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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly
[Federal Register: November 30, 2000 (Volume 65, Number 231)]
[Proposed Rules]
[Page 71273-71277]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30no00-19]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 3 and 240
[INS No. 2083-00; AG Order No. 2337-2000]
RIN 1115-AF87
Delegation of Authority to the Immigration and Naturalization
Service To Terminate Deportation Proceedings and Initiate Removal
Proceedings
AGENCY: Immigration and Naturalization Service, Justice, and Executive
Office for Immigration Review, Justice.
ACTION: Proposed rule.
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SUMMARY: Section 309(c)(3) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 permits the Attorney General to
terminate certain deportation proceedings and initiate removal
proceedings. This rule delegates this authority to the Immigration and
Naturalization Service (Service).
DATES: Written comments must be submitted on or before January 29,
2001.
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 number 2083-00
on your
[[Page 71274]]
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: Kyle D. Latimer, Associate General
Counsel, Office of the General Counsel, Immigration and Naturalization
Service, 425 I Street, NW., Room 6100, Washington, DC 20536, telephone
(202) 616-2604.
SUPPLEMENTARY INFORMATION:
Background
On April 24, 1996, the President signed into law the Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (AEDPA). Prior to that date, under section 212(c) of the
Immigration and Nationality Act (Act), 8 U.S.C. 1182(c) (1994), certain
lawful permanent resident (LPR) aliens who were returning from a
voluntary, temporary stay abroad to a lawful unrelinquished domicile of
seven consecutive years in the United States could, in the Attorney
General's discretion, be admitted to the United States despite
inadmissibility under section 212(a) of the Act, 8 U.S.C. 1182(a).
Section 440(d) of AEDPA amended section 212(c) of the Act to bar from
applying for a section 212(c) discretionary waiver of inadmissibility
all aliens deportable ``by reason of having committed any criminal
offense covered in section 241(a)(2)(A)(iii) [aggravated felonies], (B)
[controlled substances], (C) [certain firearm offenses], or (D)
[miscellaneous crimes], or any offense covered by section
241(a)(2)(A)(ii)[multiple criminal convictions] for which both
predicate offenses are covered by section 241(a)(2)(A)(i).'' 110 Stat.
1277. The Attorney General subsequently determined in Matter of
Soriano, 21 I&N Dec. 516 (BIA 1996, A.G. 1997), that the section 212(c)
bars in AEDPA applied to all aliens in deportation proceedings with
applications pending on April 24, 1996. Hence, many lawful permanent
resident aliens in deportation proceedings who were eligible for
section 212(c) relief were rendered ineligible by AEDPA.
On September 30, 1996, Congress enacted the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,
110 Stat. 3009 (IIRIRA). Effective April 1, 1997, IIRIRA eliminated
section 212(c) of the Act, replacing it with a similar form of relief
called cancellation of removal. See 110 Stat. 3009-597 (eliminating
section 212(c); 110 Stat. 3009-594-3009-595 (adding section 240A(b) of
the Act, 8 U.S.C. 1229(b)). A conviction for an aggravated felony
remained as a bar to cancellation of removal. However, convictions
covered under the remaining sections were no longer bars to relief as
they had been under AEDPA. The result was that many of those LPR aliens
rendered ineligible by AEDPA for section 212(c) relief after April 24,
1996, would have been eligible for cancellation of removal had their
removal proceedings commenced on or after April 1, 1997.
IIRIRA also eliminated the discretionary relief of suspension of
deportation under former section 244 of the Act, 8 U.S.C. 1254(a), and
replaced it with a similar, separate form of cancellation of removal
under the new section 240A(b) of the Act. See 110 Stat. 3009-615
(eliminating former section 244); 110 Stat. 3009-594-3009-595 (adding
section 240A(b) of the Act, 8 U.S.C. 1229(b)). Congress, moreover,
limited the availability of both types of relief by, among other
things, amending the rules relating to the time counted toward physical
presence in the United States. Section 240A(d)(1) of the Act, 8 U.S.C.
1229(b)(d)(1), as added by IIRIRA, see 110 Stat. 3009-595, provides
that (for purposes of that section) any period of continuous residence
or physical presence ends when an alien is served with a Notice to
Appear or when the alien commits a crime rendering him inadmissible
under section 212 or removable under section 237 of the Act (the
``stop-time'' rule). Section 309(c)(5)(A) of IIRIRA, 110 Stat. 3009-
627, as amended by section 203(a)(1) of the Nicaraguan Adjustment and
Central American Relief Act, Pub. L. No. 105-100, Title II, 111 Stat.
