EOIR Regulation Regarding Section 212(c) Relief

[Federal Register: January 22, 2001 (Volume 66, Number 14)]
[Rules and Regulations]
[Page 6436-6446]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ja01-3]

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DEPARTMENT OF JUSTICE

8 CFR Parts 3, 212, and 240

[EOIR No. 127P; AG Order No. 2358-2001]
RIN 1125-AA29

Executive Office for Immigration Review (EOIR); Section 212(c) Relief
for Certain Aliens in Deportation Proceedings Before April 24, 1996

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Final rule.

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SUMMARY: This final rule creates a uniform procedure for applying the
law as enacted by the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA). This rule allows certain aliens in deportation
proceedings that commenced before April 24, 1996, to apply for relief
pursuant to section 212(c) of the Immigration and Nationality Act
(INA). In addition, this rule makes several technical amendments to an
earlier regulation relating to the streamlining authority of the Board
of Immigration Appeals.

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

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

SUPPLEMENTARY INFORMATION:

Why Is the Department Issuing This Final Rule?

    Before the comprehensive revision of the INA by the Illegal
Immigration

[[Page 6437]]

Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No.
104-208, Div. C, 110 Stat. 3009, section 212(c) of the INA, provided
that aliens who were lawfully admitted for permanent residence, who
temporarily proceeded abroad voluntarily and not under an order of
deportation, and who were returning to a lawful unrelinquished domicile
in the United States of seven consecutive years, could be admitted to
the United States in the discretion of the Attorney General. 8 U.S.C.
1182(c) (1994). Although section 212(c) by its terms applied only to
aliens in exclusion proceedings (i.e., aliens seeking to enter at the
border), it had been construed for many years also to allow aliens who
were placed in deportation proceedings in the United States to apply
for discretionary relief from deportation. See Matter of Silva, 16 I. &
N. Dec. 26, 29-30 (BIA 1976); Gonzalez v. INS, 996 F.2d 804, 806 (6th
Cir. 1993); Ashby v. INS, 961 F.2d 555, 557 & n.2 (5th Cir. 1992);
Tapica-Acuna v. INS, 640 F.2d 223, 225 (9th Cir. 1981); Francis v. INS,
532 F.2d 268, 273 (2d Cir. 1976).
    In the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, Congress significantly
restricted the availability of discretionary relief from deportation
under section 212(c). Section 440(d) of AEDPA amended section 212(c) of
the INA to provide that section 212(c) ``shall not apply to an alien
who is deportable by reason of having committed any criminal offense
covered by section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense
covered by section 241(a)(2)(A)(ii) for which both predicate offenses
are, without regard to the date of their commission, otherwise covered
by section 241(a)(2)(A)(i).'' AEDPA section 440(d), as amended by
IIRIRA section 306(d). The effect of section 440(d) of AEDPA was to
render ineligible for relief under INA section 212(c) aliens deportable
because of convictions for certain criminal offenses, including
aggravated felonies, controlled substance offenses, certain firearms
offenses, espionage, and multiple crimes of moral turpitude.
    AEDPA did not contain a provision expressly stating whether section
440(d) was to be applied to criminal aliens who applied for section
212(c) relief, were placed in deportation proceedings, were convicted,
or committed the crimes rendering them deportable before AEDPA was
enacted. In Matter of Soriano, Interim Decision 3289 (BIA 1996), the
Board of Immigration Appeals (Board) held that section 440(d) of AEDPA
did not apply to aliens who had applied for section 212(c) relief
before AEDPA was enacted, but did apply to all other aliens covered in
the provision, including those whose proceedings commenced or whose
criminal conduct or conviction occurred before AEDPA was enacted.
    At the request of the Immigration and Naturalization Service (INS),
the Attorney General vacated the Board's decision in Soriano and
certified the question to herself. On February 21, 1997, the Attorney
General concluded that section 440(d) applied to (and thereby rendered
ineligible for section 212(c) relief) all aliens who had committed one
of the specified offenses and who had not finally been granted section
212(c) relief before AEDPA was enacted, including those who were
already in deportation proceedings or who had already applied for
section 212(c) relief at the time of AEDPA's enactment.

How Have the Federal Courts Ruled on the Issue?

