[Federal Register Volume 65, Number 138 (Tuesday, July 18, 2000)]
[Proposed Rules]
[Pages 44476-44481]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-18210]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 65, No. 138 / Tuesday, July 18, 2000 / 
Proposed Rules  

[[Page 44476]]



DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3 and 212

[EOIR No. 127P; AG Order No. 2315-2000]

RIN 1125-AA29


Executive Office for Immigration Review; Section 212(c) Relief 
for Certain Aliens in Deportation Proceedings Before April 24, 1996

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Proposed rule.

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

SUMMARY: This rule would create a uniform procedure for applying the 
law as enacted by the Antiterrrorism and Effective Death Penalty Act of 
1996 (AEDPA). This rule would allow certain aliens in deportation 
proceedings that commenced before April 24, 1996, to apply for relief 
pursuant to section 212(c) of the Immigration and Nationality Act 
(INA).

DATES: Written comments must be submitted on or before August 17, 2000.

ADDRESSES: Please submit written comments, original and two copies, to 
Charles Adkins-Blanch, General Counsel, Executive Office for 
Immigration Review, 5107 Leesburg Pike, Suite 2400, Falls Church, VA 
22041, telephone (703) 305-0470. Comments are available for public 
inspection at the above address by calling (703) 305-0470 to arrange 
for an appointment.

FOR FURTHER INFORMATION CONTACT: Charles Adkins-Blanch, General 
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, 
Suite 2400, Falls Church, VA 22041, telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION:

What has Happened to Aliens Seeking Section 212(c) Relief Since 
Enactment of AEDPA?

    Before the comprehensive revision of the INA by the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 
Pub. L. No. 104-208, Div. C, 110 Stat. 3009, section 212(c) of the INA 
provided that aliens who were lawfully admitted for permanent 
residence, who temporarily proceeded abroad voluntarily and not under 
an order of deportation, and who were returning to a lawful 
unrelinquished domicile in the United States of seven consecutive 
years, could be admitted to the United States in the discretion of the 
Attorney General. 8 U.S.C. Sec. 1182(c) (1994). Although section 212(c) 
by its terms applied only to aliens in exclusion proceedings (i.e., 
aliens seeking to enter at the border), it had been construed for many 
years also to allow aliens who were placed in deportation proceedings 
in the United States to apply for discretionary relief from 
deportation. See Matter of Silva, 16 I. & N. Dec. 26 (Board 1976); 
Gonzalez v. INS, 996 F.2d 804, 806 (6th Cir. 1993); Ashby v. INS, 961 
F.2d 555, 557 & n.2 (5th Cir. 1992); Tapica-Acuna v. INS, 640 F.2d 223 
(9th Cir. 1981); Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976).
    In the Antiterrorism and Effective Death Penalty Act of 1996 
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, Congress significantly 
restricted the availability of discretionary relief from deportation 
under section 212(c). Section 440(d) of AEDPA amended section 212(c) of 
the INA to provide that section 212(c) ``shall not apply to an alien 
who is deportable by reason of having committed any criminal offense 
covered by section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense 
covered by section 241(a)(2)(A)(ii) for which both predicate offenses 
are, without regard to the date of their commission, otherwise covered 
by section 241(a)(2)(A)(i).'' AEDPA Sec. 440(d), as amended by IIRIRA 
section 306(d). The effect of section 440(d) of AEDPA was to render 
ineligible for relief under INA section 212(c) aliens deportable 
because of convictions for certain criminal offenses, including 
aggravated felonies, controlled substance offenses, certain firearms 
offenses, espionage, and multiple crimes of moral turpitude.
    AEDPA did not contain a provision expressly stating whether section 
440(d) was to be applied to criminal aliens who were placed in 
deportation proceedings, were convicted, or who committed the crimes 
rendering them deportable before AEDPA was passed. In Matter of 
Soriano, Interim Decision 3289 (Board 1996), the Board of Immigration 
Appeals (Board) held that section 440(d) of AEDPA did not apply to 
aliens who had applied for section 212(c) relief before AEDPA was 
passed, but did apply to all other aliens covered in the provision, 
even those whose criminal conduct or conviction occurred before AEDPA 
was issued.
    At the request of the Immigration and Naturalization Service (INS), 
the Attorney General vacated the Board's decision in Soriano and 
certified the question to herself. On February 21, 1997, the Attorney 
General concluded that section 440(d) applied to (and thereby rendered 
ineligible for section 212(c) relief) all aliens who had committed one 
of the specified offenses and who had not finally been granted section 
212(c) relief before AEDPA was passed. As construed in that decision, 
AEDPA section 440(d) rendered ineligible for section 212(c) relief even 
those aliens who were already in deportation proceedings and who had 
already applied for section 212(c) relief at the time AEDPA was passed.

