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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: July 17, 2001 (Volume 66, Number 137)]
[Rules and Regulations]               
[Page 37119-37125]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jy01-4]                         
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE

8 CFR Part 3

[EOIR No. 128P; AG Order No. 2467-2001]
RIN 1125-AA31

Motions To Reopen for Suspension of Deportation and Special Rule 
Cancellation of Removal Pursuant to Section 1505(c) of the LIFE Act 
Amendments

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This rule amends the regulations of the Executive Office for 
Immigration Review (EOIR) by establishing a special procedure for the 
filing and adjudication of motions to reopen deportation and removal 
proceedings to apply for suspension of deportation and special rule 
cancellation of removal pursuant to section 1505(c) of the Legal 
Immigration Family Equity Act Amendments of 2000 (LIFE Act Amendments).

DATES: Effective date: This interim rule is effective July 17, 2001.
    Comment date: Comments must be submitted on or before September 17, 
2001.
    Motions to reopen under this rule must be filed on or before 
October 16, 2001.

ADDRESSES: Please submit written comments to Charles Adkins-Blanch, 
General Counsel, Executive Office for Immigration Review, 5107 Leesburg 
Pike, Suite 2400, Falls Church, Virginia 22041; or e-mail comments to 
the following e-mail address: LIFE.1505(c)@USDOJ.GOV.

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: This rule revises the special reopening 
provisions previously established in 8 CFR 3.43. The revisions account 
for changes in eligibility established by sections 1506 and 1510 of the 
Victims of Trafficking and Violence Protection Act of 2000 (Pub. L. 
106-386, Div. B, tit. V, 114 Stat. 1464, 1527-29, 1531-32) (VTVPA) and 
section 1505(c) of the LIFE Act Amendments (Pub. L. 106-554, App. D, 
tit. XV, 114 Stat. 2763, 2763A-326 to 328). The rule permits aliens 
with reinstated final orders and aliens with newly issued final orders, 
where those new orders were issued based on their having reentered the 
United States illegally after having been removed or having departed 
voluntarily under an order of removal subject to reinstatement under 
section 241(a)(5) of the Immigration and Nationality Act (the Act), to 
move to reopen immigration proceedings for the sole purpose of applying 
for suspension of deportation or special rule cancellation of removal 
under section 203 of the Nicaraguan Adjustment and Central American 
Relief Act of 1997 (Pub. L. 105-100, 111 Stat. 2160, 2196-200) 
(NACARA).

Why Is the Department Issuing This Interim Rule?

    Section 241(a)(5) of the Act provides for the reinstatement of a 
removal order against any alien who illegally reenters the United 
States after having been removed or having departed voluntarily under 
an order of removal. It also bars any alien whose removal order has 
been reinstated from receiving any relief under the Act, and prohibits 
the reopening or review of the previous order.
    Section 1505(c) of the LIFE Act Amendments added a new subsection 
(h) to the transition provisions in section 309 of the Illegal 
Immigration Reform and Immigrant Responsibility Act (Pub. L. 104-208, 
Div. C, tit. III, subtit. A, 110 Stat. 30009, 3009-625) (IIRIRA). 
Section 309(h)(1) of IIRIRA, as so amended, provides that aliens who 
are otherwise eligible for suspension of deportation or special rule 
cancellation of removal under section 203 of NACARA shall not be barred 
from applying for such relief by operation of section 241(a)(5) of the 
Act.
    Section 309(h)(2) of IIRIRA, as amended, provides that aliens who 
have become eligible for relief based on new subsection (h)(1) will 
have the opportunity to submit an additional motion to reopen, within a 
designated period, solely for the purpose of adjudicating the NACARA 
claim. Consistent with the provisions of section 203(c) of NACARA, an 
alien with a final order of deportation or removal who has become 
eligible for suspension of deportation or special rule cancellation of 
removal as a result of section 1505(c) of the LIFE Act Amendments may 
file one such motion to reopen removal or deportation proceedings on or 
before October 16, 2001.
    This rule also clarifies that those persons eligible for relief 
under new section 309(h) (as added by section 1505(c) of the LIFE Act 
Amendments) include the classes added to section 309(c)(5)(C)(i) of 
IIRIRA by sections 1506(b)(3) and 1510(b) of the VTVPA. These 
additional classes of eligible aliens include certain spouses and 
children who have been battered or subjected to extreme cruelty by a 
NACARA section 203 applicant, or by a United States citizen or lawful 
permanent resident.
    The VTVPA also contains an additional provision making certain 
classes of battered aliens who are not covered by this rule eligible to 
submit a motion to reopen. See section 1506(c) of the VTVPA. The 
Department anticipates promulgating regulations in the near future 
regarding relief for those aliens who are addressed in the VTVPA, but 
are not covered by this rule.

