[Federal Register Volume 66, Number 14 (Monday, January 22, 2001)]
[Rules and Regulations]
[Pages 6436-6446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1785]


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DEPARTMENT OF JUSTICE

8 CFR Parts 3, 212, and 240

[EOIR No. 127P; AG Order No. 2358-2001]
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: Final rule.

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SUMMARY: This final rule creates a uniform procedure for applying the 
law as enacted by the Antiterrorism and Effective Death Penalty Act of 
1996 (AEDPA). This rule allows 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). In addition, this rule makes several technical amendments to an 
earlier regulation relating to the streamlining authority of the Board 
of Immigration Appeals.

EFFECTIVE DATE: This final rule is effective January 22, 2001.

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

SUPPLEMENTARY INFORMATION:

Why Is the Department Issuing This Final Rule?

    Before the comprehensive revision of the INA by the Illegal 
Immigration

[[Page 6437]]

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. 
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, 29-30 (BIA 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, 225 (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 section 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 applied for section 
212(c) relief, were placed in deportation proceedings, were convicted, 
or committed the crimes rendering them deportable before AEDPA was 
enacted. In Matter of Soriano, Interim Decision 3289 (BIA 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 enacted, but did apply to all other aliens covered in 
the provision, including those whose proceedings commenced or whose 
criminal conduct or conviction occurred before AEDPA was enacted.
    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 enacted, including those who were 
already in deportation proceedings or who had already applied for 
section 212(c) relief at the time of AEDPA's enactment.

How Have the Federal Courts Ruled on the Issue?

    Following the Attorney General's decision in Soriano, the Board and 
the Immigration Courts 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 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, 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) superceded by statute in 
Richardson v. Reno, 180 F.3d 1311 (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, and at the time of the publication of the proposed 
Soriano rule, the Seventh Circuit 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). However, the Seventh Circuit has recently held that an alien's 
due process rights were violated by the retroactive application of 
section 440(d) of AEDPA where there was significant evidence that the 
availability of a section 212(c) waiver influenced the alien's decision 
to plead guilty. See Jideonwo v. INS, 224 F.3d 692, 699-701 (7th Cir. 
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 Palangas-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

[[Page 6438]]

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. Mattis v. Reno, 212 F.3d 31, 35-40 (1st Cir. 2000). 
The First Circuit found no evidence of such reliance in that case, 
however. See id. at 39.
    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.
    More recently, the Second Circuit has held that section 440(d) of 
AEDPA is not applicable in the case of an alien in removal proceedings 
who entered a guilty plea before April 24, 1996, the effective date of 
AEDPA. See St. Cyr v. INS, 229 F.3d 406, 418 (2d Cir. 2000). The Office 
of the Solicitor General filed a petition for certiorari in St. Cyr on 
November 13, 2000. Additionally, the Ninth Circuit has recently ruled 
that Congress intended that the repeal of section 212(c) apply to all 
proceedings commenced after April 1, 1997. However, the Ninth Circuit 
also remanded this case for a determination whether the alien based his 
pre-AEDPA guilty plea in reliance upon the availability of section 
212(c) relief, in accordance with the court's reasoning in Magana-
Pizano, supra. Richards-Diaz v. Fasano, 233 F.3d 1160 (9th Cir. 2000).

Why Is the Attorney General Promulgating 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 during the 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 acquiesces 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.
    In particular, the Attorney General acquiesces 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 the 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. 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 
the 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 contrary circuit 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

