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[Federal Register: September 28, 2004 (Volume 69, Number 187)]
[Rules and Regulations]
[Page 57826-57835]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28se04-6]
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DEPARTMENT OF JUSTICE
8 CFR Parts 1003, 1212, and 1240
[EOIR No. 130F; AG Order No. 2734-2004]
Executive Office for Immigration Review; Section 212(c) Relief
for Aliens With Certain Criminal Convictions Before April 1, 1997
AGENCY: Executive Office for Immigration Review, Justice.
ACTION: Final rule.
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SUMMARY: This final rule adopts without substantial change the proposed
rule to establish procedures for lawful permanent residents with
certain criminal convictions arising from plea agreements reached prior
to a verdict at trial to apply for relief from deportation or removal
pursuant to former section 212(c) of the Immigration and Nationality
Act. The final rule also sets forth procedures and deadlines for filing
motions to seek such relief before an immigration judge or the Board of
Immigration Appeals for eligible aliens currently in proceedings or
under final orders of deportation or removal.
DATES: This rule is effective on October 28, 2004.
FOR FURTHER INFORMATION CONTACT: Mary Beth Keller, General Counsel,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
2600, Falls Church, Virginia 22041, telephone (703) 305-0470.
SUPPLEMENTARY INFORMATION:
Introduction
Response to Comments Received
A. Ineligibility of Aliens Outside the United States
B. Ineligibility of Aliens Convicted After a Trial
C. Stay of Deportation or Removal
D. The 180-Day Deadline To File a Special Motion To Seek Section
212(c) Relief
E. Date of the Plea Agreement
F. Retroactivity of IIRIRA's Definition of ``Aggravated felony''
G. Applicability of AEDPA
H. The Accrual of Seven Consecutive Years of Lawful
Unrelinquished Domicile
I. Eligibility for Aliens Who Are Deportable on Grounds for
Which There Do Not Exist Corresponding Grounds of Exclusion or
Inadmissibility
J. Notification to Affected Individuals
K. Proof of Permanent Residence
L. Applicability of the Soriano Rule
M. Filing New Motions To Reopen After Previously Filing Motions
To Reopen
Introduction
On August 13, 2002, the Department of Justice (Department)
published a proposed rule to permit certain lawful permanent residents
(LPRs) to apply for relief under former section 212(c) of the
Immigration and Nationality Act, 8 U.S.C. 1182(c) (1994 Supp. II 1996),
from deportation or removal based on certain criminal convictions
before April 1, 1997 (``section 212(c) relief''). 67 FR 52627. The
proposed rule described procedures implementing the Supreme Court's
decision in INS v. St. Cyr, 533 U.S. 289 (2001).
This final rule adopts the proposed rule without substantial
change. Certain LPRs who pleaded guilty or nolo contendere to crimes
before April 1, 1997, may seek section 212(c) relief from being
deported or removed from the United States on account of those pleas.
Under this rule, eligible LPRs currently in immigration proceedings
(and former LPRs under a final order of deportation or removal) who
have not departed from the United States may file a request to apply
for relief under former section 212(c) of the Act, as in effect on the
date of their plea, regardless of the date the plea agreement was
entered by the court. This rule is applicable only to certain eligible
aliens who were convicted pursuant to plea agreements made prior to
April 1, 1997.
[[Page 57827]]
The Department reiterates and adopts the Supplementary Information
in the proposed rule, and the subsequent correction to the proposed
rule published on August 22, 2002, as explaining the final rule. 67 FR
52627; 67 FR 54360. The following sections respond to the public
comments, and provide additional discussion explaining the final rule
and some clarifying amendments.
In addition, this final rule reflects several technical and
structural changes as a result of the establishment of the Department
of Homeland Security (DHS), the transfer of the functions of the
Immigration and Naturalization Service (INS) to DHS, and the abolition
of the INS. On March 1, 2003, the functions of the former INS were
transferred from the Department of Justice to DHS pursuant to the
Homeland Security Act of 2002 (HSA), Pub. L. 107-296, 116 Stat, 2135,
2178 (Nov. 25, 2002). The HSA also provided that the functions of the
immigration judges and the Board of Immigration Appeals within the
Executive Office for Immigration Review (EOIR) remain in the Department
of Justice under the authority of the Attorney General. The technical
changes in this final rule comport with the structural reorganization
of the regulations accomplished by the Department of Justice in
previous rulemakings establishing a new 8 CFR chapter V containing the
regulations relating to immigration adjudications before the
immigration judges and the Board of Immigration Appeals, and the
administrative functions of EOIR.\1\ The final rule also eliminates
from 8 CFR 1212.3 the current provisions in paragraphs (a)(1) and (c),
which relate to the authority of a district director to grant section
212(c) relief. To the extent that those provisions are still relevant
at this time, they are already codified in DHS regulations at 8 CFR
212.3(a)(1) and (c). Consistent with the process for reducing the
overlapping regulations between the Department and DHS, the Department
is eliminating unnecessary regulations in Sec. 1212.3 that relate
solely to the authority of DHS.
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\1\ On February 28, 2003, the Attorney General published a
technical rule that reorganized title 8 of the Code of Federal
Regulations to reflect the transfer of these functions. See Aliens
and Nationality; Homeland Security; Reorganization of Regulations,
68 FR 9824 (February 28, 2003); see also 68 FR 10349 (March 5,
2003). This technical rule created a new chapter V in 8 CFR as part
of the Department of Justice regulations, beginning with 8 CFR 1001;
the existing regulations in chapter I of 8 CFR now pertain to DHS.
Among other changes, the February 28 rule transferred part 3 and
most of part 240 to part 1003 and part 1240, respectively, and
duplicated part 212 (in the current DHS regulations) as part 1212 in
the Department of Justice regulations. Thus, while the proposed rule
and the comments received cited the regulations prior to the
reorganization of the regulations, this final rule will reflect the
revised section numbers in the regulations.
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The final rule also makes some stylistic changes to simplify the
language of the existing regulations--for example, revising the
language of 8 CFR 1212.3(e)(2) from ``grant or deny an application for
advance permission to return to an unrelinquished domicile under
section 212(c)'' to read ``grant or deny an application for section
212(c) relief''. Lastly, as explained in the proposed rule, if the
Board has jurisdiction and grants a special motion to seek section
212(c) relief, it will remand the case to an immigration judge solely
for a determination of the section 212(c) application. The Department
recognizes that an alien who files a special motion to seek section
212(c) relief under this rule may have a petition for review pending
before a Federal court of appeals. If the Board grants the alien's
special motion to seek section 212(c) relief while the case is pending
before a Federal court of appeals, the Department anticipates that the
government will request that the court hold the case in abeyance
pending the resolution of the alien's section 212(c) application before
EOIR.
Response to Comments Received
The Department received 60 comments on the proposed rule and will
respond to them by subject matter. The Department appreciates the
analytical detail of these comments, which were received from aliens
and their family members, community organizations and special interest
groups, immigration attorneys, professors, and other members of the
public. The issues raised in the submissions were largely devoted to
eligibility concerns, with a majority of the commenters recommending
that eligibility for section 212(c) relief be broadened to encompass
several categories of aliens who were not eligible for relief under the
proposed rule. Other recurring issues raised by the commenters dealt
with procedural concerns, such as the need for an automatic stay
provision, in addition to concerns about the 180-day deadline
applicable to aliens subject to a final order of deportation or
removal.