How Have the Federal Courts Ruled on the Issue?

    Following the Attorney General's decision in Soriano, the Board and 
Immigration Court denied applications for relief under section 212(c) 
filed by aliens who fell within the categories identified in AEDPA 
section 440(d), regardless of the date of the alien's crime, 
conviction, deportation proceedings, or application for section 212(c) 
relief. Numerous aliens challenged their final orders of deportation in 
both district courts and courts of appeals, arguing that AEDPA section 
440(d) should not be applied ``retroactively'' to their cases, and that 
the Attorney General had erred in her construction of AEDPA section 
440(d) in Soriano.
    The Soriano issue has given rise to widespread litigation in almost 
every circuit. Only the D.C. Circuit has yet to decide a case on the 
Soriano issue. Eight circuits--the First, Second, Third,

[[Page 44477]]

Fourth, Sixth, Eighth, Ninth, and Eleventh Circuits--have now disagreed 
with the Attorney General's holding in Soriano. Seven of the eight 
circuits have held that section 440(d) of AEDPA does not apply to 
aliens who filed applications for section 212(c) relief before AEDPA 
was passed. See Goncalves v. Reno, 144 F.3d 110, 126-33 (1st Cir. 
1998), cert. denied, 526 U.S. 1004 (1999); Henderson v. INS, 157 F.3d 
106, 128-30 (2d Cir. 1998), cert. denied sub nom. Reno v. Navas, 526 
U.S. 1004 (1999); Sandoval v. Reno, 166 F.3d 225, 239-42 (3d Cir. 
1999); Tasios v. Reno, 204 F.3d 544, 547-52 (4th Cir. 2000); Pak v. 
Reno, 196 F.3d 666, 674-76 (6th Cir. 1999); Shah v. Reno, 184 F.3d 719, 
724 (8th Cir. 1999); Magana-Pizano v. INS, 200 F.3d 603, 610-11 (9th 
Cir. 1999); Mayers v. INS, 175 F.3d 1289, 1301-04 (11th Cir. 1999).
    The First Circuit has gone further and held that AEDPA section 
440(d) likewise does not apply to aliens who were placed in deportation 
proceedings before AEDPA was passed, even if they did not actually 
request section 212(c) relief until after AEDPA was passed. See Wallace 
v. Reno, 194 F.3d 279, 285-88 (1st Cir. 1999). Other circuits have 
either likewise so held or strongly implied in their reasoning. See 
Henderson, 157 F.3d at 129-31; Sandoval, 166 F.3d at 241-42; Mayers, 
175 F.3d at 1304; see also Shah, 184 F.3d at 724 (adopting reasoning of 
Goncalves, Henderson, and Mayers).
    By contrast, the Seventh Circuit has held, consistent with the 
Attorney General's conclusion in Soriano, that section 440(d) of AEDPA 
applies even to aliens who were in deportation proceedings and had 
applied for section 212(c) relief when AEDPA was enacted. See Turkhan 
v. Perryman, 188 F.3d 814, 824-28 (7th Cir. 1999); see also LaGuerre v. 
Reno, 164 F.3d 1035, 1040-41 (7th Cir. 1998), cert. denied, 120 S. Ct. 
1157 (2000).
    Aliens have also argued that persons who were placed in deportation 
proceedings after AEDPA was enacted, but who committed their crimes and 
were convicted before that date, should be eligible for section 212(c) 
relief, and that AEDPA section 440(d) would be impermissibly 
retroactive if applied to them.
    Three circuits--the Third, Fifth and Tenth--have affirmatively held 
that AEDPA section 440(d) does foreclose section 212(c) relief for 
aliens who were placed in proceedings after AEDPA was enacted, even if 
their criminal offenses were committed before the enactment of AEDPA. 
See DeSousa v. Reno, 190 F.3d 175, 185-87 (3d Cir. 1999); Requena-
Rodriguez v. Pasquarell, 190 F.3d 299, 306-08 (5th Cir. 1999); Jurado-
Gutierrez v. Greene, 190 F.3d 1135, 1147-52 (10th Cir. 1999), cert. 
denied sub nom Palaganas-Suarez v. Greene, 120 S. Ct. 1539 (2000). The 
Seventh Circuit has necessarily adopted that position as well. See 
Turkhan, 188 F.3d at 824-28 (holding that section 440(d) bars relief 
for all criminal aliens who had not been granted section 212(c) relief 
at the time AEDPA was enacted, necessarily including all those whose 
convictions occurred prior to AEDPA but whose deportation proceedings 
were initiated after enactment of AEDPA).
    The Ninth Circuit has concluded that aliens who are deportable 
based on a qualifying criminal conviction entered prior to AEDPA but 
after a full trial are properly covered by AEDPA section 440(d) and 
therefore ineligible for section 212(c) relief. See Magana-Pizano, 200 
F.3d at 610-11. The Ninth Circuit also held, however, that because of 
concerns about retroactivity and reliance, it could not exclude the 
possibility that section 440(d) should not be applied to an alien who 
pleaded guilty or nolo contendere to his disqualifying criminal offense 
and who can show that the plea ``was entered in reliance on the 
availability of discretionary waiver under Sec. 212(c).'' Id. at 613. 
The court therefore remanded the case to the district court to 
determine whether the alien could show such reliance. See id. at 609. 
The First Circuit has issued a similar ruling, holding that section 
440(d) does not apply in a case where an alien pleaded guilty to and 
was convicted of a qualifying offense before AEDPA was enacted but was 
placed in proceedings afterwards, if the alien could show that he 
entered his guilty plea in reliance on the state of the law before 
AEDPA's enactment. See Mattis versus Reno, --F.3d--, 2000 WL 554957, at 
*5-*9 (1st Cir. May 8, 2000). The First Circuit found no evidence of 
such reliance in that case, however. See id. at *9.
    Additionally, the Fourth Circuit held that the statute is 
inapplicable, because of perceived retroactivity concerns, to an alien 
who pleaded guilty and was convicted before AEDPA was enacted even if 
his deportation proceedings were commenced after enactment of AEDPA. 
The court reasoned that the alien had detrimentally relied upon the 
availability of discretionary relief from deportation when he entered 
his guilty plea prior to the enactment date. See Tasios, 204 F.3d at 
550-52.