How Has the VTVPA Changed the Classes of Aliens Eligible for 
Suspension of Deportation or Special Rule Cancellation of Removal 
Pursuant to Section 309(c)(5)(C)(i) of IIRIRA?

    The six classes of eligible aliens in section 309(c)(5)(C)(i) of 
IIRIRA, as amended by NACARA, are set forth in Sec. 3.43(d)(1)-(6) of 
this rule. The VTVPA added two additional classes of eligible aliens, 
which are set forth in Sec. 3.43(d)(7) and (8) of this rule.

[[Page 37120]]

    The first new class of aliens (class 7) includes aliens (1) who 
were issued Orders to Show Cause or were in deportation proceedings 
before April 1, 1997, and (2) who applied for suspension of deportation 
under former section 244(a)(3) of the Act (as in effect before the date 
of enactment of section 309 of IIRIRA) as aliens who had been battered 
or subjected to extreme cruelty by a spouse or parent who is a United 
States citizen or lawful permanent resident.
    The second new class of aliens (class 8) includes the spouses or 
children of aliens described in classes 1 through 4, 8 CFR 3.43(d)(1)-
(4), as amended, if they were the spouse or child of such alien: (1) At 
the time a decision is rendered to suspend deportation or to cancel 
removal of that alien; (2) at the time that alien filed an application 
for suspension of deportation or cancellation of removal; or (3) at the 
time that alien registered for benefits under the settlement agreement 
in American Baptist Churches, et al. v. Thornburgh, 760 F. Supp. 796 
(N.D. Cal. 1991) (ABC), applied for Temporary Protected Status (TPS), 
or applied for asylum. In addition, the spouse or child must 
demonstrate that he or she (or the child of that spouse) has been 
battered or subjected to extreme cruelty by the alien parent or spouse 
who is within one of the four classes described at 8 CFR 3.43(d)(1)-
(4), as amended. Aliens in the new classes 7 and 8 are not required to 
be nationals of El Salvador, Guatemala, or former Soviet bloc 
countries.

Who Is Eligible To Reopen Proceedings Under Section 1505(c) of the 
LIFE Act Amendments?

    Consistent with the existing provisions of 8 CFR 3.43, an 
individual submitting a motion to reopen under section 1505(c) of the 
LIFE Act Amendments must establish certain preliminary requirements. 
The motion to reopen must establish that the alien:
    (1) Is prima facie eligible for suspension of deportation pursuant 
to former section 244(a) of the Act (as in effect prior to April 1, 
1997) or cancellation of removal pursuant to section 240A(b) of the Act 
and section 309(f) of IIRIRA, as amended by section 203(b) of NACARA;
    (2) Was or would be ineligible, by operation of section 241(a)(5) 
of the Act, for suspension of deportation pursuant to former section 
244(a) of the Act (as in effect prior to April 1, 1997) or for 
cancellation of removal pursuant to section 240A(b) of the Act and 
section 309(f) of IIRIRA, but for enactment of section 1505(c) of the 
LIFE Act Amendments;
    (3) Has not been convicted at any time of an aggravated felony; and
    (4) Is within one of the classes of aliens described in section 
309(c)(5)(C)(i) of IIRIRA, as amended by section 203 of NACARA and 
sections 1506 and 1510 of the VTVPA.
    Section 3.43(d) of this rule describes with more particularity the 
eight classes of aliens covered by this special reopening procedure. 
Prima facie eligibility is discussed in greater detail in this rule 
under the section entitled ``How is prima facie eligibility defined?''

What Is the Deadline for Filing Motions To Reopen Pursuant to 
Section 1505(c) of the LIFE Act Amendments?

    Section 1505(c) of the LIFE Act Amendments requires that the 
Attorney General designate a specific time period for filing motions to 
reopen under this section. Section 1505(c) further provides that the 
time period is to begin no later than 60 days after the enactment of 
the LIFE Act Amendments and is to extend for a period not to exceed 240 
days. See section 309(h)(2) of IIRIRA, as added by section 1505(c) of 
the LIFE Act Amendments. Consistent with that statutory directive, this 
rule designates the period from February 19, 2001, through October 16, 
2001, as the time period for filing motions to reopen pursuant to 
section 1505(c) of the LIFE Act Amendments.
    This rule does not address the provision in section 1506(c) of the 
VTVPA providing for motions to reopen proceedings by certain other 
classes of battered aliens. The Department anticipates promulgating 
regulations in the near future that will address the motions to reopen 
at issue in section 1506(c) of the VTVPA.