    Following the Attorney General's decision in Soriano, the Board and
the Immigration Courts denied applications for relief under section
212(c) filed by aliens who fell within the categories identified in
AEDPA section 440(d), regardless of the date of the crime, conviction,
deportation proceedings, or application for section 212(c) relief.
Numerous aliens challenged their final orders of deportation in both
district courts and courts of appeals, arguing that AEDPA section
440(d) should not be applied ``retroactively'' to their cases, and that
the Attorney General had erred in her construction of AEDPA section
440(d) in Soriano.
    The Soriano issue has given rise to widespread litigation in almost
every circuit. Only the D.C. Circuit has yet to decide a case on the
Soriano issue. Eight circuits--the First, Second, Third, Fourth, Sixth,
Eighth, Ninth, and Eleventh Circuits--have now disagreed with the
Attorney General's holding in Soriano. Seven of the eight circuits have
held that section 440(d) of AEDPA does not apply to aliens who filed
applications for section 212(c) relief before AEDPA was passed. See
Goncalves v. Reno, 144 F.3d 110, 126-33 (1st Cir. 1998), cert. denied,
526 U.S. 1004 (1999); Henderson v. INS, 157 F.3d 106, 128-30 (2d Cir.
1998), cert. denied sub nom. Reno v. Navas, 526 U.S. 1004 (1999);
Sandoval v. Reno, 166 F.3d 225, 239-42 (3d Cir. 1999); Tasios v. Reno,
204 F.3d 544, 547-52 (4th Cir. 2000); Pak v. Reno, 196 F.3d 666, 674-76
(6th Cir. 1999); Shah v. Reno, 184 F.3d 719, 724 (8th Cir. 1999);
Magana-Pizano v. INS, 200 F.3d 603, 610-11 (9th Cir. 1999; Mayers v.
INS, 175 F.3d 1289, 1301-04 (11th Cir. 1999) superceded by statute in
Richardson v. Reno, 180 F.3d 1311 (11th Cir. 1999).
    The First Circuit has gone further and held that AEDPA section
440(d) likewise does not apply to aliens who were placed in deportation
proceedings before AEDPA was passed, even if they did not actually
request section 212(c) relief until after AEDPA was passed. See Wallace
v. Reno, 194 F.3d 279, 285-88 (1st Cir. 1999). Other circuits have
either likewise so held or strongly implied in their reasoning. See
Henderson, 157 F.3d at 129-31; Sandoval, 166 F.3d at 241-42; Mayers,
175 F.3d at 1304; see also Shah, 184 F. 3d at 724 (adopting reasoning
of Goncalves, Henderson, and Mayers).
    By contrast, and at the time of the publication of the proposed
Soriano rule, the Seventh Circuit held, consistent with the Attorney
General's conclusion in Soriano, that section 440(d) of AEDPA applies
even to aliens who were in deportation proceedings and had applied for
section 212(c) relief when AEDPA was enacted. See Turkhan v. Perryman,
188 F.3d 814, 824-28 (7th Cir. 1999); see also LaGuerre v. Reno, 164
F.3d 1035, 1040-41 (7th Cir. 1998), cert. denied, 120 S. Ct. 1157
(2000). However, the Seventh Circuit has recently held that an alien's
due process rights were violated by the retroactive application of
section 440(d) of AEDPA where there was significant evidence that the
availability of a section 212(c) waiver influenced the alien's decision
to plead guilty. See Jideonwo v. INS, 224 F.3d 692, 699-701 (7th Cir.
2000).
    Aliens have also argued that persons who were placed in deportation
proceedings after AEDPA was enacted, but who committed their crimes and
were convicted before that date, should be eligible for section 212(c)
relief, and that AEDPA section 440(d) would be impermissibly
retroactive if applied to them.
    Three circuits--the Third, Fifth and Tenth--have affirmatively held
that AEDPA section 440(d) does foreclose section 212(c) relief for
aliens who were placed in proceedings after AEDPA was enacted, even if
their criminal offenses were committed before the enactment of AEDPA.
See DeSousa v. Reno, 190 F.3d 175, 185-87 (3d Cir. 1999); Requena-
Rodriguez v. Pasquarell, 190 F.3d 299, 306-08 (5th Cir. 1999); Jurado-
Gutierrez v. Greene, 190 F.3d 1135, 1147-52 (10th Cir. 1999), cert.
denied sub nom Palangas-Suarez v. Greene, 120 S. Ct. 1539 (2000). The
Seventh Circuit has necessarily adopted that position as well. See
Turkhan, 188 F.3d at 824-28 (holding that section 440(d) bars relief
for all criminal aliens who had not been

