[Federal Register: May 21, 1999 (Volume 64, Number 98)]
[Rules and Regulations]
[Page 27855-27882]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21my99-17]
[[Page 27855]]
_______________________________________________________________________
Part II
Department of Justice
_______________________________________________________________________
Immigration and Naturalization Service
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8 CFR Part 103, et al.
Suspension of Deportation and Special Rule Cancellation of Removal for
Certain Nationals of Guatemala, El Salvador, and Former Soviet Bloc
Countries; Final Rule
[[Page 27856]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103, 208, 240, 246, 274a, 299
[INS No. 1915-98; AG Order No. 2224-99]
RIN 1115-AF14
Suspension of Deportation and Special Rule Cancellation of
Removal for Certain Nationals of Guatemala, El Salvador, and Former
Soviet Bloc Countries
AGENCY: Immigration and Naturalization Service and Executive Office for
Immigration Review, Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This rule implements section 203 of the Nicaraguan Adjustment
and Central American Relief Act (NACARA). It amends the Department of
Justice (Department) regulations by offering certain beneficiaries of
section 203 of NACARA who currently have asylum applications pending
with the Immigration and Naturalization Service (Service), and their
qualified dependents, the option of applying to the Service for
suspension of deportation or cancellation of removal under the
statutory requirements set forth in NACARA (``special rule cancellation
of removal'').
Described in very general terms, both suspension of deportation and
special rule cancellation of removal are forms of discretionary relief
that, if granted, permit an individual subject to deportation or
removal to remain in the United States as a lawful permanent resident
alien. Integrating the processing of certain applications under NACARA
into the Service's Asylum Program will provide an efficient process for
considering the suspension of deportation and special rule cancellation
of removal applications of most of the approximately 240,000 registered
class members of the American Baptist Churches v. Thornburgh (ABC)
litigation and certain other beneficiaries of NACARA who have asylum
applications pending with the Service, as well as their qualified
family members. The Immigration Court will retain exclusive
jurisdiction over most suspension of deportation and special rule
cancellation of removal applications submitted by NACARA beneficiaries
who have been placed in deportation or removal proceedings.
This rule also codifies the relevant factors and standards for
extreme hardship identified within existing case law, incorporates
additional extreme hardship factors relevant to battered spouses and
children, creates a rebuttable presumption of extreme hardship for
NACARA-eligible ABC class members who submit completed applications,
sets forth relevant eligibility criteria, creates procedures for
adjudicating suspension of deportation and special rule cancellation of
removal cases before the Service, and provides for the referral of
certain cases to the Immigration Court.
DATES: Effective date: This interim rule is effective June 21, 1999.
Comment date: Written comments must be submitted on or before July
20, 1999.
ADDRESSES: Please submit written comments in triplicate to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, NW, Room 5307, Washington, DC
20536. To ensure proper handling, please reference INS No. 1915-98 on
your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT: For matters relating to the
Immigration and Naturalization Service: Joanna Ruppel, International
Affairs, Department of Justice, Immigration and Naturalization Service,
425 I Street NW, ULLICO Bldg., third floor, Washington, DC 20536,
telephone number (202) 305-2663. For matters relating to the Executive
Office for Immigration Review: Chuck Adkins-Blanch, Acting General
Counsel, Executive Office for Immigration Review, Suite 2400, 5107
Leesburg Pike, Falls Church, VA 22041, telephone number (703) 305-0470.
SUPPLEMENTARY INFORMATION:
I. Background
What Is Section 203 of the Nicaraguan Adjustment and Central American
Relief Act?
Section 203 of the Nicaraguan Adjustment and Central American
Relief Act (NACARA), enacted as title II of Pub. L. 105-100 (111 Stat.
2160, 2193) (as amended by the Technical Corrections to the Nicaraguan
Adjustment and Central American Relief Act, Pub. L. 105-139 (111 Stat.
2644)), permits certain Guatemalans, Salvadorans, and nationals of
former Soviet bloc countries to apply for suspension of deportation or
cancellation of removal under special provisions set forth in that
section.
How Did the Service Propose To Implement Provisions of Section 203 of
NACARA?
On November 24, 1998, the Department of Justice published a
proposed rule to implement certain aspects of section 203 of NACARA in
the Federal Register at 63 FR 64895. The proposed rule would grant
asylum officers jurisdiction to adjudicate certain NACARA cases, create
a new NACARA application form, and outline the eligibility criteria for
obtaining relief, as well as the process for submitting an application
to the Service and processing procedures. The proposed rule would also
codify the factors from relevant case law generally considered in
evaluating extreme hardship claims. Comments were requested from the
public by January 25, 1999.
In response to the proposed rule, the Department received over 400
comments from a wide range of community organizations, legal service
providers, advocacy groups, members of Congress, the private bar, and
individuals. The comments offered suggestions for revising and
streamlining the adjudication and application process, providing
alternative legal interpretations for certain eligibility issues, and
advocating various policy interpretations with regard to implementation
of section 203 of NACARA. The vast majority of comments, however, urged
the Department to create a mandatory finding of extreme hardship for
NACARA beneficiaries, particularly for those ABC class members who are
eligible for relief under section 203 of NACARA.
Why Is the Service Issuing an Interim Rule With Requests for Comments?
The Department has reviewed all the comments submitted in response
to its proposed rule carefully and, in deciding which comments to
incorporate, has kept in mind the ameliorative purposes of NACARA. Many
suggestions from the public have been incorporated, particularly with
regard to streamlining the application form and clarifying certain
aspects of the application and adjudication process. With respect to
alternative legal interpretations of eligibility requirements and other
substantive matters, the Department has made those changes that comport
with the Immigration and Nationality Act (the Act) and NACARA.
Some of the substantive legal recommendations, however, exceed the
scope of the law and could not be included in the interim rule. This is
particularly true with regard to the
[[Page 27857]]
resolution of the extreme hardship issue. As will be explained in
greater detail, the Department has determined that it would be
inconsistent with both the Act and NACARA to adopt a conclusive finding
of extreme hardship for all NACARA applicants, as well as for the more
limited group of ABC class members. The Department has determined,
however, that a more limited approach is most consistent with the
requirement that suspension of deportation and cancellation of removal
cases be adjudicated on a case-by-case basis. This rule, therefore,
creates a rebuttable presumption of extreme hardship for those ABC
class members who are eligible to apply for relief under section 203 of
NACARA. The presumption will not apply to nationals from the former
Soviet bloc countries or any NACARA dependents.
Because the adoption of a rebuttable presumption represents a
significant shift from the proposed rule, the Department has determined
that an additional comment period is needed. However, due to the
substantial number of aliens eligible to apply for relief under section
203 of NACARA, the Department finds that there is good cause to avoid
further delay in allowing applications by issuing this regulation as an
interim rule. 5 U.S.C. 553.
How Are the Comments to the Proposed Rule Addressed in This Interim
Rule?
Given the large number of comments and the variety of issues
addressed, the discussion of the comments is divided into the general
categories of jurisdiction, initial and substantive eligibility
requirements, application procedures, adjudication procedures, and
revisions to the form that will generally be used to request relief
under section 203 of NACARA, Form I-881, ``Application for Suspension
of Deportation or Special Rule Cancellation of Removal (pursuant to
section 203 of Public Law 105-100 (NACARA)).'' Within each category,
the discussion contains a brief summary of relevant comments, the
Department's responses, and the changes made to the rule or form.
Additionally, this interim rule at 8 CFR part 246 gives asylum
office directors the same authority currently accorded district
directors to rescind adjustment of status granted to an individual by
an asylum officer in cases in which the individual is later found to
have been ineligible for adjustment of status. This interim rule also
outlines certain conditions and consequences of filing an application
for NACARA relief at 8 CFR 240.63(d).
II. Discussion of Comments
Jurisdiction
Jurisdiction Over NACARA Applications
Several commenters requested that the Service be given initial
jurisdiction over all applications for suspension of deportation and
special rule cancellation of removal under NACARA. One comment stated
that the Service should have jurisdiction over applications of
individuals whose asylum applications were adjudicated under the terms
of the ABC settlement agreement while NACARA was under legislative
consideration, but before it passed, and also over individuals who have
no mechanism for applying with the Service, such as those who
registered for Temporary Protected Status (TPS), but never applied for
asylum.
The Department will not change the jurisdictional scheme initially
proposed, as it is the best way for ensuring timely resolution of
NACARA applications. As explained in greater detail in the
supplementary information published with the proposed rule,
administrative efficiency is and has always been the Department's
primary consideration in delineating jurisdiction. 63 FR 64895
(November 24, 1998). Distributing the NACARA caseload between the
Executive Office for Immigration Review (EOIR) and the Service's Asylum
Program increases the Department's ability to resolve cases quickly,
because, in the vast majority of cases, a NACARA application will be
heard by the agency that also has jurisdiction over an applicant's
pending asylum application. For those persons with asylum claims
currently pending before the Service, the rule permits concurrent
adjudication of the asylum and NACARA applications. If an applicant is
granted either asylum or NACARA relief, it will be unnecessary to refer
his or her case to the Immigration Court. It would be administratively
inefficient to transfer the cases of individuals currently in
immigration proceedings, including ABC class members whose asylum
applications have already been given a de novo adjudication by the
Service, back to the Service solely for a NACARA adjudication and would
delay the resolution of their cases.
The interim rule does include two exceptions to the general rule
that individuals in proceedings before the Immigration Court may apply
for relief under section 203 of NACARA only before the Immigration
Court. The first exception covers those registered ABC class members
whose proceedings before the Immigration Court or the Board of
Immigration Appeals (Board) were administratively closed or continued,
including those class members with final orders of deportation or
removal who have filed and been granted NACARA motions to reopen
under
8 CFR 3.43. An individual in this category is eligible to file a NACARA
application with the Service if the individual is eligible for the
benefits of the ABC settlement agreement, has not already had a de novo
adjudication of the asylum claim by the Service pursuant to the
agreement, and has not moved for and been granted a motion to
recalendar proceedings before the Immigration Court or the Board to
request suspension of deportation.
Under the second exception, a qualified family member of an
individual who has a section 203 NACARA application pending with the
Service, or who has been granted relief under that provision, may move
to close the proceedings before the Immigration Court in order to apply
with the Service. Administrative efficiency will likely be enhanced
where family members have similar claims and there are strong policy
reasons based on family unity to make this exception to the general
jurisdiction rule.
The Department also declines to adopt the proposal that the Service
be given jurisdiction over applications of individuals who have neither
applied for asylum with the Service nor have been placed in immigration
proceedings before the Immigration Court. The Department is concerned
that such an expansion of the Service's jurisdiction would result in a
large number of fraudulent applications being filed solely for the
purposes of obtaining employment authorization, and thereby expose the
Asylum Program to a recurrence of the same problems that necessitated
asylum reform in 1995.
Concerns regarding fraud arise because an applicant for suspension
of deportation or special rule cancellation of removal will be entitled
to apply immediately for and be granted employment authorization. The
determination of eligibility for employment authorization will
necessarily be made by Service Center personnel based solely on a
written application. However, an asylum office must accurately verify
whether an individual is an ABC class member and registered for ABC
benefits. Verification of ABC class membership and registration is a
time consuming process that, because of limitations in the registration
databases, often cannot be done without interviewing the individual. If
the affirmative process is
[[Page 27858]]
not limited as set forth in the proposed rule, an individual who is not
an ABC class member, or who is an unregistered class member, could
easily submit a fraudulent application for relief under section 203 of
NACARA and be granted employment authorization.
Restricting the availability of the affirmative NACARA process to
certain categories of NACARA beneficiaries who have pending asylum
applications with the Service and those who have a qualified relative
whose asylum application has been adjudicated by the Service or is
pending with the Service ensures that the Service has an existing
record of the applicant or the applicant's qualified relative before he
or she is able to apply for affirmative relief under section 203 of
NACARA. This restriction minimizes the Asylum Program's vulnerability
to fraud and avoids diverting resources from the adjudication process
in order to verify the status of each new applicant claiming to be a
registered ABC class member. This allows the Service to focus on
resolving the status of the approximately 240,000 registered ABC class
members who have asylum applications pending with the Service and their
qualified relatives.