Does This Rule Extend the September 11, 1998, Deadline for Motions 
To Reopen Under Section 203(c) of NACARA?

    No. Only aliens who have final orders of removal and deportation 
that have been reinstated, or aliens who have newly issued final orders 
that were issued based on their having reentered the United States 
illegally after having been removed or having departed voluntarily 
under a prior order of removal that was subject to reinstatement under 
section 241(a)(5) of the Act, may move to reopen proceedings for the 
purpose of applying for suspension of deportation or special rule 
cancellation of removal under section 203 of NACARA. Although this rule 
amends the existing procedures of Sec. 3.43, which originally dealt 
only with motions to reopen under section 203(c) of NACARA, this rule 
does not extend the September 11, 1998, filing deadline for those 
NACARA motions. Editorial changes within the text of former Sec. 3.43 
have been made for consistency purposes only and do not change or 
extend the requirements or procedures applicable to motions to reopen 
under section 203(c) of NACARA.

What Are the Procedures for Reopening Deportation or Removal 
Proceedings Pursuant to Section 1505(c) of the LIFE Act Amendments?

    The Department has adapted for purposes of section 1505(c) motions 
to reopen the existing procedures of Sec. 3.43, which originally dealt 
only with motions to reopen under section 203(c) of NACARA. An alien 
seeking to reopen proceedings pursuant to section 309(h) of IIRIRA, as 
added by section 1505(c) of the LIFE Act Amendments, must file a motion 
to reopen and include with that motion an application for suspension of 
deportation or cancellation of removal and supporting documents, on or 
before October 16, 2001. An eligible alien may file only one motion to 
reopen pursuant to section 309(h) of IIRIRA. The alien must establish 
in such motion that he or she satisfies each of the requirements for 
reopening in Sec. 3.43(c). The front page of the motion to reopen and 
any envelope containing such motion should include the notation 
``Special LIFE 1505(c) Motion.'' A copy of both the motion to reopen 
and the application for suspension of deportation or cancellation of 
removal, with all other supporting documents, must be served on the 
Immigration and Naturalization Service (Service). Persons filing a 
motion to reopen under section 309(h) should follow standard motion 
practice, as set forth in the regulations at 8 CFR 3.2(c) and 
3.23(b)(3), with the exception that the fee (required under 8 CFR 3.8 
and 3.24) for motions to reopen submitted pursuant to this rule will be 
waived.
    If an alien has previously filed an application for suspension of 
deportation or cancellation of removal with the Immigration Judge or 
the Board of Immigration Appeals (Board), he or she must file a copy of 
that application or a new application with the motion to reopen. If the 
motion to reopen is granted, and the alien has previously filed an 
application, the alien will not be required to pay a new filing fee for 
the suspension/cancellation application.
    If an alien has not previously filed an application for suspension 
of deportation or cancellation of removal,

[[Page 37121]]

the alien must submit a suspension/cancellation application with the 
motion to reopen. Nothing in this notice 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 suspension/cancellation after a motion to reopen is 
granted if such an application was not previously filed.
    If an eligible alien fails to file the required motion, and the 
applicable application and supporting documents, by October 16, 2001, 
the alien will have lost his or her one opportunity to move under 
section 309(h)(2) to reopen proceedings to seek suspension of 
deportation or special rule cancellation of removal relief. However, an 
individual may still be eligible to reopen proceedings under other 
statutory and regulatory provisions.

How Is Prima Facie Eligibility Defined?

    An alien filing a motion to reopen pursuant to section 309(h) of 
IIRIRA, as added by section 1505(c) of the LIFE Act Amendments, must 
establish prima facie eligibility for suspension of deportation under 
former section 244(a) of the Act, as in effect prior to April 1, 1997, 
or special rule cancellation of removal under section 240A(b) of the 
Act and section 309(f) of IIRIRA, as amended by section 203(b) of 
NACARA. In general, the alien must have been physically present in the 
United States for a continuous period of at least 7 years immediately 
preceding the date of such application or at least 3 years in the case 
of certain battered aliens; must be a person of good moral character 
during such period; and must establish that deportation or removal 
would result in extreme hardship to the alien or to the alien's spouse, 
parent, or child who is a citizen of the United States or an alien 
lawfully admitted for permanent residence. Different standards apply to 
aliens who are deportable because of a criminal conviction or certain 
other grounds. See section 244(a)(2) of the Act, as in effect prior to 
April 1, 1997, and special rule cancellation of removal under section 
240A(b) of the Act and section 309(f) of IIRIRA, as amended by section 
203(b) of NACARA. The period of continuous physical presence must be 
established as of no later than October 16, 2001.
    Further, to be prima facie eligible to apply for suspension of 
deportation or special rule cancellation of removal, the alien must not 
be subject to any of the statutory bars to seeking such relief which 
are discussed below.

