[Federal Register Volume 82, Number 232 (Tuesday, December 5, 2017)]
[Rules and Regulations]
[Pages 57336-57340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26104]


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

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1240

[EOIR Docket No. 180; AG Order No. 4034-2017]
RIN 1125-AA25


Procedures Further Implementing the Annual Limitation on
Suspension of Deportation and Cancellation of Removal

AGENCY: Executive Office for Immigration Review, Department of Justice.

ACTION: Final rule.

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

SUMMARY: The Department of Justice is amending the Executive Office for
Immigration Review (``EOIR'') regulations governing the annual
limitation on cancellation of removal and suspension of deportation
decisions. The amendment eliminates certain procedures created in 1998
that were used to convert 8,000 conditional grants of suspension of
deportation and cancellation of removal to outright grants before the
end of fiscal year 1998. In addition, it authorizes immigration judges
and the Board of Immigration Appeals (``Board'') to issue final
decisions denying applications, without restriction, regardless of
whether the annual limitation has been reached.

DATES: This rule is effective January 4, 2018.

FOR FURTHER INFORMATION CONTACT: Jean King, General Counsel, Executive
Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls
Church, VA 22041, telephone (703) 305-0470 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Public Participation

On November 30, 2016, the Department published in the Federal
Register a rule proposing to amend EOIR's regulations relating to the
annual limitation on cancellation of removal and suspension of
deportation. 81 FR 86291 (Nov. 30, 2016). The comment period ended on
January 30, 2017. The Department received four comments. For the
reasons set forth below, the proposed rule is adopted without change.

II. Background and Summary

The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (``IIRIRA''), Public Law 104-208, Div. C, 110 Stat. 3009-546,
added section 240A(e) to the Immigration and Nationality Act (``INA''
or the ``Act''), Public Law 82-414, 66 Stat. 163 (1952) (codified as
amended in scattered sections of 8, 18, and 22 U.S.C.), by establishing
an annual limitation on the number of aliens who may be granted
suspension of deportation or cancellation of removal followed by
adjustment of status. The annual limitation is as follows:

[T]he Attorney General may not cancel the removal and adjust the
status under this section, nor suspend the deportation and adjust
the status under section 244(a) (as in effect before the enactment
of the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996), of a total of more than 4,000 aliens in any fiscal year.

INA sec. 240A(e)(1) (8 U.S.C. 1229b(e)(1)).
On October 3, 1997, the Department issued an interim rule, which
authorized immigration judges and the Board to grant applications for
suspension of deportation and cancellation of removal only on a
``conditional basis.'' 62 FR 51760, 51762 (Oct. 3, 1997). This interim
rule was a temporary measure to give the Department time to decide how
best to implement the annual statutory limitation. Pursuant to the
rule, the Chief Immigration Judge instructed immigration judges to
convert previously reserved grants of suspension and cancellation to
conditional grants.
On November 19, 1997, Congress enacted the Nicaraguan Adjustment
and Central American Relief Act (``NACARA''), Public Law 105-100, title
II, 111 Stat. 2160, 2193-2201, which amended section 240A(e) of the
Act. NACARA reaffirmed the annual limitation of 4,000 grants but
exempted from the limitation certain nationals of Guatemala, El
Salvador, and the former Soviet bloc countries. See NACARA sec. 204,
111 Stat. at 2200-01. NACARA provided for an additional 4,000
suspension/cancellation grants to increase the annual limitation to a
total of 8,000 for fiscal year 1998 only. Id.
On September 30, 1998, the Department issued the current interim
rule, which eliminated the ``conditional grant'' process established in
the October 1997 interim rule and provided new procedures for
immigration judges and the Board to follow with respect to implementing
the numerical limitation on suspension and cancellation of removal
imposed by IIRIRA and NACARA, 63 FR 52134 (Sept. 30, 1998) (codified at
8 CFR 1240.21 (as in effect prior to publication of this rule)).
First, the interim rule created a process to address a discrete
issue that required resolution before the end of fiscal year 1998: The
interaction between the October 1997 interim rule authorizing
immigration judges and the Board to grant applications for suspension
and cancellation on a ``conditional basis,'' see 62 FR 51760, 51762
(Oct. 3, 1997), and the enactment of NACARA in November 1997, which
added 4,000 grants to the statutory annual limitation, creating a total
of 8,000 available grants for fiscal year 1998, see NACARA sec. 202,
111 Stat. at 2193-96. These procedures were set forth in 8 CFR
1240.21(b) (as in effect prior to publication of this rule). See 63 FR
at 52138-39.
Second, the interim rule created a new procedure for processing
applications for suspension and cancellation in order to avoid
exceeding the annual limitation. See 63 FR at 52139-40 (codified at 8
CFR 1240.21(c) (as in effect prior to publication of this rule)). The
rule eliminated the conditional grant process. Id. at 52138 (codified
at 8 CFR 1240.21(a)(2)). Instead, under the interim rule, immigration
judges and the Board issued grants of suspension or cancellation in
chronological order until grants were no longer available in a fiscal
year. The interim rule provided that when grants were no longer
available in a fiscal year, ``further decisions to grant or deny such
relief shall be reserved'' until grants become available in a future
fiscal year. Id. at 52140 (codified at 8 CFR 1240.21(c)(1) (as in
effect prior to publication of this rule)). With respect to denials,
the interim rule stated that immigration judges and the Board ``may
deny without reserving decision or may