Why is the Attorney General Implementing a Rule of Uniform 
Implementation of AEDPA for Aliens Seeking Section 212(c) Relief?

    Issues concerning the construction of AEDPA section 440(d) affect a 
large number of aliens and are of considerable importance to the 
Department of Justice, including the INS and the Executive Office for 
Immigration Review (EOIR).
    Approximately 800 aliens who have been found deportable by the 
Immigration Court and the Board have filed challenges to Soriano in 
federal district court. In addition, a number of cases in which the 
application of Soriano may be dispositive are still pending before the 
Immigration Court and the Board.
    There is an important public interest in the uniform administration 
of the immigration laws. The Constitution grants Congress the power to 
establish ``an uniform Rule of Naturalization,'' U.S. Const. art. I, 
Sec. 8, cl. 4, and it is generally desirable as well that immigration 
rules be consistent throughout the country to minimize distinctions 
among aliens based solely on geographical factors. There is also an 
important public interest in the completion of proceedings involving 
criminal aliens. The Department of Justice therefore sought to have the 
Supreme Court definitively resolve the Soriano issue October Term 1998 
by petitioning for a writ of certiorari from the First Circuit's 
decision in Goncalves and the Second Circuit's decision in Henderson. 
On March 8, 1999, the Supreme Court denied those certiorari petitions.
    In light of the Supreme Court's denial of certiorari in Goncalves, 
Henderson/Navas, and LaGuerre in February 2000, the decisions of eight 
circuits rejecting the decision in Soriano, and the large number of 
aliens who are affected by the issue, the Attorney General has 
considered whether the government's interest in the uniform 
administration of the immigration laws, avoiding unnecessary delays in 
the completion of proceedings involving criminal aliens, and the 
reasoning of the courts that have rejected her construction of AEDPA 
section 440(d) in Soriano, warrant a change in the Department's 
application of AEDPA section 440(d). In the interest of the uniform and 
expeditious administration of the immigration laws, the Attorney 
General proposes to acquiesce on a nationwide basis in those appellate 
decisions holding that AEDPA section 440(d) is not to be applied in the 
cases of aliens whose deportation proceedings were commenced before 
AEDPA was enacted.