What Are the Statutory Bars to Suspension of Deportation and 
Special Rule Cancellation of Removal?

    Section 309(h)(1) of IIRIRA, as added by section 1505(c) of the 
LIFE Act Amendments, waives only the statutory bar created by the 
reinstatement provision in section 241(a)(5) of the Act; all other bars 
remain. Section 240A(c) of the Act and former section 244(f) of the Act 
(as it existed prior to April 1, 1997) provide that certain categories 
of aliens are ineligible for suspension of deportation or cancellation 
of removal. Moreover, an alien who was previously granted voluntary 
departure and received oral and written notice of the consequences of 
failing to depart, but did not depart the United States voluntarily 
within the time specified, is barred for a specific period of time from 
various forms of discretionary relief. See section 240B(d) of the Act 
and section 242B(e)(2), as in effect prior to April 1, 1997. These 
include suspension of deportation and cancellation of removal, pursuant 
to section 240B(d) of the Act and former section 242B(e)(2) of the Act 
(as it existed prior to April 1, 1997). Former section 242B(e)(1), (3) 
and (4) of the Act (as it existed prior to April 1, 1997) also bars 
eligibility for such relief for certain aliens who, after receiving the 
required oral and written notices, failed to appear at their removal or 
deportation hearings, failed to appear as ordered for deportation, or 
failed to appear at an asylum hearing. These and any other statutory 
bars to eligibility for suspension of deportation or cancellation of 
removal are not waived by section 1505(c) of the LIFE Act Amendments.

Which Application Form Must Be Filed With the Motion To Reopen?

    When filing a motion to reopen, aliens in the classes described in 
paragraphs (d)(1)-(d)(6) and (d)(8) must attach to the motion a copy of 
the Form I-881, Application for Suspension of Deportation or Special 
Rule Cancellation of Removal (Pursuant to section 203 of Pub. L. 105-
100). The Form I-881 is currently being revised to include specifically 
aliens described in paragraph (d)(8); aliens should attach the most 
current Form I-881 available to the motion to reopen. Aliens described 
in paragraph (d)(7) must attach to the motion a copy of the Form EOIR-
40, Application for Suspension of Deportation. Aliens should follow the 
instructions for submitting the appropriate application to the 
Immigration Court or the Board of Immigration Appeals (Board), but 
should not submit evidence of payment of the filing fee, unless and 
until the motion to reopen is granted.

Where Should a Motion To Reopen Under Section 1505(c) of the LIFE 
Act Amendments Be Filed?

    Any motion to reopen and all supporting documentation to apply for 
suspension of deportation or special rule cancellation of removal under 
section 309(h) of IIRIRA, as added by section 1505(c) of the LIFE Act 
Amendments, shall be filed with the Immigration Court or the Board, 
whichever last held jurisdiction over the case. If the Immigration 
Court has jurisdiction and grants only the motion to reopen proceedings 
to apply for suspension of deportation and cancellation of removal, the 
scope of the reopened proceeding shall be limited to a determination of 
the alien's eligibility for suspension of deportation or special rule 
cancellation of removal.
    If the Board has jurisdiction and grants only the motion to reopen 
to apply for suspension of deportation or special rule cancellation of 
removal, it shall remand the case to the Immigration Court solely for 
adjudication of the application for suspension of deportation or 
special rule cancellation of removal.

Must All Aliens Eligible for Relief Under Section 309(h)(1) of 
IIRIRA Submit a Motion To Reopen Under Section 309(h)(2) in Order 
To Obtain Such Relief?

    Not all aliens are required to file a motion to reopen in order to 
obtain relief under section 309(h)(1) of IIRIRA, as added by section 
1505(c) of the LIFE Act Amendments. Section 309(h)(1) removes the bar 
to applying for suspension of deportation or special rule cancellation 
of removal that would otherwise be imposed by section 241(a)(5) of the 
Act where the alien has reentered the United States illegally after 
being removed or having departed voluntarily under a final order of 
removal. Section 309(h)(1) removes that bar regardless of whether the 
prior order of deportation or removal has been reinstated by the 
Service. In those cases in which the prior order has not been 
reinstated, there is no final order to seek to reopen, and, 
consequently, the motion to reopen provision in section 309(h)(2) is 
inapplicable. Instead, aliens who are not in deportation or removal 
proceedings and whose prior orders have not been reinstated may apply 
for relief before the Service pursuant to the jurisdictional 
requirements for applications set forth in 8 CFR 240.62(a). Aliens who 
are currently in deportation or removal proceedings and

[[Page 37122]]

whose prior orders have not been reinstated may apply for relief before 
the Immigration Court pursuant to the jurisdictional requirements for 
applications set forth in 8 CFR 240.62(b).