[[Page 57337]]

pretermit those suspension of deportation or cancellation of removal
applications in which the applicant has failed to establish statutory
eligibility for relief.'' Id. However, the interim rule prohibited
immigration judges and the Board from basing such denials ``on an
unfavorable exercise of discretion, a finding of no good moral
character on a ground not specifically noted in section 101(f) of the
[INA], a failure to establish exceptional or extremely unusual hardship
to a qualifying relative in cancellation cases, or a failure to
establish extreme hardship to the applicant and/or qualifying relative
in suspension cases.'' Id.
For the reasons discussed in the preamble to the proposed rule
``Procedures Further Implementing the Annual Limitation on Suspension
of Deportation and Cancellation of Removal,'' see 81 FR 86291 (Nov. 30,
2016), on November 30, 2016, the Department proposed to amend the 1998
interim rule codified at 8 CFR 1240.21 (as in effect prior to
publication of this rule). The comment period ended on January 30,
2017. The Department received four comments. For the reasons discussed
below, the Department will adopt the proposed amendments to 8 CFR
1240.21 as final without change.
The final rule makes three amendments to the current interim
regulation. First, the final rule eliminates the text of 8 CFR
1240.21(b) (as in effect prior to publication of this rule), which, as
discussed above, established a procedure to convert 8,000 conditional
grants of suspension of deportation and cancellation of removal to
outright grants before the end of fiscal year 1998 and to convert some
conditional grants to grants of adjustment of status under NACARA. The
need for such procedures ceased to exist after fiscal year 1998.
Second, the final rule amends the interim rule to allow immigration
judges and the Board to issue final decisions denying cancellation and
suspension applications, without restriction, regardless of whether the
annual limitation has been reached. Under the final rule, after the
annual limitation has been reached, only grants would be required to be
reserved. The final rule will apply prospectively and will have no
effect on decisions that were reserved prior to the final rule's
effective date. Lastly, the final rule makes a technical amendment to 8
CFR 1240.21(c).