Process for Placing NACARA Beneficiaries Ineligible to Apply With the
Service Into Removal Proceedings
One commenter requested that the regulations provide a mechanism
for those who are not eligible to apply with the Service to receive
charging documents placing them in removal proceedings where they may
apply for special rule cancellation of removal before the Immigration
Court.
The Department recognizes that registered ABC class members who
never applied for asylum and who have not been placed in immigration
proceedings are unable to apply for special rule cancellation of
removal unless the Service places them in removal proceedings by
issuing charging documents. An individual may request that the district
office with jurisdiction place him or her in proceedings, but the
Service retains prosecutorial discretion to determine the priority
status of such a request. The Department is considering the possibility
of having the asylum offices issue charging documents to registered ABC
class members who request to be placed into proceedings and who provide
sufficient information for the Service to issue the charges. The
preparation and service of charging documents is labor intensive and
would require diverting resources from the adjudication of applications
filed by the large number of individuals who have asylum
applications
pending with the Service. Therefore, an asylum office's ability to
issue charging documents upon request necessarily depends on the
resources of the asylum office, the number of applications for
suspension of deportation or special rule cancellation of removal
initially filed by NACARA beneficiaries, the number of affirmative
asylum applications the asylum office must adjudicate within the time
limits imposed by statute, and other program requirements, such as the
number of credible fear and reasonable fear interviews requested of the
office. The Department will be in a better position to determine the
feasibility of issuing charging documents upon request after the
affirmative program has begun and allocation of resources based on the
number of NACARA applications filed each month can be evaluated more
accurately.
Jurisdiction--``Still Pending Adjudication by the Service''
Several commenters requested that the regulations clarify what is
meant by ``still pending adjudication by the Service'' for purposes of
determining who is eligible to apply with the Service.
Section 240.62(a) of the proposed rule provides for Service
jurisdiction over certain applicants whose asylum applications are
``pending adjudication by the Service'' at the time the applicants
apply for relief under NACARA. For the sake of clarity, the interim
rule contains a definition of this phrase at Sec. 240.60. An asylum
application will be considered ``pending adjudication by the Service,''
if the Service has not served the applicant with a final decision or
referred the application to the Immigration Court. This means that,
unless the Service has served the applicant with a final decision to
grant asylum or deny asylum, or has served the applicant with documents
referring his or her application to the Immigration Court, the asylum
application will be considered pending with the Service, even if a
final decision has been made by the Service, but not yet served on the
applicant.
Jurisdiction--Scope of ABC Class Members' Eligibility to File With the
Service
Several commenters requested that the regulations clarify the
statement ``otherwise met the asylum filing deadline pursuant to the
ABC settlement agreement,'' contained in Sec. 240.62(a). The commenters
recommended that the phrase be interpreted to mean that certain ABC
class members can still apply for asylum under the settlement agreement
if the Service failed to serve them properly with required notices.
Paragraphs (a)(1) and (2) of Sec. 240.62 give the Service
jurisdiction over applications for suspension of deportation or special
rule cancellation of removal filed by registered ABC class members
who,
in the Service's determination, are eligible for benefits of the
settlement agreement and whose asylum applications are still pending
adjudication by the Service. To be eligible for the benefits of the
settlement agreement, a registered class member must have filed for
asylum by a specified date. Consistent with the settlement agreement,
the Service has allowed a very small number of Salvadoran class members
who registered for ABC benefits, but missed the requisite asylum filing
date, to apply for asylum under the terms of the settlement agreement.
Such applications are permissible where the Service determines that it
failed to send those individuals a copy of Notice 5, as required by the
settlement agreement. Under the settlement agreement, the Service was
obligated to send Notice 5, which informed class members that they had
to apply for asylum on or before January 31, 1996, in order to retain
benefits of the settlement agreement, to Salvadoran class members who
had applied for TPS. To date, the Service has not excepted any other
class members from the asylum filing deadlines for any other reason.
However, the Department included the broad language in
Sec. 240.62(a)(1) and (2), ``or otherwise met the asylum application
filing deadline pursuant to the ABC settlement agreement,'' to enable
the Service to maintain jurisdiction over a class member who
demonstrates that he or she did not meet the requisite filing deadline
because of some fault of the Service, such as failure to serve certain
required notices. The burden is on the class member, however, to
establish that the Service was at fault.
The Department declines to adopt the definition recommended in the
comments because it would not afford the necessary flexibility that may
benefit the ABC class. The Department takes this action with the
understanding that, pursuant to current practice and as documented in
the ABC Procedures Manual that is used by field personnel in
implementing the ABC settlement agreement, the Service will extend the
asylum filing deadline if it determines that a Salvadoran class member
who applied for temporary protected status was not properly sent Notice
5.
[[Page 27859]]
Initial Eligibility
Advance Parole and Eligibility to Apply for NACARA
Several commenters disagreed with the Department's determination
that NACARA beneficiaries in deportation proceedings who had previously
left the country and returned under a grant of advance parole are
ineligible for NACARA relief. They argued that, while such persons may
be ineligible for suspension of deportation, they should be eligible to
apply for special rule cancellation of removal by virtue of their
status of inadmissibility.
For aliens present in the United States, a grant of advance parole
under section 212(d)(5) of the Act permits the individual to leave the
United States temporarily with advance permission to return to the
United States. Upon expiration of parole, however, the statute requires
that an applicant must be ``dealt with in the same manner as that of
any other applicant for admission to the United States.'' Consequently,
an applicant who was previously considered deportable would be
considered inadmissible for purposes of determining eligibility for any
form of relief. As a practical matter, very few individuals in
deportation proceedings were ever granted advance parole, but those who
did receive permission to depart would have been subject, upon return,
to termination of the deportation proceedings along with receipt of new
charging documents placing them in exclusion proceedings. A very small
number of ABC class members whose deportation proceedings were
administratively closed pursuant to the settlement agreement received
advance parole. Upon their return, they were then technically
inadmissible to the United States rather than deportable. In the normal
course of events, those persons denied asylum at their de novo ABC
adjudication would have been placed in exclusion proceedings once their
parole was terminated. Because ABC asylum adjudications did not begin
until 1997 and were subsequently suspended in 1998, as a result of
NACARA, many, if not all of these cases have not yet been adjudicated.
For purposes of a NACARA adjudication before the Service, this
small group of ABC class members might be ineligible for suspension of
deportation based solely on their change in status from deportable to
inadmissible, if their deportation proceedings are still pending when
their NACARA applications are adjudicated. Though temporary absences
from the United States ordinarily would not automatically terminate or
nullify previously commenced deportation proceedings, they likely would
in this circumstance because these individuals became applicants for
admission upon their return to the United States under advance parole,
and the deportation charges contained in the show cause orders
previously issued in their cases are no longer applicable. See Matter
of Brown, 18 I & N Dec. 324 (BIA 1982). In these narrow set of
circumstances, it is appropriate to consider the deportation
proceedings against an individual who departed and returned to the
United States under a grant of advance parole while those deportation
proceedings were pending as having terminated as of the date of the
person's departure from the United States. If the Service determines
that such an applicant is eligible for relief under section 203 of
NACARA, the applicant will be granted special rule cancellation of
removal. If the applicant is not granted NACARA relief and is not
granted asylum, the Service will issue charging documents placing the
person into removal proceedings.
To the best of the Department's knowledge, only ABC class members
will be affected by this provision. However, the rule permits asylum
officers to follow the same procedure for any other applicant within
their jurisdiction who received advance parole while in deportation
proceedings.
Eligibility To Apply for NACARA in Exclusion Proceedings
Another issue raised by the commenters is whether section 203 of
NACARA and the implementing regulations apply to NACARA beneficiaries
who were in exclusion proceedings as of April 1, 1997, including those
ABC class members who were in exclusion proceedings and had those
proceedings administratively closed or continued by EOIR to allow the
class members to pursue de novo adjudications of their asylum claims by
the Service, as provided by the ABC settlement agreement. These
commenters argued that Congress indicated its clear intent to make
NACARA relief available to persons in exclusion proceedings, because
the statute provides that NACARA's special rules apply ``regardless of
whether the alien is in exclusion or deportation proceedings.* * * ''
IIRIRA section 309(c)(5)(C)(i), as amended by section 203(a)(1) of
NACARA. Several commenters suggested that the intent of Congress can be
carried out by placing individuals currently in exclusion proceedings
into removal proceedings by: (1) electing to proceed under new removal
procedures in those cases where an evidentiary hearing in the exclusion
process had not commenced prior to April 1, 1997, pursuant to section
309(c)(2) of IIRIRA; or (2) terminating exclusion proceedings where
there has not been a final administrative decision and reinitiating
them as removal proceedings, as provided for under section 309(c)(3) of
IIRIRA.
Courts have consistently stated that suspension of deportation is
unavailable to persons in exclusion proceedings, see Matter of Torres,
19 I & N 371, 372-73 (BIA 1986); Landon v. Plasencia, 459 U.S. 21, 26-
27, 103 S.Ct. 321, 325-26, 74 L.Ed.2d 21 (1982) (``[T]he alien who
loses his right to reside in the United States in a deportation hearing
has a number of substantive rights not available to the alien who is
denied admission in an exclusion proceeding'[including the right to]
seek suspension of deportation.''), even if the person has been present
in the United States for an extended period of time under a grant of
parole. Yuen Sang Low v. Attorney General of U.S., 479 F.2d 820, 822
(9th Cir.), cert. denied, 414 U.S. 1039 (1973). This principle has
recently withstood statutory and constitutional challenges, despite the
recognition that IIRIRA eliminated the distinction between deportation
and exclusion for proceedings initiated on or after April 1, 1997, by
replacing them with a single removal process. See Patel v. McElroy, 143
F.3d 56 (2nd Cir. 1998) (statutory challenge); Skelly v. INS, 168 F.3d
88 (2nd Cir. 1999) (constitutional challenge based on equal protection
principles).
The general rule laid out in IIRIRA for the transition from
exclusion and deportation procedures to a unified removal process is
that, for ``an alien who is in exclusion or deportation proceedings as
of [April 1, 1997],'' the amendments to the procedures for removing
individuals from the United States instituted by IIRIRA ``shall not
apply,'' and exclusion and deportation proceedings ``shall continue to
be conducted without regard to such amendments.'' IIRIRA section
309(c)(1). The IIRIRA transitional rules dealing with suspension of
deportation, as amended by section 203 of NACARA, are directed solely
to outlining the circumstances under which the new cancellation of
removal rules regarding continuous residence and physical presence,
found in section 240A(d)(1) and (2) of the Act, apply to individuals
who were placed in exclusion or deportation proceedings prior to April
1, 1997.
[[Page 27860]]
Under the transitional rules for suspension of deportation cases,
section 309(c)(5)(A) of IIRIRA, as amended by NACARA, states that the
rules regarding continuous residence and physical presence generally
apply to orders to show cause regardless of when the orders to show
cause are issued, thus making these rules applicable to requests for
suspension of deportation. The first exception to this rule, located at
section 309(c)(5)(B) of IIRIRA, as amended by NACARA, provides that the
new continuous residence and physical presence rules found at section
240A(d)(1) and (2) of the Act will not apply to an order to show cause
issued prior to April 1, 1997, when the Attorney General decides to
terminate a pending exclusion or deportation proceeding under section
309(c)(3) of IIRIRA and reinitiate the proceeding under removal
provisions. The exception described in section 309(c)(5)(C)(i) of
IIRIRA, as amended by NACARA, states that these new rules regarding
continuous residence and physical presence will not apply to NACARA
beneficiaries who request suspension of deportation or cancellation of
removal. While the first exception simply prevents the application of
the new continuous residence and physical presence rules to an order to
show cause in one particular situation, the second exception exempts
NACARA beneficiaries from the continuous residence and physical
presence rules whenever they file for suspension of deportation under
the pre-IIRIRA section 244 of the Act, or for regular cancellation of
removal under section 240A of the Act (additional rules establishing
eligibility for NACARA special rule cancellation of removal are covered
separately in section 309(f) of IIRIRA, as amended by NACARA),
``regardless of whether the alien is in exclusion or deportation
proceedings before [April 1, 1997].'' IIRIRA section 309(c)(5)(C)(i),
as amended by NACARA.