A. Ineligibility of Aliens Outside the United States
Approximately 80 percent of the commenters stated that aliens who
have already been deported and are currently outside the United States
should be eligible to apply for section 212(c) relief. Of these
comments, virtually all argued that many aliens were deported without
being given a hearing with respect to their eligibility for a waiver
under section 212(c). These comments state that because these
individuals did not have a ``sufficient opportunity'' to challenge
their deportation order, and since the Supreme Court mandated such a
hearing for section 212(c) eligibility in the St. Cyr decision, their
deportation cannot be conceived as lawful. Accordingly, these
commenters recommended that the Department rectify this situation by
allowing such aliens who are abroad as a result of deportation to apply
for section 212(c) relief, in order to avoid what they see as a
continuing impermissible retroactive effect. Other commenters asserted
that because such aliens were improperly removed, they should be
paroled or admitted into the United States in order to reinitiate their
application process for section 212(c) relief. One commenter also
argued that the Equal Protection Clause requires that both aliens who
are currently in the United States and those abroad be allowed to apply
for section 212(c) relief.
Under the proposed rule, aliens would have been ineligible for
section 212(c) relief if they: (1) Departed the United States and are
currently outside the United States; (2) returned illegally to the
United States after being issued a final order of deportation or
removal; or (3) are present in the United States without having been
admitted or paroled. As previously stated in the proposed rule, the
Department finds that as a general rule, aliens who have been deported
or departed, and for whom the period of time for filing a petition for
review of their removal orders closed may not challenge their prior
immigration proceedings. See 8 U.S.C. 1231(a)(5); 8 CFR 1003.2(d); 67
FR at 52629.
After considering the public comments, the Department adheres to
the position stated in the proposed rule. Under 8 CFR 1003.2(d), a
motion to reopen or to reconsider ``shall not be made by or on behalf
of a person who is the subject of deportation or removal proceedings
subsequent to his or her departure from the United States.'' The
existing regulations thus treat an executed deportation or removal
order as administratively complete, thereby eliminating any possibility
of challenging a proceeding that resulted in the departure of an alien.
Similarly, the Department believes that this distinction is
reasonable and fair because aliens who have been deported had a
sufficient opportunity to challenge the denial of their applications
for section 212(c) relief in
[[Page 57828]]
administrative and judicial proceedings. See 67 FR at 52629. Generally,
aliens who were deported prior to the Supreme Court's decision in St.
Cyr had an opportunity to challenge the denial of their section 212(c)
application before the Board or a Federal court. These aliens also had
the opportunity to apply for stays of deportation in anticipation of
the Supreme Court's ruling in St. Cyr. Therefore, aliens who were
deported had the opportunity to continue to exhaust administrative and
judicial remedies that could have enabled them to remain in the United
States. Accordingly, the Department finds the distinction precluding
section 212(c) eligibility for aliens abroad as a result of a
deportation or removal order to be fair and reasonable.
The Department also believes that the decision to distinguish
between those aliens who are in the United States and those aliens who
have been deported is reasonable and consistent with the plenary
authority of the political branches of the government in the
immigration area. See Fiallo v. Bell, 430 U.S. 787, 792 (1977); Mathews
v. Diaz, 426 U.S. 67, 80-82 (1976). As previously noted in the proposed
rule, this distinction is reasonable because the aliens who never
departed from the United States are not ``similarly situated'' to those
who have had their deportation or removal orders executed, since the
administrative deportation process with the latter group has been
completed (and aliens in this category are further subject to at least
a five-year bar against reentry).
The Department believes that declining to allow aliens who have
been deported from the United States to obtain relief under the
regulation is consistent with Congress's intent as demonstrated by the
language in former section 212(c). See 67 FR at 52629. Former section
212(c) of the Act explicitly made aliens under a deportation order
ineligible for relief: ``[a]liens * * * not under an order of
deportation * * * may be admitted in the discretion of the Attorney
General * * *'' 8 U.S.C. 1182(c) (1994) (emphasis added). Thus,
Congress stated unequivocally whom it sought to benefit in legislating
the section 212(c) waiver. Accordingly, the decision to preclude aliens
under a deportation or removal order from obtaining section 212(c)
relief is grounded in Congress's intent to limit its availability to
those not under deportation orders.
Moreover, the United States Court of Appeals for the Ninth Circuit
has upheld this distinction against constitutional challenge in the
context of addressing the identical distinction under 8 CFR 1003.44(i).
Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169 (9th Cir. 2001). In
upholding the distinction from an equal protection challenge, the court
reasoned that ``the government has a legitimate interest in
discouraging aliens who have already been deported from illegally
reentering,'' and concluded that ``this distinction is rationally
related to that purpose.'' Id. at 1174. See also Robledo-Gonzales v.
Ashcroft, 342 F.3d 667, 676-683 (7th Cir. 2003) (equal protection
challenge to 8 CFR 1003.44 fails because distinction between illegal
reentrants from those eligible under regulation was rational). Thus,
the Department declines to grant eligibility to those who have departed
the United States and are currently outside the United States, returned
illegally to the United States after being issued a final order of
deportation or removal, or are present in the United States without
having been admitted or paroled. Other LPRs who are currently in the
country, however, are allowed to apply for such relief.
B. Ineligibility of Aliens Convicted After a Trial
Approximately 25 percent of commenters recommended that the rule
should provide eligibility for those aliens who were convicted as a
result of a trial, in addition to those who made plea agreements. Of
these commenters, most argued that the reliance interests of those who
went to trial rather than accept plea bargains should be similarly
respected. Specifically, these commenters suggested that, because the
Supreme Court in St. Cyr recognized the reliance interests of those
aliens who made plea agreements with prosecutors while relying on the
availability of the existing waiver of deportation under the former
section 212(c), a similar analysis for those who decided to go to trial
with the expectation that they would be eligible to apply for section
212(c) relief should result in preserving their interests. For example,
one commenter suggested that because ``an immigrant who chose not to
enter a plea * * * may have relied upon the availability of section
212(c) when deciding how to proceed,'' the Supreme Court's reasoning in
St. Cyr ``applies in both [the trial and plea agreement] cases.'' Other
commenters under this category argued that a fundamental unfairness
would result to aliens who were unrepresented or detained because they
were not aware of the possible consequences of a conviction from a plea
agreement, as opposed to that from a trial.
