. In the 
context of suspension of deportation or cancellation of removal, 
questions about receipt of public benefits are not necessarily meant to 
draw inferences against an applicant. A full and accurate understanding 
of an applicant's financial condition is always relevant to the 
determination to grant or deny relief. In light of the ongoing review 
by the Department, and the possibility that this question may 
discourage people from applying for benefits to which they are 
entitled, the Department has decided that the limited value of reducing 
the element of surprise is outweighed by broader public health 
concerns.
    Parts 6 and 7 of the Form I-881, which request information about 
the applicant's parents and children, have been switched from their 
previous order, as requested by several commenters. In addition, the 
request for information about children's weekly earnings and whether 
the applicant supports his or her children financially has been deleted 
as overly burdensome. Question 3 in this Part, which elicits 
information about the applicant's support of family members, has been 
deleted. Also, Part 8 of the previous version of the Form I-881, where 
information about the applicant's community ties was requested, has 
been deleted, and a question regarding community ties has been 
incorporated into Part 9 on Extreme Hardship.
    In response to a number of suggestions to shorten or simplify the 
hardship section of the Form I-881, the spaces between questions have 
been eliminated and the form requests the applicant to provide 
explanations to the answers on a separate sheet of paper. Additionally, 
as requested in some comments, this section has been modified to 
request ``yes/no'' answers to questions regarding extreme hardship. The 
questions elicit the same type of information as the questions on the 
original version of the Form I-881. Question 11 has been added to Part 
9 of the Form I-881 to elicit information regarding community ties. 
Finally, this part explains that applicants who meet the eligibility 
requirements for NACARA suspension of deportation or special rule 
cancellation of removal listed in (a) or (b) of Part 2 on page 1, and 
thus are entitled to a rebuttable presumption of extreme hardship, do 
not need to submit documentation with their application to support 
their claim of extreme hardship. This is also stated in PART II(A) and 
PART V of the Instructions.
    At PART II(A), the Instructions are amended to include a reference 
to ``page 8'' of the form, with the explanation that page 8 may be used 
as an additional sheet. Page 8 of the Form I-881 has been added to 
provide applicants with a blank sheet of paper to allow them to 
supplement or explain responses provided in other parts of the form, 
such as the hardship section previously described. In addition, Part 10 
of the previous version of Form I-881, Miscellaneous Information, is 
now Part 8.

Requested Changes not Incorporated into the Form I-881

    Additional lines for requested information have been added, and the 
order of questions has been changed where possible and appropriate, as 
requested by the commenters and explained previously. However, due to 
space limitations and in an effort to avoid making the form longer, not 
all requests to move sections or add spaces could be accommodated. For 
example, the number of lines provided to list places of residence has 
not been increased (an applicant must attach additional sheets if more 
space is needed to complete the section).
    One commenter requested that a row for debts and other liabilities 
be added to the information requested about an applicant's assets in 
Part 4, section 2 of the form. The Department does not believe it is 
necessary to add a row requesting information about debts and 
liabilities of an applicant. When requesting information about the 
value of any motor vehicles or real estate owned by applicant and his 
or her spouse, Part 4, section 2 of the Form I-881 specifically asks 
that the value listed should be ``minus any amount owed'' on the 
property. It is sufficient that the individual list only the equity 
owned in the assets.
    One commenter suggested that the introductory paragraph in Part 9 
of the form be changed to make it easier for the applicant to complete 
the form. This commenter proposed that the introductory paragraph list 
the factors considered in establishing extreme hardship, followed by a 
single open-ended question asking for an explanation of all hardship 
factors relevant to the applicant's claim.
    As noted previously, Part 9 now asks for responses to ``yes/no'' 
questions and explanations for those responses. Each question elicits 
information about a particular hardship factor, except for the last 
question in the section, which asks for other hardship the applicant 
would suffer if removed from the United States. Specific questions 
eliciting information about each particular extreme hardship factor 
alert the applicant to the kind of information that is relevant to 
demonstrate extreme hardship. The last question is open-ended and gives 
the applicant the opportunity to expand upon circumstances not covered 
by previous questions. The Department believes that the present format, 
where particular hardship questions are followed by an open-ended 
hardship question, best elicits information required for the 
adjudicator to make a determination on extreme hardship.
    Several commenters argued that the information requested in Part 8 
of the form, Miscellaneous Information, should be limited to the 
applicable statutory period of good moral character.