[[Page 6438]]

granted section 212(c) relief at the time AEDPA was enacted,
necessarily including all those whose convictions occurred prior to
AEDPA but whose deportation proceedings were initiated after enactment
of AEDPA).
    The Ninth Circuit has concluded that aliens who are deportable
based on a qualifying criminal conviction entered prior to AEDPA but
after a full trial are properly covered by AEDPA section 440(d) and
therefore ineligible for section 212(c) relief. See Magana-Pizano, 200
F.3d at 610-11. The Ninth Circuit also held, however, that because of
concerns about retroactivity and reliance, it could not exclude the
possibility that section 440(d) should not be applied to an alien who
pleaded guilty or nolo contendere to his disqualifying criminal offense
and who can show that the plea ``was entered in reliance on the
availability of discretionary waiver under Sec. 212(c).'' Id. at 613.
The Court therefore remanded the case to the district court to
determine whether the alien could show such reliance. See id. at 609.
The First Circuit has issued a similar ruling, holding that section
440(d) does not apply in a case where an alien pleaded guilty to and
was convicted of a qualifying offense before AEDPA was enacted but was
placed in proceedings afterwards, if the alien could show that he
entered his guilty plea in reliance on the state of the law before
AEDPA's enactment. Mattis v. Reno, 212 F.3d 31, 35-40 (1st Cir. 2000).
The First Circuit found no evidence of such reliance in that case,
however. See id. at 39.
    Additionally, the Fourth Circuit held that the statute is
inapplicable, because of perceived retroactivity concerns, to an alien
who pleaded guilty and was convicted before AEDPA was enacted even if
his deportation proceedings were commenced after enactment of AEDPA.
The court reasoned that the alien had detrimentally relied upon the
availability of discretionary relief from deportation when he entered
his guilty plea prior to the enactment date. See Tasios, 204 F.3d at
550-52.
    More recently, the Second Circuit has held that section 440(d) of
AEDPA is not applicable in the case of an alien in removal proceedings
who entered a guilty plea before April 24, 1996, the effective date of
AEDPA. See St. Cyr v. INS, 229 F.3d 406, 418 (2d Cir. 2000). The Office
of the Solicitor General filed a petition for certiorari in St. Cyr on
November 13, 2000. Additionally, the Ninth Circuit has recently ruled
that Congress intended that the repeal of section 212(c) apply to all
proceedings commenced after April 1, 1997. However, the Ninth Circuit
also remanded this case for a determination whether the alien based his
pre-AEDPA guilty plea in reliance upon the availability of section
212(c) relief, in accordance with the court's reasoning in Magana-
Pizano, supra. Richards-Diaz v. Fasano, 233 F.3d 1160 (9th Cir. 2000).

Why Is the Attorney General Promulgating a Rule of Uniform
Implementation of AEDPA for Aliens Seeking Section 212(c) Relief?

    Issues concerning the construction of AEDPA section 440(d) affect a
large number of aliens and are of considerable importance to the
Department of Justice, including the INS and the Executive Office for
Immigration Review (EOIR). Approximately 800 aliens who have been found
deportable by the Immigration Court and the Board have filed challenges
to Soriano in federal district court. In addition, a number of cases in
which the application of Soriano may be dispositive are still pending
before the Immigration Court and the Board.
    There is an important public interest in the uniform administration
of the immigration laws. The Constitution grants Congress the power to
establish ``an uniform Rule of Naturalization,'' U.S. Const. art. I,
Sec. 8, cl. 4, and it is generally desirable as well that immigration
rules be consistent throughout the country, to minimize distinctions
among aliens based solely on geographical factors. There is also an
important public interest in the completion of proceedings involving
criminal aliens. The Department of Justice therefore sought to have the
Supreme Court definitively resolve the Soriano issue during the October
Term 1998 by petitioning for a writ of certiorari from the First
Circuit's decision in Goncalves and the Second Circuit's decision in
Henderson. On March 8, 1999, the Supreme Court denied those certiorari
petitions.
    In light of the Supreme Court's denial of certiorari in Goncalves,
Henderson/Navas, and LaGuerre in February 2000, the decisions of eight
circuits rejecting the decision in Soriano, and the large number of
aliens who are affected by the issue, the Attorney General has
considered whether the government's interest in the uniform
administration of the immigration laws, avoiding unnecessary delays in
the completion of proceedings involving criminal aliens, and the
reasoning of the courts that have rejected her construction of AEDPA
section 440(d) in Soriano, warrant a change in the Department's
application of AEDPA section 440(d). In the interest of the uniform and
expeditious administration of the immigration laws, the Attorney
General acquiesces on a nationwide basis in those appellate decisions
holding that AEDPA section 440(d) is not to be applied in the cases of
aliens whose deportation proceedings were commenced before AEDPA was
enacted.
    In particular, the Attorney General acquiesces in the courts'
conclusion, as a matter of statutory construction, that Congress
intended that section 440(d) of AEDPA not be applied to deportation
proceedings that had been commenced before AEDPA was enacted into law.
In reaching that conclusion, the courts generally have applied the
first step of the two-step retroactivity analysis set forth by the
Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244 (1994). In
the first step of that analysis, the courts inquire whether Congress
has specifically addressed the temporal application of a statute. The
courts that have rejected Soriano have generally relied on two factors
to reach the conclusion that Congress specifically addressed the
temporal application of AEDPA section 440(d). First, they have observed
that Congress expressly made other provisions of AEDPA, such as section
413(f), applicable to pending deportation proceedings, and they have
drawn a negative inference from the fact that Congress did not intend
section 440(d) to be applied to pending proceedings. Second, examining
the legislative history of AEDPA, they have noted that an earlier
version of AEDPA in Congress would have applied what became section
440(d) to pending cases, but that provision was deleted by the
conference committee. Magana-Pizano, 200 F.3d at 611; Pak, 196 F.3d at
676; Shah, 184 F.3d at 724; Mayers, 175 F.3d at 1302-03; Sandoval, 166
F.3d at 241; Henderson, 157 F.3d at 129-30; Goncalves, 144 F.3d at 128-
33.
    These factors are specific to AEDPA and concern only the first step
of the Landgraf analysis. They do not concern the question of whether
the application of section 440(d) to pending deportation proceedings
would be regarded as retroactive under the second step of the Landgraf
analysis. As to that question, the Attorney General maintains the
Department of Justice's longstanding position that questions about an
alien's deportability or eligibility for discretionary relief from
deportation are matters inherently prospective in nature.
    In the absence of contrary circuit precedent, the Attorney General
will continue to apply AEDPA section 440(d) in the cases of aliens
whose deportation proceedings were commenced after AEDPA was enacted
into law, even if the alien committed his crime or was