The Supreme Court in St. Cyr specifically focused on plea
agreements in deciding that section 212(c) relief remained available
for aliens ``who, notwithstanding those convictions, would have been
eligible for section 212(c) relief at the time of their plea under the
law then in effect.'' 533 U.S. at 326. The Court recognized that plea
agreements involve a quid pro quo between the defendant and the
government, and that defendants who waive several of their
constitutional rights (including the right to a trial) and consequently
grant the government numerous tangible benefits are likely doing so in
reliance on the availability of section 212(c) relief. Id. at 325. As a
result of the benefit to the prosecutor bestowed by a plea agreement,
and the reliance interest in seeking section 212(c) relief that an
alien develops at the time of the guilty plea, it would be contrary to
`` `familiar considerations of fair notice, reasonable reliance, and
settled expectations'' ' to deprive him or her of the benefit due from
the quasi-contractual exchange of benefits entered into with the
government. Id. at 323-24 (quoting Landgraf v. USI Film Products, 511
U.S. 244 (1994)). Thus, according to St. Cyr, only the reliance
interests of those aliens pleading guilty to crimes when section 212(c)
was available were sufficiently strong to warrant continued eligibility
for such relief.
This issue has been heavily litigated in the federal courts, and
every circuit that has addressed the question has held that an alien
who is convicted after trial is not eligible for section 212(c) relief
under St. Cyr. Rankine v. Reno, 319 F.3d 93, 100 (2d Cir. 2003);
Theodoropoulos v. INS, 313 F.3d 732, 739-40 (2d Cir. 2002); Dias v.
INS, 311 F.3d 456, 458 (1st Cir. 2002); Chambers v. Reno, 307 F.3d 284,
293 (4th Cir. 2002), reh'g denied (April 1, 2003); Armendariz-Montoya
v. Sonchik, 291 F.3d 1116, 1121-22 (9th Cir. 2002), cert. denied, 539
U.S. 902 (2003); see also Lara-Ruiz v. INS, 241 F.3d 934, 945 (7th Cir.
2001) (pre-St. Cyr decision distinguishing between aliens who pleaded
guilty and those who are convicted after trial). These courts have
recognized that aliens who exercise their constitutional right to go to
trial do not have the kind of reliance interests that the Supreme Court
focused on in St. Cyr.
Accordingly, the Department has determined to retain the
distinction between ineligible aliens who were convicted after criminal
trials, and those convicted through plea agreements.
[[Page 57829]]
C. Stay of Deportation or Removal
Approximately 15 percent of commenters recommended that an
automatic stay provision should be inserted into the final rule. One
commenter stated that a motion to reopen to file for section 212(c)
relief should automatically stay the deportation or removal of the
alien, while others said that any alien who is eligible for section
212(c) relief should have his or her removal stayed. Further, another
commenter proposed that filing a special motion to seek section 212(c)
relief should ``also serve as an application for a stay'' of removal,
while another contended that it should be treated ``in the same way
that a motion to reopen in absentia proceedings is currently treated,''
thereby automatically staying the execution of a final order of
deportation or removal upon filing. The general rationale of these
commenters was that the consequence of the lack of an automatic stay
provision in the final rule would lead to the deportation of eligible
aliens before they had the opportunity to apply for section 212(c)
relief.
The proposed rule laid out procedures for applying for a stay of
deportation or removal for aliens seeking to apply for section 212(c)
relief. Requests for a stay of the execution of a final order must be
made in accordance with the prevailing regulatory requirements in 8 CFR
241.6, if made with DHS, or 8 CFR 1003.2(f) or 1003.23(b)(1)(v), if
made with EOIR. The Department does not find the application of
prevailing regulatory requirements to section 212(c) applicants to be
unreasonably burdensome. Accordingly, the Department does not find it
necessary to include an automatic stay provision under this rule.
D. The 180-Day Deadline To File a Special Motion To Seek Section 212(c)
Relief
Approximately 15 percent of the commenters recommended that the
180-day period to file a special motion to seek section 212(c) relief
for aliens under a final order of deportation or removal be extended or
eliminated. One commenter stated that this time period allotted to file
a special motion is ``unreasonably short,'' given that many LPRs will
likely not be aware of this time constraint. Another commenter stated
that this time period is inadequate and the Department should ``provide
additional time to apply,'' particularly if the Department does not
``individually notify affected people.'' Similarly, another commenter
stated simply that the time period is ``insufficient,'' and should be
extended to one year.
The Department finds the 180-day requirement in which to file a
special motion to seek section 212(c) relief for those aliens subject
to a final administrative order of deportation or removal to be a
reasonable time constraint. Publication in the Federal Register
unequivocally constitutes sufficient notice for due process purposes.
Congress has specified this form of notice and made that notice binding
on all who are within the jurisdiction of the United States. 44 U.S.C.
1507 (publication in Federal Register ``is sufficient to give notice of
the contents of the document to a person subject to or affected by
it''). The courts have clearly relied upon the adequacy of notice by
publication in the Federal Register since the Federal Register's
inception. See, e.g., Lyng v. Payne, 476 U.S. 926, 942-943 (1986);
Dixson v. United States, 465 U.S. 482, 489 n.6 (1984); Federal Crop
Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947). The Department rejects
the notion that more notice is required as a matter of law. The
Department does not accept the premise of the commenters' arguments
that it, or any other agency, is required to provide individual notice
of the content of the law. Like citizens, aliens have a duty to know
the law and abide by the law. The Department does note, moreover, that
the immigrant community and immigrant advocacy organizations possess a
well-established network for providing information to the immigrant
community. Additionally, the Department notes that the 180-day deadline
is double the normal amount of time within which an immigration judge
or the Board has jurisdiction over motions to reopen. 8 CFR 1003.2,
1003.23. This is in addition to the 30-day effective date delay period
mandated by the Administrative Procedure Act. 5 U.S.C. 553.
Accordingly, the Department is not persuaded that more time is
appropriate and will retain the 180-day deadline as stated in the
proposed rule.
E. Date of the Plea Agreement
One commenter argued that proposed Sec. 1003.44(b) would create
``proof problems'' for the immigration judges and the Board with
respect to the date on which an alien made a plea agreement. Proposed
Sec. 1003.44(b) lists the eligibility requirements that an alien must
establish in seeking section 212(c) relief. Paragraph (b)(4) of this
section states that an alien must be ``otherwise eligible to apply for
section 212(c) relief under the standards that were in effect at the
time the alien's plea was made, regardless of when the plea was entered
by the court.'' The commenter suggested that it would be difficult for
the immigration judges or the Board to determine when the alien made
his or her plea, as the record of criminal proceedings ``often does not
include [this] information.'' Instead, the commenter suggested that the
date the court accepted the plea should be the operative date. The
commenter contended that a defendant in criminal proceedings, both at
the State and Federal level, has an absolute right to withdraw a plea
until it is accepted, and accordingly, he or she has no legitimate
expectations of entitlement to section 212(c) relief until the court
accepts it.
The Department declines to accept the commenter's recommendation.
The operative language for section 212(c) eligibility--throughout the
rule, not just for filing special motions to seek section 212(c)
relief--focuses on the ``date the plea was agreed to by the parties.''
67 FR at 52633. The Department finds that, consistent with the Supreme
Court's decision in St. Cyr, the key in deciding the extent to which an
alien is eligible for section 212(c) relief rests on the available
relief at the time the alien and the prosecutor made the plea
agreement. The Court stressed the importance of respecting the quasi-
contractual agreement between the alien and prosecutor in deciding that
the alien's reliance interests in making a plea agreement for a
``perceived [immigration] benefit'' must be preserved. St. Cyr, 533
U.S. at 322. In doing so, the Court did not conclude that the date the
criminal court accepts the plea agreement is the time to determine
whether the alien is eligible for section 212(c) relief. Thus, the
commenter's proposal is not supported by the Supreme Court's ruling in
St. Cyr. The Department intends to continue to rely on this judicial
interpretation.