[[Page 6439]]

convicted of the crime before that date. The Attorney General continues 
to believe that matters affecting deportation and relief from 
deportation are inherently prospective in nature, and that the 
presumption against retroactive application of federal statutes does 
not apply in such circumstances. The Attorney General is currently 
presenting that position to the U.S. Supreme Court in INS v. St. Cyr, 
No. 00-767, a case involving the temporal scope of the repeal of 
section 212(c) in IIRIRA. Therefore, the Department declines to extend 
nationwide the decisions of the First, Second, Fourth, and Ninth 
Circuits holding AEDPA section 440(d) inapplicable to aliens who were 
placed in proceedings after the date of enactment of AEDPA based on 
guilty pleas entered before that date. The Department will, however, 
follow circuit precedent on the temporal scope of AEDPA section 440(d).
    The interpretation of AEDPA that would be changed by this 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 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 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 rule, eligible aliens in pending deportation proceedings 
may apply for section 212(c) relief if the proceedings were commenced 
prior to the enactment of AEDPA. This rule also provides a 180-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 final orders 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 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 Sec. 212(c), 8 U.S.C. Sec. 1182(c) (1994); In 
re Davis, Interim Decision 3439 (BIA 2000); Matter of Hernandez-
Casillas, 20 I. & N. Dec. 262 (A.G. 1991).

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.

[[Page 6440]]

    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 Immigration and Naturalization Service in accordance with 8 CFR 
3.31. An applicant who is eligible for 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 under this rule, the Board shall remand the case to the 
Immigration Court for adjudication, unless the Board chooses to 
exercise its discretionary authority to adjudicate the matter on the 
merits without a remand.

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, other than a motion to 
reopen to apply for section 212(c) relief, 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, other than a motion to 
reopen to apply for section 212(c) relief, 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 180 
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.
    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 Immigration and Naturalization 
Service, the alien must file an Application for Stay of Removal (Form 
I-246), following the procedures set forth in 8 CFR 241.6. To request 
that execution of the final order be stayed by the Immigration Courts 
or the Board, the alien must comply with the procedures outlined in 8 
CFR 3.2(f) and 3.23(b)(v).

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

[[Page 6441]]

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 Act as it existed prior to amendment by IIRIRA, and applicable 
regulations).

When Was the Proposed Rule Published and When Were Comments 
Received?

    The Department of Justice (Department) published in the Federal 
Register a proposed rule at 65 FR 44476 on July 18, 2000, which created 
a uniform procedure for applying the law as enacted by the 
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The 
Department requested comments from the public for a period of 30 days, 
ending on August 17, 2000. In response to requests from the public, and 
to ensure the public ample opportunity to fully review and comment on 
the proposed rule, the Department published a notice in the Federal 
Register on October 11, 2000, extending the public comment period to 
October 11, 2000 (65 FR 60384).

How Many Comments Were Received From Interested Parties During the 
Comment Period?

    In response to the proposed rulemaking, the Department received 169 
comments from various organizations, attorneys, and other interested 
individuals. Each Member of Congress, representative or member of a 
non-governmental organization (NGO), interested individual, or private 
attorney was counted separately as a ``commenter.'' Commenters included 
10 Members of Congress, one Division of a State Department of Criminal 
Justice, 91 representatives of a number of NGOs, 11 private attorneys 
or legal professionals, and 56 interested individuals. Included in that 
number were eight letters submitted individually by eight separate 
NGOs. Five NGOs submitted identical form letters. One commentary was 
jointly submitted by a group of 10 NGOs and four legal professionals 
not affiliated with any of the NGOs, while another commentary was 
submitted by a group of 38 NGOs. Finally, identical form letter 
commentaries were separately submitted by 30 individual members of a 
single NGO. The Department appreciates the contributions of all 
individuals and groups who submitted comments.

What Were the Specific Comments and How Is the Department Amending 
the Rule as a Result?

    The issues raised by the commenters generally fell into five 
categories: (1) Procedural requirements; (2) eligibility; (3) 
nationwide uniformity; (4) parole; and (5) miscellaneous issues. The 
number of commenters raising issues pertaining to procedural 
requirements totaled 151 and those raising eligibility concerns totaled 
158. Commenters who raised issues pertaining to parole totaled 123, 
while only 20 commenters were concerned with uniformity issues. Five 
commenters addressed miscellaneous issues. Comments in each of these 
areas are discussed in further detail below.