[[Page 6439]]

convicted of the crime before that date. The Attorney General continues
to believe that matters affecting deportation and relief from
deportation are inherently prospective in nature, and that the
presumption against retroactive application of federal statutes does
not apply in such circumstances. The Attorney General is currently
presenting that position to the U.S. Supreme Court in INS v. St. Cyr,
No. 00-767, a case involving the temporal scope of the repeal of
section 212(c) in IIRIRA. Therefore, the Department declines to extend
nationwide the decisions of the First, Second, Fourth, and Ninth
Circuits holding AEDPA section 440(d) inapplicable to aliens who were
placed in proceedings after the date of enactment of AEDPA based on
guilty pleas entered before that date. The Department will, however,
follow circuit precedent on the temporal scope of AEDPA section 440(d).
    The interpretation of AEDPA that would be changed by this rule has,
of course, affected many aliens whose deportation proceedings were
commenced before enactment of AEDPA but who were unable to obtain
section 212(c) relief in those proceedings because of the Soriano
decision. This rule provides a mechanism for such aliens who now have a
final order of deportation to reopen their immigration proceedings if
they would have been eligible to apply for section 212(c) relief but
for the Soriano decision.
    The Attorney General has considered the important interest in
avoiding delays in deportation proceedings and, on balance, has decided
to define the class of aliens eligible for reopening under this rule in
categorical terms. For aliens who have a final order of deportation,
based on established principles requiring exhaustion of all available
administrative remedies, this rule could properly be written to limit
relief on reopening only to those aliens who can show that they had
affirmatively applied for relief under section 212(c) in their prior
immigration proceedings and had appealed an immigration judge's adverse
decision to the Board of Immigration Appeals. However, this rule does
not require that eligible aliens make a specific factual showing that
they previously applied for section 212(c) relief notwithstanding the
Soriano decision, or appealed an immigration judge's adverse decision
to the Board. Instead, this rule is drafted in order to relieve both
the government and the alien of the burdens of litigating such factual
issues in each case at the motion to reopen stage. In light of the
highly unusual circumstances of the Soriano litigation, the interest in
expeditious enforcement of the immigration laws will be more
effectively served by focusing attention on the merits of the claims
for discretionary relief from deportation with respect to aliens in the
defined class who otherwise would have been eligible to seek section
212(c) relief in their immigration proceedings but for the Soriano
precedent.

Who Is Eligible To Apply for Section 212(c) Relief?

    Under this rule, eligible aliens in pending deportation proceedings
may apply for section 212(c) relief if the proceedings were commenced
prior to the enactment of AEDPA. This rule also provides a 180-day
period for a defined class of aliens who had been adversely affected by
the Soriano decision to file a motion to reopen in order to apply for
section 212(c) relief. This special reopening rule would cover aliens
who:
    (1) Had deportation proceedings before the Immigration Court
commenced before April 24, 1996;
    (2) Are subject to a final order of deportation;
    (3) Would presently be eligible to apply for section 212(c) relief
if proceedings were reopened and section 212(c) as in effect on April
23, 1996, were applied; and
    (4) Either,
    (i) Applied for and were denied section 212(c) relief by the Board
on the basis of the 1997 decision of the Attorney General in Soriano
(or its rationale), and not any other basis;
    (ii) Applied for and were denied section 212(c) relief by the
Immigration Court and did not appeal the denial to the Board (or
withdrew an appeal), and would have been eligible to apply for section
212(c) relief at the time the deportation became final but for the 1997
decision of the Attorney General in Soriano (or its rationale); or
    (iii) Did not apply for section 212(c) relief but would have been
eligible to apply for such relief at the time the deportation order
became final but for the 1997 decision of the Attorney General in
Soriano (or its rationale).
    This rule is not intended to apply to an alien who filed an
application for section 212(c) relief that was denied by an immigration
judge or the Board for reasons other than Soriano or its rationale. For
example, an alien whose section 212(c) application was denied on the
merits or before the AEDPA statute was enacted is not covered by this
rule.
    This rule is also not intended to apply to aliens outside the
United States or aliens with final orders of deportation who have
returned to the United States illegally. Moreover, this rule does not
provide a basis for such aliens to seek or secure admission or parole
into the United States to file a section 212(c) application.