Contrary to showing a congressional intent that NACARA relief be
made available to persons in exclusion proceedings, the phrase quoted
above and cited in several comments simply indicates that Congress did
not want the new continuous residence and physical presence rules to
apply to NACARA beneficiaries who are eligible to apply for suspension
of deportation or cancellation of removal no matter what charging
documents, if any, may have been issued to them prior to April 1, 1997.
This language makes clear that the initiation of exclusion proceedings
against NACARA beneficiaries prior to April 1, 1997, does not result in
the application of the new continuous residence and physical presence
rules to their cases, acknowledging the possibility that such
individuals may have their exclusion proceedings changed into removal
proceedings under the transitional rules covered in section 309(c)(2)
and (3) of IIRIRA.
None of these transitional rules dealing with suspension of
deportation override the general transition rule that subjects a person
placed into exclusion proceedings prior to April 1, 1997, to the rules
governing exclusion that were in place before IIRIRA was enacted.
IIRIRA section 309(c)(1). Included among those rules is the long-
standing principle that persons in exclusion proceedings are ineligible
to apply for suspension of deportation. As noted by certain comments,
the IIRIRA transitional rules provide a way to allow such individuals
to apply for special rule cancellation of removal under NACARA. This
could be done by applying removal procedures to those cases in which an
evidentiary hearing has not commenced as of April 1, 1997, as allowed
under section 309(c)(2) of IIRIRA, or by terminating the exclusion
proceedings and reinitiating proceedings under section 240 of the Act,
as provided for under section 309(c)(3) of IIRIRA. For purposes of this
interim rule, the Department declines to pursue these options at this
time, but invites additional comments on this point.
Effect of ``Apprehended at Time of Entry'' Limit on Eligibility
Several commenters requested that the regulations define the term
``apprehended at time of entry'' to promote consistency in
interpretation. The commenters also proposed the following definition:
``The phrase ``apprehended at time of entry'' means a person who was
arrested at a United States port-of-entry between December 19, 1990,
the preliminary approval date of the settlement agreement, and January
31, 1991, the date the court approved the settlement agreement.''
The interim rule will not be amended to include this definition.
Section 203 of NACARA provides that a registered ABC class member who
``was not apprehended after December 19, 1990, at the time of entry,''
may apply for suspension of deportation or special rule cancellation of
removal under the provisions enacted by NACARA. The language
``apprehended * * * at time of entry'' was derived from paragraph 2 of
the ABC settlement agreement, which states, ``Class members apprehended
at the time of entry after the date of preliminary approval of this
agreement shall not be eligible for the benefits hereunder.'' See
American Baptist Churches v. Thornburgh, 760 F. Supp. 796, 800 (N.D.
Cal. 1991). The date of preliminary approval of the settlement
agreement was December 19, 1990. There is no provision in either the
settlement agreement or section 203 of NACARA limiting this provision
to those registered class members apprehended at time of entry between
December 19, 1990, and January 31, 1991, nor is there any provision
that excludes from the applicability of this provision registered class
members apprehended after January 31, 1991. The Service consistently
has implemented the plain meaning of the language in the settlement
agreement in denying ABC benefits to class members apprehended at the
time of entry after December 19, 1990. There is no indication that
Congress intended to redefine the exclusionary ground included in the
settlement agreement or to limit the corresponding statutory provision
only to registered class members apprehended at the time of entry prior
to January 31, 1991. Therefore, the Department does not believe that
the interpretation suggested in the comments is permitted by NACARA.
The Department has carefully considered the value of including a
definition of ``apprehended at time of entry'' within the rule, but
does not believe that it is appropriate to do so. The Service has
issued and continues to provide policy guidance to its officers
explaining that a class member who has been apprehended after the class
member has effected an entry (consistent with the former ``entry
doctrine'') cannot be considered to have been apprehended at the time
of entry. Deriving guidance from the definition of ``entry'' under the
Act, as it existed prior to April 1, 1997, and as developed by case
law, the Service has instructed officers that the determination of
whether an entry has been effected involves consideration of the
following three factors: (1) whether the class member has crossed into
the territorial limits of the United States; (2) whether the class
member has been inspected or admitted by an immigration officer, or has
actually and intentionally evaded inspection at the nearest inspection
point; and (3) whether the class member crossed into the territorial
limits of the United States free from official restraint, including
free from surveillance. Because these factors necessarily are dependent
on the individualized factors of each case, the Department has
determined that it is more appropriate
[[Page 27861]]
to continue to provide internal guidance on the factors to consider in
evaluating whether an entry has been effected than to attempt to codify
a definition that would cover the wide variety of facts that may be
present in an individual case.
Guatemalans and Salvadorans Filing for Asylum by April 1, 1990
Several commenters suggested that the proposed rule reads too
narrowly the eligibility requirement contained at section
309(c)(5)(C)(i)(II) of IIRIRA, as amended by NACARA. This sections
permits Salvadorans and Guatemalans who ``filed an application for
asylum with the Immigration and Naturalization Service'' prior to April
1, 1990, to apply for relief under NACARA. Section 240.61(a)(2) of the
proposed rule would limit eligibility to those persons who filed an
application for asylum directly with the Service. The commenters note
that the proposed rule fails to account for those persons who filed
for
asylum by April 1, 1990, before the Immigration Court. The comments
argue that the critical factor in section 309(c)(5)(C)(i)(II) of the
statute relates to asylum filing date, rather than the forum of filing.
The comments further note that any application filed with the
Immigration Court was necessarily served on the Service. They argue
that a restrictive reading of the statute unnecessarily limits
eligibility, and that filing for purposes of this section should be met
whenever an applicant filed for asylum with the Department of
Justice.
The Department agrees that section 309(c)(5)(C)(i)(II) of IIRIRA is
subject to different interpretations. In drafting the proposed rule,
the Department contrasted the wording of this section with that of
section 309(c)(5)(C)(i)(V) of IIRIRA, as amended by NACARA, which
permits certain nationals of former Soviet bloc countries to apply for
relief under NACARA if they ``filed for asylum on or before December
31, 1991.'' The proposed rule reflected the Department's initial
interpretation that subclauses (II) and (V) should be read together,
such that subclause (II) should be read to limit eligibility to those
who filed an affirmative asylum application with the Service, while
an
individual could be eligible for relief under subclause (V) as long as
an asylum application was filed before either the Service or before
the
Immigration Court.
Although this interpretation is consistent with the literal wording
of the statute, the Department recognizes that, in determining
eligibility to apply for suspension of deportation or special rule
cancellation of removal under NACARA, ``filed'' could be read more
broadly to mean either submitted to or served on the Service. This
interpretation is supported by several factors. First, it is more
appropriate to track subclauses (I) and (II) rather than subclauses
(II) and (V). Section 309(c)(5)(C)(i) of IIRIRA contains two provisions
specifically relating to Salvadorans and Guatemalans. Subclause (I)
permits Salvadorans and Guatemalans who entered the United States prior
to September 19, 1990, and October 1, 1990, respectively, to file for
NACARA relief if they registered for benefits under the ABC agreement
by the dates specified in the agreement. Subclause (II) relates to
Salvadorans and Guatemalans who filed for asylum by April 1, 1990,
regardless of whether they also registered for ABC benefits. When
subclause (I) and (II) are read together, the application of the
statute creates inconsistent results unless subclause (II) is
interpreted to cover both Service and EOIR asylum filings. For
instance, a Salvadoran placed in immigration proceedings who filed
an
application for asylum with the Immigration Court by April 1, 1990 is,
by definition, a member of the ABC class because he or she entered the
United States prior to September 19, 1990. If he or she registered for
ABC benefits, he or she would be eligible to apply for relief under
subclause (I), even though he or she did not initially file the asylum
application with the Service. Given that subclause (II) essentially
concerns ABC class members who failed to register for ABC benefits, it
is inconsistent with the ameliorative purposes of NACARA to limit
eligibility solely to those persons who filed directly with the
Service.
Second, NACARA makes use of either ABC registration deadlines or
asylum filing deadlines to identify eligible aliens. A grant of asylum
confers the same benefits regardless of whether the grant is conferred
by an asylum officer or an Immigration Court. It is the act of filing
for asylum or registering for ABC benefits, rather than the forum, that
distinguishes subclause (II) applicants from those Salvadorans and
Guatemalans in the United States who never applied for asylum or
registered for ABC benefits.
Consequently, 8 CFR 240.61(a)(2) has been amended to include a
Guatemalan or Salvadoran national who filed an application for
asylum
with the Service on or before April 1, 1990, either by filing an
application directly with the Service or filing the application with
the Immigration Court and serving a copy of that application on the
Service.
Determining When an Application for Asylum is Filed
Though not included in the proposed rule, the Department has
included in Sec. 240.60 of this interim rule a definition for
determining when a person is considered to have ``filed an
application
for asylum.'' This definition is necessary in order to determine
eligibility to apply for relief under section 203 of NACARA. The
definition will also be used to determine the date a dependent included
in an asylum application is considered to have ``filed'' for asylum.
Under this definition, any dependent spouse or child who was present in
the United States and included in the principal's asylum application at
the time it was filed will be considered to have
filed an application
for asylum on the date the principal's asylum application was filed.
Any dependent who is added to the principal's asylum application after
it was initially filed will be considered to have
filed an application
for asylum on the date the dependent was added to principal's asylum
application.
Eligibility--NACARA Dependents
One commenter requested that the regulations specify that children
and spouses can file for relief under NACARA after they have attained 7
years of continuous physical presence in the United States, even if
they had not been continuously present in the United States for 7 years
at the time the statute was enacted, or have not reached 7 years by the
time the rule implementing section 203 of NACARA becomes effective.
The Department agrees with this interpretation. Both section 203 of
NACARA and the interim rule allow children and spouses to apply for
relief under NACARA, even if they had not been continuously physically
present in the United States for 7 years at the time NACARA was enacted
or implemented. To meet the physical presence requirement, the spouse
or child must have 7 years of continuous physical presence in the
United States (10 years, if certain inadmissibility or deportability
grounds apply) as of the date the application for relief was filed.
Unlike section 202 of NACARA, there is no deadline for applying for
relief under section 203 of NACARA.
Eligibility of Dependents Who Have Turned 21 Years of Age Since NACARA
Was Enacted
Several commenters expressed concern about children who have lost
or will lose eligibility to apply for relief pursuant to section
309(c)(5)(C)(i)(III) of
[[Page 27862]]
IIRIRA, as amended by section 203(a) of NACARA, because they turned 21
years of age between November 19, 1997, the date NACARA was enacted,
and the effective date of this regulation. Several commenters suggested
that the regulations ``grandfather'' in all unmarried sons and
unmarried daughters who have turned 21 years of age since November 19,
1997. The commenters compare the current situation to that faced by
juveniles eligible for special immigration status under section 153 of
the Immigration Act of 1990 (IMMACT 90), Pub. L. 101-649 (104 Stat.
4978), who aged out prior to the publication of regulations
implementing that section of the law. Under the rule, juveniles who met
the statutory requirements on the date the statute was enacted, but who
had aged out prior to implementation of regulations, were permitted to
apply for and receive special immigrant status.