1. Issues Pertaining to Procedural Requirements

    Concerns regarding various procedural requirements were raised by 
151 commenters. All but two representatives from NGOs made suggestions 
concerning procedural issues, and 48 out of 56 interested individuals 
made similar suggestions.
    Comment: One hundred forty-six commenters expressed concern that 
the proposed rule lacks a mechanism to inform the public of available 
relief. These commenters suggested that the Department undertake the 
responsibility to notify each alien who appeared to be potentially 
eligible to file a motion to reopen, since it would be unlikely that an 
eligible, unrepresented alien would be aware of the relief available to 
him or her under the rule. Further, this group of commenters suggested 
that the Department provide public notice of the relief in appropriate 
venues and languages reaching the largest number of individuals both in 
and outside of the United States.
    Response: Notification of the availability of section 212(c) relief 
under this rule will be provided in the same manner and form as 
notification for other forms of relief. Final rules are always 
published in the Federal Register and are available on the Federal 
Register website. In addition, the Department will issue a press 
release announcing the effective date of the final rule and outlining 
the eligibility requirements. The Department has received, and will 
likely continue to receive, numerous telephone inquiries regarding the 
availability of section 212(c) relief pursuant to this rule from 
interested individuals and has directed them to the Federal Register 
for further updates.
    Comment: A group of 10 NGOs suggested that all individuals 
currently in proceedings should be notified, in person or via certified 
mail, of their possible eligibility for relief.
    Response: Because the regulation includes individuals who are 
potentially eligible for relief even though they have not yet filed a 
section 212(c) application, it would be difficult for the Department to 
identify the class of potentially eligible individuals with any 
accuracy. Moreover, in view of the administrative burdens involved in 
such a notification initiative, the Department has concluded that the 
traditional means of notification through the Federal Register is 
sufficient, particularly in combination with the press release the 
Department is issuing on this subject.
    Comment: These same commenters, speaking as a group, stated that 
although aliens presently in proceedings before the Immigration Court 
or the Board are intended to be covered by the proposed rule, the rule 
itself does not contain language which specifically includes such 
aliens.
    Response: 8 CFR 212.3(g) includes all eligible aliens whose 
deportation proceedings commenced before April 24, 1996. Nothing in the 
rule excludes otherwise covered aliens whose proceedings are pending as 
of the effective date of this final rule.
    Comment: The same group of 10 NGOs provided additional suggestions: 
(1) Eliminating the requirement of a motion to reopen altogether; (2) 
requiring the Board and the Immigration Courts to reopen sua sponte 
each case in which an individual may be eligible for relief under the 
rule, and (3) providing notice to the alien of such potential 
eligibility. An additional 129 commenters endorsed the sua sponte 
reopening of cases. Thirty commenters also suggested that no remand 
should be required for cases currently pending before the Board. 
Instead, they suggested that any appeal by the INS deemed without merit 
by the Board be dismissed and the decision of the Immigration Judge 
granting the section 212(c) waiver be reinstated.
    Response: Pursuant to 8 CFR 3.2 and 3.23, sua sponte reopening of 
any case may occur at the discretion of the Board or an Immigration 
Judge, but such reopening is not mandated by this rule. The burden of 
establishing eligibility for section 212(c) relief, as with any other 
request for relief from deportation, is

[[Page 6442]]