2193, 2196 (NACARA), applies the stop-time rule in section 240A(d)(1)
to Orders to Show Cause as well. Under the stop-time rule, many non-LPR
aliens in deportation proceedings who were eligible for suspension of
deportation were rendered ineligible by IIRIRA and NACARA because they
had not accrued seven years of continuous physical presence prior to
service of the Order to Show Cause. Some of these same aliens, however,
may be eligible for relief in removal proceedings under section
240A(b).
What Is ``Repapering''?
Section 309(c)(3) of IIRIRA grants the Attorney General the
discretion ``to terminate [deportation] proceedings in which there has
not been a final administrative decision and to reinitiate [removal]
proceedings under [IIRIRA].'' 110 Stat. 3009-626 This procedure is
commonly referred to as repapering.
The Attorney General has decided to exercise the discretion granted
to her in section 309(c)(3) of IIRIRA in individual cases on behalf of
certain lawful permanent residents who are caught in the window of
disadvantage between the enactments of AEDPA and IIRIRA and certain
non-LPR aliens negatively affected by the stop-time rule in section
240A(d)(1) of the Act. This rule will permit an alien rendered
ineligible for relief in deportation proceedings by the statutory
changes described above, but who would be eligible for relief in
removal proceedings, to seek termination of his or her deportation
proceeding and initiation of removal proceedings in order to apply for
relief under the current legal standards.
Who Is Eligible for Repapering?
In order to qualify for repapering under either category, a
repapering applicant must be in deportation proceedings at the time of
the application. By the express terms of the statute, repapering cannot
occur when a final administrative decision has been made. Therefore,
only aliens in deportation proceedings currently pending before the
Immigration Court or the Board of Immigration Appeals (Board) are
eligible for repapering. Furthermore, a deportation proceeding shall
not be reopened for the purpose of repapering. However, if a
deportation proceeding is reopened for an independent reason, an
eligible alien may apply for repapering.
An LPR alien who seeks repapering must meet the eligibility
requirements of former section 212(c) of the Act at the time of
application for repapering but for the AEDPA bars to eligibility.
Likewise, a non-LPR repapering applicant must meet the eligibility
requirements for suspension of deportation under former section 244 of
the Act at the time of application for repapering but for the
application of the stop-time rule in section 240A(d)(1) of the Act.
Repapering is intended to benefit those aliens rendered ineligible for
relief by AEDPA or the stop-time rule. If an alien was statutorily
ineligible for section 212(c) relief or suspension of deportation on
some other basis or was denied relief as a matter of discretion, he or
she will not be given a second opportunity for relief through
repapering.
Repapering applicants must also be statutorily eligible for
cancellation of removal under section 240A(a) or (b) of the Act at the
time of application. If the alien is not eligible for cancellation of
removal under current law in removal proceedings, there is no purpose
for the alien to seek repapering. Although the requirements for
cancellation of removal under section 240A(b) of the Act are
[[Page 71275]]
more restrictive than the requirements for suspension of deportation
under prior law, through repapering these non-LPR aliens will at least
have an opportunity to apply for relief under current law.
The alien must still be able to demonstrate the requisite existence
of hardship in order to obtain relief--``extreme'' hardship under
former section 244(a)(1) of the Act or ``exceptional and extremely
unusual'' hardship under former section 244(a)(2) of the Act and
current section 240A(b) of the Act. This will be a matter to be
determined by the immigration judge. Therefore, this rule does not
require a non-LPR alien to demonstrate hardship at the time of applying
for repapering. However, in order to be eligible for repapering, such
an alien must have a spouse, parent, or child who is a United States
citizen or lawful permanent resident. After repapering has been granted
and removal proceedings have begun, the alien will have the burden of
demonstrating the requisite hardship to that family member at that
time.
What Is the Relationship Between This Rule and the Recently-Published
Rule on Section 212(c) Relief for Aliens in Deportation Proceedings
Before April 24, 1996?
As discussed above, the enactment of AEDPA on April 24, 1996,
substantially limited the availability of discretionary relief from
deportation under former section 212(c) of the Act for lawful permanent
resident aliens. However, in light of judicial decisions interpreting
the language of AEDPA, certain lawful permanent resident aliens may be
able to seek section 212(c) relief if they are eligible,
notwithstanding the enactment of AEDPA. See Section 212(c) Relief for
Certain Aliens in Deportation Proceedings Before April 24, 1996, 65 FR
44476 (July 18, 2000) (proposed Department of Justice rule concerning
section 212(c) relief for lawful permanent residents who were already
in deportation proceedings prior to the enactment of AEDPA).
Aliens who are eligible for relief under the more favorable
standards of former section 212(c) of the Act in effect prior to the
enactment of AEDPA are not eligible for repapering under this rule.
Repapering only applies to aliens in deportation proceedings who are
subject to the restrictions imposed by AEDPA and IIRIRA, as it is the
repapering procedure that will allow them to apply for cancellation of
removal under current law in removal proceedings.