[[Page 27874]]

    As explained in an earlier response to comments on the form that is 
on file with the Director, Policy Directives and Instructions Branch, 
questions that request information beyond the 7-year and 10-year 
periods for continuous physical presence are relevant to the 
adjudication of suspension of deportation and special rule cancellation 
of removal claims, because this information may be considered in the 
exercise of discretion. Other questions in this part relate to 
eligibility requirements that have no time limits. For example, there 
are questions in the Miscellaneous Information part of the form 
relating to whether the applicant has been admitted to the United 
States as a crewman after June 30, 1964, or has had the status of 
exchange visitor. Because the statute explicitly excludes individuals 
who obtained such status from a grant of suspension of deportation or 
cancellation of removal, this information is relevant to the 
eligibility determination, regardless of whether the applicant held 
such status more than 10 years ago.
    Finally, several commenters noted that the Department's estimate of 
12 hours to complete the form would prove inadequate. Because this is a 
new form, it is difficult to estimate the number of hours needed to 
complete it. As noted in the earlier response (and because of a wide 
discrepancy in completion times in our sample study), the time to 
complete this form will vary significantly. For those applicants who 
have readily available required documents and information, the time to 
complete the form will be substantially less than the 12-hour estimate. 
For some applicants, the time to gather the information for the form 
will be significantly greater than the 12-hour estimate. For the vast 
majority of the individuals who do not need to provide documentation to 
demonstrate extreme hardship, the present time estimate seems 
sufficient.

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 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 1 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. 
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: Regulatory Planning and Review

    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 (OMB) for review.

Executive Order 12612: Federalism

    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.

Family Assessment

    The Attorney General has reviewed this regulation and has 
determined that it may affect family well-being as that term is defined 
in section 654 of the Omnibus Consolidated and Emergency Supplemental 
Appropriations Act, 1999, Pub. L. 105-277, Div. A. Accordingly, the 
Attorney General has assessed this action in accordance with the 
criteria specified in section 654(c)(1). In this rule, the factors that 
may be considered in evaluating whether deportation or removal would 
result in extreme hardship include the safety and stability of the 
family.

Paperwork Reduction Act

    This rule requires applicants to provide biographical data and 
information regarding eligibility for relief under section 203 of 
NACARA on Form I-881. This requirement is considered an information 
collection that is subject to review by OMB under the Paperwork 
Reduction Act of 1995 (PRA). 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. On November 24, 1998, the Service issued a 30-day 
notice in the Federal Register, at 63 FR 64895, and OMB subsequently 
approved the Form I-881. The OMB control number for this collection is 
contained in 8 CFR 299.5, Display of control numbers. As discussed in 
the supplementary information to this rule, comments were received and 
considered, and certain changes were made to the proposed Form I-881 in 
light of those comments.
    Since a delay in issuing this interim rule could create a further 
delay with respect to allowing aliens to apply for relief under section 
203 of NACARA, the Service is using emergency review procedures for 
review and clearance by OMB in accordance with the PRA. If granted, the 
emergency approval is only valid for 180 days. Comments concerning the 
information collection should be directed to: Office of Information and 
Regulatory Affairs, OMB Desk Officer for the Immigration and 
Naturalization Service, Office of Management and Budget, Room 10235, 
Washington, DC 20503.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations

[[Page 27875]]

(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 246

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

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 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, 552(a); 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 at 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 I-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 provide written notice to 
the applicant that his or her asylum application will be presumed 
abandoned and dismissed without prejudice, unless the applicant submits 
a written request within 30 days of the notice, that the asylum 
application be adjudicated. If an applicant does not respond within 30 
days of the date the written notice was sent or served, 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 and 203, Pub. L. 105-
100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277 (112 Stat. 
2681); 8 CFR part 2.

    In subpart B, Sec. 240.20 is amended by adding a new paragraph (c), 
to read as follows:


Sec. 240.20  Cancellation of removal and adjustment of status under 
section 240A of the Act.