upon the alien, and it is incumbent upon any alien subject to a final 
order of deportation who wishes to pursue relief in proceedings to do 
so in a diligent and timely fashion, under the provisions of this rule. 
The Department cannot, as a practical matter, undertake the enormous 
burden of examining past cases that resulted in a final order of 
deportation for possible sua sponte reopening. Such a burden would 
result in inordinate delays in adjudicating cases currently pending 
before the Board and the Immigration Courts.
    With regard to INS appeals of section 212(c) applications that are 
presently pending before the Board, these cases will be adjudicated in 
the same manner as any other pending appeal subject to a superseding 
regulation or change in the law. The Board will continue to exercise 
its appellate authority to affirm the decision of the Immigration 
Judge, remand the case for an additional hearing, or adjudicate the 
appeal by applying the provisions of section 212(c) as promulgated 
prior to AEDPA.
    Comment: One commenter writing on behalf of an NGO suggested that 
the Department adopt a ``streamlined'' motion to reopen procedure using 
a simple, one-page fill-in or check-off form.
    Response: In view of the widely varying circumstances in each case, 
and the traditional requirement that persons seeking to reopen 
completed proceedings carry a burden of establishing, among other 
things, prima facie eligibility for relief upon reopening, the 
Department declines to adopt a ``one-size-fits-all'' form and will 
adhere to the normal requirements concerning motions to reopen, except 
as specifically modified by the rule.
    Comment: Twenty-one commenters suggested that aliens filing motions 
to reopen should not be required to file any legal documents previously 
submitted to the INS or to the Immigration Court.
    Response: In cases where an alien is filing a motion to reopen his 
or her proceedings based upon alleged eligibility for a form of relief 
from removal or deportation, the alien has the burden of establishing 
prima facie eligibility for that form of relief. This rule is not 
intended to alter that fundamental legal principle. In accordance with 
8 CFR 3.23(b)(3), ``[a]ny motion to reopen for the purpose of acting 
upon an application for relief must be accompanied by the appropriate 
application for relief and all supporting documents.'' Because the 
files maintained by the INS often vary from those maintained by the 
Immigration Courts and the Board, a policy at variance from the 
regulations would cause aliens to operate on the mistaken assumption 
that the Immigration Court, the Board, and the INS maintain duplicate 
files while considering eligibility for relief. In addition, if an 
alien filed a motion to reopen without attaching supporting documents, 
but with the expectation that the Immigration Judge or Board would rely 
on certain documents the alien believes were already in the file in 
adjudicating that motion, that alien may not necessarily make a prima 
facie case for relief.
    Comment: One hundred thirty-five commenters requested either that 
the 90-day time limit on motions to reopen be eliminated and that no 
time limit whatsoever be imposed, or that the time period for filing a 
motion to reopen be extended from 90 days to 1 year commencing on the 
date of actual notice to the alien. They noted that it could prove 
difficult for aliens and their representatives to gather the necessary 
documentation to support their motions to reopen during the currently 
allotted 90-day time period.
    Response: The Department recognizes the difficulty that aliens and/
or their representatives may experience in assembling adequate 
documentation to establish prima facie eligibility under this rule. The 
Department also recognizes that in cases where the order of deportation 
became final many years ago, aliens and/or their representatives might 
need to request copies of conviction records from Federal or State 
authorities. The Department recognizes that it may be difficult for 
many bona fide applicants to become informed of available relief, 
obtain counsel, gather all necessary documents and file a motion to 
reopen within the currently allotted 90 days time period. Accordingly, 
the Department is adopting this suggestion to a limited extent, and is 
extending the period of time during which motions to reopen may be 
filed to 180 days commencing on the effective date of this rule. The 
Department feels that this time period strikes a reasonable balance 
between the litigative difficulties for aliens filing motions and the 
administrative need for a finite and workable program.
    Comment: Sixty-five percent (65%) of the commenters suggested that 
an automatic stay of deportation be provided in conjunction with the 
filing of a motion to reopen under this rule, effective upon filing of 
the motion.
    Response: With very limited exceptions, the prevailing rule in 
immigration jurisprudence is that the mere filing of an application, 
motion, or petition does not automatically stay execution of a 
deportation order. Were it otherwise, individuals subject to a final 
order of deportation could thwart or delay deportation through 
meritless filings with the Service, Immigration Court, or Board. The 
Department will adhere to the traditional approach in this rule. Aliens 
who believe they are eligible for relief under this rule are free to 
request a discretionary stay of deportation from the Service, the 
Immigration Court, or the Board as appropriate.