What Is Required To Be Statutorily Eligible for Section 212(c)
Relief?

    The alien must be a lawful permanent resident, returning to a
lawful, unrelinquished domicile of seven consecutive years, who may be
admitted in the discretion of the Attorney General without regard to
section 212(a) (other than paragraphs (3) and (9)(C)), who is
deportable on a ground that has a corresponding ground of exclusion,
and who has not been convicted of one or more aggravated felonies for
which he or she has served an aggregate term of imprisonment of at
least five years. See INA Sec. 212(c), 8 U.S.C. Sec. 1182(c) (1994); In
re Davis, Interim Decision 3439 (BIA 2000); Matter of Hernandez-
Casillas, 20 I. & N. Dec. 262 (A.G. 1991).

How Is 7 Years Lawful, Unrelinquished Domicile in the United States
Defined in This Rule?

    The alien must have lived in the United States as either a lawful
permanent resident or a lawful temporary resident pursuant to section
245A or section 210 of the INA for at least seven years, as defined in
8 CFR 212.3(f). For purposes of this rule, an alien begins accruing
time as of the date of entry or admission as either a lawful permanent
resident or lawful temporary resident and the accrual of time ceases
when there is a final administrative order in the alien's case, as
defined in 8 CFR 240.52 and 3.1(d)(2). When a motion to reopen is filed
pursuant to this rule, the alien must have accrued seven years of
lawful unrelinquished domicile as of the date of his or her final
administrative order which the alien seeks to reopen.

Is There a Fee for Filing This Application?

    If the alien has already filed a section 212(c) application and
only needs to update the application, no fee is required. If the alien
has not filed a section 212(c) application and has a final
administrative order, he or she must file a motion to reopen. If the
motion to reopen is granted, he or she must pay the fee required by 8
CFR 103.7(b)(1) for Form I-191 (currently $170). See 8 CFR 103.7.
    An alien in deportation proceedings who has not filed an
application shall submit the Form I-191 to the Immigration Court with
the appropriate fee receipt attached.

[[Page 6440]]

    If the case is pending before the Board, the alien must file a copy
of the application with the motion and if the motion is granted and the
case is remanded to the Immigration Court, the alien must then file the
application with the appropriate fee. Nothing in this rule changes the
requirements and procedures in 8 CFR 3.31(b), 103.7(b)(1), and
240.11(f) for paying the application fee for a section 212(c)
application after a motion to reopen is granted if such an application
was not previously filed. Fees must be submitted to the local office of
the Immigration and Naturalization Service in accordance with 8 CFR
3.31. An applicant who is eligible for section 212(c) relief and is
unable to pay the filing fee may request a fee waiver in accordance
with 8 CFR 103.7(c).

What Is the Procedure for an Applicant Who Is Currently in
Deportation Proceedings Before the Immigration Court or the Board
of Immigration Appeals?

    Immigration Court. An eligible alien who has a deportation
proceeding pending before the Immigration Court should file a section
212(c) application pursuant to this rule, or request a reasonable
period of time to submit an application pursuant to this rule. If the
alien already has an application on file, he or she may file a
supplement to the existing section 212(c) application.
    Board of Immigration Appeals. An eligible alien who has a
deportation proceeding pending before the Board should file with the
Board a motion to remand to the Immigration Court to file a section
212(c) application or to supplement his or her existing section 212(c)
application on the basis of his or her eligibility for such relief
pursuant to this rule. If the alien appears to be statutorily eligible
for relief under this rule, the Board shall remand the case to the
Immigration Court for adjudication, unless the Board chooses to
exercise its discretionary authority to adjudicate the matter on the
merits without a remand.

What If An Applicant Is the Subject of a Final Order of
Deportation?