III. Comments and Responses

As noted above, the Department received four comments in response
to the proposed rule. One comment was from the American Immigration
Lawyers Association; one was from an attorney with a private law firm,
and two were from individual commenters. The comments are addressed by
topic because some commenters raised multiple subjects and some
comments overlapped.
None of the commenters expressed concern with the final rule's
elimination of certain procedures created in 1998 to convert 8,000
conditional grants of suspension and cancellation to outright grants
before the end of fiscal year 1998. Additionally, none of the
commenters expressed concern with the final rule's technical amendment
to 8 CFR 1240.21(c).
Rather, the commenters focused on the rule's provision authorizing
immigration judges and the Board to issue final decisions denying
cancellation and suspension applications, without restriction,
regardless of whether the annual limitation has been reached. There is
nothing in the statutory language suggesting that decisions denying
eligibility need to be delayed; the statutory provision only calls for
delaying decisions to grant such relief when necessary because the
statutory cap has been reached in a particular year. As explained in
the preamble to the proposed rule, the purpose of this amendment is to:
``decrease the high volume of reserved decisions that result when the
annual limitation is reached early in the fiscal year; reduce the
associated delays caused by postponing the resolution of pending cases
before EOIR; and provide an applicant with knowledge of a decision in
the applicant's case on or around the date of the hearing held on the
applicant's suspension or cancellation application.'' 81 FR 86291.
Comment: One commenter expressed concern that the rule will
unfairly disadvantage applicants because it ``freezes the record in
place for purposes of a decision denying cancellation or suspension but
leaves it open for a potentially positive reserved decision.'' For
example, the commenter hypothesized that under the interim rule an
immigration judge is required to reserve decision on a cancellation
application, which might otherwise be denied for failure of the
applicant to meet the statutory requirement that the applicant must
demonstrate that the applicant's removal would result in exceptional
and extremely unusual hardship to a qualifying relative. The commenter
states that if the immigration judge had reserved the decision and the
applicant's qualifying relative develops serious health-problems while
the reserved denial is still pending, the applicant could present this
new information and potentially obtain cancellation of removal. On the
other hand, under the final rule, an immigration judge would be
required to reserve a decision on an application which would otherwise
be granted (but for the annual statutory limitation) if the applicant
demonstrated that the applicant's removal would result in exceptional
and extremely unusual hardship to a qualifying relative such as the
applicant's United States citizen child who is in poor health. If the
applicant's qualifying child dies or ``ages-out'' and no longer
qualifies as a ``qualifying relative'' while the decision is reserved,
the applicant may lose eligibility for cancellation of removal. In
light of these concerns, the commenter urges EOIR to keep the interim
rule in place.
Response: The Department declines to change the final rule in light
of this comment. As an initial matter, the Department notes that the
final rule is consistent with section 240A(e)(1) of the INA, which
limits the number of aliens who may be granted suspension of
deportation or cancellation of removal to 4,000 aliens in any fiscal
year. The Department has determined that the statute does not prohibit
the issuance of denials of suspension or cancellation applications once
the annual limitation has been reached, but it does require immigration
judges and the Board to reserve applications that are to be granted
until numbers become available in a subsequent fiscal year.
Moreover, the possibility that an applicant's qualifying relative
may ``age-out'' or die while a decision is reserved exists under the
current interim regulations. This final regulation therefore does not
create a greater likelihood that an applicant may lose eligibility due
to a qualifying relative ``aging out'' or dying while a decision is
reserved.
The Department also notes that an applicant may file a motion to
reopen if the applicant's qualifying relative experiences a change in
circumstances that may qualify the applicant to receive cancellation of
removal after the applicant's application was denied. The same
commenter suggests that an applicant may be unable to file a motion to
reopen if the applicant has been removed from the United States. EOIR
notes, however, that most federal courts of appeal have held that the
physical removal of an alien from the United States before a timely
motion to reopen is filed does not preclude the alien from pursuing a
motion to reopen, notwithstanding the current regulatory

[[Page 57338]]

departure bar set forth at 8 CFR 1003.2(d) and 1003.23(b)(1).\1\
---------------------------------------------------------------------------

\1\ See e.g. Jian Le Lin v. U.S. Atty. Gen., 681 F.3d 1236, 1240
(11th Cir. 2012) (stating that ``Congress intended to ensure aliens
the right to file one motion to reopen regardless of their
geographical location''); Contreras-Bocanegra v. Holder, 678 F.3d
811, 818 (10th Cir. 2012) (en banc) (same); Prestol Espinal v. Att'y
Gen., 653 F.3d 213, 218 (3d Cir. 2011) (same); Reyes-Torres v.
Holder, 645 F.3d 1073, 1077 (9th Cir. 2011) (stating that ``the
physical removal of a petitioner by the United States does not
preclude the petitioner from pursuing a motion to reopen''
(quotation marks omitted)); Luna v. Holder, 637 F.3d 85, 102 (2d
Cir. 2011) (stating that ``the BIA must exercise its full
jurisdiction to adjudicate a statutory [i.e. timely and not number
barred] motion to reopen by an alien who is removed or otherwise
departs the United States before or after filing the motion'');
William v. Gonzales, 499 F.3d 329, 332 (4th Cir. 2007) (stating that
section 240(c)(7)(A) of the Act ``unambiguously provides an alien
with the right to file one motion to reopen, regardless of whether
he is within or without the country'').
---------------------------------------------------------------------------