[[Page 44478]]

    In particular, the Attorney General proposes to acquiesce in the 
courts' conclusion, as a matter of statutory construction, that 
Congress intended that section 440(d) of AEDPA not be applied to 
deportation proceedings that had been commenced before AEDPA was 
enacted into law. In reaching that conclusion, the courts generally 
have applied the first step of the two-step retroactivity analysis set 
forth by the Supreme Court in Landgraf v. USI Film Products, 511 U.S. 
244 (1994). In the first step of that analysis, the courts inquire 
whether Congress has specifically addressed the temporal application of 
a statute. The courts that have rejected Soriano have generally relied 
on two factors to reach the conclusion that Congress specifically 
addressed the temporal application of AEDPA section 440(d). First, they 
have observed that Congress expressly made other provisions of AEDPA, 
such as section 413(f), applicable to pending deportation proceedings, 
and they have drawn a negative inference from that fact that Congress 
did not intend section 440(d) to be applied to pending proceedings. 
Second, examining the legislative history of AEDPA, they have noted 
that an earlier version of AEDPA in Congress would have applied what 
became section 440(d) to pending cases, but that provision was deleted 
by the conference committee. See Magana-Pizano, 200 F.3d at 611; Pak, 
196 F.3d at 676; Shah, 184 F.3d at 724; Mayers, 175 F.3d at 1302-03; 
Sandoval, 166 F.3d at 241; Henderson, 157 F.3d at 129-30; Goncalves, 
144 F.3d at 128-33.
    These factors are specific to AEDPA and concern only the first step 
of the Landgraf analysis. They do not concern the question of whether 
application of section 440(d) to pending deportation proceedings would 
be regarded as retroactive under the second step of the Landgraf 
analysis. As to that question, the Attorney General maintains the 
Department of Justice's longstanding position that questions about an 
alien's deportability or eligibility for discretionary relief from 
deportation are matters inherently prospective in nature.
    In the absence of adverse appellate precedent, the Attorney General 
will continue to apply AEDPA section 440(d) in the cases of aliens 
whose deportation proceedings were commenced after AEDPA was enacted 
into law, even if the alien committed his crime or was convicted of the 
crime before that date. The appellate decisions rejecting Soriano have 
concluded only that Congress did not intend to apply AEDPA section 
440(d) to the cases of aliens whose deportation proceedings were 
commenced before AEDPA was enacted, and do not (with the exception of 
the Mattis, Tasios, and Magana-Pizano decisions from the First, Fourth, 
and Ninth Circuits, respectively) question its applicability to cases 
commenced after that date.
    The interpretation of AEDPA that would be changed by this proposed 
rule has, of course, affected many aliens whose deportation proceedings 
were commenced before enactment of AEDPA but who were unable to obtain 
section 212(c) relief in those proceedings because of the Soriano 
decision. This rule provides a mechanism for such aliens who now have a 
final order of deportation to reopen their immigration proceedings if 
they would have been eligible to apply for section 212(c) relief but 
for the Soriano decision.
    The Attorney General has considered the important interest in 
avoiding delays in deportation proceedings and, on balance, has decided 
to define the class of aliens eligible for reopening under this 
proposed rule in categorical terms. For aliens who have a final order 
of deportation, based on established principles requiring exhaustion of 
all available administrative remedies, this rule could properly be 
written to limit relief on reopening only to those aliens who can show 
that they had affirmatively applied for relief under section 212(c) in 
their prior immigration proceedings and had appealed an immigration 
judge's adverse decision to the Board of Immigration Appeals. However, 
this rule does not require that eligible aliens make a specific factual 
showing that they previously applied for section 212(c) relief 
notwithstanding the Soriano decision, or appealed an immigration 
judge's adverse decision to the Board. Instead, this proposed rule is 
drafted in order to relieve both the government and the alien of the 
burdens of litigating such factual issues in each case at the motion to 
reopen stage. In light of the highly unusual circumstances of the 
Soriano litigation, the interest in expeditious enforcement of the 
immigration laws will be more effectively served by focusing attention 
on the merits of the claims for discretionary relief from deportation 
with respect to aliens in the defined class who otherwise would have 
been eligible to seek section 212(c) relief in their immigration 
proceedings but for the Soriano precedent.