What Happens if a Motion To Reopen Under Section 1505(c) of the 
LIFE Act Amendments Is Denied?

    In those cases where a motion to reopen is denied by final order, 
the Service will evaluate the facts of the case to determine whether 
reinstatement of the prior order is required.

Good Cause Exception

    The Department's implementation of this rule as an interim rule, 
with provision for post-promulgation public comment, is based upon the 
exception for rules of agency organization, procedures, or practice in 
5 U.S.C. 553(b)(3)(A) and upon the ``good cause'' exceptions found at 5 
U.S.C. 553(b)(3)(B) and (d)(3). Section 1505(c) of LIFE Act Amendments 
became effective immediately on December 21, 2000. Publication of this 
rule as an interim rule will expedite implementation of that section 
and allow certain eligible aliens to submit motions to reopen their 
removal or deportation proceedings during the limited time period 
permitted by the LIFE Act Amendments for filing such motions to reopen. 
That period began on February 19, 2001, and terminates on October 16, 
2001. It would be impracticable and contrary to the public interest to 
delay the effective date of this rule, as such a delay would have the 
effect of limiting the ability of eligible aliens to move to reopen 
their proceedings in order to seek the benefits of the LIFE Act 
Amendments.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)) has reviewed this regulation and, by approving 
it, certifies that this rule will not have a significant economic 
impact on a substantial number of small entities. This rule allows 
certain individual aliens to apply for suspension of deportation or 
special rule cancellation of removal; it will have no significant 
effect on small entities as that term is defined in 5 U.S.C. 601(6).

Unfunded Mandates Reform Act

    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 1 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 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 has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Attorney General has determined that this rule is a ``significant 
regulatory action'' under Executive Order 12866, section 3(f) and 
accordingly this rule has been reviewed by the Office of Management and 
Budget.

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, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Executive Order 12988

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

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 interim rule permits certain aliens to file motions to reopen 
proceedings to apply for suspension of deportation and special rule 
cancellation of removal pursuant to section 1505(c) of the LIFE Act 
Amendments. Motions to reopen under this rule must be filed on or 
before October 16, 2001, and must be accompanied by either a Form I-881 
or a Form EOIR-40.
    The information collection requirement of Form I-881 contained in 
this rule was previously approved for use by the Office of Management 
and Budget (OMB). The OMB control number for this collection is 1115-
0227.
    The Form EOIR-40 is also considered an information collection. The 
OMB control number on the Form EOIR-40 has expired. Accordingly, the 
Department of Justice, Executive Office for Immigration Review (EOIR), 
has submitted an information collection request to the Office of 
Management and Budget (OMB). Since a delay in issuing this interim rule 
would harm the public and disrupt EOIR's ability to receive and process 
motions to reopen proceedings under section 1505(c) of the LIFE Act 
Amendments within the limited time period permitted for the filing of 
such motions, EOIR has sought emergency review and clearance as 
provided for in the Paperwork Reduction Act of 1995. 44 U.S.C. 3507(j). 
Emergency review and approval has been granted by OMB. That emergency 
approval is only valid for 180 days.
    A regular review of the information collection requirement of the 
Form EOIR-40 is also being undertaken. All comments and suggestions, or 
questions regarding additional information, including obtaining a copy 
of the proposed information collection instrument with instructions, 
should be directed to Charles Adkins-Blanch, General Counsel, Executive 
Office for Immigration Review, U.S. Department of Justice, 5107 
Leesburg Pike, Suite 2400, Falls Church, Virginia 22041; telephone: 
(703) 305-0470. We request written comments and suggestions from the 
public and affected agencies concerning the proposed collection of 
information. Any comments on the information collection must be 
submitted on or before September 17, 2001. Your comments should address 
one or more of the following four points:
    (1) Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the proposed collection of information; including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and

[[Page 37123]]