2. Issues Pertaining to Eligibility

    One hundred fifty-four commenters raised concerns regarding the 
determination of eligibility for relief under the proposed rule.
    Comment: One hundred forty-eight commenters felt that using the 
date of ``commencement'' of proceedings to determine eligibility for 
section 212(c) relief was arbitrary, because commencement of 
proceedings is affected by various extraneous factors. For example, 
approximately 20 commenters suggested that individuals who had been 
served with Orders to Show Cause (OSCs) at any time, whether before or 
after April 24, 1996, should be eligible to apply for relief under the 
proposed rule, regardless of whether they had already filed a section 
212(c) waiver application. An equal number of commenters suggested that 
aliens who had committed or been convicted of offenses prior to April 
24, 1996, be afforded an opportunity to apply for relief under the 
proposed rule. One commenter suggested that section 212(c) be amended 
to include post-April 1996 convictions.
    Response: The well-established rule in immigration law, as stated 
in 8 CFR 3.14(a), is that ``[j]urisdiction vests, and proceedings 
before an Immigration Judge commence, when a charging document is filed 
with the Immigration Court by the Service.'' Up until the point of 
filing, the Service can cancel a charging document. See 8 CFR 239.2(a). 
After that point, it must request that the Immigration Court terminate 
proceedings. See 8 CFR 239.2(c). Hence, filing of the charging document 
with the Immigration Court is the critical event as regards the 
initiation of deportation proceedings.
    Because many other legal determinations depend on whether 
proceedings have commenced, the need for a bright-line rule as to the 
time of commencement is clear. The Department will adhere to its well-
established regulatory scheme as regards commencement of proceedings, 
and will not rely on some other event such as the issuance or service 
of the charging

[[Page 6443]]

document as determining whether proceedings have begun.
    Some circuits have looked to the service of a charging document as 
the critical event for purposes of ``retroactivity'' analysis. The 
Department disagrees with the reasoning of these courts, and declines 
to adopt it in this rule. In any such circuit, however, the Department 
will regard AEDPA section 440(d) as inapplicable to aliens whose 
charging documents were served before AEDPA's enactment if required to 
do so by circuit precedent. A circuit's adoption of a ``retroactivity'' 
analysis based on service of the charging document does not compel the 
further conclusion that proceedings commence with the service of a 
charging document. The latter conclusion flatly contradicts well-
settled law.
    Comment: In adjudicating motions to reopen, one commenter suggested 
that when determining eligibility for section 212(c) relief in 
proceedings, only evidence available before April 24, 1996, be 
considered.
    Response: Applications for relief from deportation are considered 
to be ongoing, and the Board assesses eligibility for relief as of the 
time of its decision. See In re Yeung, Interim Decion 3297 (BIA 1997); 
Matter of U-M-, 20 I. & N. Dec. 327, 332 (BIA 1991), aff'd sub nom. 
Urbina-Mauricio v. INS, 989 F.2d 1085 (9th Cir. 1993). To abandon this 
long-standing view would put the Department in the position of granting 
permanent U.S. status to persons presently ineligible for such status 
under applicable statutes. The Department declines to adopt such an 
approach. It should be noted that this rule often operates to the 
advantage of the respondent in proceedings, for example, by allowing 
for consideration of equities gained up until the date of the 
application.
    Comment: Approximately five commenters felt that the Soriano 
decision deprived many aliens of a full and fair opportunity to pursue 
their applications for relief from deportation under section 212(c). 
These commenters cited examples where aliens were not permitted to file 
section 212(c) waiver applications because they were found ineligible 
on statutory grounds and their applications were pretermitted. Two 
Members of Congress joined in this view, noting that absent section 
440(d) of the AEDPA, an alien would have been permitted to litigate 
issues of statutory eligibility. Additionally, thirty-one percent of 
commenters felt that affected aliens should be returned to their 
position prior to the issuance of the Soriano decision by the Attorney 
General. One hundred forty commenters suggested that the language in 
proposed 8 CFR 3.44(b)(4)(i), which currently states, inter alia, that:

    A motion to reopen proceedings to seek section 212(c) relief 
under this section must establish that the alien: * * * (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 (emphasis 
added); be changed to read as follows:

    A motion to reopen proceedings to seek section 212(c) relief 
under this section must establish that the alien: * * * (4) Either--
(i) Applied for and was denied section 212(c) relief in whole or in 
part on the basis of the Attorney General's 1997 decision in 
Soriano.