Who is Eligible to Apply for Section 212(c) Relief?

    Under this proposed rule, eligible aliens in pending immigration 
proceedings may apply for section 212(c) relief if their immigration 
proceedings were commenced prior to the enactment of AEDPA. This rule 
also provides a 90-day period for a defined class of aliens who had 
been adversely affected by the Soriano decision to file a motion to 
reopen in order to apply for section 212(c) relief. This special 
reopening rule would cover aliens who:
    (1) had deportation proceedings before the Immigration Court 
commenced before April 24, 1996;
    (2) are subject to a final order of deportation;
    (3) would presently be eligible to apply for section 212(c) relief 
if proceedings were reopened and section 212(c) as in effect on April 
23, 1996 were applied; and
    (4) either,
    (i) applied for and were denied section 212(c) relief by the Board 
on the basis of the 1997 decision of the Attorney General in Soriano 
(or its rationale), and not any other basis;
    (ii) applied for and were denied section 212(c) relief by the 
Immigration Court and did not appeal the denial to the Board (or 
withdrew an appeal), and would have been eligible to apply for section 
212(c) relief at the time the deportation became final but for the 1997 
decision of the Attorney General in Soriano (or its rationale); or
    (iii) did not apply for section 212(c) relief but would have been 
eligible to apply for such relief at the time the deportation order 
became final but for the 1997 decision of the Attorney General in 
Soriano (or its rationale).
    This rule is not intended to apply to an alien who filed an 
application for section 212(c) relief that was denied by an immigration 
judge or the Board for reasons other than Soriano or its rationale. For 
example, an alien whose section 212(c) application was denied on the 
merits or before the AEDPA statute was enacted is not covered by this 
rule.
    This rule is also not intended to apply to aliens outside the 
United States or aliens with a final order of deportation who have 
returned to the United States illegally. Moreover, this rule does not 
provide a basis for such aliens to seek or secure admission or parole 
into the United States to file a section 212(c) application.

What is Required to be Statutorily Eligible for Section 212(c) 
Relief?

    The alien must be a lawful permanent resident, returning to a 
lawful, unrelinquished domicile of seven consecutive years, who may be 
admitted in the discretion of the Attorney General without regard to 
section 212(a) (other than paragraphs (3) and (9)(C)), who is 
deportable on a ground that has a

[[Page 44479]]

corresponding ground of exclusion, and who has not been convicted of 
one or more aggravated felonies for which he or she has served an 
aggregate term of imprisonment of at least five years. See INA section 
212(c).

How is 7 Years Lawful, Unrelinquished Domicile in the United States 
Defined in this Rule?

    The alien must have lived in the United States as either a lawful 
permanent resident or a lawful temporary resident pursuant to section 
245A or section 210 of the INA for at least seven years, as defined in 
8 CFR 212.3(f). For purposes of this rule, an alien begins accruing 
time as of the date of entry or admission as either a lawful permanent 
resident or lawful temporary resident and the accrual of time ceases 
when there is a final administrative order in the alien's case, as 
defined in 8 CFR 240.52 and 3.1(d)(2). When a motion to reopen is filed 
pursuant to this rule, the alien must have accrued seven years of 
lawful unrelinquished domicile as of the date of his or her final 
administrative order which the alien seeks to reopen.

Is There a Fee for Filing this Application?

    If the alien has already filed a section 212(c) application and 
only needs to update the application, no fee is required. If the alien 
has not filed a section 212(c) application and has a final 
administrative order, he or she must file a motion to reopen. If the 
motion to reopen is granted, he or she must pay the fee required by 8 
CFR 103.7(b)(1) for Form I-191 (currently $170). See 8 CFR 103.7.
    An alien in deportation proceedings who has not filed an 
application shall submit the Form I-191 to the Immigration Court with 
the appropriate fee receipt attached.
    If the case is pending before the Board, the alien must file a copy 
of the application with the motion and if the motion is granted and the 
case is remanded to the Immigration Court, the alien must then file the 
application with the appropriate fee. Nothing in this rule changes the 
requirements and procedures in 8 CFR 3.31(b), 103.7(b)(1), and 
240.11(f) for paying the application fee for a section 212(c) 
application after a motion to reopen is granted if such an application 
was not previously filed. Fees must be submitted to the local office of 
the INS in accordance with 8 CFR 3.31. An applicant who is deserving of 
section 212(c) relief and is unable to pay the filing fee may request a 
fee waiver in accordance with 8 CFR 103.7(c).