    (4) Minimize the burden of the collection of the information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    Overview of this information collection:
    (1) Type of information collection: Reinstatement, with change, of 
a previously approved collection for which approval has expired.
    (2) Title of Form/Collection: Application for Suspension of 
Deportation.
    (3) Agency form number, if any, and the applicable component of the 
Department of Justice sponsoring the collection: Form EOIR-40, 
Executive Office for Immigration Review, U.S. Department of Justice.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Individuals or households. An alien who is 
deportable from the United States may request that the Attorney General 
suspend his or her deportation pursuant to 8 U.S.C. 1254 (as in effect 
prior to April 1, 1997, and as made applicable by section 1505(c) of 
the LIFE Act Amendments) and 8 CFR 240.56. To be granted such relief, 
the alien must prove that he or she meets all of the statutory 
requirements for suspension of deportation and that he or she is 
entitled to a favorable exercise of discretion. The proposed Form EOIR-
40 would be completed by the applicant for suspension of deportation 
and would contain information necessary for the Attorney General to 
decide whether or not to suspend the alien's deportation from the 
United States.
    (5) An estimate of the total number of respondents and the amount 
of time for an average respondent to respond: 1,518 responses per year 
at 5 hours and 45 minutes per response.
    (6) An estimate of the total of public burden (in hours) associated 
with the collection: Approximately 8,728 annual burden hours.
    If additional information is required contact: Robert B. Briggs, 
Department Clearance Officer, United States Department of Justice, 
Information Management and Security Staff, Justice Management Division, 
Suite 1220, National Place, 1331 Pennsylvania Avenue NW., Washington, 
DC 20530.

List of Subjects of 8 CFR Part 3

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


    Accordingly, part 3 of 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 is revised 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; sec. 203 of Pub. L. 105-
100, 111 Stat. 2196-200; sec. 1506 and 1510 of Pub. L. 106-386, 114 
Stat. 1527-29, 1531-32; sec. 1505 of Pub. L. 106-554, 114 Stat. 
2763A-326 to -328.


    2. Revise Sec. 3.43 to read as follows:


Sec. 3.43  Motions to reopen for suspension of deportation and 
cancellation of removal pursuant to section 203(c) of NACARA and 
section 1505(c) of the LIFE Act Amendments.

    (a) Standard for Adjudication. Except as provided in this section, 
a motion to reopen proceedings under section 309(g) or (h) of the 
Illegal Immigration Reform and Immigrant Responsibility Act (Pub. L. 
104-208) (IIRIRA), as amended by section 203(c) of the Nicaraguan 
Adjustment and Central American Relief Act (Pub. L. 105-100) (NACARA) 
and by section 1505(c) of the Legal Immigration Family Equity Act 
Amendments (Pub. L. 106-554) (LIFE Act Amendments), respectively, will 
be adjudicated under applicable statutes and regulations governing 
motions to reopen.
    (b) Aliens eligible to reopen proceedings under section 203 of 
NACARA. A motion to reopen proceedings to apply for suspension of 
deportation or cancellation of removal under the special rules of 
section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, must 
establish that the alien:
    (1) Is prima facie eligible for suspension of deportation pursuant 
to former section 244(a) of the Act (as in effect prior to April 1, 
1997) or the special rule for cancellation of removal pursuant to 
section 309(f) of IIRIRA, as amended by section 203(b) of NACARA;
    (2) Was or would be ineligible:
    (i) For suspension of deportation by operation of section 309(c)(5) 
of IIRIRA (as in effect prior to November 19, 1997); or
    (ii) For cancellation of removal pursuant to section 240A of the 
Act, but for operation of section 309(f) of IIRIRA, as amended by 
section 203(b) of NACARA;
    (3) Has not been convicted at any time of an aggravated felony; and
    (4) Is within one of the six classes of aliens described in 
paragraphs (d)(1) through (d)(6) of this section.
    (c) Aliens eligible to reopen proceedings under section 1505(c) of 
the LIFE Act Amendments. A motion to reopen proceedings to apply for 
suspension of deportation or cancellation of removal under the special 
rules of section 309(h) of IIRIRA, as amended by section 1505(c) of the 
LIFE Act Amendments, must establish that the alien:
    (1) Is prima facie eligible for suspension of deportation pursuant 
to former section 244(a) of the Act (as in effect prior to April 1, 
1997) or cancellation of removal pursuant to section 240A(b) of the Act 
and section 309(f) of IIRIRA, as amended by section 203(b) of NACARA;
    (2) Was or would be ineligible, by operation of section 241(a)(5) 
of the Act, for suspension of deportation pursuant to former section 
244(a) of the Act (as in effect prior to April 1, 1997) or cancellation 
of removal pursuant to section 240A(b) of the Act and section 309(f) of 
IIRIRA, as amended by section 203(b) of NACARA, but for enactment of 
section 1505(c) of the LIFE Act Amendments;
    (3) Has not been convicted at any time of an aggravated felony; and
    (4) Is within one of the eight classes of aliens described in 
paragraph (d) of this section.
    (d) Classes of Eligible Aliens. 
    (1) Class 1. A national of El Salvador who:
    (i) First entered the United States on or before September 19, 
1990;
    (ii) Registered for benefits pursuant to the settlement agreement 
in American Baptist Churches, et al. v. Thornburgh, 760 F. Supp. 796 
(N.D. Cal. 1991) (ABC) on or before October 31, 1991, or applied for 
Temporary Protected Status (TPS) on or before October 31, 1991; and
    (iii) Was not apprehended after December 19, 1990, at time of 
entry.
    (2) Class 2. A national of Guatemala who:
    (i) First entered the United States on or before October 1, 1990;
    (ii) Registered for ABC benefits on or before December 31, 1991; 
and
    (iii) Was not apprehended after December 19, 1990, at time of 
entry.
    (3) Class 3. A national of Guatemala or El Salvador who applied for 
asylum with the Service on or before April 1, 1990.
    (4) Class 4. An alien who:
    (i) Entered the United States on or before December 31, 1990;
    (ii) Applied for asylum on or before December 31, 1991; and
    (iii) At the time of filing such application for asylum was a 
national of