How Does the Stop-Time Rule Apply to Repapered Cases?
Section 309(c)(5)(B) of IIRIRA states that, in a repapered
proceeding, section 240A(d)(1) of the Act ``shall not apply to an order
to show cause issued before April 1, 1997.'' 111 Stat. 2196. At first
glance, this phrase may appear to be somewhat redundant, since all
Orders to Show Cause were issued before April 1, 1997. However, this
provision does not mean the stop-time rule is inapplicable in repapered
proceedings.
Rather, the Department interprets section 309(c)(5)(B) of IIRIRA to
mean that, once a proceeding is repapered, the fact that an Order to
Show Cause had been issued in the terminated deportation proceeding is
not relevant in determining whether the alien satisfies the time
requirements for cancellation of removal in the new removal proceeding.
However, the stop-time rule does apply with reference to the service of
a Notice to Appear for the initiation of removal proceedings. A lawful
permanent resident must still demonstrate 7 years of continuous
residence--and a non-LPR alien must demonstrate 10 years of continuous
physical presence--prior to service of the Notice to Appear or
commission of the crime.
How Does One Apply for Repapering?
The Service has sole discretion in determining whether or not to
repaper in a particular case. An alien shall apply for repapering by
making a written request with the district counsel's office responsible
for the proceeding. Neither the immigration judge nor the Board may
terminate a deportation proceeding for the purpose of repapering absent
a written motion from Service counsel.
Upon motion by Service counsel to terminate a deportation
proceeding pending before the Immigration Court or the Board, for the
purpose of repapering, the immigration judge or the Board shall
terminate the proceeding. However, this rule provides that the
immigration judge or the Board will not grant a Service motion to
terminate deportation proceedings for repapering with respect to an
alien who is granted relief from deportation.
In any case where a deportation proceeding is terminated for the
purpose of repapering, the Service shall then expeditiously commence
removal proceedings by preparing and serving a Notice to Appear on the
alien and filing the Notice to Appear with the Immigration Court.
The application period to apply for repapering shall expire one
year from the date that the Service publishes this rule as a final rule
in the Federal Register. This deadline is necessary to ensure that
deportation proceedings are not delayed for the purpose of accruing
time in status, residence, or presence for eligibility for relief.
What Is the Procedure for Those Cases Previously Administratively
Closed for Repapering?
Pursuant to instructions from the Service and the Executive Office
for Immigration Review, many deportation proceedings involving aliens
determined to be eligible to apply for repapering have already been
administratively closed. To apply for repapering, once this rule is
published as final, an alien shall make a request in writing with the
district counsel's office responsible for his or her proceeding. If
upon review the Service determines that the alien is eligible for
repapering, the Service shall prepare and serve a Notice to Appear on
the alien and file the Notice to Appear with the Immigration Court. The
previous deportation proceeding before the Immigration Court or the
Board shall be terminated as a matter of law on the date the Service
files the Notice to Appear with the Immigration Court. If upon review
the Service determines the alien is not eligible for repapering, then
the deportation proceeding should be recalendared and continue.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant impact on a
substantial number of small entities because of the following reason:
This rule allows the Service to terminate deportation proceedings
involving certain aliens and reinitiate removal proceedings, in order
to allow these aliens to apply for cancellation of removal under
current law. It will have no effect on small entities, as that term is
defined in 5 U.S.C. 601(6).
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
[[Page 71276]]
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This
rule will not result in an annual effect on the economy of $100 million
or more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Executive Order 12866
This rule is considered by the Department of Justice to be a
``significant regulatory action'' under section 3(f) of Executive Order
12866. Accordingly, this regulation has been submitted to the Office of
Management and Budget for review.
Executive Order 13132
The rule will not have substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibility among the various levels
of government. Therefore, in accordance with section six of Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.
Executive Order 12988
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988, Civil Justice Reform.
List of Subjects
8 CFR Part 3
Administrative practice and procedure, Immigration, Organization
and functions (Government agencies).
8 CFR Part 240
Administrative practice and procedure, Immigration.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
1. The authority citation for part 3 continues to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note, 1103, 1252 note,
1324b, 1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of
1950, 3 CFR, 1949-1953 Comp., p. 1002.
2. Section 3.2(c)(1) is amended by adding a sentence at the end of
the paragraph, to read as follows:
Sec. 3.2 Reopening or reconsideration before the Board of Immigration
Appeals.
* * * * *
(c) * * *
(1) * * * A motion to reopen for the purpose of repapering under
subpart I of part 240 of this chapter shall not be granted.