What is the Procedure for an Applicant who is Currently in 
Deportation Proceedings Before the Immigration Court or the Board 
of Immigration Appeals?

    Immigration Court. An eligible alien who has a deportation 
proceeding pending before the Immigration Court should file a section 
212(c) application pursuant to this rule, or request a reasonable 
period of time to submit an application pursuant to this rule. If the 
alien already has an application on file, he or she may file a 
supplement to the existing section 212(c) application.
    Board of Immigration Appeals. An eligible alien who has a 
deportation proceeding pending before the Board should file with the 
Board a motion to remand to the Immigration Court to file a section 
212(c) application or to supplement his or her existing section 212(c) 
application on the basis of his or her eligibility for such relief 
pursuant to this rule. If the alien appears to be statutorily eligible 
for relief and meets the other eligibility requirements defined in this 
rule, the Board shall remand the case to the Immigration Court for 
adjudication of the section 212(c) application.

What if an Applicant is the Subject of a Final Order of 
Deportation?

    Aliens who have final administrative orders. An alien who is the 
subject of a final order of deportation who is eligible to apply for 
section 212(c) relief pursuant to this rule must file a motion to 
reopen with the Immigration Court or the Board of Immigration Appeals, 
whichever last held jurisdiction. The front page of the motion and any 
envelope containing the motion should include the notation ``Special 
212(c) Motion.'' The fee for motions to reopen (currently $110) will be 
waived for aliens eligible for section 212(c) relief pursuant to this 
rule. The waiver of the fee is only applicable to motions to reopen 
seeking section 212(c) relief pursuant to this rule. The reopening and 
remand will be limited to issues concerning the alien's eligibility for 
relief under section 212(c) and may not address the alien's 
deportability or any other basis for relief from deportation, unless 
the Board is also reopening under other applicable provisions of law, 
in which case the issues may be consolidated for hearing as appropriate 
and all appropriate motions fees will apply.
    If the alien previously filed an application for section 212(c) 
relief, he or she must file a copy of that application or a copy of a 
new application and supporting documents with the motion to reopen. If 
the motion to reopen is granted, an alien who previously filed an 
application will not be required to pay a new filing fee for the 
section 212(c) application, Form I-191.
    If the alien has not previously filed an application for section 
212(c) relief, the alien must submit a copy of his or her completed 
application and supporting documents with the motion to reopen. If the 
motion is granted, the alien must then file the application with the 
appropriate fee.
    Cases remanded to the Board. If a case has been remanded to the 
Board by a federal court based on a judicial decision rejecting the 
Attorney General's decision in Soriano, the Board will comply with the 
order of the district or circuit court.

What happens if an applicant currently has a Motion to Reopen or 
motion to reconsider pending before the Immigration Court or the 
Board?

    Immigration Court. If an alien has a pending motion to reopen or 
reconsider filed with the Immigration Court, he or she must file a new 
motion to reopen with the Immigration Court to apply for section 212(c) 
relief on the basis of his or her eligibility pursuant to this rule.
    Board of Immigration Appeals. If an alien has a pending motion to 
reopen or reconsider filed with the Board the alien must file a new 
motion to reopen with the Board to apply for section 212(c) relief on 
the basis of his or her eligibility pursuant to this rule.
    New Motion to Reopen. An alien may file only one motion to reopen 
for purposes of establishing eligibility under this rule. A new motion 
to reopen filed pursuant to this rule either before the Immigration 
Court or the Board, as appropriate, must specify whether the alien has 
any pending motions before the Immigration Court or the Board. All 
motions to reopen to apply for section 212(c) relief filed pursuant to 
this rule are subject to the restrictions specified in this rule. The 
usual time and number restrictions on motions, as articulated in 8 CFR 
3.2 and 3.23, shall apply to all other motions.