Comparison to the rule implementing section 153 of IMMACT 90 is not
persuasive, as the statutes and circumstances in question are not
analogous. Regulations implementing section 153 of the Immigration Act
of 1990, governing special eligibility provisions for juveniles to
adjust to lawful permanent resident status, ``grandfathered'' in
certain juveniles who met eligibility requirements on November 29,
1990. This was done because IMMACT 90 did not originally exempt special
immigrant juvenile aliens from the normal statutory requirements for
adjustment of status. Recognizing that most special immigrant juvenile
alien adjustment applicants were statutorily ineligible for adjustment
of status, for reasons unrelated to their age, Service offices were
directed to accept and hold in abeyance applications filed by
juveniles
who appeared to meet the statutory requirements for special immigrant
juvenile classification, but who may have been precluded based on
statutory requirements for adjustment of status. This policy was
adopted because the Service had put forward technical amendments that
would exempt these applicants from many of the ineligibility grounds
contained in sections 245 (a) and (c) of the Act. The technical
amendments to the Act were enacted at the end of 1991. The
supplementary information published as a final rule in the Federal
Register on August 12, 1993, at 58 FR 42843, explained that the rule
would apply the exemptions contained in the technical amendments to
aliens who could establish that they otherwise met the eligibility
criteria on November 29, 1990, ``to ensure that special immigrant
juveniles are not precluded from obtaining lawful permanent residence
because of the passage of time while the Service was awaiting
Congressional action to amend the adjustment of status provisions * *
*.''
Unlike the special immigrant cases, NACARA predicates eligibility
for dependents of a NACARA principal applicant on a grant of suspension
of deportation or cancellation of removal to the principal applicant.
The Department may not extend eligibility to qualified individuals who
were 21 years of age or older on the date of enactment of NACARA, or
prior to promulgation of regulations implementing the affirmative
application process because it exceeds the scope of eligibility
permitted by the statute. In section 309(c)(5)(C)(i)(IV)(bb) of IIRIRA,
as amended by NACARA, Congress explicitly linked the age of the
unmarried son or daughter to the date the parent is granted suspension
of deportation or cancellation of removal, not to the date the
unmarried son or daughter's application is adjudicated or any other
date.
In contrast to individuals covered by section 153 of IMMACT 90,
nothing in NACARA precludes qualified children of NACARA beneficiaries
from applying for relief once the parent or spouse has been granted
suspension of deportation or special rule cancellation of removal. Any
NACARA beneficiary who has a NACARA-eligible dependent nearing the age
of 21 years old, and who has had an asylum application pending with the
Service, has been afforded the opportunity to request an expedited
adjudication of the asylum application. In such a case, if the asylum
application were not granted, the applicant would be placed in removal
proceedings where he or she could apply for relief under section 203 of
NACARA with the Immigration Court. Alternatively, the parent could
request that his or her pending asylum application be withdrawn in
order to apply with the Immigration Court for both asylum and relief
under section 203 of NACARA. In such cases, if the dependent was listed
on the parent's asylum application and was included in the request for
asylum, he or she would also be placed in proceedings and could file a
NACARA application with the Immigration Court. The Service has outlined
these options to the public in previous section 203 of NACARA
information materials issued through the Service's Office of Public
Affairs. (``Questions and Answers about NACARA and Cancellation of
Removal,'' February 10, 1998; ``Nicaraguan Adjustment and Central
American Relief Act of 1997,'' April 1, 1998; and ``Section 203 of the
Nicaraguan Adjustment and Central American Relief Act of 1997,''
November 24, 1998.)
Initial Eligibility and ABC Class Members
One commenter stated that registered ABC class members who did not
apply for asylum by the dates required to retain eligibility for
benefits of the ABC settlement agreement should not be allowed to apply
for relief under NACARA. The commenter argued that NACARA was intended
to provide ABC class members with the opportunity to apply for
suspension of deportation under the rules that existed before IIRIRA
was enacted, and that if an ABC class member did not comply with the
requirements of the ABC settlement agreement, the class member should
not be allowed to apply for relief under NACARA.
Section 309(c)(5)(C)(i)(I) of IIRIRA, as amended by section 203(a)
of NACARA, provides that any registered ABC class member who has not
been apprehended, after December 19, 1990, at time of entry or
convicted of an aggravated felony may apply for suspension of
deportation or special rule cancellation of removal under the
provisions enacted by NACARA. In contrast to sections
309(c)(5)(C)(i)(II) and (V) of IIRIRA, as amended by NACARA, there is
no statutory language in section 309(c)(5)(C)(i)(I) of IIRIRA
connecting eligibility to apply for relief under NACARA to the filing
of an asylum application. Section 309(c)(5)(C)(i)(I) of IIRIRA contains
no requirement that the registered class member have applied for asylum
on any particular date, or ever have applied for asylum, but instead
predicates eligibility to apply solely on nationality and entry date
(which correspond to ABC class membership) and registration for ABC
benefits. Therefore, the Department believes it would be improper to
include in the regulations a substantive restriction on eligibility
that is not reflected in the statute.
Substantive Eligibility
Eligibility-Continuous Physical Presence
Several commenters suggested revisions to Sec. 240.64, regarding
the calculation of continuous physical presence. With respect to
Sec. 240.64(b)(1), concerning continuous physical presence for
suspension of deportation cases, the commenters suggested modifying the
``brief, casual, and innocent'' standard by defining single absences
not exceeding 90 days or
[[Page 27863]]
aggregate absences not exceeding 180 days to be considered ``brief'' in
order to parallel the standard used in cancellation of removal cases.
The commenters further proposed that absences of greater duration
should be evaluated on a case-by-case basis, and that the applicant
should still be required to establish that any departure was casual or
innocent.
With respect to Sec. 240.64(b)(2), relating to special rule
cancellation of removal, several commenters objected to the requirement
that an applicant must establish that single absences of 90 days or
less were brief, casual, and innocent. These commenters argued that
such a requirement was inconsistent with the Act. Similarly, these
commenters objected to the language contained in Sec. 240.64(b)(3),
which states that a departure incident to a final order of deportation
or removal, or an order of voluntary departure, or with the intent to
commit a crime terminates continuous physical presence. The commenters
suggested amending the provision for special rule cancellation of
removal to delete the mandatory finding and substitute language
providing that such absences may be the basis for finding that
continuous physical presence has been terminated.
The Department will adopt certain suggestions regarding the
definition of a ``brief'' absence from the United States. As proposed,
Sec. 240.64(b)(1) reiterates former section 244(b)(2) of the Act, as in
effect prior to IIRIRA, which establishes that for purposes of
continuous physical presence, absences from the United States will be
evaluated based on a determination of whether the absence was brief,
casual, and innocent. Initially, the Department chose to adopt this
language without further clarification in the rule, based on the body
of case law interpreting this provision, as well as the greater
flexibility inherent in the phrase ``brief, casual, and innocent.''
Because the concept of ``brief, casual, and innocent,'' however, goes
to the nature of a departure, it is consistent with section 244(d)(2)
of the Act, as in effect prior to IIRIRA, to provide some guidance
within the rule regarding one or more of these factors. Given the use
of the 90/180-day rule within the context of both cancellation of
removal and special rule cancellation of removal, it is reasonable to
adopt these timeframes for purposes of suspension of deportation under
NACARA. To assist adjudicators and to ensure consistent determinations
regarding the length of a departure, the Department will revise the
rule to define a ``brief'' absence as one of 90 days or less or an
aggregate of 180 days or less. Absences of greater duration will still
be considered on a case-by-case basis in suspension cases in order to
comply with the broader language of ``brief, casual, and innocent''
contained in the statute. All absences will be evaluated, however, to
determine whether or not they were casual and innocent.
The Department will also amend Sec. 240.64(b)(2) of the proposed
rule relating to special rule cancellation of removal to reflect the
definition of ``brief'' adopted in Sec. 240.64(b)(1). It is not
appropriate, however, to adopt the remaining suggestions relating to
special rule cancellation of removal. The commenters suggest that it is
contrary to the statute to disqualify a special rule cancellation of
removal applicant based on the nature of his or her absences. Neither
NACARA nor the Act, as amended by IIRIRA, precludes such an evaluation,
and when the 90/180-day rule is read within the context of immigration
reform under IIRIRA, it is apparent that Congress intended certain
kinds of departures, such as those made in furtherance of criminal
offenses, to terminate continuous physical presence. Similarly, through
reinstatement under section 241(a)(5) of the Act, Congress severely
limited the opportunity to seek relief for aliens who illegally reenter
the United States after previously being removed, or departing
voluntarily under final orders.
The interim rule resolves the apparent inconsistency by clarifying
the effect of certain absences of 90 days or less in a manner
consistent with suspension of deportation. Specifically, the second
sentence of Sec. 240.64(b)(2) retains the analytical framework of the
brief, casual, and innocent standard to account for those situations in
which a relatively brief absence nonetheless meaningfully interrupts
continuous physical presence. The burden of proof remains on the
applicant to establish the ``casual and innocent'' nature of such
departures in order to conform with the burden of proof required under
suspension of deportation. While Sec. 240.64(b)(2) attempts to account
for departures generally, Sec. 240.64(b)(3) identifies specific
departures that have long been considered to break continuous physical
presence in the context of suspension of deportation adjudications. It
is, therefore, both reasonable and necessary to place the same
restrictions on special rule cancellation applicants.
Eligibility-Statutory Bars
Several commenters asserted that the regulations should not subject
NACARA beneficiaries to bars to eligibility for suspension of
deportation or special rule cancellation of removal, such as section
242B(e) of the Act, as in effect prior to April 1, 1997, and current
section 240(b)(7) of the Act. The commenters maintain that Congress
intended to waive substantive bars relating to eligibility. Citing
section 203(c) of NACARA, which allows beneficiaries to file a motion
to reopen ``[n]otwithstanding any limitation imposed by law,'' the
commenters argue that the plain language of the statute indicates that
the goal of section 203 of NACARA was to waive all limitations on
relief. The commenters note that Congress excepted from this provision
limitations premised on an alien's conviction of an aggravated felony.
The commenters argue that, because there is no provision of law that
bars an individual convicted of an aggravated felony from filing a
motion to reopen, Congress must have intended this provision to apply
to all other limitations to relief, not just to limitations on motions
to reopen.
The regulatory requirements reflecting the statutory bars will
remain unchanged. The Department's analysis of the statutory bars has
been fully set out in both the supplemental information in the proposed
rule, at 63 FR 64895, and in the supplemental information in the
interim rule concerning NACARA motions to reopen, at 63 FR 31890. The
parenthetical relating to aggravated felonies contained in section
203(c) of NACARA does not overcome the definitive statutory language
indicating that the paragraph is directed at statutory limitations on
motions to reopen. The parenthetical is more properly read as a
reiteration of the basic eligibility requirement rather than a
rejection of all other substantive eligibility requirements. This
parenthetical in no way exempts NACARA beneficiaries from the statutory
bars to suspension of deportation or cancellation of removal.
Eligibility-Battered Spouses and Children
A significant number of commenters requested that the Department
address the special circumstances of battered spouses and children who
are eligible for suspension of deportation under section 244(a)(3) of
the Act, prior to IIRIRA, or cancellation of removal under section
240A(b)(2) of the Act. Those provisions permit the battered spouse and
child(ren) of a United States citizen or lawful permanent resident
spouse or parent to qualify for suspension of deportation or
cancellation of removal by showing 3, rather than 7 years of continuous
physical presence, good
[[Page 27864]]
moral character, and extreme hardship to the alien, the alien's child,
or in the case of an alien who is a child, to the child's parent.
Specifically, the commenters asked that the special criteria used to
evaluate extreme hardship in adjustment of status self-petitions
submitted by battered spouses and children should also be made
explicitly applicable to those individuals seeking relief through
suspension of deportation or cancellation of removal. The commenters
noted that the Violence Against Women Act (VAWA), a component of the
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322
(108 Stat. 1902-1955), created provisions to aid battered immigrants
whose ability to remain permanently in the United States may be
threatened by abusive spouses or parents.
In the context of self-petitioning, provided for in sections
204(a)(1)(A)(iii) and (iv) and 204(a)(1)(B)(ii) and (iii) of the Act,
the Service has issued guidance instructing adjudicators to consider
certain factors when evaluating a claim of extreme hardship based on
domestic abuse. These factors are:
(1) The nature and extent of the physical or psychological
consequences of abuse;
(2) The impact of loss of access to the United States courts and
criminal justice system (including, but not limited to, the ability to
obtain and enforce orders of protection, criminal investigations and
prosecutions, and family law proceedings or court orders regarding
child support, maintenance, child custody, and visitation);
(3) The likelihood that the batterer's family, friends, or others
acting on behalf of the batterer in the home country would physically
or psychologically harm the applicant or the applicant's child(ren);
(4) The applicant's needs and/or needs of the applicant's
child(ren) for social, medical, mental health, or other supportive
services for victims of domestic violence that are unavailable or not
reasonably accessible in the home country;
(5) The existence of laws and social practices in the home country
that punish the applicant or the applicant's child(ren) because they
have been victims of domestic violence or have taken steps to leave an
abusive household; and
(6) The abuser's ability to travel to the home country and the
ability and willingness of authorities in the home country to protect
the applicant and/or the applicant's child(ren) from future abuse.