(Emphasis added.)

    One commenter suggested that the rule contain examples illustrating 
the meaning of ``on the basis of * * * [Soriano] and not any other 
basis.''
    Response: The purpose of this rule is to provide a uniform 
interpretation of AEDPA section 440(d) and to provide a remedy for 
certain aliens subject to a final order based on proceedings commenced 
before AEDPA's enactment who are eligible presently (i.e., at the time 
of decision) for section 212(c) relief and would have been eligible to 
apply at the time of their final orders but for the Soriano decision. 
The ``not any other basis'' language ensures that persons who were 
ineligible for or denied relief on some other basis, and thus were not 
affected by Soriano, do not improperly benefit from the rule.
    Comment: Presenting the opposite view that the proposed Soriano 
rule should be construed as narrowly as possible, another commenter 
suggested deleting proposed 8 CFR 3.44(b)(4)(iii) altogether, which 
permits aliens who did not apply for section 212(c) relief but would 
have been eligible for such relief ``but for'' the Attorney General's 
decision in Soriano. This commenter also recommended that the final 
condition imposed in 3.44(b)(4)(i), which restricts eligibility to 
those aliens whose section 212(c) applications were denied ``on the 
basis'' of Soriano ``and not any other basis,'' be added to 
3.44(b)(4)(ii). Another commenter agreed with the proposed rule as 
written, stating that section 212(c) applications denied for reasons 
other than Soriano should be excluded from the coverage of the rule.
    Response: As noted in the proposed rule, this final rule is 
intended to provide a uniform interpretation of section 440(d) of AEDPA 
and to mitigate disagreements among the circuits regarding the scope of 
its application. If the Department were to delete 8 CFR section 
3.44(b)(4)(iii), relief under this rule would be limited to those 
aliens who filed applications for 212(c) relief and would leave 
unresolved those cases where an alien's application for 212(c) relief 
was pretermitted. Therefore, the Department declines to adopt this 
suggestion.
    Comment: A group of 10 commenters suggested that the word 
``presently'' be deleted in proposed 8 CFR 3.44(b)(3). These commenters 
stated that, as currently written, the proposed rule would exclude 
individuals eligible for section 212(c) at the time of an incorrectly 
pretermitted application, but who ``presently'' have not had a lawful 
unrelinquished domicile of seven years in the United States.
    Response: The Department chooses to retain the word ``presently'' 
in 8 CFR section 3.44(b)(3). As noted above, the rule does require 
eligibility (but for the Soriano decision) for section 212(c) relief at 
the time of the final deportation order. But the rule requires present 
eligibility for relief as well, because applications for relief are 
considered to be ongoing, and the Department's adjudicators assess 
eligibility for relief at the time of decision. This rule is not 
intended to change the statutory requirements for eligibility for 
section 212(c) relief, but is strictly limited to providing a uniform 
interpretation of the temporal scope of section 440(d) of AEDPA.

3. Issues Pertaining to Nationwide Uniformity

    Nineteen commenters stated that the proposed rule is too narrow, 
and will not achieve the desired goal of nationwide uniformity due to 
the controlling case law in numerous circuits. These commenters cited 
the 1st, 4th, and 11th Circuit decisions holding that lawful permanent 
residents may apply for section 212(c) relief if they were in 
deportation proceedings before April 1, 1997, and pled guilty to 
criminal charges in reliance on eligibility for section 212(c) relief. 
See, e.g. Mattis, 212 F.3d at 35-40 (section 212(c) available to aliens 
in deportation proceedings who pled guilty to a crime in reliance upon 
availability of section 212(c) relief); Wallace, 194 F.3d at 287 
(section 212(c) available to aliens in proceedings, deemed to commence 
when the OSC was served upon the alien, rather than filed with the 
Immigration Court); Tasios, 204 F.3d at 550-52 (section 212(c) 
available to aliens who pled guilty prior to the enactment of the 
AEDPA); Alanis-Bustamante v. Reno, 201 F.3d 1303,