[[Page 37124]]

the Soviet Union, Russia, any republic of the former Soviet Union, 
Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania, Hungary, 
Bulgaria, Albania, East Germany, Yugoslavia, or any state of the former 
Yugoslavia.
    (5) Class 5. The spouse or child of a person who is described in 
paragraphs (d)(1) through (d)(4) of this section and such person is 
prima facie eligible for and has applied for suspension of deportation 
or special rule cancellation of removal under section 203 of NACARA.
    (6) Class 6. An unmarried son or daughter of a person who is 
described in paragraphs (d)(1) through (d)(4) of this section and such 
person is prima facie eligible for and has applied for suspension of 
deportation or special rule cancellation of removal under section 203 
of NACARA. If the son or daughter is 21 years of age or older, the son 
or daughter must have entered the United States on or before October 1, 
1990.
    (7) Class 7. An alien who was issued an Order to Show Cause or was 
in deportation proceedings before April 1, 1997, and who applied for 
suspension of deportation as a battered alien under former section 
244(a)(3) of the Act (as in effect before September 30, 1996).
    (8) Class 8. An alien:
    (i) Who is or was the spouse or child of a person described in 
paragraphs (d)(1) through (d)(4) of this section:
    (A) At the time a decision is rendered to suspend deportation or 
cancel removal of that person;
    (B) At the time that person filed an application for suspension of 
deportation or cancellation of removal; or
    (C) At the time that person registered for ABC benefits, applied 
for TPS, or applied for asylum; and
    (ii) Who has been battered or subjected to extreme cruelty (or the 
spouse described in paragraph (d)(8)(i) of this section has a child who 
has been battered or subjected to extreme cruelty) by the person 
described in paragraphs (d)(1) through (d)(4) of this section.
    (e) Motion to reopen under section 203 of NACARA.
    (1) An alien filing a motion to reopen proceedings pursuant to 
section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, may 
initially file a motion to reopen without an application for suspension 
of deportation or cancellation of removal and supporting documents, but 
the motion must be filed no later than September 11, 1998. An alien may 
file only one motion to reopen pursuant to section 309(g) of IIRIRA. In 
such motion to reopen, the alien must address each of the four 
requirements for eligibility described in paragraph (b) of this section 
and establish that the alien satisfies each requirement.
    (2) A motion to reopen filed pursuant to paragraph (b) of this 
section shall be considered complete at the time of submission of an 
application for suspension of deportation or special rule cancellation 
of removal and accompanying documents. Such application must be 
submitted no later than November 18, 1999. Aliens described in 
paragraphs (d)(5) or (d)(6) of this section must include, as part of 
their submission, proof that their parent or spouse is prima facie 
eligible and has applied for relief under section 203 of NACARA.
    (3) The Service shall have 45 days from the date the alien serves 
the Immigration Court with either the Form EOIR-40 or the Form I-881 
application for suspension of deportation or special rule cancellation 
of removal to respond to that completed motion. If the alien fails to 
submit the required application on or before November 18, 1999, the 
motion will be denied as abandoned.
    (f) Motion to reopen under section 1505(c) of the LIFE Act 
Amendments. (1) An alien filing a motion to reopen proceedings pursuant 
to section 309(h) of IIRIRA, as amended by section 1505(c) of the LIFE 
Act Amendments, must file a motion to reopen with an application for 
suspension of deportation or cancellation of removal and supporting 
documents, on or before October 16, 2001. An alien may file only one 
motion to reopen proceedings pursuant to section 309(h) of IIRIRA. In 
such motion to reopen, the alien must address each of the four 
requirements for eligibility described in paragraph (c) of this section 
and establish that the alien satisfies each requirement.
    (2) A motion to reopen and the accompanying application and 