The commenters requested inclusion of these factors in the
regulation in order to ensure consistent application of these
considerations, whether the applicant seeks relief through the self-
petitioning process, under NACARA, or in the course of non-NACARA
immigration proceedings. Many commenters expressed concern that
omission of the factors would suggest that domestic violence issues
were irrelevant in the context of suspension or cancellation
adjudications. The commenters also noted that many applicants who had
experienced domestic violence would be reluctant to raise such issues
on their own, and that including these factors would assist attorneys
and adjudicators in eliciting information, and would help applicants to
understand that fears of domestic abuse or other repercussions were
legitimate issues for the adjudicator to consider.
The commenters correctly note that the suspension and cancellation
provisions pertaining to domestic abuse are part of a broader series of
initiatives to protect battered spouses and children within the
immigration laws. Most notably, sections 204(a)(1)(A) and (B) of the
Act, as amended, permit victims of domestic violence to self-petition
for adjustment of status so that their ability to reside permanently in
the United States is not conditioned on submission of a petition on
their behalf by the abusive spouse or parent. The criteria for
adjustment of status under this provision is similar to that required
in the suspension or cancellation context, except that the spouse or
child must be able to establish 3 years of residence in the United
States. To assist adjudicators in evaluating extreme hardship to these
self-petitioners, the Service has issued guidance regarding the special
nature of domestic abuse cases and the kind of hardship that may be
present. See Supplementary Information to the interim rule, published
on March 26, 1996, at 61 FR 13061, ``Petition to Classify Alien as
Immediate Relative of a United States Citizen or as a Preference
Immigrant; Self-Petitioning for Certain Battered or Abused Spouses and
Children;'' Memorandum for Terrance M. O'Reilly, Director,
Administrative Appeals Office, from Paul Virtue, Office of General
Counsel, `` `Extreme Hardship' and Documentary Requirements Involving
Battered Spouses and Children,'' (October 16, 1998), reprinted at 76
Interpreter Releases 162 (January 25, 1999).
Nothing in the proposed rule prohibits an applicant from raising
the VAWA factors in support of a suspension of deportation or
cancellation of removal application. The Department agrees, however,
that the factors should be included in the interim rule to avoid
confusion. The addition of these factors also affirms the Department's
commitment to aiding victims of domestic violence and will assist
adjudicators, attorneys, and applicants in eliciting and developing
relevant facts.
Consequently, new Sec. 240.58(c) lists the VAWA factors and also
clearly states that these factors are relevant in any extreme hardship
determination in the context of a request for suspension of
deportation, whether or not it is within the context of section
244(a)(3) of the Act, as in effect prior to IIRIRA. Sections 240.64(c)
and 240.20(c) of the interim rule will also reflect that domestic
violence factors are relevant to the extreme hardship determination
with regards to requests for special rule cancellation of removal and
cancellation of removal under section 240A(b)(2) of the Act,
respectively.
Rebuttable Presumption of Extreme Hardship for Certain NACARA
Beneficiaries
Virtually all public commenters contained a request that the
Department extend some form of a presumption of extreme hardship to
principal NACARA applicants, including nationals of the former Soviet
bloc. In particular, the majority of commenters asked the Department to
extend a presumption to those Salvadorans and Guatemalans who are class
members of the ABC lawsuit. Many of the commenters requested that
evidence of class membership should be considered sufficient to
establish extreme hardship based on the conditions in El Salvador and
Guatemala, particularly after Hurricane Mitch. Additionally, commenters
argued that the class had been protected for prolonged periods of time
from deportation as a result of the ABC settlement agreement and other
measures staying deportation, including TPS for Salvadorans, such that
class members had established ties to the United States, a significant
factor in evaluating hardship.
Some commenters discussed at great length factors the authors
believed to be relevant to an extreme hardship determination for the
ABC class. The commenters noted, for instance, that many class members
have children who were either born in the United States or who came to
this country at such a young age that they have little or no memory of
El Salvador or Guatemala. The commenters also identified other factors,
including the circumstances under which the class members fled
[[Page 27865]]
their countries, the quality of health care and educational opportunity
in those countries, the psychological effects of returning to a country
where an individual or a family member may have suffered persecution,
the lack of sufficient employment opportunities in those countries, and
the possibility of significant financial loss, as the commenters
believe that many class members have purchased homes or started
businesses in the United States. Many of the public comments also noted
that a mandatory finding would enhance administrative efficiency by
eliminating the need to make individual determinations of extreme
hardship for the approximately 240,000 ABC class members who are
eligible to apply for relief under section 203 of NACARA. As a further
matter of administrative convenience, many commenters urged that the
mandatory presumption should also be extended to nationals of the
former Soviet bloc and all spouses, children, and unmarried sons and
daughters over the age of 21 eligible for NACARA on the basis of a
grant of relief to a parent or spouse (NACARA dependents).
One commenter objected to a presumption of extreme hardship on the
grounds that it was contrary to NACARA and the Act, arguing that
suspension of deportation or special rule cancellation of removal
requires individualized determinations of extreme hardship in all
cases.
The Department declines to adopt a blanket finding that all NACARA
beneficiaries will suffer extreme hardship if they are deported or
removed to their home countries, as such a finding would be contrary to
the specific requirements of both NACARA and the Act, as well as the
body of administrative and judicial interpretations that have been
adopted regarding the meaning of ``extreme hardship.'' The Department
has concluded, however, that strong factual evidence exists to support
an evidentiary presumption of extreme hardship for those ABC class
members who are eligible to apply for NACARA relief, as defined in
Sec. 240.61(a) or (b) of this interim rule. This conclusion is based on
a determination that the ABC class shares certain characteristics that
give rise to a strong likelihood that an ABC class member or qualified
relative would suffer extreme hardship if the class member were
deported or removed. Such a presumption may be rebutted by the Service
if evidence in the record establishes that it is more likely than not
that extreme hardship would not result from removal or deportation.
The creation of a presumption will not, however, eliminate the
necessity of examining the evidence of extreme hardship in each case.
An applicant will be required to submit a completed application that
includes answers to questions relating to extreme hardship and to
answer questions regarding hardship at the interview or hearing.
Adjudicators will determine whether there is anything to disprove the
presumption of extreme hardship and may ask additional questions at the
interview or hearing, if necessary. The burden of proof will lie with
the Service to overcome the presumption, if supported by evidence in
the record. In this way, the likelihood that ABC class members will
suffer extreme hardship is balanced against the necessity of a case-by-
case evaluation of the individual application. Eligibility criteria for
the presumption, and the burden and standard of proof that will apply
in presumption cases, are described in new Sec. 240.64(d).
As noted in the supplemental material in the proposed rule, extreme
hardship is determined on a case-by-case basis, taking into account the
particular circumstances of the individual applicant. Matter of Hwang,
10 I & N Dec. 448, 451 (BIA 1964). While each application must be
assessed on its own merits, and each applicant must be found
statutorily eligible before being considered for this discretionary
form of relief, neither NACARA nor the Act limits the Attorney
General's authority to create appropriate rules and procedures for
determining eligibility for suspension of deportation or special rule
cancellation of removal. The Attorney General may elect to create a
rebuttable presumption of extreme hardship as part of the adjudication
of such cases. Initially, the Department believed that including a list
of relevant factors and general guidance regarding a determination of
extreme hardship would be sufficient to address concerns raised by the
public. The concerns outlined in comments to the proposed rule have led
the Department to assess whether further measures, consistent with the
statute, are appropriate based on the unique circumstances of NACARA
beneficiaries. The Department has concluded that such measures would be
appropriate and would further an interest in greater administrative
efficiency.
Further examination of the issue yields two conclusions. First,
certain factors routinely noted in evaluations of extreme hardship may
serve as strong predictors of the likelihood of extreme hardship in a
given case. For instance, under the relevant case law, the longer an
individual has lived in the United States beyond the requisite 7 years,
the more likely he or she is to develop significant ties to the United
States, and the more likely it is that the adjudicator will find
extreme hardship. See Matter of O-J-O, Int. Dec. 3280 (BIA 1996)
(dissenting opinion listing all published suspension cases). Similarly,
the longer an applicant lives in the United States under protection
from deportation, the more likely it is that he or she has developed
long-term ties to the United States. See Matter of L-O-G, Int. Dec.
3281 (BIA 1996).
Second, the unique immigration history and circumstances of the ABC
class has given rise to a group of approximately 240,000 NACARA-
eligible individuals who share the general predictors of extreme
hardship described in the preceding paragraph, as well as other
predictors that are unique to this class. The composition of the group
itself is unusual, as it is composed of Salvadorans and Guatemalans who
either entered the United States and filed for asylum prior to April
1,
1990, or entered the United States prior to September 19, 1990, or
October 1, 1990, respectively, and registered for benefits under the
terms of the ABC settlement. These individuals fled circumstances of
civil war and political violence in their homelands during the 1980s,
and some applied for asylum in the United States. In 1985, advocates
for Guatemalan and Salvadoran refugees, church groups, and refugees
themselves brought suit against the United States Government for
allegedly discriminatory treatment of Guatemalan and Salvadoran asylum
applicants. The Department settled the litigation in 1990, following
significant developments in its asylum and refugee law and procedures,
including the creation of a professionally trained asylum officer corps
and Congress's grant of TPS to Salvadorans.
As a result of the settlement, ABC class members who complied with
all registration requirements were entitled to remain in the United
States until such time as they received either a de novo review of
their asylum applications, or, for those whose cases had not been
adjudicated previously, a determination under special procedures. For
administrative reasons and because of provisions in the settlement
agreement regarding asylum filing deadlines, these adjudications were
postponed during the period of time in which Salvadorans, who comprise
approximately 80 percent of the class, were protected from deportation
under TPS (January 1, 1991, to June 30, 1992) and Deferred Enforced
Departure (DED)
[[Page 27866]]
(June 30, 1992, to December 31, 1994). The special adjudications were
further postponed to provide registered class members who had not yet
applied for asylum an opportunity to do so under the terms of the
settlement. Consequently, Guatemalans and Salvadorans who wished to
continue to remain eligible for ABC benefits (and also free from the
fear of deportation) were required to file an asylum application if
they had not previously done so. Guatemalans had to have filed for
asylum on or before January 4, 1995, while Salvadorans were required to
have filed their applications no later than January 31, 1996 (with
an
administrative extension until February 16, 1996). Although ABC
adjudications began in April 1997, they were suspended in February 1998
in order to permit those ABC class members with pending asylum
applications to apply for NACARA relief with the Service.
Yet another shared characteristic pertaining to immigration history
is the difficulty many Salvadorans and Guatemalans might have faced had
they repatriated during the early 1990s. Although the Salvadoran
government and opposition were engaged in peace negotiations throughout
1990 and 1991, the United States recognized the need to provide special
protection to Salvadorans residing in the United States. Congress first
gave Salvadorans protection through TPS, and then, even after peace
accords had been signed, the President extended protection through DED
until the end of 1994. While these special protections were only
formally accorded to Salvadorans, registered Guatemalan class members
also benefited from these protections because it was not
administratively efficient to conduct ABC interviews solely for
Guatemalans. Furthermore, the Guatemalan peace accords were not signed
until 1996, making it less likely that Guatemalan class members in the
United States would have sought to repatriate prior to that time.