[[Page 6444]]

1308-10 (11th Cir. 2000) (section 212(c) available to aliens in 
proceedings, deemed to commence when the OSC was served on the alien, 
rather than filed with the Immigration Court).
    Response: By this rule, the Department only agrees to acquiesce on 
a nationwide basis in the decisions of those circuits that have ruled 
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. While uniformity is an important goal, and one of the 
principal motivations for this rule, there is no requirement that the 
Department adopt the view of the least restrictive circuit in order to 
achieve perfect uniformity, and it will not do so. Rather, the 
Department has adopted what it considers to be the soundest and best 
supported rule among the various approaches taken by the courts of 
appeals.
    Comment: By contrast, one commenter stated that ``[n]one of the 
Article I constitutional powers to make ``uniform laws'' have been 
interpreted to require true or pure uniformity.'' Further, this 
commenter stated that at most ``geographical uniformity'' in a given 
location, rather than nationwide, is required by the Constitution and 
that ``uniformity among persons'' is not required.
    Response: As noted above, the Department agrees that perfect 
uniformity is not required. Nevertheless, uniformity is an important 
goal, and the present rule is intended to achieve that goal within 
reasonable limits.

4. Issues Pertaining to Parole

    Comment: One hundred twenty-three commenters suggested that lawful 
permanent residents who complied with their deportation orders and were 
deported from the United States be granted parole, thus enabling them 
to pursue motions to reopen and present cases on the merits of their 
section 212(c) waiver applications. One commenter believed that no 
filing deadline should be imposed for an alien who is currently outside 
of the United States and who asserts eligibility for relief under this 
rule.
    One hundred four commenters stated that absent a provision to 
permit parole of aliens into the United States, such aliens will be 
summarily denied relief. Citing H.R. 5062, which was introduced in the 
106th Congress, Second Session, these commenters indicated that in 
recently proposed legislation, the House of Representatives established 
that aliens unjustly removed from the United States should have the 
opportunity to return to the United States to have their claims 
considered.
    Nonetheless, one commenter expressed support for the language in 
proposed 8 CFR 3.44(i), which excludes aliens who have departed, aliens 
who have a final order of removal and illegally returned, and aliens 
who have not been admitted or paroled into the United States. A group 
of 10 commenters felt that 3.44(i), in its entirety, should be deleted 
from the final rule.
    Response: The Department's primary purpose in publishing this rule 
is to alleviate the inter-circuit conflicts regarding the temporal 
scope of section 440(d) of AEDPA. None of the circuits that have 
disagreed with the Attorney General's decision in Soriano have adopted 
a general view that aliens who were removed or departed the United 
States should be permitted to return. The Department has no method of 
identifying or discerning the location of aliens who departed on 
account of the Soriano decision and the commenters who offered this 
suggestion have provided none. The government's interest in finality, 
the considerable administrative burdens involved, and the risk of 
paroling persons ultimately determined not to be eligible for relief 
all counsel against providing for the parole of deported criminals back 
into the United States.