* * * * *
    (c) For cases raised under section 240A(b)(2) of the Act, extreme 
hardship shall be determined as set forth in Sec. 240.58 of this part.
    8. 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 and document all applicable factors in their 
applications, as the presence or absence of any one factor may not be 
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 offer an 
independent analysis of each listed factor when rendering a decision. 
Evidence of an extended stay in the United States without fear of 
deportation and with the benefit of work authorization, when present in 
a particular case, shall be considered relevant to the determination of 
whether deportation will result in extreme hardship.
    (b) To establish extreme hardship, an applicant must 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 
the country of return;
    (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;

[[Page 27876]]

    (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 are or 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) For cases raised under section 244(a)(3) of the Act, the 
following factors should be considered in addition to, or in lieu of, 
the factors listed in paragraph (b) of this section.
    (1) The nature and extent of the physical or psychological 
consequences of abuse;
    (2) The impact of loss of access to the United States courts and 
criminal justice system (including, but not limited to, the ability to 
obtain and enforce orders of protection, criminal investigations and 
prosecutions, and family law proceedings or court orders regarding 
child support, maintenance, child custody, and visitation);
    (3) The likelihood that the batterer's family, friends, or others 
acting on behalf of the batterer in the home country would physically 
or psychologically harm the applicant or the applicant's child(ren);
    (4) The applicant's needs and/or needs of the applicant's 
child(ren) for social, medical, mental health or other supportive 
services for victims of domestic violence that are unavailable or not 
reasonably accessible in the home country;
    (5) The existence of laws and social practices in the home country 
that punish the applicant or the applicant's child(ren) because they 
have been victims of domestic violence or have taken steps to leave an 
abusive household; and
    (6) The abuser's ability to travel to the home country and the 
ability and willingness of authorities in the home country to protect 
the applicant and/or the applicant's children from future abuse.
    (d) Nothing in Sec. 240.58 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.
    9. 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 Pub. L. 105-100

Sec.
240.60  Definitions.
240.61  Aplicability.
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 Pub. L. 105-100


Sec. 240.60  Definitions.

    As used in this subpart the term:
    ABC means 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.
    Asylum application pending adjudication by the Service means any 
asylum application for which the Service has not served the applicant 
with a final decision or which has not been referred to the Immigration 
Court.
    Filed an application for asylum means the proper filing of a 
principal asylum application or filing a derivative asylum application 
by being properly included as a dependent spouse or child in an asylum 
application pursuant to the regulations and procedures in effect at the 
time of filing the principal or derivative asylum application.
    IIRIRA means the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996, enacted as Pub. L. 104-208 (110 Stat. 3009-
625).
    NACARA means the Nicaraguan Adjustment and Central American Relief 
Act (NACARA), enacted as title II of Pub. L. 105-100 (111 Stat. 2160, 
2193), as amended by the Technical Corrections to the Nicaraguan 
Adjustment and Central American Relief Act, Pub. L. 105-139 (111 Stat. 
2644).
    Registered ABC class member means an ABC class member who:
    (1) 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; or
    (2) 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.


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, either by 
filing an application with the Service or filing the application with 
the Immigration Court and serving a copy of that application on the 
Service.
    (3) An alien who entered the United States on or before December 
31, 1990, filed an application for asylum 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

[[Page 27877]]

    (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;
    (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 Court or the 
Board have been 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 a de novo asylum adjudication pursuant to 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 a 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) Form and Fees. 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. An applicant who 
submitted to EOIR a completed Form EOIR-40, Application for Suspension 
of Deportation, before the effective date of the Form I-881 may apply 
with the Service by submitting the completed Form EOIR-40 attached to a 
completed first page of the Form I-881. Each application must be filed 
with the filing and fingerprint fees as provided in Sec. 103.7(b)(1) of 
this chapter, or a request for fee waiver, as provided in Sec. 103.7(c) 
of this chapter. 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 June 21, 1999. 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 on or accompanying the form. 
Applications for suspension of deportation or special rule cancellation 
of removal filed prior to June 21, 1999 shall be filed on Form EOIR-40.
    (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 on or accompanying the form.
    (d) Conditions and consequences of filing. Applications filed under 
this section shall be filed under the following conditions and shall 
have the following consequences:
    (1) The information provided in the application may be used as a 
basis for the initiation of removal proceedings, or to satisfy any 
burden of proof in exclusion, deportation, or removal proceedings;
    (2) The applicant and anyone other than a spouse, parent, son, or 
daughter of the applicant who assists the applicant in preparing the 
application must sign the application under penalty of perjury. The 
applicant's signature establishes a presumption that the applicant is 
aware of the contents of the application. A person other than a 
relative specified in this paragraph who assists the applicant in 
preparing the application also must provide his or her full mailing 
address;
    (3) An application that does not include a response to each of the 
questions contained in the application, is unsigned, or is 
unaccompanied by the required materials specified in the instructions 
to the application is incomplete and shall be returned by mail to the 
applicant within 30 days of receipt of the application by the Service; 
and
    (4) Knowing placement of false information on the application may 
subject the person supplying that information to criminal penalties 
under title 18 of the United States Code and to civil penalties under 
section 274C of the Act.