Comment: One commenter stated that ``[i]f EOIR decides to implement
the proposed rule for applications that were previously reserved, [it
should] notify the [applicant] and counsel of any intent to deny the
case'' so that the applicant and counsel can supplement the record with
additional evidence prior to the issuance of a decision.
Response: As noted above, the final rule will apply prospectively
beginning thirty days after the rule's publication and will have no
effect on decisions that were reserved prior to the final rule's
effective date. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988) (``[A]dministrative rules will not be construed to have
retroactive effect unless their language requires this result.'').
Comment: One commenter expressed concern that the final rule will
create an incentive for immigration judges and the Board to deny
otherwise meritorious cancellation and suspension applications because
it will ease EOIR's docket pressures and alleviate the backlog of
reserved cases.
Response: The Department does not agree with the commenter's
speculation that the rule will create an incentive for immigration
judges and the Board to deny otherwise meritorious claims. Immigration
judges and Board members are required to exercise their ``independent
judgment and discretion'' in deciding all cases that come before them
and adjudicate cases based on the law and facts presented. See 8 CFR
1003.10(b), 1003.1(d)(1)(ii). There is a presumption of regularity that
attaches to the actions of government agencies, see United States
Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001), and the Supreme Court
has long held that adjudicators such as immigration judges are
``assumed to be [individuals] of conscience and intellectual
discipline, capable of judging a particular controversy fairly on the
basis of its own circumstances.'' Withrow v. Larkin, 421 U.S. 35, 55
(1975) (internal quotation mark omitted).
Additionally, as explained in the preamble to the proposed rule,
immigration judges and the Board will still be required under this
final rule to provide a legal and factual analysis for all decision
denying cancellation and suspension applications. See 8 CFR 1003.37,
1003.1(d)(1). If an applicant believes an immigration judge's decision
was erroneous and not based on the appropriate applicable law and the
facts of the case, the applicant may appeal the immigration judge's
decision to the Board, 8 CFR 1003.38, and after exhausting
administrative remedies, an applicant may be able to file a petition
for review in the appropriate circuit court of appeals. See INA sec.
242 et seq. (8 U.S.C. 1252 et seq.).
Comment: One commenter suggested that, instead of adopting as final
the provisions of the proposed rule, EOIR should adopt a rule allowing
immigration judges and the Board to ``provisionally approve or
provisionally deny'' cancellation or suspension applications once the
annual numerical limitation has been reached.
Response: The Department has previously determined that the
statutory language and history of the cancellation cap provision does
not support a permanent regime based on conditional grants. As
discussed more fully in the preamble to the proposed rule, on September
30, 1996, Congress enacted IIRIRA, which included a statutory cap on
the number of applications for suspension of deportation and
cancellation of removal that the Attorney General could grant each
fiscal year. On October 3, 1997, the Department adopted a conditional
grant process as a temporary measure that gave the Department time to
consider how best to implement the statutory cap. 62 FR 51760. After
considering the issue, the Department determined that the statute does
not support a conditional grant system that carries over from year to
year (such as the one established in the 1997 interim regulation)
because the statutory cap language in section 240A(e) of the INA has
been interpreted to mean that those eligible applicants must be granted
relief of suspension or cancellation during the fiscal year in which
they are given a grant under the cap. 63 FR at 52135-36. Therefore, the
Department eliminated the conditional grant process with its
publication of the current interim rule. Id. (codified at 8 CFR
1240.21(c) (as in effect prior to publication of this rule)). The
Department continues to believe that the statute does not support
returning to a ``conditional grant'' or ``provisional grant'' system.
Accordingly, the Department will not change the rule to adopt the
commenter's suggestion.

IV. Regulatory Requirements

A. Regulatory Flexibility Act

The Department has reviewed this regulation in accordance with the
RFA (5 U.S.C. 605(b)) and the Attorney General certifies that this rule
will not have a significant economic impact on a substantial number of
small entities. The rule will not regulate ``small entities,'' as that
term is defined in 5 U.S.C. 601(6).

B. 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.

C. 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 (SBREFA), 5
U.S.C. 804(2). 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.

D. Executive Orders 12866 and 13563 (Regulatory Planning and Review),
and 13771 (Reducing Regulation and Controlling Regulatory Costs)

The Department has determined that this rule is not a ``significant
regulatory action'' under section 3(f) of Executive Order 12866,
Regulatory Planning and Review and, therefore, it has not been reviewed
by the Office of Management and Budget.
Moreover, this rule eliminates existing costs associated with the
prior interim rule for purposes of Executive Order 13771, Reducing
Regulation and Controlling Regulatory Costs. Specifically, EOIR
estimates that this rule will reduce the administrative

[[Page 57339]]

burden and scheduling complications, as well as related costs,
associated with cancellation of removal cases subject to the annual
limitation.\2\ See EOIR, OPPM 12-01 (outlining current procedures
immigration judges and court staff must follow to reserve denials).
---------------------------------------------------------------------------

\2\ To estimate the above cost savings, EOIR used available data
from the Case Access System for EOIR, granular time records from
EOIR's Office of Chief Immigration Judge, and Office of
Administration cost modules. The analysis was limited to non-
detained non-legal permanent resident cancellation of removal
applications adjudicated by immigration courts from Fiscal Year (FY)
2012 through FY 2017 (August 2017).
---------------------------------------------------------------------------

