INS ISSUES PROPOSED RULE ON TERMINATING DEPORTATION PROCEEDINGS IN FAVOR OF REMOVAL PROCEEDINGS

In 1996, two important immigration laws were passed.  The first, the Antiterrorism and Effective Death Penalty Act (AEDPA), was enacted on April 24, 1996.  The second, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), was enacted on September 30, 1996.  The AEDPA severely restricted the availability of suspension of deportation by making any alien convicted of an aggravated felony, controlled substance offenses, certain firearms offenses, and some other crimes, ineligible for suspension.  The IIRAIRA eliminated suspension of deportation and replaced it with a similar form of relief called cancellation of removal.  The IIRAIRA also, however, eliminated some of the crimes that resulted in ineligibility.  The result of this is that some people who were placed in deportation proceedings after the AEDPA was enacted but before the IIRAIRA was enacted were ineligible for suspension, but had they been placed in proceedings after the enactment of the IIRAIRA, they would have been eligible for cancellation. 

Recognizing that this situation would occur, one of the provisions of the IIRAIRA allows a person to seek termination of deportation proceedings when there is no final decision and reinitiating of proceedings under the IIRAIRA.  This practice is known as repapering.  This week the INS issued a proposed rule on repapering and when it can be sought.

Under the proposed rule, to be eligible for repapering, the applicant must still be in deportation proceedings before either an Immigration Court or the Board of Immigration Appeals.  Lawful permanent residents, to qualify for repapering, must have been eligible for suspension of deportation as it existed prior to the enactment of the AEDPA.  For someone who is not a permanent resident, they must both have been eligible for suspension but for the application of the stop time rule, which states that a person’s period of physical presence in the US ends when they are served with a notice that the INS is going to place them in proceedings.  Applicants for repapering who are not permanent residents must also have a spouse, parent or child who is a US citizen or permanent resident.

Shortly after the enactment of the AEDPA, the Attorney General issued an opinion in which she ruled that the expanded definition of aggravated felony applied to all convictions regardless of how long ago they occurred.  This ruling has been contradicted by numerous federal courts, which eventually led the INS to issue a proposed rule that would allow aliens in deportation proceedings when the AEDPA was enacted to have their cases decided under the suspension of deportation rules that existed before then.  Aliens who will benefit from this rule are not eligible for repapering. 

Repapering will not change the application of the stop time rule, so permanent residents must still show seven years of continuous physical presence before the initiation of deportation proceedings, and other aliens must show ten years physical presence.

To seek repapering, the applicant must file a written request with the INS office in charge of the deportation proceeding.  INS counsel must concur in the request for repapering, and it cannot be ordered solely by an Immigration Judge or the Board of Immigration Appeals.  If deportation proceedings are terminated for repapering purposes, the INS should immediately place the person in removal proceedings.

The application period of repapering will be limited to one year following the publication of this proposed rule as a final rule.

Comments will be accepted until January 29, 2001.  They should be sent in triplicate to Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, N.W., Room 5307, Washington, D.C. 20536.

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