Is an Alien with a Final Administrative Order of Deportation 
Required to File a Motion to Reopen under this Rule Within the 90-
day Period in Order to Seek Section 212(c) Relief?

    This rule is intended to provide a single, straightforward process 
for the defined class of aliens who were adversely affected by Soriano 
to reopen their immigration proceedings based on the interpretive 
change announced in this rule.

[[Page 44480]]

    Accordingly, 8 CFR 3.44 is intended to provide the sole process for 
eligible aliens who have a final administrative order of deportation to 
reopen their cases on account of the change in the governing law 
announced in this rule in order to apply for section 212(c) relief. 
However, the existing reopening rules in 8 CFR 3.2 and 3.23 allow 
aliens to seek to reopen their cases notwithstanding the time limits on 
certain other grounds unrelated to a change in the law. As provided in 
8 CFR 3.44(h), this rule would not prevent an alien from filing a 
motion to reopen under the existing rules based on any other basis or 
exception.

Does the Filing of an Application for Section 212(c) Relief stay 
the Execution of a Final Order?

    The mere filing of a motion to reopen to apply for section 212(c) 
relief with the Immigration Court or the Board does not stay the 
execution of the final order of deportation. To request that execution 
of the final order be stayed by the INS, the alien must file an 
Application for Stay of Removal (Form I-246), following the procedures 
set forth in 8 CFR 241.6.

What Happens if an Application is Denied by the Immigration Court?

    If the Immigration Court denies the section 212(c) application of 
an alien in deportation proceedings before the Immigration Court, the 
decision may be appealed to the Board along with, and under the same 
procedures as apply to, other issues, if any, properly before the Board 
on appeal.

What Happens if an Alien Fails to Appear for a Hearing Before the 
Immigration Court on a Section 212(c) Application?

    An alien must appear for all scheduled hearings before an 
Immigration Court, unless his or her appearance is waived by the 
Immigration Court. An alien who is in deportation proceedings before 
the Immigration Court, and who fails to appear for a hearing regarding 
a section 212(c) application, will be subject to the applicable 
statutory and regulatory in absentia procedures (i.e., section 242B of 
the INA as it existed prior to amendment by IIRIRA).

Regulatory Flexibility Act

    In accordance with 5 U.S.C. 605(b), the Attorney General certifies 
that this rule will not, if promulgated, have a significant adverse 
economic impact on a substantial number of small entities. This rule 
allows certain aliens to apply for INA section 212(c) relief; it has no 
effect on small entities as that term is defined in 5 U.S.C. 601(6).

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provision 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. See 5 
U.S.C. 804(2). This rule will not result in an annual effect on the 
economy of $100 million or more; a major increase in costs or prices; 
or significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

Executive Order 12866

    This rule is considered by the Department of Justice to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review. Accordingly, this regulation has 
been submitted to the Office of Management and Budget for review.

Executive Order 13132

    The regulation will not have substantial direct effects on the 
states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section six 
of Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Executive Order 12988

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

Plain Language Instructions

    We try to write clearly. If you can suggest how to improve the 
clarity of these regulations, call or write Charles Adkins-Blanch, 
General Counsel, Executive Office for Immigration Review, Suite 2400, 
5107 Leesburg Pike, Falls Church, VA 22041, telephone: (703) 305-0470.

Paperwork Reduction Act

    This rule will increase the use of Form I-191 but will not result 
in a material change in the form, and the INS is adjusting the total 
burden hours of the form accordingly.

List of Subjects

8 CFR Part 3

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

8 CFR Part 212

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

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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

    Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note, 8 U.S.C. 1103, 1252 
note, 1324b, 1362, 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 
2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002.

    2. Section 3.44 is added to subpart C to read as follows:


Sec. 3.44  Motion to reopen to apply for section 212(c) relief for 
certain aliens in deportation proceedings before April 24, 1996.