* * * * *
3. Section 3.23(b)(3) is amended by adding a sentence at the end of
the paragraph, to read as follows:
Sec. 3.23 Reopening or reconsideration before the Immigration Court.
* * * * *
(b) * * *
(3) * * * A motion to reopen for the purpose of repapering under
subpart I of part 240 of this chapter shall not be granted.
* * * * *
PART 240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
4. The authority citation for part 240 continues to read as
follows:
Authority: 8 U.S.C. 1103; 1182, 1186a, 1224, 1225, 1226, 1227,
1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-
100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277 (112 Stat.
2681); 8 CFR part 2.
5. In part 240, subpart I is added to read as follows:
Subpart I--Termination of Deportation Proceedings and Initiation of
Removal Proceedings (Repapering) Under Section 309(c)(3) of Public
Law 104-208
Sec.
240.80 Authority.
240.81 Eligibility to request repapering.
240.82 Application for repapering.
Sec. 240.80 Authority.
The sole authority and discretion to terminate pending deportation
proceedings and initiate removal proceedings against an alien (known as
repapering), as granted to the Attorney General under section 309(c)(3)
of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), Div. C, Public Law 104-208, is delegated to the Service.
Neither an immigration judge nor the Board of Immigration Appeals shall
terminate a deportation proceeding for the purpose of repapering absent
a written motion from the Service counsel. No appeal shall lie from the
Service's denial of an application for repapering.
Sec. 240.81 Eligibility to request repapering.
(a) An alien may request repapering under this subpart if an alien
is barred from obtaining relief from deportation in his or her pending
deportation proceedings, but would be eligible to seek relief from
removal if the alien were in removal proceedings. To be eligible to
request repapering under section 309(c)(3) of IIRIRA, an alien must
meet the following standards:
(1) If the alien is a lawful permanent resident, the alien must be:
(i) In deportation proceedings at the time of application for
repapering without a final administrative order of deportation;
(ii) Statutorily eligible for relief under former section 212(c) of
the Act at the time of application for repapering but for the
eligibility bars imposed by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Public Law 104-132; and
(iii) Statutorily eligible for cancellation of removal under
section 240A(a) of the Act at the time of application for repapering.
(2) If the alien is not a lawful permanent resident, the alien must
be:
(i) In deportation proceedings at the time of application for
repapering without a final administrative order of deportation;
(ii) Statutorily eligible for suspension of deportation under
former section 244 of the Act at the time of application for repapering
but for the application of the stop-time rule in section 240A(d)(1) of
the Act; and
(iii) Statutorily eligible for cancellation of removal under
section 240A(b) of the Act at the time of application for repapering.
(b) An applicant for repapering who is a lawful permanent resident
is not required to have filed an application for relief under former
section 212(c) of the Act. An applicant for repapering who is not a
lawful permanent resident is not required to have filed an application
for suspension of deportation, or to demonstrate the requisite hardship
at the time he or she applies for repapering.
(c) The burden of proof is on the applicant to establish by a
preponderance of the evidence that he or she is eligible for
repapering.
Sec. 240.82 Application for repapering.
(a) To apply for repapering, an alien shall make a request in
writing with the district counsel's office responsible for his or her
proceeding. The request must include sufficient proof of eligibility
for repapering. A request for repapering must be received by the
district counsel's office no later than 1 year after
[[Page 71277]]
the Service publishes this rule in final form in the Federal Register.
(b) Should the district counsel's office determine that an alien
requesting repapering is statutorily eligible and that his or her
request warrants a favorable exercise of discretion, the Service will
file a motion to terminate the deportation proceeding with the
Immigration Court, or with the Board if the proceeding is pending with
the Board. Upon the filing of such a motion, the immigration judge or
the Board shall terminate the deportation proceeding, except as
provided in paragraph (c) of this section.
(c) The immigration judge (or the Board, if the proceeding is
pending before the Board) shall deny a motion to terminate the
deportation proceeding for repapering if the alien is granted relief
from deportation.
(d) In any deportation proceeding that was administratively closed
because the alien was determined to be eligible to apply for
repapering, the alien shall apply for repapering in accordance with
paragraph (a) of this section. If upon review the Service determines
that the alien is eligible for repapering, the Service shall prepare
and serve a Notice to Appear on the alien and file the Notice to Appear
with the Immigration Court. The previous deportation proceeding before
the Immigration Court or the Board shall be terminated as a matter of
law on the date the Service files the Notice to Appear with the
Immigration Court.
(e) Once a deportation proceeding is terminated, the Service shall
expeditiously initiate removal proceedings against the alien. No
determination or action in the terminated deportation proceeding shall
be binding in the removal proceeding.
Dated: November 15, 2000.
Janet Reno,
Attorney General.
[FR Doc. 00-30051 Filed 11-29-00; 8:45 am]
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