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. For purposes of this subpart H, a single absence of 90 
days or less or absences

[[Page 27878]]

which in the aggregate total no more than 180 days shall be considered 
brief.
    (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. For purposes of evaluating whether an absence is 
brief, single absences in excess of 90 days, or absences that total 
more than 180 days in the aggregate will be evaluated on a case-by-case 
basis. An applicant must establish that any absence from the United 
States was casual and innocent and did not meaningfully interrupt the 
period of continuous physical presence.
    (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 applicant must establish that any 
period of absence less than 90 days was 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. Except as described in 
paragraph (d) of this section, extreme hardship shall be determined as 
set forth in Sec. 240.58.
    (d) Rebuttable presumption of extreme hardship for certain classes 
of aliens. (1) Presumption of extreme hardship. An applicant described 
in paragraphs (a)(1) or (a)(2) of Sec. 240.61who has submitted a 
completed Form I-881 to either the Service or the Immigration Court 
shall be presumed to have established that deportation or removal from 
the United States would result in extreme hardship to the applicant or 
to his or her spouse, parent, or child, who is a citizen of the United 
States or an alien lawfully admitted for permanent residence.
    (2) Rebuttal of presumption. A presumption of extreme hardship as 
described in paragraph (d)(1) of this section shall be rebutted if the 
evidence in the record establishes that it is more likely than not that 
neither the applicant nor a qualified relative would suffer extreme 
hardship if the applicant were deported or removed from the United 
States. In making such a determination, the adjudicator shall consider 
relevant factors, including those listed in Sec. 240.58.
    (3) Burden of proof. In those cases where a presumption of extreme 
hardship applies, the burden of proof shall be on the Service to 
establish that it is more likely than not that neither the applicant 
nor a qualified relative would suffer extreme hardship if the applicant 
were deported or removed from the United States.
    (4) Effect of rebuttal. (i) A determination that it is more likely 
than not that neither the applicant nor a qualified relative would 
suffer extreme hardship if the applicant were deported or removed from 
the United States shall be grounds for referral to the Immigration 
Court or dismissal of an application submitted initially to the 
Service. The applicant is entitled to a de novo adjudication and will 
again be considered to have a presumption of extreme hardship before 
the Immigration Court.
    (ii) If the Immigration Court determines that extreme hardship will 
not result from deportation or removal from the United States, the 
application will be denied.


Sec. 240.65  Eligibility for suspension of deportation.

    (a) Applicable statutory provisions. To establish eligibility for 
suspension of deportation under this section, the applicant must be an 
individual 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 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 former section 241(a) (2), (3), or (4) 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 that:
    (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) The alien has been and is a person of good moral character 
during all of such period; 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 under former section 241(a)(1)(G) of 
the Act, as in effect prior to April 1, 1997 (relating to marriage 
fraud), and except under the provisions specified in paragraph (c) of 
this section, and must establish that:
    (1) The alien has been physically present in the United States for 
a continuous period of not less than 3

[[Page 27879]]

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) Applicable statutory provisions. 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), 240A(c), or 240B(d) 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 that:
    (1) The alien is not inadmissible under section 212(a)(2) or (3) or 
deportable under section 237(a)(2), (3) or (4) 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 
that:
    (1) The alien is inadmissible under section 212(a)(2) of the Act 
(relating to criminal activity), or deportable under paragraphs (a)(2) 
(other than section 237(a)(2)(A)(iii), relating to aggravated felony 
convictions), or (a)(3) of section 237 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 to 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 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 may also 
elicit information relating to the application for asylum in accordance 
with Sec. 208.9 of this chapter. At the time of the interview, 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 identity of the applicant (including through the use of 
electronic means), verify the identity 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, and except as otherwise provided by the asylum officer, 
the applicant shall be informed of the requirement to 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.
    (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

[[Page 27880]]

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.

