Department of Justice
Executive Office for Immigration Review
September 30, 1998
Interim Rule Published to Implement Statutory Limitations
on Suspension of Deportation and Cancellation of Removal
FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) and the Immigration and Naturalization Service (INS) published an interim rule in the Federal Register today to implement the statutory limit, or cap, on the number of applications for suspension of deportation and cancellation of removal that may be granted in each fiscal year. The new rule replaces the conditional grant process established by an interim rule published October 3, 1997, with a new procedure for processing applications for suspension and cancellation so that the annual cap of 4,000 grants will not be exceeded.
The annual cap on suspension/cancellation grants was added to the Immigration and Nationality Act by a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which was enacted on September 30, 1996. Even before the midpoint of fiscal 1997, EOIR determined that it had nearly reached 4,000 grants of suspension/cancellation for fiscal 1997 (which had begun October 1, 1996). On February 13, 1997, the Board of Immigration Appeals (BIA) was instructed to defer adjudication of grants of suspension/ cancellation, and the Immigration Courts were directed to reserve any further grants, until the Department of Justice decided how best to implement the statutory cap.
On October 3, 1997, the Department published an interim rule requiring Immigration Judges and the BIA to make any grants of suspension/cancellation conditional. On October 15, 1997, EOIR further instructed Immigration Judges to go back and convert previously reserved grants of suspension/cancellation to conditional grants.
Then, on November 19, 1997, the enactment of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) modified the provision of law concerning the cap on suspension/cancellation. Besides exempting certain aliens from the annual cap, NACARA also provided for an additional 4,000 grants to increase the cap to 8,000 for fiscal 1998 only.
With the new rule being published on September 30, the Department addresses three issues concerning the implementation of the annual cap:
First, the rule provides for converting the first 8,000 conditional grants made in fiscal 1998 to outright grants on the basis of the date of the conditional grants made by Immigration Judges or the BIA. To facilitate this effort, EOIR will issue a notice to each of these persons, advising them that the conditional nature of their grant has been removed and that they have been granted outright suspension of deportation or cancellation of removal. Under the rule, conditional grantees will be able to retain their conditional grants after traveling outside the United States provided they first obtain permission from INS for such travel.
Second, the rule establishes new procedures for grants of suspension/cancellation. Instead of conditional grants, future grants will be issued on a "first-in-time" basis. With each grant of suspension/cancellation, a grant will be counted against the cap for the fiscal year. Once grants are no longer available in a given year, Immigration Judges and the BIA will reserve their decisions on applications for suspension/cancellation until the next fiscal year when grants are available, unless the applications can be denied or dismissed as clearly ineligible for relief.
Third, any conditional grants which remain after fiscal 1998 will be granted and counted against the next fiscal year's cap, when numbers are available. This will help to ensure that all aliens who have received a conditional grant of suspension/cancellation have an opportunity to receive an outright grant of relief.
The rule also offers Nicaraguan and Cuban nationals who have conditional grants an opportunity to first pursue adjustment of status under section 202 of NACARA in order to help preserve as many grants as possible under the cap in fiscal 1998 for aliens who are not eligible for other forms of relief besides suspension/cancellation. Under these procedures, INS will provide individual notice to Nicaraguan and Cuban conditional grantees to come to an INS office and complete forms attesting to certain facts regarding their eligibility for NACARA adjustment.
They will be charged no fees for this application process and, if they cannot qualify for NACARA adjustment or if they choose not to pursue it, their conditional grant of suspension/ cancellation will be converted automatically to a final grant. If an applicant does not appear before an INS officer as scheduled, his or her conditional grant will be converted automatically to a final grant effective December 31, 1998.
To complete their request for NACARA adjustment, INS instructs Nicaraguan and Cuban conditional grantees to appear before an INS officer on the scheduled date with the following:
- The order granting suspension of deportation or cancellation of removal on a conditional basis;
- A completed but unsigned Attestation of Alien and Memorandum of Creation of Record of Lawful Permanent Residence, Form I-895, which they will be required to sign in the presence of the officer;
- Any applications for waiver of inadmissibility, if applicable; and
- Two photographs that meet the specifications in the instructions attached to the I-895.
The interim rule published in the Federal Register on September 30, 1998, amends Title 8 of the Code of Federal Regulations (8 CFR) by replacing the interim rule with a new section 240.21. The rule is effective immediately but still provides for a 60-day public comment period. Comments may be submitted to the EOIR Office of the General Counsel.
- EOIR -
The Executive Office for Immigration Review (EOIR) is an agency within the Department of Justice. Under delegated authority from the Attorney General, immigration judges and the Board of Immigration Appeals interpret and adjudicate immigration cases according to United States immigration laws. EOIR's immigration judges conduct administrative court proceedings in immigration courts located throughout the nation. They determine whether foreign-born individuals—whom the Department of Homeland Security charges with violating immigration law—should be ordered removed from the United States or should be granted relief from removal and be permitted to remain in this country. The Board of Immigration Appeals primarily reviews appeals of decisions by immigration judges. EOIR's Office of the Chief Administrative Hearing Officer adjudicates immigration-related employment cases. EOIR is committed to ensuring fairness in all of the cases it adjudicates.