The result of this unusual immigration history is the creation of a
large class of individuals who share certain strong predictors of
extreme hardship. By the time NACARA adjudications before the Service
begin, all NACARA-eligible ABC class members will have been in the
United States at least 9 years, while more than two-thirds will have
lived here for a decade or more. Most NACARA-eligible ABC class members
will also have lived in the United States for a prolonged period of
time without fear of deportation, and will have done so continuously
from the date of the settlement agreement to the present day, if they
maintained their eligibility for ABC benefits by filing an asylum
application by the relevant deadline. As previously noted, length of
stay, coupled with some form of authorized presence, can be a strong
indicator that an applicant is likely to suffer extreme hardship.
Additional characteristics of the ABC class appear to add to the
likelihood of extreme hardship. All NACARA-eligible class members who
applied for asylum were entitled to work authorization in conjunction
with their asylum applications. Similarly, all Salvadorans protected
under TPS and DED were also entitled to work lawfully while under that
protection. Recognizing that the expiration of DED in 1994 could harm
those Salvadoran class members who had not yet filed an asylum
application to maintain their eligibility for the benefits of the ABC
settlement because the deadline for filing had not yet passed, the
Government extended DED-based work authorization for Salvadorans until
April 30, 1996. As a practical matter, ABC class members with work
authorization are more likely to have access to steady employment,
career opportunities, and reasonable wages than someone working in the
United States unlawfully. Thus, it is more likely that ABC class
members are participating more fully in the economy and would
experience extreme hardship upon deportation or removal. While work
authorization alone may not be a clear predictor of extreme hardship,
the fact that class members were entitled to receive it, when viewed in
addition to their long-term and authorized presence in the United
States, adds to the likelihood that they have built strong ties to this
country and would suffer extreme hardship if returned to El Salvador or
Guatemala. For those class members with steady employment in the United
States, the possibility of extreme hardship might be further compounded
by reportedly significant underemployment in Guatemala and El Salvador.
Consequently, ABC class members eligible for relief under section
203 of NACARA will be presumed to satisfy the requirements for extreme
hardship upon submission of a completed Form I-881. Although the
Department has carefully considered requests to include other NACARA-
eligible applicants within the presumption, the facts do not appear to
justify a presumption for those applicants. The ABC class is
distinguished from other NACARA applicants by its distinct legal
identity and the specific characteristics identified in this
discussion. This interim rule will, therefore, continue to require
applicants who are not ABC class members to bear the burden of proof in
establishing extreme hardship. However, the Department recognizes that
these predictive characteristics may be present in other cases.
Accordingly, the rule will provide that evidence of an extended stay in
the United States without fear of deportation and with the benefit of
work authorization shall be considered relevant to the determination of
whether deportation will result in extreme hardship.
The Form I-881 and Instructions have been modified to address these
changes. The form will explain that an applicant who is either a
registered member of the ABC class, as described in Part II (a) of the
form, or a Salvadoran or Guatemalan who applied for asylum prior to
April 1, 1990, as described in Part II (b) of the form, will be
presumed to meet the extreme hardship requirement unless evidence in
the record establishes that neither the applicant nor a qualified
relative is likely to experience extreme hardship. To qualify for the
presumption, an applicant must answer all questions on the Form I-881
regarding extreme hardship, but will not initially be required to
attach documentary evidence to support his or her answers. The
instructions will note, however, that the Service may request
additional documents for any aspect of the application, including
extreme hardship, at the time of the interview.
The lack of one or more factors will not lead to a conclusion that
the presumption has been overcome. Instead, adjudicators will evaluate
an application on the basis of whether, given the presumption, the
application contains evidence of factors associated with extreme
hardship (as set forth in Sec. 240.58). Generally, the presumption will
be overcome only under two circumstances. First, the presumption might
be overcome in those cases where there is no evidence of factors
associated with extreme hardship (for example, an applicant who has no
family in the United States, no work history, and no ties to the
community). Second, evidence contained in the record could
significantly undermine the basic assumptions on which the presumption
is based. For example, if an individual has acquired significant
resources or property in his or her home country, the individual and
his or her qualified family members may be able to return without
experiencing extreme hardship, in the absence of other hardship factors
in the case (such as a serious medical treatment for which there is no
treatment in the home country).
[[Page 27867]]
The adjudicator must evaluate all the evidence in the record and
weigh it accordingly in making a determination as to whether the
presumption has been overcome. In the case of applications submitted to
the Service, a determination that the presumption has been overcome
will result in referral to the Immigration Court or dismissal of the
application, while such a determination by an Immigration Court will
result in denial of the application.
Eligibility--Other Comments Regarding Extreme Hardship
Several commenters requested that the Department modify
Sec. 240.58(b) by deleting the sentence, ``To establish extreme
hardship, an applicant must demonstrate that deportation would result
in a degree of hardship beyond that typically associated with
deportation.'' The commenters argued that this phrase could allow an
adjudicator to discount an individual's particular hardship claim if it
was similar to that of other applicants from the same country.
The Department believes it is not appropriate to delete this
sentence. The discussion of extreme hardship contained in
Sec. 240.58(b) is based on the general principles set forth in numerous
administrative law opinions and federal case law. These cases routinely
note that extreme hardship must be something greater than the kind of
disruption in a person's life that is likely to occur whenever someone
is deported. As the supplemental discussion in the proposed rule
explained, hardship does not have to be unique to be extreme, but the
effect of deportation or removal on the individual or a qualified
relative must be sufficiently clear to show that the hardship would be
extreme.
Several commenters asked the Department to modify the list of
extreme hardship factors contained in Sec. 240.58 by providing expanded
definitions for each factor. For instance, the commenters requested
that Sec. 240.58(b)(4), regarding an alien's ability to find employment
in the proposed country of removal, should be further modified to
indicate that the employment must pay a living wage. Similarly,
commenters requested that Sec. 240.58(b)(9), regarding the
psychological effect of removal, list specific types of psychological
harm, such as that which may be caused by an inability to support one's
family. Other suggestions included specifically discussing membership
in the ABC class as a relevant immigration history factor, as well as
including remittances sent to family members abroad as a relevant
factor under contributions to a community in the United States or to
the United States, the impact of an environmental disaster within the
proposed country of removal, and the difficulty of readjusting to one's
country of origin.
Section 240.58(b) contains a non-exclusive and broadly worded list
of factors that have been found relevant by adjudicators when
determining whether extreme hardship would result from an individual's
deportation. The present rule specifically notes that the listed
factors are those that have generally been recognized in case law, but
that other factors that have not been listed may be particularly
significant in an individual applicant's case. It would be difficult to
list all of the factors that may arise in a particular case.
Additionally, the attempt to do so could be counter-productive because,
as the description of each factor becomes more detailed, it could
restrict the focus of the inquiry to the more narrow description of
each factor. Moreover, some of the suggested modifications, if included
in the rule, would exceed the scope of the current understanding of
extreme hardship and, therefore, exceed the intended purpose of
codifying these factors. The broader language of the present rule
permits greater flexibility for applicants and adjudicators and will
allow the assessment of new factors to occur within the context of
specific adjudications. As previously explained, the Department has
made an exception only in the case of the factors related to VAWA,
which have been independently developed in the course of the self-
petitioning process and are already in use in immigration proceedings.
Eligibility--Discretion
Several commenters requested that Sec. 240.64(a) provide that
status as an ABC class member or as a recipient of TPS or DED be
considered a discretionary factor that weighs positively in favor of
granting relief. The commenters further requested that the regulations
explicitly provide that such authorized presence in the United States
will outweigh all but the most egregious adverse discretionary factors.
Although the fact that an applicant has received TPS or DED may be
considered in the discretionary decision to grant suspension of
deportation or special rule cancellation of removal, the Department
believes that it should not be given any more weight than other
discretionary considerations. Immigration history, including the
receipt of TPS or DED, is an appropriate factor to consider when
evaluating extreme hardship during the eligibility determination. As
such, it is unnecessary to require an adjudicator to give additional
weight to immigration history in making a final determination.
Eligibility--Evidence
Several commenters requested that the regulations provide that the
applicant's credible testimony by itself may be sufficient to satisfy
the eligibility requirements. Other commenters stated that the
regulation must include reference to the use of ``any credible
evidence'' in any case involving battered spouses and children under
section 244(a)(3) of the Act, as in effect prior to IIRIRA, or section
240A(b)(2) of the Act.
The Department declines to provide that credible testimony may be
sufficient to establish eligibility for suspension of deportation or
special rule cancellation of removal. In contrast to an applicant for
asylum for whom credible testimony may be sufficient to establish
eligibility, an applicant for suspension of deportation or special rule
cancellation of removal may reasonably be expected to provide
corroborating evidence of certain eligibility criteria. An asylum
applicant understandably may not be able to provide documentary
evidence of the circumstances that caused flight, given the nature of
the claim. However, an individual who has lived in the United States
for at least 7 years should be able to provide, where necessary, some
form of documentary evidence of physical presence in the United States
and, where necessary, corroboration of community ties or other evidence
establishing that removal would result in extreme hardship.
With respect to applicants for suspension of deportation or
cancellation of removal who are eligible to apply for relief under the
special standards of section 244(a)(3) of the Act, as in effect prior
to IIRIRA, or section 240A(b)(2) of the Act, those statutory provisions
already provide that credible testimony may be sufficient to establish
material facts in a case. Because the interim rule affects these cases
only with respect to extreme hardship, it is unnecessary and
potentially confusing to carve out a special provision within the
NACARA implementing rule to address this issue.
Application Process
Fee for Filing NACARA Application
Comments regarding the proposed fee structure ($215 for individual
applications, with a $430 family cap) ranged from adopting the $100 fee
required for an application filed with the Immigration Court to
expanding the
[[Page 27868]]
family cap to include family members who do not submit their
applications simultaneously. One commenter requested that the
regulations explain the fee requirements for someone who already paid a
$100 application fee to submit an application for suspension of
deportation or cancellation of removal in Immigration Court
proceedings, but then requested that the Immigration Court or Board
administratively close the case to allow the individual to apply with
the Service.
As explained in greater detail in the supplementary information to
the proposed rule, the Service is required by statute to fund the
processing of applications through user fees. No appropriations have
been provided by Congress from tax dollars to adjudicate applications
for relief under section 203 of NACARA. The cost to the Service to
adjudicate applications must be funded from the Immigration
Examinations Fee Account, which is the sole source of funding for the
processing of immigration and naturalization applications and
petitions, and for other purposes designated by Congress, such as the
processing of asylum applications for which no fee is required. Having
carefully studied the estimated costs of adjudicating applications
under section 203 of NACARA, the Service calculated that a fee of $215
for a single applicant, or $430 for a family filing at the same time,
is necessary to recover costs associated with processing the
applications. Therefore, the filing fee cannot be lowered to $100.
Similarly, the benefit of the family cap cannot be extended to
those persons who do not file simultaneously because the $430 family
cap takes into account administrative cost savings achieved by
processing and adjudicating multiple cases as a single unit. Permitting
applicants who file separately to take advantage of the cap undermines
the projected savings and creates additional administrative costs. The
only way to account for those costs would be to increase the fee for
individual applications or to increase the family cap. The current fee
represents an appropriate balance between the need to cover the costs
of adjudication and avoiding prohibitively expensive filing fees.
The Department believes the current language in the regulation
addresses the fee requirements for applying with the Service.
Regardless of any fees an individual has paid in the past in the course
of immigration proceedings, each individual who submits an application
with the Service will be required to pay the full $215 application fee
or the $430 family fee, as applicable. This includes any NACARA
beneficiary who has already paid $100 to pursue an application for
suspension of deportation or special rule cancellation of removal in
immigration proceedings.
There are two general categories of NACARA beneficiaries who may be
in immigration proceedings that have been administratively closed to
allow the beneficiary to apply for relief with the Service. The first
category comprises dependents of NACARA beneficiaries who have applied
for section 203 NACARA relief with the Service. An individual in the
first category may or may not have already submitted a fee to EOIR,
depending on whether the individual has applied for any relief that
requires an application fee. In such cases, the individual may opt to
remain within the jurisdiction of the Immigration Court, rather than
pay a higher fee to apply with the Service.