5. Miscellaneous Issues

    Five commenters addressed miscellaneous issues. Three commenters 
expressed their general support for the proposed rule.
    Comment: One commenter stated that overall, the proposed rule is 
not supported by legislative history. That commenter stated that the 
goal of Congress in amending and ultimately repealing section 212(c) 
relief was to enhance the ability of the United States to deport 
criminal aliens.
    Response: While the Department acknowledges Congress' general 
intentions regarding the efficient removal of criminal aliens, it must 
also note the lack of perfect congressional clarity with regard to the 
applicability of AEDPA section 440(d) to cases pending at the time of 
AEDPA's enactment. This lack of clarity has led to costly litigation, 
sharp disagreements within the circuits, and a consequent lack of 
uniformity in the law on this question. The present rule seeks to 
ameliorate this situation by promoting uniformity in the law, within 
reasonable limitations, throughout the United States.
    Comment: One commenter suggested that the policy reasons underlying 
the proposed rule apply equally to section 212(i) waivers. This 
commenter stated that the regulations should address and overturn the 
Board's ruling in In re Cervantes-Gonzalez, Interim Decision 3380 (BIA 
1999), which addressed section 212(i) of the INA and its requirement 
that an alien establish extreme hardship to his or her U.S. citizen or 
permanent resident alien spouse or parent in order to qualify for a 
waiver of inadmissibility.
    Response: The present rule seeks to promote uniformity by adopting 
a single rule for applying AEDPA section 440(d) nationwide (except 
where prohibited by the law of the circuit). The policy goals 
underlying this initiative do not exist with respect to section 212(i), 
which has not been the subject of similarly sharp or widespread 
interpretive disagreement within the circuits. The Department will not 
disturb the existing administrative jurisprudence regarding section 
212(i).

What Technical Amendments Are Being Made to the Board of 
Immigration Appeals Streamlining Regulation?

    8 CFR 3.1(d)(1-a) was redesignated as section 3.1(d)(2) in the 
Board of Immigration Appeals Streamlining final regulation published 
Monday, October 18, 1999 (64 FR 56135). Additionally, 8 CFR 3.1(d)(2) 
was redesignated as section 3.1(d)(3). Consequently, those paragraphs 
in 8 CFR which refer to section 3.1(1-a) or section 3.1(d)(2) are 
misleading and need to be amended.
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 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 such as that term is defined in 5 U.S.C. 601(6).
Unfunded Mandates Reform Act of 1995
    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. See 5 
U.S.C. 804. This rule will not result in an annual

[[Page 6445]]

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 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
    This 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 6 
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 regulation 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, 5107 Leesburg 
Pike, Suite 2400, Falls Church, Virginia 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 that 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 212

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

8 CFR 240

    Administrative practice and procedure, Immigration.

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

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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

    Authority: 5 U.S.C. 301; 8 U.S.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.


Sec. 3.1  [Amended]

    2. In section 3.1(d)(2)(iii), references to ``paragraph (d)(1-
a)(i)'' are revised to read ``paragraph (d)(2)(i).''


Sec. 3.3  [Amended]

    3. In section 3.3(b), the reference to ``Sec. 3.1(d)(1-a)(i)'' is 
revised to read ``Sec. 3.1(d)(2)(i).''

    4. 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;
    (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, other than a motion for section 212(c) 
relief, 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. Any motion for section 212(c) relief pending before the 
Board or the Immigration Courts on January 22, 2001 that would be 
barred by the time or number limitations on motions shall be deemed to 
be a motion to reopen filed pursuant to this section.
    (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 by June 23, 2001.
    (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

[[Page 6446]]

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), unless the Board 
chooses to exercise its discretionary authority to adjudicate the 
matter on the merits without a remand.
    (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 section. 
This section 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

    5. 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.


    6. Paragraph (g) is added to section 212.3 to read as follows:


Sec. 212.3  Application for the exercise of discretion under 
Sec. 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.

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

    7. The authority citation for 8 CFR part 240 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 
1251, 1252 note, 1252a, 1252b, 1362; 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.

Sec. 240.15  [Amended]

    8. In Sec. 240.15, the reference to ``Sec. 3.1(d)(1-a)'' is revised 
to read ``Sec. 3.1(d)(2).''


Sec. 240.21  [Amended]

    9. In Sec. 240.21(c), the reference to ``Secs. 3.1(d)(2) and 3.39'' 
is revised to read ``Secs. 3.1(d)(3) and 3.39.''


Sec. 240.53  [Amended]

    10. In Sec. 240.53(a), the reference to Sec. 3.1(d)(1-a)'' is 
revised to read ``Sec. 3.1(d)(2).''

    Dated: January 17, 2001.
Janet Reno,
Attorney General.
[FR Doc. 01-1785 Filed 1-19-01; 8:45 am]
BILLING CODE 4410-30-P