Further, in any plea agreement in which the government receives
``numerous `tangible benefits * * * without the expenditure of
prosecutorial resources,' '' the benefits acquired by the prosecutor
occur at the moment that the agreement is made given that he or she is
relieved of the burdens of preparing the case for trial. St. Cyr, 533
U.S. at 322 (quoting Newton v. Rumery, 480 U.S. 386, 393 n.3 (1987)).
Similarly, the moment when the alien enters into an agreement for the
exchange of benefits with the prosecutor in reliance on section 212(c)
relief eligibility should be the time at which the alien can begin
accruing the benefit of the agreement. Accordingly, the Department
disagrees with the commenter and will retain the language in the
proposed rule specifying
[[Page 57830]]
that the date the plea was agreed to by the parties will be the time to
determine whether an alien is eligible for section 212(c) relief.
The alien seeking section 212(c) relief has the burden of
establishing his or her eligibility. This burden of proof includes
establishing the date on which the alien entered into a plea agreement
with the prosecution that resulted in the conviction from which section
212(c) relief is sought. The nature of the comment concerning ``proof
problems,'' however, underscores the need to make clear that the alien
seeking section 212(c) relief has the burden of establishing the plea
agreement date, and the alien is in the best position to do so because
the alien was present (not DHS or the immigration judge) and is most
likely to possess the documents reflecting the plea agreement.
Accordingly, the Department has inserted a specific statement of that
burden in section 1003.44(b) to make this clear. The Department does
not believe that the requirement will impose a burden on the
immigration judges or the Board.
F. Retroactivity of IIRIRA's Definition of ``Aggravated Felony''
One commenter suggested that the Department's implementation of the
St. Cyr decision should preclude a retroactive application of the
definition of an aggravated felony as expanded by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
Pub. L. 104-208, Div. C, 110 Stat. 3009-546. The commenter suggested
that the Department allow a section 212(c) applicant to ``invoke the
law as it was at the time'' when the applicant made his or her plea,
thereby using the then-existing definitions of aggravated felonies
rather than applying retroactively the expanded definitions enacted in
IIRIRA. In support of this suggestion, the commenter asserted that
``Congress has never had and could not have had the intent to subject
[section] 212(c) to the retroactive application of the expanded version
of the definition of aggravated felony under IIRIRA.'' The commenter
also asserted that ``if the retroactive application of the new
definition of aggravated felony would be extended to relief under the
pre-IIRIRA regime then the [DHS] could reopen cases to remove aliens
who had been granted relief pre-IIRIRA.''
The Department disagrees with this analysis. St. Cyr makes clear
that the Court accepted the retroactive application of the definition
of aggravated felony in connection with the availability of section
212(c) relief. In contrast to its finding that there was no
unmistakable congressional intent to apply the repeal of section 212(c)
retroactively, the Supreme Court in St. Cyr clearly reiterated that
Congress indicated unambiguously its intention to apply the definition
of ``aggravated felony'' retroactively under IIRIRA section 321(b). 533
U.S. at 319. Thus, IIRIRA's amended definition of ``aggravated felony''
applies to all convictions, regardless of when they occurred, in
determining whether the alien is deportable on account of committing an
aggravated felony. Further, as noted in the proposed rule, this amended
definition ``also applies to determine the eligibility for section
212(c) relief in those cases where an alien is deportable as an
aggravated felon. See Matter of Fortiz, 21 I&N Dec. 1199 (BIA 1998).''
67 FR at 52630. Accordingly, the Department disagrees with the
commenter's contention that the IIRIRA's expanded definition of
aggravated felony should not apply to pre-IIRIRA convictions or for
purposes of section 212(c) eligibility.
This rule, however, retains the position of the proposed rule that
aliens who have not been charged and found deportable as aggravated
felons would not be affected by the retroactivity of the aggravated
felony definition under IIRIRA section 321. The Department agrees with
the Board's finding in Fortiz that ``in order for an alien to qualify
as one who is `deportable' under [AEDPA's] amendment to section 212(c),
he or she must be charged with, and found deportable, on the requisite
ground of deportability.'' Fortiz, 21 I&N Dec. at 1212 n.3. Therefore,
the expanded definition of aggravated felony enacted in IIRIRA renders
ineligible for section 212(c) relief only those aliens who were charged
with an aggravated felony as the basis for their deportability. For
clarity, this rule revises Sec. 1212.3(f)(4) to reflect the
Department's interpretation of the aggravated felony definition, in
addition to retaining the language of the proposed rule in amending
Sec. 1003.44.
With respect to the commenter's further assertion that the DHS
could reopen cases to remove aliens who were granted relief before
IIRIRA's effective date if IIRIRA's amended definition of aggravated
felony is retroactively applied, the regulations are clear in
prohibiting such a result. 8 CFR 1212.3(d) states that ``[o]nce an
application [for section 212(c) relief] is approved, that approval is
valid indefinitely.'' Thus, unless an exception relating to omissions
in the application for section 212(c) applies (as described in 8 CFR
1212.3(d)), an approved section 212(c) application cannot be
subsequently revoked. Accordingly, the Department will not incorporate
the suggestions from this commenter.
It is also worth noting here that the effect of section 212(c)
relief is very limited. For example, a single criminal conviction for a
crime involving moral turpitude waived under section 212(c) may still
be relied upon at a later date as one of two crimes to establish
excludability under section 212(a)(2)(A)(II) of the Act (8 U.S.C.
1182(a)(2)(A)(II)). Matter of Balderas, 20 I&N Dec. 389 (BIA 1991).
Thus, section 212(c) relief should not be considered a ``pardon'' and
does not eliminate the conviction for any other purpose, such as later
applications for discretionary relief. Balderas, at 391.
However, the Department has made a change in the final rule in
response to the Ninth Circuit's recent decision in Toia v. Fasano, 334
F.3d 917 (9th Cir. 2003). In Toia, the court of appeals concluded that
the amendment made by the Immigration Act of 1990, Pub. L. 101-649,
section 511(a), 104 Stat. 4978, 5052 (1990)--which rendered aliens
ineligible for section 212(c) relief if they had been convicted of an
aggravated felony and had served a term of imprisonment of at least
five years--did not apply to an alien who had pleaded guilty to a
criminal offense prior to the enactment of that amendment. The court of
appeals, in reliance on St. Cyr, overruled its own prior precedent,
Samaniego-Meraz v. INS, 53 F.3d 254 (9th Cir. 1995), which had
previously held that the 1990 limitation on the availability of section
212(c) relief properly applied to convictions entered prior to its
enactment.
Although the Department does not concede that Toia is the better
interpretation of the 1990 amendment, and the issue has been the
subject of conflicting interpretations as the court acknowledged (see
Toia, 334 F.3d at 919-920), the Department recognizes that, because the
issue is one of only limited practical significance, it is unlikely
that this issue will reach the Supreme Court in the future. In Toia the
plea agreement and the entry of the plea agreement occurred prior to
the 1990 Act, and the only issue was the applicability of the 1990 Act.
