Proposed Rules Federal Register

 [Federal Register: July 18, 2000 (Volume 65, Number 138)] [Proposed Rules]                [Page 44476-44481] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr18jy00-17]                           ======================================================================== Proposed Rules                                                 Federal Register ________________________________________________________________________  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.  ========================================================================        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,    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.        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    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.        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;        (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] BILLING CODE 4410-30-U  
Updated January 13, 2015