supporting documents filed pursuant to paragraph (c) of this section 
must be submitted on or before October 16, 2001. Aliens described in 
paragraphs (d)(5) and (d)(6) of this section must include, as part of 
their submission, proof that their parent or spouse is prima facie 
eligible and has applied for relief under section 203 of NACARA.
    (3) The Service shall have 45 days from the date the alien serves 
the Immigration Court to respond to that motion to reopen.
    (g) Fee for motion to reopen waived. No filing fee is required for 
a motion to reopen to apply for suspension of deportation or 
cancellation of removal under the special rules of section 309(g) or 
(h) of IIRIRA, as amended by section 203(c) of NACARA and by section 
1505(c) of the LIFE Act Amendments, respectively.
    (h) Jurisdiction over motions to reopen under section 203 of NACARA 
and remand of appeals. (1) Notwithstanding any other provisions, any 
motion to reopen filed pursuant to the special rules of section 309(g) 
of IIRIRA, as amended by section 203(c) of NACARA, shall be filed with 
the Immigration Court, even if the Board of Immigration Appeals (Board) 
issued an order in the case. The Immigration Court that last had 
jurisdiction over the proceedings will adjudicate the motion.
    (2) The Board will remand to the Immigration Court any presently 
pending appeal in which the alien appears eligible to apply for 
suspension of deportation or cancellation of removal under the special 
rules of section 309(g) of IIRIRA, as amended by section 203 of NACARA, 
and appears prima facie eligible for that relief. The alien will then 
have the opportunity to apply for suspension or cancellation under the 
special rules of NACARA before the Immigration Court.
    (i) Jurisdiction over motions to reopen under section 1505(c) of 
the LIFE Act Amendments and remand of appeals. (1) Notwithstanding any 
other provisions, any motion to reopen filed pursuant to paragraph (f) 
of this section to apply for suspension of deportation or cancellation 
of removal under section 1505(c) of the LIFE Act Amendments shall be 
filed with the Immigration Court or the Board, whichever last held 
jurisdiction over the case. Only an alien with a reinstated final 
order, or an alien with a newly issued final order that was issued 
based on the alien having reentered the United States illegally after 
having been removed or having departed voluntarily under a prior order 
of removal that was subject to reinstatement under section 241(a)(5) of 
the Act, may file a motion to reopen with the Immigration Court or the 
Board pursuant to this section. An alien whose final order has not been 
reinstated and as to whom a newly issued final order, as described in 
this section, has not been issued may apply for suspension of 
deportation or special rule cancellation of removal before the Service 
pursuant to section 309(h)(1) of IIRIRA, as amended by section 1505(c) 
of the LIFE Act Amendments, according to the jurisdictional provisions 
for applications before the Service set forth in 8 CFR 240.62(a) or 
before the Immigration Court as set forth in 8 CFR 240.62(b).
    (2) If the Immigration Court has jurisdiction and grants only the 
motion to reopen filed pursuant to paragraph (f)

[[Page 37125]]

of this section, the scope of the reopened proceeding shall be limited 
to a determination of the alien's eligibility for suspension of 
deportation or cancellation of removal pursuant to section 309(h)(1) of 
IIRIRA, as amended by section 1505(c) of the LIFE Act Amendments.
    (3) If the Board has jurisdiction and grants only the motion to 
reopen filed pursuant to paragraph (f) of this section, it shall remand 
the case to the Immigration Court solely for adjudication of the 
application for suspension of deportation or cancellation of removal 
pursuant to section 309(h)(1) of IIRIRA, as amended by section 1505(c) 
of the LIFE Act Amendments.
    (4) Nothing in this section shall be interpreted to preclude or 
restrict the applicability of any other exceptions regarding motions to 
reopen that are provided for in 8 CFR 3.2(c)(3) and 3.23(b).

    Dated: June 28, 2001.
John Ashcroft,
Attorney General.
[FR Doc. 01-16767 Filed 7-16-01; 8:45 am]
BILLING CODE 4410-30-P


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