    (a) Standard for Adjudication. Except as provided in this section, 
a motion to reopen proceedings to apply for relief under section 212(c) 
of the Act will be adjudicated under applicable statutes and 
regulations governing motions to reopen.
    (b) Aliens eligible to reopen proceedings to apply for section 
212(c) relief. A motion to reopen proceedings to seek section 212(c) 
relief under this section must establish that the alien:
    (1) Had deportation proceedings before the Immigration Court 
commenced before April 24, 1996;
    (2) Is subject to a final order of deportation,
    (3) Would presently be eligible to apply for section 212(c) as in 
effect on or before April 23, 1996; and
    (4) Either--
    (i) Applied for and was denied section 212(c) relief by the Board 
on the basis of the 1997 decision of the Attorney General in Matter of 
Soriano (or its rationale), and not any other basis;

[[Page 44481]]

    (ii) Applied for and was denied section 212(c) relief by the 
Immigration Court, did not appeal the denial to the Board (or withdrew 
an appeal), and would have been eligible to apply for section 212(c) 
relief at the time the deportation became final but for the 1997 
decision of the Attorney General in Matter of Soriano (or its 
rationale); or (iii) Did not apply for section 212(c) relief but would 
have been eligible to apply for such relief at the time the deportation 
order became final but for the 1997 decision of the Attorney General in 
Matter of Soriano (or its rationale).
    (c) Scope of reopened proceedings. Proceedings shall be reopened 
under this section solely for the purpose of adjudicating the 
application for section 212(c) relief, but if the Immigration Court or 
the Board reopens on other applicable grounds, all issues encompassed 
within the reopening proceedings may be considered together, as 
appropriate.
    (d) Procedure for filing a motion to reopen to apply for section 
212(c) relief. An eligible alien must file either a copy of the 
original Form I-191 application, and supporting documents, or file a 
copy of a newly completed Form I-191, plus all supporting documents. An 
alien who has a pending motion to reopen or reconsider before the 
Immigration Court or the Board must file a new motion to reopen to 
apply for section 212(c)relief pursuant to this section. The new motion 
to reopen shall specify any other motions currently pending before the 
Immigration Court or the Board that should be consolidated. The Service 
shall have 45 days from the date of service of the motion to reopen to 
respond. In the event the Service does not respond to the motion to 
reopen, the Service retains the right in the reopened proceedings to 
contest any and all issues raised.
    (e) Fee and number restriction for motion to reopen waived. No 
filing fee is required for a motion to reopen to apply for section 
212(c) relief under this section. An eligible alien may file one motion 
to reopen to apply for section 212(c) relief under this section, even 
if a motion to reopen was filed previously in his or her case.
    (f) Deadline to file a motion to reopen to apply for section 212(c) 
relief under this section. An alien with a final administrative order 
of deportation must file a motion to reopen within 90 days of the 
effective date of the final rule.
    (g) Jurisdiction over motion to reopen to apply for section 
212(c)relief and remand of appeals.
    (1) Notwithstanding any other provisions, any motion to reopen 
filed pursuant to this section to apply for section 212(c) relief shall 
be filed with the Immigration Court or the Board, whichever last held 
jurisdiction over the case.
    (2) If the Immigration Court has jurisdiction, and grants only the 
motion to reopen to apply for section 212(c) relief pursuant to this 
section, it shall adjudicate only the section 212(c) application.
    (3) If the Board has jurisdiction and grants only the motion to 
reopen to apply for section 212(c) relief pursuant to this section, it 
shall remand the case to the Immigration Court solely for adjudication 
of the section 212(c) application (Form I-191).
    (h) Applicability of other exceptions to motions to reopen. Nothing 
in this section shall be interpreted to preclude or restrict the 
applicability of any other exception to the motion to reopen provisions 
of this part as defined in 8 CFR 3.2(c)(3) and 3.23(b).
    (i) Limitations on eligibility for reopening under this rule. This 
special reopening rule does not apply to:
    (1) Aliens who have departed the United States;
    (2) Aliens with a final order of deportation who have illegally 
returned to the United States; or
    (3) Aliens who have not been admitted or paroled.

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

    3. The authority citation for part 212 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184,1187, 1225, 
1226, 1227, 1228, 1252; 8 CFR part 2.
    4. Paragraph (g) is added to Section 212.3 to read as follows:


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

* * * * *
    (g) Relief for certain aliens who were in deportation proceedings 
before April 24, 1996. Section 440(d) of Antiterrorism and Effective 
Death Penalty Act of 1996 (AEDPA) shall not apply to any applicant for 
relief under this section whose deportation proceedings were commenced 
before the Immigration Court before April 24, 1996.

    Dated: July 12, 2000.
Janet Reno,
Attorney General.
[FR Doc. 00-18210 Filed 7-17-00; 8:45 am]
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