    (a) Failure to appear for a scheduled interview without prior 
authorization may result in dismissal of the application or waiver of 
the right to an adjudication by an asylum officer. A written request to 
reschedule will be granted if it is an initial request and is received 
by the Asylum Office at least 2 days before the scheduled interview 
date. All other requests to reschedule the interview, including those 
submitted after the interview date, will be granted only if the 
applicant has a reasonable excuse for not appearing, and the excuse was 
received by the Asylum Office in writing within a reasonable time after 
the scheduled interview date.
    (b) Failure to comply with fingerprint processing requirements 
without reasonable excuse may result in dismissal of the application or 
waiver of the right to an adjudication by an asylum officer.
    (c) 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 Service regulations, unless 
the asylum officer determines that the applicant received reasonable 
notice of the interview or fingerprinting appointment.


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 toward 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 the asylum officer has granted the 
application for suspension of deportation or special rule cancellation 
of removal at the time of the interview or as 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 former 
section 241(a)(2), (3), or (4) 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 will be asked to sign an 
admission of deportability or inadmissibility. The applicant must sign 
the admission 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, and will provide the applicant 
with written notice of the statutory or regulatory basis for the 
referral, 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 fingerprinting processing 
requirements and such failure 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. The asylum officer will provide the 
applicant written notice of the statutory or regulatory basis for the 
dismissal.
    (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

[[Page 27881]]

application for suspension of deportation that is referred to the Board 
will be remanded to the Immigration Court 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 Court for adjudication.
    (h) Special provisions for applicants who depart the United States 
and return under a grant of advance parole while in deportation 
proceedings. Notwithstanding paragraphs (f) and (g) of this section, 
for purposes of adjudicating an application for suspension of 
deportation or special rule cancellation of removal under this subpart, 
if an applicant departs and returns to the United States pursuant to a 
grant of advance parole while in deportation proceedings, including 
deportation proceedings administratively closed or continued pursuant 
to the ABC settlement agreement, the deportation proceedings will be 
considered terminated as of the date of applicant's departure from the 
United States. A decision on the NACARA application shall be issued in 
accordance with paragraph (a), and paragraphs (c) through (e) of this 
section.

PART 246--RESCISSION OF ADJUSTMENT OF STATUS

    10. The authority citation for part 246 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1254, 1255, 1256, 1259; 8 CFR part 2.

    11. Section 246.1 is amended by revising the first sentence to read 
as follows:


Sec. 246.1  Notice.

    If it appears to a district director that a person residing in his 
or her district was not in fact eligible for the adjustment of status 
made in his or her case, or it appears to an asylum office director 
that a person granted adjustment of status by an asylum officer 
pursuant to 8 CFR 240.70 was not in fact eligible for adjustment of 
status, a proceeding shall be commenced by the personal service upon 
such person of a notice of intent to rescind, which shall inform him or 
her of the allegations upon which it is intended to rescind the 
adjustment of his or her status. * * *


Sec. 246.2  [Amended]

    12. Section 246.2 is amended by adding the phrase ``or asylum 
office director'' immediately after the phrase ``district director.''

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

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

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

    14. 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 Pub. L. 104-208 (110 Stat. 3009-625) (as amended by the 
Nicaraguan Adjustment and Central American Relief Act (NACARA)), title 
II of Pub. L. 105-100 (111 Stat. 2160, 2193) and whose properly filed 
application has been accepted by the Service or EOIR. * * *
* * * * *

PART 299--IMMIGRATION FORMS

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

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

    16. 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.........................         5-01-99  Application for
                                                 Suspension of
                                                 Deportation or Special
                                                 Rule Cancellation of
                                                 Removal (pursuant to
                                                 section 203 of Pub. L.
                                                 105-100 (NACARA))
 
         *                 *                 *                 *
                  *                 *                 *
------------------------------------------------------------------------

    17. 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.

* * * * *

------------------------------------------------------------------------
                                                             Currently
         INS form No.                INS form title        assigned OMB
                                                            control No.
------------------------------------------------------------------------
 
         *                 *                 *                 *
                  *                 *                 *
I-881.........................  Application for               1115--0227
                                 Suspension of
                                 Deportation or Special
                                 Rule Cancellation of
                                 Removal (pursuant to
                                 section 203 of Pub. L.
                                 105-100 (NACARA)).

[[Page 27882]]

 
 
         *                 *                 *                 *
                  *                 *                 *
------------------------------------------------------------------------

    Dated: May 14, 1999.
Janet Reno,
Attorney General.
[FR Doc. 99-12643 Filed 5-20-99; 8:45 am]
BILLING CODE 4410-10-P