First, in cases involving denials, immigration judges will no
longer be required to render oral decisions via an audiocassette and
ship the audio tape to EOIR headquarters for a transcription but
instead can issue an oral or written decision immediately. EOIR
estimates that this could save the agency $607,000 annually. Second, in
cases involving denials, the new regulation will alleviate the need for
the immigration court to both store case files and communicate with
parties about the status of cases while reserved, which could save the
government $18,000 annually. Third, in cases involving denials, there
will no longer be a need to refresh background checks, see 8 CFR
1003.47, that expire while a case sits in reserve and which are
required to be current before an immigration judge issues a decision.
EOIR estimates this could save the government $152,000 annually.
Finally, once numbers become available each fiscal year, many
immigration judges dispose of their cases by calling the parties back
into court for a hearing to confirm completion of required background
checks and to render an oral decision. Additionally, in some cases, new
information may arise, which may require additional hearing time. In
cases involving denials, an immigration judge may issue a decision
immediately, which circumvents the need to reschedule or rehear these
cases. EOIR estimates that this may save the government approximately
$748,000 annually. Accordingly, EOIR estimates this rule will eliminate
existing costs associated with the current interim regulation in the
amount of $1.5 million annually.
This rule has been drafted in accordance with the principles of
Executive Order 12866, section 1(b), and Executive Order 13563.
Executive Orders 12866 and 13563 direct agencies to assess all costs
and benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including consideration of potential economic, environmental, public
health, and safety effects, distributive impacts, and equity).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, reducing costs, harmonizing rules, and promoting
flexibility. It calls on each agency to periodically review its
existing regulations and determine whether any should be modified,
streamlined, expanded, or repealed to make the agency's regulatory
program more effective or less burdensome in achieving its regulatory
objectives.
The Department is issuing this final rule consistent with these
Executive Orders. This rule would allow the adjudication of suspension
of deportation and cancellation of removal cases, without unnecessary
delays, in appropriate cases where the immigration judge or the Board
determines that the application for such relief should be denied. The
Department expects this rule would reduce the number of reserved
suspension of deportation and cancellation of removal cases once the
annual limitation has been reached. Further, this rule will have a
positive economic impact on Department functions because it will
significantly reduce the administrative work and scheduling
complications associated with suspension of deportation and
cancellation of removal cases subject to the annual limitation. While
this rule would remove the current restrictions on issuing denials,
immigration judges and the Board will still be required to provide a
legal analysis for all decisions denying a suspension of deportation or
cancellation of removal application. Accordingly, the Department does
not foresee any burdens to the public as a result of this rule. To the
contrary, it will benefit the public by saving administrative costs and
allowing earlier resolution of cases.

E. Executive Order 13132 (Federalism)

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 the
preparation of a federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

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

G. Paperwork Reduction Act

The provisions of the Paperwork Reduction Act of 1995, Public Law
104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR
part 1320, do not apply to this rule because there are no new or
revised recordkeeping or reporting requirements.

List of Subjects in 8 CFR Part 1240

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

Accordingly, for the reasons stated in the preamble, the Department
of Justice amends 8 CFR part 1240 as follows:

PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES

0
1. The authority citation for part 1240 continues to read as follows:

Authority: 8 U.S.C. 1103, 1158, 1182, 1182, 1186a, 1186b, 1225,
1226, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202
and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L.
105-277 (112 Stat. 2681).

0
2. Amend Sec. 1240.21 by removing and reserving paragraph (b) and
revising paragraphs (c) introductory text and (c)(1) to read as
follows:


Sec. 1240.21 Suspension of deportation and adjustment of status under
section 244(a) of the Act (as in effect before April 1, 1997) and
cancellation of removal and adjustment of status under section 240A(b)
of the Act for certain nonpermanent residents.

* * * * *
(c) Grants of suspension of deportation or cancellation of removal
in fiscal years subsequent to fiscal year 1998. On and after October 1,
1998, the Immigration Court and the Board may grant applications for
suspension of deportation and adjustment of status under section 244(a)
of the Act (as in effect prior to April 1, 1997) or cancellation of
removal and adjustment of status under section 240A(b) of the Act that
meet the statutory requirements for such relief and warrant a favorable
exercise of discretion until the annual numerical limitation has been
reached in that fiscal year. The awarding of such relief shall be
determined according to the date the order granting such relief becomes
final as defined in Sec. Sec. 1003.1(d)(7) and 1003.39 of this
chapter.

[[Page 57340]]

(1) Applicability of the annual limitation. When grants are no
longer available in a fiscal year, further decisions to grant such
relief must be reserved until such time as a grant becomes available
under the annual limitation in a subsequent fiscal year.
* * * * *

Dated: November 21, 2017.
Jefferson B. Sessions III,
Attorney General.
[FR Doc. 2017-26104 Filed 12-4-17; 8:45 am]
BILLING CODE 4410-30-P