Accordingly, in order to apply a uniform rule in the implementation of
section 212(c), the Department will acquiesce in the result of Toia.
The final rule is amended to provide that the 1990 amendment barring
the availability of section 212(c) relief for aggravated felons who
have served a term of at least five years for one or more aggravated
felonies will not be applied to bar the eligibility of aliens with
respect to any
[[Page 57831]]
aggravated felony conviction pursuant to a plea agreement that was made
prior to November 29, 1990, the date that amendment was enacted.
However, the immigration judges and the Board retain the authority to
consider the nature and circumstances of any such aggravated felony or
felonies as a substantial negative factor weighing against granting
relief under former section 212(c) as a matter of discretion. See e.g.,
Matter of Marin, 16 I&N Dec. 581 (BIA 1978); Matter of Arrequin, 21 I&N
Dec. 38 (BIA 1995); Matter of Burbano, 20 I&N Dec. 872 (BIA 1994); see
also Matter of Jean, 23 I&N Dec. 373 (AG 2002); cf., Matter of Y-L, A-
G-, R-S-R-, 23 I&N Dec. 270 (AG 2002).
In making this change, the Department is limiting its effect to
those cases in which the alien was convicted pursuant to a plea
agreement. Aliens who were convicted of one or more aggravated felonies
after trial, whether before or after the enactment of the Immigration
Act of 1990, will continue to be subject to the limitations on
eligibility for section 212(c) relief. As discussed above, the Supreme
Court in St. Cyr was careful to limit the impact of its decision only
to aliens who had entered into a plea agreement, since only those
individuals had sufficient reliance interests to be able to insist on
the benefit of their bargain. The Ninth Circuit's decision in Toia was
based exclusively on the same retroactivity analysis as in St. Cyr, and
limited its holding to the availability of section 212(c) relief for
``aliens who pleaded guilty with the expectation that they would be
eligible for such relief.'' 334 F.3d at 920.
This change is reflected in Sec. 1212.3(f)(4)(ii). This rule also
revises the language of Sec. 1212.3(f)(4)(i) to conform to the
language of section 212(c) of the Act, regarding aliens who have served
a term of imprisonment of five years or more for one or more aggravated
felonies.
Finally, the language of Sec. 1212.3(f)(5) has been clarified. The
final rule adjusts the language to specifically cite the relevant
statutory provisions to make clear that there must be a statutory
counterpart in proceedings under section 237 or former section 241 of
the Act for section 212(c) relief to reach those convictions.
G. Applicability of AEDPA
Several commenters suggested that the proposed rule should be
modified so that the date the alien committed the crime rather than the
date of conviction is used to determine the applicability of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L.
104-132, 110 Stat. 1214. One commenter asserted that ``LPRs * * * had a
right to know that they were endangering their entire future with their
family in the United States by breaking the law, but the gravity of
their acts was impossible to predict before the passage of the 1996
laws.'' The commenter continued, ``[t]hose whose crimes occurred before
the enactment of AEDPA face the exact same situation as those who were
convicted before that date: they could not have been aware of the
immigration consequences of their crimes.''
The Department disagrees with the commenters. The effect of section
440(d) of AEDPA rendered aliens ineligible for section 212(c) relief if
they became deportable for certain criminal convictions. The Department
adheres to the interpretation set forth in the proposed rule: ``This
narrower version of section 212(c) relief is available to aliens who
made pleas on or after April 24, 1996, and before April 1, 1997,
regardless of when the plea was entered by the court.'' 67 FR at 52629.
It should be noted that the date of the plea agreement, not the
conviction date, is the operative date to determine the availability of
section 212(c), as well as the applicability of AEDPA. Thus, if an
alien makes a plea agreement on or after April 24, 1996 (the effective
date of AEDPA), and before April 1, 1997 (the effective date of
IIRIRA), he or she may be eligible for section 212(c) relief, as the
plea agreement was made before IIRIRA eliminated this form of relief,
but he or she is subject to the narrower version of section 212(c)
relief as implemented by AEDPA.
To hold the date the crime was committed as the operational date
would be contrary to the St. Cyr decision, as the Court was explicit in
preserving the reliance interests of those aliens that made guilty
pleas when section 212(c) was still available. See St. Cyr, 533 U.S. at
326 (``We therefore hold that Sec. 212(c) relief remains available for
aliens * * * who * * * would have been eligible for Sec. 212(c) relief
at the time of their plea under the law then in effect.''). The phrase
``under the law then in effect'' clearly conditions the scope of
section 212(c) relief that remains available, thereby giving effect to
AEDPA and consequently its narrowed availability of section 212(c)
relief. Id. Accordingly, the Department will retain the date of the
plea agreement as the operational date in determining both the
availability and scope of section 212(c) relief for an alien.
H. The Accrual of Seven Consecutive Years of Lawful Unrelinquished
Domicile
Several commenters criticized Sec. 1003.44(b), relating to how the
requisite seven years of lawful unrelinquished domicile should be
calculated in order to determine eligibility for section 212(c) relief.
They asserted that Sec. 1003.44(b)(3) should be amended to provide
that an alien must have seven consecutive years of lawful
unrelinquished domicile in the United States as determined ``at the
time the plea was entered,'' rather than as of ``the date of the final
administrative order of deportation or removal.'' They argued that an
alien who did not have the requisite seven years of lawful
unrelinquished domicile at the time of making the plea could not have
relied upon the availability of section 212(c) relief because he or she
would not have been eligible for such relief at that time.
The Department disagrees with these comments. The Board has long
held that an alien's lawful domicile terminates upon the entry of the
final administrative order of deportation. See Matter of Cerna, 20 I&N
Dec. 399 (BIA 1991). Although Congress has altered a number of
provisions of the Act to limit eligibility for relief by the occurrence
of specific events, the Department declines the commenters' suggestion
to alter the rule in this limited class of cases.
I. Eligibility for Aliens Who Are Deportable on Grounds for Which There
Do Not Exist Corresponding Grounds of Exclusion or Inadmissibility
One commenter stated that the proposed rule should clarify that an
alien charged and found deportable as an aggravated felon is not
eligible for section 212(c) relief ``if there is no comparable ground
of inadmissibility for the specific category of aggravated felony
charged.'' The commenter continues, ``[f]or example, the rule should
not apply to aggravated felons charged with deportability under
specific types or categories of aggravated felonies such as `Murder,
Rape, or Sexual Abuse of a Minor' or `Crime of Violence' aggravated
felonies.'' Thus, the commenter states that Sec. 1212.3(f)(4) should
include those aliens who have been charged with aggravated felonies for
which there is no corresponding ground of inadmissibility as being
ineligible for section 212(c) relief.
The commenter is correct in stating this limitation on the scope of
relief available under section 212(c). Matter of Granados, 16 I&N Dec.
726, 728 (BIA 1979) (``[I]f a ground of deportation is also a ground of
inadmissibility, section
[[Page 57832]]
212(c) can be invoked in a deportation hearing.''); Cabasug v. INS, 847
F.2d 1321 (9th Cir. 1988); Matter of Hernandez-Casillas, 20 I&N Dec.