The second category comprises individuals who had final orders of
deportation or removal that were reopened to allow the individuals to
apply for benefits under section 203 of NACARA, and who then move to
administratively close the proceedings to apply for benefits with the
Service. An applicant is not required to pay the $100 filing fee for a
suspension of deportation or special rule cancellation of removal
application submitted in order to perfect a motion to reopen. The
applicant is required only to submit to EOIR a copy of the application
and supporting documents that would be filed if the case is
reopened.
The applicant is not required to pay the application fee until after a
motion to reopen has been granted and the applicant has thus been
allowed to apply for relief. At that time, the applicant will have a
choice to either pay the fee and submit the original application to
EOIR for adjudication by an Immigration Court, or ask that the case be
administratively closed so that the applicant may apply with the
Service. If the applicant has already paid the $100 to apply with EOIR
and wishes to apply with the Service, the applicant will nonetheless be
required to pay the full $215 application fee.
Filing the Form I-881 With the Service To Perfect a NACARA Motion To
Reopen
One commenter requested that the rule should permit an applicant
who must file a motion to reopen under section 203(c) of NACARA to
submit the Form I-881 directly to the Service before his or her case
has been reopened. Proof of filing with the Service would then permit
the Immigration Court to reopen the case. The Department declines to
adopt this procedure because it is contrary to 8 CFR 3.43, which
establishes the procedure for NACARA motions to reopen. Additionally,
this proposal, if adopted, would create an inefficient process for the
Service and might result in applicants paying fees to the Service for
applications that are never adjudicated. The proposed procedure to
allow an individual to first submit an application to the Service
before an Immigration Court has granted a motion to reopen would lead
to instances in which an applicant pays $215 to the Service, but then
is not allowed to proceed on the application, because an Immigration
Court denies the motion to reopen or denies the motion to close the
case once it has been reopened.
Limited Submission of the Form EOIR-40 to the Service
Many commenters requested that the regulations allow the limited
submission to the Service of an already completed Form EOIR-40, for
those applicants who submitted the Form EOIR-40 in proceedings that
have been administratively closed.
The Department agrees that it would be unnecessarily burdensome for
an applicant who had submitted a completed Form EOIR-40 to the
Immigration Court to then complete a Form I-881 in order to apply with
the Service. Most of the information requested on the Form I-881 is
also requested on the Form EOIR-40. However, the information on the
first page of the Form I-881 is necessary for the Service to determine
jurisdiction, eligibility to apply, and for completion of data entry
when accepting the application. Therefore, an applicant who filed a
Form EOIR-40 before the date that the Form I-881 is available may apply
with the Service by submitting the Form EOIR-40 attached to a completed
first page of the Form I-881.
Also, any applicant who is filing with the Service a Form I-881 or
Form EOIR-40 (with page 1 of the Form I-881 attached), and was
previously in proceedings before EOIR that have been administratively
closed or continued should attach to the application a copy of the
order to administratively close the proceedings issued by the
Immigration Court or Board. This documentation requirement has now been
added to the instructions to the Form I-881.
[[Page 27869]]
E. Adjudication
Procedure for Interview Before an Asylum Officer--Fingerprinting,
Rescheduling of Fingerprint and Interview Appointments
There were several comments regarding provisions governing
fingerprinting and the rescheduling of fingerprinting appointments and
interviews. Several commenters requested that fingerprinting
appointments should be scheduled at the designated Application Support
Center (ASC) nearest to applicant's home. Others requested that the
regulation specify that an applicant may submit a request to reschedule
the interview or fingerprinting appointment and should also provide a
procedure for rescheduling the interview or the fingerprinting
appointment. The comments suggested that the regulation allow
applicants to make the requests either in writing or by phone and that
the Service should assign staff to answer the phone. One commenter
requested that all notices to applicants explain the procedure for
canceling and rescheduling fingerprinting appointments and interviews.
Another commenter suggested that the regulations incorporate paragraph
13 of the ABC settlement agreement, which provides special procedures
to reschedule interviews for class members eligible for ABC benefits.
Many commenters suggested that the ABC settlement procedures governing
failure to appear for interviews should be applied to all NACARA
adjudications.
The Service recognizes that an applicant must sometimes reschedule
interviews and fingerprint appointments and intends to accommodate all
reasonable requests, as long as resources permit and applicants do not
appear to be abusing the process for purposes of delay.
With respect to initial fingerprint appointments, each applicant
will be scheduled for fingerprinting at the ASC having jurisdiction
over the applicant's place of residence. Only certain ASCs presently
have the capability to accept requests for rescheduling. For an
applicant scheduled for a fingerprint appointment at an ASC with the
capability of rescheduling fingerprint appointments, the appointment
notice will provide the applicant with the information necessary to
request a rescheduling. For an applicant scheduled for an appointment
at ASCs without this capability, the applicant will automatically be
rescheduled by the Service for another fingerprint appointment if the
Service does not receive confirmation that the applicant appeared for
fingerprinting during the time period designated on the appointment
notice.
The proposed rule required an applicant to show good cause in order
to reschedule a missed interview. In order to avoid conflicts with the
ABC settlement requirements, language governing the rescheduling of
interviews contained in Sec. 240.68 of the proposed rule has been
amended to mirror the language of paragraph 13 of the ABC settlement
agreement. A reasonable excuse provided to the Service will be
sufficient to obtain a rescheduling of the fingerprint appointment or
NACARA interview. A request to reschedule an interview should be
submitted in writing to the asylum office having jurisdiction over the
case before the date of the interview, where the need to reschedule is
known by the applicant prior to the interview date, or immediately
after the scheduled interview when the circumstances that led the
applicant to miss the interview could not be foreseen in advance. Any
significant delay by an applicant in submitting a written request to
reschedule an interview increases the risk that the Service will find
the applicant's failure to appear for an interview as unexcused, thus
resulting in dismissal of the NACARA application or referral of the
application to EOIR.
It is the applicant's duty to provide the Service with a mailing
address to which the fingerprint and interview notice can be delivered.
For cases in which the Service fails to send the appointment notice to
the applicant's current address, the regulation continues to treat the
failure to appear for fingerprinting or interview that results from the
Service error as excused, provided that the applicant properly
submitted his or her current address to the Service prior to the date
the notice was mailed. In such circumstances, the Service would move to
regain jurisdiction, if the case has already been referred to EOIR.
The Service does not presently have the capability to take requests
to reschedule fingerprint appointments or interviews over the phone,
and believes that a written record of such requests is in the
applicant's best interests, because it creates a record of the
applicant's attempt to comply with application requirements. The
Department also does not agree with the comment that applicants should
not be sanctioned for failure to appear unless they have been notified
of the interview by certified mail or personal service. An asylum
interview can be sent by regular mail to an individual's last address
properly provided to the Service. A failure to appear for the asylum
interview without prior authorization may result in dismissal of the
application or waiver of the right to an interview. 8 CFR 208.10.
One commenter requested that fingerprinting delays not be permitted
to delay the adjudication and approval by the Service of an application
for relief under section 203 of NACARA. The Service intends to make no
change in its plan to schedule NACARA applicants for interviews on
their applications for suspension of deportation or special rule
cancellation of removal only after the Service has received a
definitive response from the Federal Bureau of Investigation (FBI) that
a full criminal background check has been completed. This will allow an
asylum officer to make a decision on the eligibility for NACARA relief
at the time of the interview and give the Service the ability to grant
an applicant who has an approvable NACARA claim legal permanent
resident status on the day of the interview, where appropriate. Unlike
the affirmative asylum process, there will be no need to issue
recommended approvals to applicants for NACARA relief while the Service
awaits fingerprint clearance.
Recent improvements in fingerprint processing were designed to
reduce delays and should not affect interview scheduling and the
adjudication of applications for suspension of deportation or special
rule cancellation of removal under NACARA. Among the improvements in
fingerprint processing are the automatic scheduling of a second
fingerprint appointment for an applicant whose fingerprints are
rejected upon first submission to the FBI, and the notification of
asylum offices when an applicant's fingerprint submission has been
rejected by the FBI for a second time.
Consequences for Failure to Appear
Several commenters requested amendments to the provisions regarding
the consequences for failure to appear for an interview. Many
commenters maintained that dismissal of an application for failure to
appear for fingerprinting is a disproportionate penalty and that,
instead, the applicant should have to pay the $25 fingerprinting fee
again and be rescheduled for another fingerprinting appointment.
Several commenters proposed that the regulations be amended to require
the Service to grant suspension of deportation or special rule
cancellation if it is clear from the application that the application
should be granted, even if the person fails to appear for an interview.
However, if the applicant is not clearly eligible for relief
[[Page 27870]]
and has not shown ``good cause'' for failure to appear, the
application, in the view of the commenters, should be referred to the
Immigration Court and not dismissed.
The Department declines to adopt these suggestions for minimizing
the consequences of failing to appear for fingerprinting or for an
interview. A proper determination of eligibility for suspension of
deportation or special rule cancellation of removal cannot be made
without interviewing the applicant. Suspension of deportation and
special rule cancellation of removal are discretionary forms of relief
with several substantive requirements that cannot be evaluated based
upon a paper record. Therefore, the Service cannot properly grant an
application for relief under section 203 of NACARA if an applicant
fails to appear for an interview.
The Department believes that it is appropriate to adopt procedures
restricting access to the Service application process when individuals
fail to comply with procedural requirements. To do otherwise would
disrupt the system and create delays that unfairly penalize applicants
who complied with the requirements. The provisions allowing referral or
dismissal are not only reasonable, but also more generous than other
immigration provisions that permit denial of applications for failure
to comply with interviewing or fingerprinting requirements.
In almost all cases in which an applicant fails to appear for an
interview or fingerprinting appointment, the Service will refer the
application to an Immigration Court for a decision. Therefore, the
applicant will still have the opportunity to apply for suspension of
deportation or special rule cancellation of removal before the
Immigration Court.
The Service will not refer an application to the Immigration Court
when the applicant does not appear inadmissible or removable. In such
cases, the Service will dismiss the application without prejudice so
that it does not remain pending indefinitely with the Service. If the
application were to remain pending indefinitely with the Service, the
applicant would continue to be eligible for employment authorization,
even though he or she was not pursuing the application. To avoid such a
procedural loophole, the Service must be able to dismiss the
application. If the applicant still wishes to pursue relief under
section 203 of NACARA and is otherwise still eligible to file for
relief with the Service, he or she could file a new application.
Consequences for Failing to Bring an Interpreter
One commenter stated that the failure to bring an interpreter to
the interview should not be treated as a failure to appear for the
interview and that, instead, the case should be rescheduled.
As in the case of asylum interviews, the Service intends to include
in the interview notice notification that the applicant is required to
bring an interpreter to the interview if the applicant is not fluent in
English. Therefore the applicant will be given notice of the need to
bring a qualified interpreter to the interview.
It has been the practice of the Asylum Program to reschedule all
asylum interviews in which an applicant fails, for the first time, to
bring an interpreter to the interview or, for the first time, brings an
incompetent interpreter to the interview. The Service intends to
continue this practice with interviews conducted pursuant to NACARA, as
long as resources permit the liberal rescheduling policy. However, to
retain the administrative flexibility necessary to continue processing
a large number of applications should a large number of applicants
begin to appear for interviews without interpreters, the Department
does not believe it appropriate to mandate such rescheduling by
regulation.
Access to Interpreters
Several commenters requested that the Service provide Spanish
speaking-asylum officers at various points in the NACARA interview and
decision-issuing process to relieve applicants of the burden of having
to provide interpreters and to help applicants understand the decisions
they receive. The Service is unable to change the present requirement
that an applicant provide his or her own interpreter if unable to
proceed in English. The Service has neither the qualified staff nor the
resources to provide Spanish-speaking asylum officers at all steps of
the NACARA process.
F. Decisions by the Service
Concessions of Inadmissibility and Deportability
One commenter requested that the Service not ask a NACARA applicant
to sign a concession of inadmissibility or deportability until the last
stage of the decision-making process, after fingerprints have cleared.
One commenter requested that the explanation given to the applicant
regarding the consequences of certain decisions an applicant will need
to make regarding concession of inadmissibility and deportability and
whether to continue to pursue a pending asylum request should not be
delayed until the day the applicant returns to receive the decision.
