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

[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]                         

=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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]
BILLING CODE 4410-30-P




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