262 (BIA 1990; A.G. 1991). In describing the eligibility requirements,
the supplementary information of the proposed rule noted that ``[a]n
applicant must, at a minimum, meet the following criteria to be
considered for a waiver under section 212(c): * * * [t]he alien is
deportable or removable on a ground that has a corresponding ground of
exclusion or inadmissibility * * *'' 67 FR at 52628-52629. However,
this requirement was not included in the regulatory language of the
proposed rule. As a result, the Department will effectuate the
commenter's suggestion by adding this requirement for section 212(c)
eligibility. Accordingly, the final rule provides that an alien who is
deportable or removable on a ground that does not have a corresponding
ground of exclusion or inadmissibility is ineligible for section 212(c)
relief.
J. Notification to Affected Individuals
Several commenters suggested that the proposed rule is flawed
because it does not provide a mechanism for identifying and notifying
LPRs who are eligible to apply for section 212(c) relief. For example,
one commenter proposed that the Department ``identify individuals who
were denied an opportunity to apply for relief on the basis of St. Cyr
and notify them of this change [because otherwise] many affected
individuals will not learn of these rules and will miss the opportunity
to resolve their cases.''
The Department disagrees with these recommendations. As noted above
in relation to other comments, the Department finds that publishing the
current rule in the Federal Register is the well-established and
accepted method of informing the entire public of a change in the law.
See Federal Crop Ins. Corporation, 332 U.S. at 384-85 (``Just as
everyone is charged with knowledge of the United States Statutes at
Large, Congress has provided that the appearance of rules and
regulations in the Federal Register gives legal notice of their
contents.'') (citing 44 U.S.C. 307). The Department does not accept the
premise of these arguments that it, or any other agency, is required to
provide individual notice of the content of the law. Like citizens,
aliens have a duty to know the law and abide by the law.
Immigration judges routinely inform aliens who appear before them
of the types of relief for which they may be eligible. 8 CFR
1240.11(a)(2); cf. 8 CFR 1240.49(a) (narrower provision applicable to
deportation proceedings). Thus, the Department finds that there exist
ample opportunities for aliens affected by this final rule to become
aware of its contents. Therefore, the Department declines to accept
these recommendations.
K. Proof of Permanent Residence
One commenter stated that the Department should eliminate the
``burdensome paperwork requirements'' of compelling potentially
eligible aliens to submit proof of permanent residence. The commenter
suggested that ``[i]t is inappropriate and impractical to require an
individual to provide proof of permanent residence or a copy of the
Form I-90 when the EOIR and/or the [DHS] have that information and
control access to it.''
The Department disagrees with the commenter. Similar to other
avenues of petitioning for relief, the alien has the burden of proving
that he or she is eligible for, and merits, a form of relief. In the
context of section 212(c) in particular, the alien bears the burden of
proof to demonstrate LPR status as an essential element of establishing
eligibility for such relief. The language of the rule merely reflects
the fact that the alien bears this burden of proof.
L. Applicability of the Soriano Rule
One commenter expressed concern that the proposed rule would delete
a previous rule issued by the Department that created a procedure for
eligible aliens to apply for section 212(c) relief. The previous rule,
sometimes referred to as the ``Soriano rule,'' was published on January
22, 2001, at 66 FR 6436, and is presently codified at 8 CFR 1212.3(g)
(and the related motion to reopen rule, which is being replaced by this
final rule, is presently codified at 8 CFR 1003.44). The Department
adopted the Soriano rule in response to the substantial judicial
precedent rejecting the interpretation of section 212(c) set forth in
Matter of Soriano, 21 I&N Dec. 516 (BIA 1996, A.G. 1997).
Briefly, the Soriano rule provided that the limitations of section
440(d) of AEDPA are not applicable to section 212(c) applicants whose
deportation proceedings commenced prior to April 24, 1996, the
effective date of AEDPA. Under the Soriano rule, such section 212(c)
applicants may apply for relief, if eligible, under the pre-AEDPA
version of section 212(c), irrespective of whether their convictions
resulted from plea agreements or criminal trials. The commenter
suggested that the ``provision set forth in 8 CFR [1]212.3(g) should be
retained in its entirety'' because of pending cases before the
immigration judges and the Board that were commenced based on the
Soriano rule.
In this rule, the Department is implementing the Supreme Court's
ruling in St. Cyr by providing eligibility and procedural requirements
for section 212(c) relief for aliens whose convictions were entered
after a plea agreement. This rule both amends 8 CFR 1212.3 and replaces
the special motion to reopen provisions adopted at the time of the
Soriano rule, 8 CFR 1003.44 (which is no longer relevant since the time
to submit a motion to reopen under that rule has long since expired).
The commenter is correct in observing that the issue addressed in
current Sec. 1212.3(g) continues to be relevant to aliens whose
deportation proceedings were commenced prior to the enactment of AEDPA.
The Department will therefore leave intact the existing provision of 8
CFR 1212.3(g), which will continue to govern cases falling within its
parameters.
Any motions that were filed pursuant to the Soriano rule that are
still pending before the immigration judges or the Board will be
adjudicated under the requirements of either the Soriano rule or this
final rule. However, if a motion under Soriano was denied, and the
alien desires to seek section 212(c) relief under this rule, he or she
will need to file a new special motion, as described in 8 CFR 1003.44,
as revised. Even if the motion was denied because the alien did not
satisfy the requirements of 8 CFR 1212.3(g) (for deportation
proceedings commenced prior to April 24, 1996), that ineligibility will
not bar him or her from timely applying for section 212(c) relief under
this rule if he or she is eligible under 8 CFR 1003.44 and 1212.3, as
revised.
Aliens who were eligible to file for section 212(c) relief under
the Soriano rule but failed to do so will be able to file for section
212(c) relief under this rule, but only if they meet the eligibility
requirements contained in this final rule--that is, with respect to
convictions entered pursuant to a plea agreement made prior to April 1,
1997. This rule does not provide any additional relief to aliens whose
convictions were entered after a trial. Accordingly, this rule does not
extend the deadline of July 23, 2001, for aliens to submit a motion to
reopen to apply for section 212(c) relief pursuant to the pre-existing
provisions of Sec. 1003.44, with respect to convictions entered after
a trial.
M. Filing New Motions To Reopen After Previously Filing Motions To
Reopen
One commenter inquired whether attorneys representing aliens should
file new special motions to seek section
[[Page 57833]]
212(c) relief under this rule if they previously filed a motion to
reopen under 8 CFR 1003.2 or 1003.23 in order to seek relief based on
the St. Cyr decision.
The Department does not require an alien to file a new special
motion to seek section 212(c) relief if he or she previously filed a
motion to reopen under 8 CFR 1003.2 or 1003.23 based on the St. Cyr
decision and the previous motion is still pending. An eligible alien
who has already filed a motion with an immigration judge or the Board
based on the St. Cyr decision may supplement that motion if it is still
pending.