    Aliens who have final administrative orders. An alien who is the
subject of a final order of deportation who is eligible to apply for
section 212(c) relief pursuant to this rule must file a motion to
reopen with the Immigration Court or the Board of Immigration Appeals,
whichever last held jurisdiction. The front page of the motion and any
envelope containing the motion should include the notation ``Special
212(c) Motion.'' The fee for motions to reopen (currently $110) will be
waived for aliens eligible for section 212(c) relief pursuant to this
rule. The waiver of the fee is only applicable to motions to reopen
seeking section 212(c) relief pursuant to this rule. The reopening and
remand will be limited to issues concerning the alien's eligibility for
relief under section 212(c) and may not address the alien's
deportability or any other basis for relief from deportation, unless
the Board is also reopening under other applicable provisions of law,
in which case the issues may be consolidated for hearing as appropriate
and all appropriate motions fees will apply.
    If the alien previously filed an application for section 212(c)
relief, he or she must file a copy of that application or a copy of a
new application and supporting documents with the motion to reopen. If
the motion to reopen is granted, an alien who previously filed an
application will not be required to pay a new filing fee for the
section 212(c) application, Form I-191.
    If the alien has not previously filed an application for section
212(c) relief, the alien must submit a copy of his or her completed
application and supporting documents with the motion to reopen. If the
motion is granted, the alien must then file the application with the
appropriate fee.
    Cases remanded to the board. If a case has been remanded to the
Board by a federal court based on a judicial decision rejecting the
Attorney General's decision in Soriano, the Board will comply with the
order of the district or circuit court.

What Happens if an Applicant Currently Has a Motion to Reopen or
Motion to Reconsider Pending Before the Immigration Court or the
Board?

    Immigration court. If an alien has a pending motion to reopen or
reconsider filed with the Immigration Court, other than a motion to
reopen to apply for section 212(c) relief, he or she must file a new
motion to reopen with the Immigration Court to apply for section 212(c)
relief on the basis of his or her eligibility pursuant to this rule.
    Board of immigration appeals. If an alien has a pending motion to
reopen or reconsider filed with the Board, other than a motion to
reopen to apply for section 212(c) relief, the alien must file a new
motion to reopen with the Board to apply for section 212(c) relief on
the basis of his or her eligibility pursuant to this rule.
    New motion to reopen. An alien may file only one motion to reopen
for purposes of establishing eligibility under this rule. A new motion
to reopen filed pursuant to this rule either before the Immigration
Court or the Board, as appropriate, must specify whether the alien has
any pending motions before the Immigration Court or the Board. All
motions to reopen to apply for section 212(c) relief filed pursuant to
this rule are subject to the restrictions specified in this rule. The
usual time and number restrictions on motions, as articulated in 8 CFR
3.2 and 3.23, shall apply to all other motions.

Is an Alien With a Final Administrative Order of Deportation
Required To File a Motion To Reopen Under This Rule Within the 180
day Period in Order To Seek Section 212(c) Relief?

    This rule is intended to provide a single, straightforward process
for the defined class of aliens who were adversely affected by Soriano
to reopen their immigration proceedings based on the interpretive
change announced in this rule.
    Accordingly, 8 CFR 3.44 is intended to provide the sole process for
eligible aliens who have a final administrative order of deportation to
reopen their cases on account of the change in the governing law
announced in this rule in order to apply for section 212(c) relief.
However, the existing reopening rules in 8 CFR 3.2 and 3.23 allow
aliens to seek to reopen their cases notwithstanding the time limits on
certain other grounds unrelated to a change in the law. As provided in
8 CFR 3.44(h), this rule would not prevent an alien from filing a
motion to reopen under the existing rules based on any other basis or
exception.

Does the Filing of an Application for Section 212(c) Relief Stay
the Execution of a Final Order?

    The mere filing of a motion to reopen to apply for section 212(c)
relief with the Immigration Court or the Board does not stay the
execution of the final order of deportation. To request that execution
of the final order be stayed by the Immigration and Naturalization
Service, the alien must file an Application for Stay of Removal (Form
I-246), following the procedures set forth in 8 CFR 241.6. To request
that execution of the final order be stayed by the Immigration Courts
or the Board, the alien must comply with the procedures outlined in 8
CFR 3.2(f) and 3.23(b)(v).

What Happens if an Application Is Denied by the Immigration Court?

    If the Immigration Court denies the section 212(c) application of
an alien in deportation proceedings before the Immigration Court, the
decision may be appealed to the Board along with, and

[[Page 6441]]

under the same procedures as apply to, other issues, if any, properly
before the Board on appeal.

What Happens if an Alien Fails To Appear for a Hearing Before the
Immigration Court on a Section 212(c) Application?

    An alien must appear for all scheduled hearings before an
Immigration Court, unless his or her appearance is waived by the
Immigration Court. An alien who is in deportation proceedings before
the Immigration Court, and who fails to appear for a hearing regarding
a section 212(c) application, will be subject to the applicable
statutory and regulatory in absentia procedures (i.e., section 242B of
the Act as it existed prior to amendment by IIRIRA, and applicable
regulations).