The Department agrees with these comments. Section 240.70(b) of the
interim rule provides that, ``[i]f the Service has made a preliminary
decision to grant the applicant suspension of deportation under this
subpart, the applicant shall be notified of that decision and will be
asked to sign an admission of deportability or inadmissibility.'' This
is the last step before an individual is granted relief, because no
preliminary decision may be made until after the fingerprints have been
cleared. Pursuant to Sec. 240.67(a) of the rule, an applicant subject
to the fingerprinting requirements will be interviewed only after the
individual has complied with the fingerprinting requirements, and the
Service has received a definitive response from the FBI that a full
criminal background check has been completed.
PART III, section (F) of the instructions to Form I-881 presently
contains an explanation of the requirement that an applicant sign an
admission of inadmissibility or deportability before he or she can be
granted suspension of deportation or special rule cancellation of
removal by the Service. The Service also intends to present the
applicant with a further explanation of the requirement to admit
inadmissibility or deportability, as well as the opportunity to
continue to pursue a request for asylum or to withdraw the asylum
application should the application for suspension or special rule
cancellation be approved at the time of the interview. The Service will
also continue to consider the feasibility of providing this important
information to the applicant prior to the interview.
Timing of Approval of NACARA Application
Many commenters requested that the regulations permit an asylum
officer to grant an application at the time of interview. The
Department intends to do so in appropriate cases. The interim rule, at
Sec. 240.70(a), will permit an asylum officer to grant an application
at the time of the interview. The Service will have the discretion to
determine the circumstances under which it is appropriate for an asylum
officer to grant an application at the time of the interview.
Notice of Reasons for Referral or Dismissal
Many commenters requested that the regulations require the Service
to justify
[[Page 27871]]
the reason for not granting suspension of deportation or special rule
cancellation of removal. One comment stated that the Service should, at
a minimum, include in a decision a list of factors considered in
evaluating whether removal would result in extreme hardship.
The Department agrees that the referral or dismissal letter served
on an applicant should include notification of the reason or reasons
for the decision, and the Service intends to include such notification
in all referral and dismissal letters. The decision will not contain a
list of all the factors considered in evaluating whether removal would
result in extreme hardship. Rather, the contents of such letters will
model the referral letters issued after an asylum interview, briefly
indicating the basis for the decision. This process will allow the
Service to adjudicate NACARA applications in an efficient and timely
fashion, while also requiring the deciding officer to give the
applicant an explanation for why the claim is being referred to the
Immigration Court. Section 240.70(d) and (e) now provides that the
applicant will be given written notice of the statutory or regulatory
basis for the referral or dismissal.
Presumed Withdrawal of an Asylum Application
Several commenters requested that the proposed revisions to 8 CFR
208.14, relating to the presumption of abandonment of an asylum
application when the applicant is granted legal permanent resident
status, be revised to give an applicant granted adjustment of status to
lawful permanent resident 60 days, rather than the proposed 30 days, to
decide whether to pursue a pending asylum application, and that the
regulations should also require the Service to provide written notice
in Spanish and English advising the applicant of the deadline and its
significance.
The revisions to 8 CFR 208.14 are primarily aimed at addressing
those circumstances in which an applicant for asylum adjusts his or her
status to that of lawful permanent resident by some other means while
the asylum application is pending. The revised Sec. 208.14 will not
apply to the majority of applicants under section 203 of NACARA,
because the vast majority of those applicants are eligible for benefits
of the ABC settlement agreement. As such, the processing of their
asylum applications is largely governed by the 1990 asylum regulations,
which do not contain a similar provision allowing the Service to
presume that an asylum application is abandoned. This revised provision
will apply only to lawful permanent resident applicants who are not
eligible for ABC benefits, such as those who adjust status under
section 202 of NACARA or through other means such as relative
petitions.
The Department believes that it is unnecessary to increase the
notice period to 60 days. If an individual needs additional time to
consult with counsel, he or she may submit a request for additional
time. If an individual's application is presumed withdrawn, but the
individual still wishes to pursue asylum in the United States, even
though he or she has lawful permanent resident status, the individual
may submit a new asylum application to the Service for adjudication.
The Department agrees that the written notice should be required
and has incorporated that requirement into Sec. 208.14. However, the
notice will not be translated into any other languages.
Distinction Between ABC and NACARA Adjudications
Several commenters stated that the regulations should recognize the
Service's obligations under paragraph 15 of the ABC settlement
agreement regarding preliminary asylum recommendations and should apply
those provisions to all NACARA beneficiaries.
Paragraph 15 of the ABC settlement agreement provides very specific
procedural requirements for making preliminary and final decisions on
eligibility for asylum. For example, it specifies procedures for
sending asylum assessments to the Department of State and requires the
Service to provide a written notice of intent to deny an asylum
application prior to issuing a final adverse decision. It is limited to
asylum applicants who meet the criteria for eligibility for ABC
benefits as provided in the settlement and is not relevant to the
adjudication of applications under section 203 of NACARA, which is an
application for a completely separate form of relief. While the
interview for asylum eligibility and relief under NACARA may be
combined, the decision-making process is distinct. The parties to the
settlement agreement--the Service, EOIR and the Department of State--
remain bound by the provisions of the settlement agreement and will
continue to comply with all aspects of the settlement agreement in
adjudicating asylum requests filed by ABC class members who are
eligible for the benefits of the settlement agreement. The Department
declines to incorporate the settlement agreement requirements governing
the processing of ABC asylum applications into regulations governing
procedures for the unrelated benefit of suspension of deportation and
special rule cancellation of removal, or extending the ABC settlement
agreement provisions governing asylum adjudication to applicants not
covered by the settlement agreement.
Effect of Mandatory Pick-up on ABC Agreement
Several commenters assert that Sec. 240.70(a), which requires
applicants to return to an asylum office to receive a decision,
violates the ABC settlement agreement because the settlement agreement
does not require this.
The Department disagrees with this interpretation of the ABC
settlement agreement. First, Sec. 240.70(a) provides for service of a
decision on eligibility for suspension of deportation or special rule
cancellation of removal, and the ABC settlement agreement has no
bearing on any process relating to Service adjudication of a request
for suspension of deportation or special rule cancellation of removal.
Second, neither the ABC settlement agreement nor the 1990 regulations,
which also govern adjudication of ABC asylum applications, contains any
provisions governing the service of a final decision on eligibility for
asylum. Therefore, the Department believes that requiring an ABC
applicant to return to the Asylum Office to receive an asylum decision
would not be inconsistent with the settlement agreement. It would make
little sense to require an individual to return to an Asylum Office to
receive a decision on the NACARA application, but to prohibit the
Asylum Office from informing the applicant of any final or preliminary
decision on the asylum application while the applicant is at the Asylum
Office. It would be much more efficient for both the Service and the
applicant for the Service to deliver both decisions at once, where
appropriate.
Restriction of Asylum Officer's Authority
Another commenter requested that the regulations provide that no
final decision may be made by a Service officer, but can be made only
by an Immigration Court. The commenter also stated that applicants must
be made aware of the right to appeal a decision to the Board of
Immigration Appeals.
The Department declines to adopt the recommendation that the
regulations require that the final decision can be made only by an
Immigration Court. If an asylum officer were not given authority to
issue a final grant of suspension of deportation or special
[[Page 27872]]
rule cancellation of removal, there would be no benefit to allowing
NACARA beneficiaries to apply with the Service for relief under section
203 of NACARA. The rule, however, does not give asylum officers
authority to deny relief under section 203 of NACARA. If an asylum
officer determines that an applicant is not eligible for a grant of
suspension of deportation or special rule cancellation of removal and
has not been granted asylum, the asylum officer must refer the
application to an Immigration Court for adjudication. The exception
would be those cases in which the applicant does not appear
inadmissible or deportable and therefore could not be placed in removal
proceedings. In such rare instances, the application would be
dismissed.
The Department does not believe it is necessary for the rule to
require that an applicant be made aware of the right to appeal a
decision to the Board of Immigration Appeals, because 8 CFR 3.3 already
provides that a party affected by a decision who is entitled to appeal
an Immigration Court's decision to the Board of Immigration Appeals
must be given notice of the right to appeal.
G. Miscellaneous Comments
Employment Authorization
Several commenters requested that the regulations specify where to
file an application for employment authorization. The Department
declines to provide this procedural information in the regulation. It
is more appropriate that such procedural information, which is subject
to change, be provided in the instructions to the application used to
obtain the benefit. The instructions to the Form I-881 have been
amended to state that an individual who does not have employment
authorization and is eligible for employment authorization under 8 CFR
274.12(c)(10) should submit a completed Form I-765, with his or her
completed Form I-881, to the Service Center that has jurisdiction over
the Form I-881.
Extension of Deadline to Perfect NACARA Motion to Reopen
One commenter requested that the deadline to complete a motion to
reopen be extended. On January 14, 1999, EOIR announced that it would
extend the deadline for supplementing NACARA motions to reopen that
were submitted on or before September 11, 1998. Under 8 CFR 3.43, as
amended, NACARA motions to reopen must be supplemented with an
application and supporting documents no later than 150 days after the
effective date of the rule implementing section 203 of NACARA. 64 FR
13663 (March 22, 1999). Because the statute limited the initial filing
period, the September 11, 1998, deadline for submitting initial motions
cannot be extended. The Service has agreed to consider joining in
motions to reopen in certain cases for NACARA applicants who were prima
facie eligible for relief as of September 11, 1998, and who can
establish a valid reason for failing to submit a timely motion to
reopen.
H. Comments on the Form I-881 and Instructions
The public comments on the Form I-881, Application for Suspension
of Deportation or Special Rule Cancellation of Removal, ranged from
requests for simple word changes and comments of significant
complexity, to a request that the Form EOIR-40 be used for NACARA
applications instead of the Form I-881.
In response to the comment that suggested that the Form EOIR-40 be
used for NACARA applications for suspension of deportation or special
rule cancellation of removal instead of creating a new form, the
Department believes that the Form I-881 is useful in (1) drawing out
the basis for an applicant's claim to eligibility for NACARA section
203 relief, and (2) providing NACARA applicants who may submit the
application for suspension of deportation or special rule cancellation
of removal to the Service without the aid of an attorney or
representative some guidance as to the type of factors that are
relevant to the determination of extreme hardship. Despite the decision
by the Attorney General to establish a rebuttable presumption of
extreme hardship for certain NACARA beneficiaries, applicants will
still need to provide responses to the questions in the Form I-881
directed towards the extreme hardship issue in order to qualify for
suspension of deportation or special rule cancellation of removal.
Certain Changes to the form or instructions reflect substantive
changes made to the regulation. For example, both PART 1(C) of the
Instructions and Part 2(b) of the Form I-881 are amended to read ``A
Guatemalan or Salvadoran national who filed an application for
asylum
on or before April 1, 1990,'' in light of the Department's decision,
previously discussed, to adopt a broader interpretation of the
eligibility language in section 309(c)(5)(C)(i)(II) of IIRIRA, as added
by section 203 of NACARA. The Department has deleted language that
limited eligibility to those Guatemalan or Salvadoran nationals who
filed their asylum applications by April 1, 1990, directly with the
Service.
In response to several comments, PART II (C) of the Instructions is
amended to indicate the fee required when submitting the Form I-881.
Many comments also requested that the Service accept a Form EOIR-40
instead of a Form I-881 when an applicant has already filed the Form
EOIR-40 with EOIR. As stated earlier, the Service will accept a
previously filed Form EOIR-40 as a NACARA application, so long as
the
applicant fills out page 1 of the Form I-881 and attaches it to the
front of the Form EOIR-40 for data entry purposes. At PART III(C) and
PART IV, the Instructions are amended to clarify when the Form I-881
must be used and when the Form EOIR-40 may be used.
Several commenters requested that the language in the Instructions
and the Form I-881 be amended regarding the type of evidence of tax
payments that should be submitted, and asked that evidence of tax
payments be accepted at the interview or hearing and not required to be
attached to the application, pointing out the difficulty