If the alien's previous motion to reopen based on the St. Cyr
decision was found to be barred solely because of time or number limits
on motions to reopen, this rule makes clear that an eligible alien will
be able to file a special motion under this rule to address the merits
of the alien's St. Cyr claims. However, if the previous motion to
reopen under St. Cyr was denied for any reason other than because of
the time or number limitations for motions to reopen, Sec.
1003.44(g)(3) precludes the filing of a new special motion under this
rule. In that instance, the alien has already had the opportunity to
raise the St. Cyr issues on the merits through a motion to reopen, and
there is no reason to give the respondent a second opportunity to raise
issues related to St. Cyr through another motion to reopen. See also 8
CFR 1003.44(d).
Moreover, as stated in the proposed rule, if the alien under a
final order of deportation or removal previously filed a motion to
reopen or a motion to reconsider with EOIR on ``other grounds,'' he or
she is still required to file a separate special motion to seek section
212(c) relief to receive the benefits under this rule as provided in
Sec. 1003.44(g)(1).
In view of the fact-specific nature of the determination whether or
not to grant section 212(c) relief, this final rule provides that, if
the Board grants a special motion to seek section 212(c) relief in a
case in which it last had jurisdiction, the Board will remand the case
to an immigration judge for adjudication of those issues. 8 CFR
1003.44(j); see also 8 CFR 1003.1(d)(3).
Regulatory Flexibility Act
The Attorney General, in accordance with 5 U.S.C. 605(b), has
reviewed this rule and, by approving it, certifies that it affects only
Departmental employees and aliens or their representatives who appear
in proceedings before the immigration judges or the Board. Therefore,
this rule does not have a significant economic impact on a substantial
number of small entities.
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, 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 has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Department has determined that this rule is a ``significant regulatory
action'' under section 3(f) of Executive Order 12866, Regulatory
Planning and Review. Accordingly, this rule has been submitted to the
Office of Management and Budget (OMB) for review.
Executive Order 13132
This 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 responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, the Department has determined that this rule
does not have sufficient federalism implications to warrant 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.
Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995, Pub. L. 104-13, all
Departments are required to submit to OMB for review and approval any
reporting requirements inherent in a final rule. This rule does not
impose any new reporting or recordkeeping requirements under the
Paperwork Reduction Act.
List of Subjects
8 CFR Part 1003
Administrative practice and procedure, Aliens, Immigration, Legal
services, Organization and functions (Government agencies).
8 CFR Part 1212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 1240
Administrative practice and procedure, Aliens, Immigration.
0
Accordingly, chapter V of title 8 of the Code of Federal Regulations is
amended as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
1. The authority citation for part 1003 continues to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note, 1103, 1252 note,
1252b, 1324b, 1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No.
2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L.
105-100, 111 Stat. 2196-200; sections 1506 and 1510 of Pub. L. 106-
386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 106-554,
114 Stat. 2763A-326 to -328.
0
2. Revise 8 CFR 1003.44 to read as follows:
Sec. 1003.44 Special motion to seek section 212(c) relief for aliens
who pleaded guilty or nolo contendere to certain crimes before April 1,
1997.
(a) Standard for adjudication. This section applies to certain
aliens who formerly were lawful permanent residents, who are subject to
an administratively final order of deportation or removal, and who are
eligible to apply for relief under former section 212(c) of the Act and
8 CFR 1212.3 with respect to convictions obtained by plea agreements
reached prior to a verdict at trial prior to April 1, 1997. A special
motion to seek relief under section 212(c) of the Act will be
adjudicated under the standards of this section and 8 CFR 1212.3. This
section is not applicable with respect to any conviction entered after
trial.
(b) General eligibility. The alien has the burden of establishing
eligibility for relief, including the date on which the alien and the
prosecution agreed on the
[[Page 57834]]
plea of guilt or nolo contendere. Generally, a special motion under
this section to seek section 212(c) relief must establish that the
alien:
(1) Was a lawful permanent resident and is now subject to a final
order of deportation or removal;
(2) Agreed to plead guilty or nolo contendere to an offense
rendering the alien deportable or removable, pursuant to a plea
agreement made before April 1, 1997;
(3) Had seven consecutive years of lawful unrelinquished domicile
in the United States prior to the date of the final administrative
order of deportation or removal; and
(4) Is otherwise eligible to apply for section 212(c) relief under
the standards that were in effect at the time the alien's plea was
made, regardless of when the plea was entered by the court.
(c) Aggravated felony definition. For purposes of eligibility to
apply for section 212(c) relief under this section and 8 CFR 1212.3,
the definition of aggravated felony in section 101(a)(43) of the Act is
that in effect at the time the special motion or the application for
section 212(c) relief is adjudicated under this section. An alien shall
be deemed to be ineligible for section 212(c) relief if he or she has
been charged and found deportable or removable on the basis of a crime
that is an aggravated felony, except as provided in 8 CFR 1212.3(f)(4).
(d) Effect of prior denial of section 212(c) relief. A motion under
this section will not be granted with respect to any conviction where
an alien has previously been denied section 212(c) relief by an
immigration judge or by the Board on discretionary grounds.
(e) Scope of 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 judge or the Board grants
a motion by the alien to reopen the proceedings on other applicable
grounds under 8 CFR 1003.2 or 1003.23 of this chapter, all issues
encompassed within the reopened proceedings may be considered together,
as appropriate.
(f) Procedure for filing a special motion to seek section 212(c)
relief. An eligible alien shall file a special motion to seek section
212(c) relief with the immigration judge or the Board, whichever last
held jurisdiction over the case. An eligible alien must submit a copy
of the Form I-191 application, and supporting documents, with the
special motion. The motion must contain the notation ``special motion
to seek section 212(c) relief.'' The Department of Homeland Security
(DHS) shall have 45 days from the date of filing of the special motion
to respond. In the event the DHS does not respond to the motion, the
DHS retains the right in the proceedings to contest any and all issues
raised.
(g) Relationship to motions to reopen or reconsider on other
grounds. (1) Other pending motions to reopen or reconsider. An alien
who has previously filed a motion to reopen or reconsider that is still
pending before an immigration judge or the Board, other than a motion
for section 212(c) relief, must file a separate special motion to seek
section 212(c) relief pursuant to this section. The new motion shall
specify any other motions currently pending before an immigration judge
or the Board. An alien who has previously filed a motion to reopen
under 8 CFR 1003.2 or 1003.23 based on INS v. St. Cyr is not required
to file a new special motion under this section, but he or she may
supplement the previous motion if it is still pending. Any motion for
section 212(c) relief described in this section pending before the
Board or an immigration judge on the effective date of this rule that
would be barred by the time or number limitations on motions shall be
deemed to be a motion filed pursuant to this section, and shall not
count against the number restrictions for other motions to reopen.
(2) Motions previously filed pursuant to prior provision. If an
alien previously filed a motion to apply for section 212(c) relief with
an immigration judge or the Board pursuant to the prior provisions of
this section, as in effect before October 28, 2004, and the motion is
still pending, the motion will be adjudicated pursuant to the standards
of this section, both as revised and as previously in effect, and the
alien does not need to file a new special motion pursuant to paragraph
(g)(1) of this section. However, if a motion filed under the prior
provisions of this section was denied because the alien did not satisfy
the requirements contained therein, the alien must file a new special
motion pursuant to this section, if eligible, in order to apply for
section 212(c) relief based on the requirements established in this
section.