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

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

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

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

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

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

1. Issues Pertaining to Procedural Requirements

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

[[Page 6442]]

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

2. Issues Pertaining to Eligibility

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

[[Page 6443]]

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

    A motion to reopen proceedings to seek section 212(c) relief
under this section must establish that the alien: * * * (4) Either--
(i) Applied for and was denied section 212(c) relief by the Board on
the basis of the 1997 decision of the Attorney General in Matter of
Soriano (or its rationale), and not any other basis (emphasis
added); be changed to read as follows:

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

(Emphasis added.)

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

3. Issues Pertaining to Nationwide Uniformity

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

[[Page 6444]]

1308-10 (11th Cir. 2000) (section 212(c) available to aliens in
proceedings, deemed to commence when the OSC was served on the alien,
rather than filed with the Immigration Court).
    Response: By this rule, the Department only agrees to acquiesce on
a nationwide basis in the decisions of those circuits that have ruled
that Congress did not intend to apply AEDPA section 440(d) to the cases
of aliens whose deportation proceedings were commenced before AEDPA was
enacted. While uniformity is an important goal, and one of the
principal motivations for this rule, there is no requirement that the
Department adopt the view of the least restrictive circuit in order to
achieve perfect uniformity, and it will not do so. Rather, the
Department has adopted what it considers to be the soundest and best
supported rule among the various approaches taken by the courts of
appeals.
    Comment: By contrast, one commenter stated that ``[n]one of the
Article I constitutional powers to make ``uniform laws'' have been
interpreted to require true or pure uniformity.'' Further, this
commenter stated that at most ``geographical uniformity'' in a given
location, rather than nationwide, is required by the Constitution and
that ``uniformity among persons'' is not required.
    Response: As noted above, the Department agrees that perfect
uniformity is not required. Nevertheless, uniformity is an important
goal, and the present rule is intended to achieve that goal within
reasonable limits.

4. Issues Pertaining to Parole

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

5. Miscellaneous Issues

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

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

    8 CFR 3.1(d)(1-a) was redesignated as section 3.1(d)(2) in the
Board of Immigration Appeals Streamlining final regulation published
Monday, October 18, 1999 (64 FR 56135). Additionally, 8 CFR 3.1(d)(2)
was redesignated as section 3.1(d)(3). Consequently, those paragraphs
in 8 CFR which refer to section 3.1(1-a) or section 3.1(d)(2) are
misleading and need to be amended.
Regulatory Flexibility Act
    In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule will not, if promulgated, have a significant economic
impact on a substantial number of small entities. This rule allows
certain aliens to apply for INA section 212(c) relief; it has no effect
on small entities such as that term is defined in 5 U.S.C. 601(6).
Unfunded Mandates Reform Act of 1995
    This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
    This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996. See 5
U.S.C. 804. This rule will not result in an annual

[[Page 6445]]

effect on the economy of $100 million or more; a major increase in
costs or prices; or significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
United States-based companies to compete with foreign-based companies
in domestic and export markets.
Executive Order 12866
    This rule is considered by the Department of Justice to be a
``significant regulatory action'' under Executive Order 12866, section
3(f). Regulatory planning and Review. Accordingly, this regulation has
been submitted to the Office of Management and Budget for review.
Executive Order 13132
    This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988
    This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Plain Language Instructions
    We try to write clearly. If you can suggest how to improve the
clarity of these regulations, call or write Charles Adkins-Blanch,
General Counsel, Executive Office for Immigration Review, 5107 Leesburg
Pike, Suite 2400, Falls Church, Virginia 22041, telephone (703) 305-
0470.
Paperwork Reduction Act
    This rule will increase the use of Form I-191 but will not result
in a material change in that form, and the INS is adjusting the total
burden hours of the form accordingly.

List of Subjects

8 CFR Part 3

    Administrative practice and procedure, Immigration, Organization
and functions (Government agencies).

8 CFR 212

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

8 CFR 240

    Administrative practice and procedure, Immigration.

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

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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

    Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note; 8 U.S.C. 1103, 1252
note, 1324b, 1362, 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No.
2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002.

Sec. 3.1  [Amended]

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

Sec. 3.3  [Amended]

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

    4. Section 3.44 is added to subpart C to read as follows:

Sec. 3.44  Motion to reopen to apply for section 212(c) relief for
certain aliens in deportation proceedings before April 24, 1996.

    (a) Standard for adjudication. Except as provided in this section,
a motion to reopen proceedings to apply for relief under section 212(c)
of the Act will be adjudicated under applicable statutes and
regulations governing motions to reopen.
    (b) Aliens eligible to reopen proceedings to apply for section
212(c) relief. A motion to reopen proceedings to seek section 212(c)
relief under this section must establish that the alien:
    (1) Had deportation proceedings before the Immigration Court
commenced before April 24, 1996;
    (2) Is subject to a final order of deportation,
    (3) Would presently be eligible to apply for section 212(c) as in
effect on or before April 23, 1996; and
    (4) Either--
    (i) Applied for and was denied section 212(c) relief by the Board
on the basis of the 1997 decision of the Attorney General in Matter of
Soriano (or its rationale), and not any other basis;
    (ii) Applied for and was denied section 212(c) relief by the
Immigration Court, did not appeal the denial to the Board (or withdrew
an appeal), and would have been eligible to apply for section 212(c)
relief at the time the deportation became final but for the 1997
decision of the Attorney General in Matter of Soriano (or its
rationale); or
    (iii) Did not apply for section 212(c) relief but would have been
eligible to apply for such relief at the time the deportation order
became final but for the 1997 decision of the Attorney General in
Matter of Soriano (or its rationale).
    (c) Scope of reopened proceedings. Proceedings shall be reopened
under this section solely for the purpose of adjudicating the
application for section 212(c) relief, but if the Immigration Court or
the Board reopens on other applicable grounds, all issues encompassed
within the reopening proceedings may be considered together, as
appropriate.
    (d) Procedure for filing a motion to reopen to apply for section
212(c) relief. An eligible alien must file either a copy of the
original Form I-191 application, and supporting documents, or file a
copy of a newly completed Form I-191, plus all supporting documents. An
alien who has a pending motion to reopen or reconsider before the
Immigration Court or the Board, other than a motion for section 212(c)
relief, must file a new motion to reopen to apply for section 212(c)
relief pursuant to this section. The new motion to reopen shall specify
any other motions currently pending before the Immigration Court or the
Board that should be consolidated. The Service shall have 45 days from
the date of service of the motion to reopen to respond. In the event
the Service does not respond to the motion to reopen, the Service
retains the right in the reopened proceedings to contest any and all
issues raised. Any motion for section 212(c) relief pending before the
Board or the Immigration Courts on January 22, 2001 that would be
barred by the time or number limitations on motions shall be deemed to
be a motion to reopen filed pursuant to this section.
    (e) Fee and number restriction for motion to reopen waived. No
filing fee is required for a motion to reopen to apply for section
212(c) relief under this section. An eligible alien may file one motion
to reopen to apply for section 212(c) relief under this section, even
if a motion to reopen was filed previously in his or her case.
    (f) Deadline to file a motion to reopen to apply for section 212(c)
relief under this section. An alien with a final administrative order
of deportation must file a motion to reopen by June 23, 2001.
    (g) Jurisdiction over motion to reopen to apply for section 212(c)
relief and remand of appeals.
    (1) Notwithstanding any other provisions, any motion to reopen
filed pursuant to this section to apply for section 212(c) relief shall
be filed with

[[Page 6446]]

the Immigration Court or the Board, whichever last held jurisdiction
over the case.
    (2) If the Immigration Court has jurisdiction, and grants only the
motion to reopen to apply for section 212(c) relief pursuant to this
section, it shall adjudicate only the section 212(c) application.
    (3) If the Board has jurisdiction and grants only the motion to
reopen to apply for section 212(c) relief pursuant to this section, it
shall remand the case to the Immigration Court solely for adjudication
of the section 212(c) application (Form I-191), unless the Board
chooses to exercise its discretionary authority to adjudicate the
matter on the merits without a remand.
    (h) Applicability of other exceptions to motions to reopen. Nothing
in this section shall be interpreted to preclude or restrict the
applicability of any other exception to the motion to reopen provisions
of this part as defined in 8 CFR 3.2(c)(3) and 3.23(b).
    (i) Limitations on eligibility for reopening under this section.
This section does not apply to:
    (1) Aliens who have departed the United States;
    (2) Aliens with a final order of deportation who have illegally
returned to the United States; or
    (3) Aliens who have not been admitted or paroled.

PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

    5. The authority citation for part 212 continues to read as
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225,
1226, 1227, 1228, 1252; 8 CFR part 2.

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

Sec. 212.3  Application for the exercise of discretion under
Sec. 212(c).

* * * * *
    (g) Relief for certain aliens who were in deportation proceedings
before April 24, 1996. Section 440(d) of Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) shall not apply to any applicant for
relief under this section whose deportation proceedings were commenced
before the Immigration Court before April 24, 1996.

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

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

    Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227,
1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-
100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277 (112 Stat.
2681); 8 CFR part 2.

Sec. 240.15  [Amended]

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

Sec. 240.21  [Amended]

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

Sec. 240.53  [Amended]

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

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