(3) Effect of a prior denial of a motion to reopen or motion to
reconsider filed after the St. Cyr decision. A motion under this
section will not be granted where an alien has previously submitted a
motion to reopen or motion to reconsider based on the St. Cyr decision
and that motion was denied by an immigration judge or the Board (except
on account of time or number limitations for such motions).
(4) Limitations for motions. The filing of a special motion under
this section has no effect on the time and number limitations for
motions to reopen or reconsider that may be filed on grounds unrelated
to section 212(c).
(h) Deadline to file a special motion to seek section 212(c) relief
under this section. An alien subject to a final administrative order of
deportation or removal must file a special motion to seek section
212(c) relief on or before April 26, 2005. An eligible alien may file
one special motion to seek section 212(c) relief under this section.
(i) Fees. No filing fee is required at the time the alien files a
special motion to seek section 212(c) relief under this section.
However, if the special motion is granted, and the alien has not
previously filed an application for section 212(c) relief, the alien
will be required to submit the appropriate fee receipt at the time the
alien files the Form I-191 with the immigration court.
(j) Remands of appeals. If the Board has jurisdiction and grants
the motion to apply for section 212(c) relief pursuant to this section,
it shall remand the case to the immigration judge solely for
adjudication of the section 212(c) application.
(k) Limitations on eligibility under this section. This section
does not apply to:
(1) Aliens who have departed the United States and are currently
outside the United States;
(2) Aliens issued a final order of deportation or removal who then
illegally returned to the United States; or
(3) Aliens who have not been admitted or paroled.
PART 1212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
0
3. The authority citation for part 1212 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225,
1226, 1227.
0
4. Amend Sec. 1212.3 by:
0
A. Revising the section heading, paragraph (a), the second to last
sentence of paragraph (b);
0
B. Removing and reserving paragraph (c);
0
C. Revising paragraph (d), paragraph (e), paragraph (f) introductory
text, and paragraphs (f)(3), (f)(4), and (f)(5); and
0
D. Adding a new paragraph (h).
The revisions and addition read as follows:
[[Page 57835]]
Sec. 1212.3 Application for the exercise of discretion under former
section 212(c).
(a) Jurisdiction. An application by an eligible alien for the
exercise of discretion under former section 212(c) of the Act (as in
effect prior to April 1, 1997), if made in the course of proceedings
under section 240 of the Act, or under former sections 235, 236, or 242
of the Act (as in effect prior to April 1, 1997), shall be submitted to
the immigration judge by filing Form I-191, Application for Advance
Permission to Return to Unrelinquished Domicile.
(b) * * * All material facts or circumstances that the applicant
knows or believes apply to the grounds of excludability, deportability,
or removability must be described in the application. * * *
(c) [Reserved]
(d) Validity. Once an application is approved, that approval is
valid indefinitely. However, the approval covers only those specific
grounds of excludability, deportability, or removability that were
described in the application. An applicant who failed to describe any
other grounds of excludability, deportability, or removability, or
failed to disclose material facts existing at the time of the approval
of the application, remains excludable, deportable, or removable under
the previously unidentified grounds. If the applicant is excludable,
deportable, or removable based upon any previously unidentified grounds
a new application must be filed.
(e) Filing or renewal of applications before an immigration judge.
(1) An eligible alien may renew or submit an application for the
exercise of discretion under former section 212(c) of the Act in
proceedings before an immigration judge under section 240 of the Act,
or under former sections 235, 236, or 242 of the Act (as it existed
prior to April 1, 1997), and under this chapter. Such application shall
be adjudicated by the immigration judge, without regard to whether the
applicant previously has made application to the district director.
(2) The immigration judge may grant or deny an application for
relief under section 212(c), in the exercise of discretion, unless such
relief is prohibited by paragraph (f) of this section or as otherwise
provided by law.
(3) An alien otherwise entitled to appeal to the Board of
Immigration Appeals may appeal the denial by the immigration judge of
this application in accordance with the provisions of Sec. 1003.38 of
this chapter.
(f) Limitations on discretion to grant an application under section
212(c) of the Act. An application for relief under former section
212(c) of the Act shall be denied if:
* * * * *
(3) The alien is subject to inadmissibility or exclusion from the
United States under paragraphs (3)(A), (3)(B), (3)(C), (3)(E), or
(10)(C) of section 212(a) of the Act;
(4) The alien has been charged and found to be deportable or
removable on the basis of a crime that is an aggravated felony, as
defined in section 101(a)(43) of the Act (as in effect at the time the
application for section 212(c) relief is adjudicated), except as
follows:
(i) An alien whose convictions for one or more aggravated felonies
were entered pursuant to plea agreements made on or after November 29,
1990, but prior to April 24, 1996, is ineligible for section 212(c)
relief only if he or she has served a term of imprisonment of five
years or more for such aggravated felony or felonies, and
(ii) An alien is not ineligible for section 212(c) relief on
account of an aggravated felony conviction entered pursuant to a plea
agreement that was made before November 29, 1990; or
(5) The alien is deportable under former section 241 of the Act or
removable under section 237 of the Act on a ground which does not have
a statutory counterpart in section 212 of the Act.
* * * * *
(h) Availability of section 212(c) relief for aliens who pleaded
guilty or nolo contendere to certain crimes. For purposes of this
section, the date of the plea agreement will be considered the date the
plea agreement was agreed to by the parties. Aliens are not eligible to
apply for section 212(c) relief under the provisions of this paragraph
with respect to convictions entered after trial.
(1) Pleas before April 24, 1996. Regardless of whether an alien is
in exclusion, deportation, or removal proceedings, an eligible alien
may apply for relief under former section 212(c) of the Act, without
regard to the amendment made by section 440(d) of the Antiterrorism and
Effective Death Penalty Act of 1996, with respect to a conviction if
the alien pleaded guilty or nolo contendere and the alien's plea
agreement was made before April 24, 1996.
(2) Pleas between April 24, 1996 and April 1, 1997. Regardless of
whether an alien is in exclusion, deportation, or removal proceedings,
an eligible alien may apply for relief under former section 212(c) of
the Act, as amended by section 440(d) of the Antiterrorism and
Effective Death Penalty Act of 1996, with respect to a conviction if
the alien pleaded guilty or nolo contendere and the alien's plea
agreement was made on or after April 24, 1996, and before April 1,
1997.
(3) Please on or after April 1, 1997. Section 212(c) relief is not
available with respect to convictions arising from plea agreements made
on or after April 1, 1997.
PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
0
5. The authority citation for part 1240 is revised 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).
Sec. 1240.1 [Amended]
0
6. In Sec. 1240.1, amend paragraph (a)(1)(ii) by removing the words
``and section 902 of Pub. L. 105-277'' and replacing them with the
words ``section 902 of Pub. L. 105-277, and former section 212(c) of
the Act (as it existed prior to April 1, 1997)''.
Dated: September 20, 2004.
John Ashcroft,
Attorney General.
[FR Doc. 04-21605 Filed 9-27-04; 8:45 am]
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