The Executive Office of Immigration Review, the Immigration and Naturalization Service and the Department of Justice have jointly published an interim rule establishing a procedure for processing suspension of deportation and cancellation of removal cases. The regulation is necessary to implement provisions in the 1996 Immigration Act and the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA). Comments on the rule may be submitted through November 30, 1998. The rule is published at page 52134 of the Federal Register.

A major change imposed by the 1996 Immigration Act is the limit to 4,000 the number of people eligible for cancellation of removal (formerly called suspension of deportation) each fiscal year. The annual cap applies to all cancellation cases (even ones filed before the 1996 Immigration Act passed) except for certain cases covered by NACARA.

Shortly after the bill went into effect in October 1996, the cap was reached for the 1997 fiscal year. In fact, the cap was reached just five months into Fiscal Year 1997. The EOIR instructed immigration judges in February 1997 to defer adjudicating cases until further notice. Eight months later, the Department of Justice issued a temporary rule requiring an immigration judge to grant only on a conditional basis cases meriting cancellation of removal and shortly after that allowed the 1997 cases held in suspension to be approved.

In November 1997, one month later, NACARA passed allowing many Central Americans and Eastern Europeans to process cases under the old suspension of deportation rules and not be subject to the 4,000 cap. NACARA also added an additional 4,000 grants for Fiscal Year 1998 for a total of 8,000 grants.

The Justice Department found that three issues needed to be resolved before a regulation implementing the cap could be granted -

1. How best to convert the 8,000 conditional grants before the fiscal year ended September 30, 1998.

2. How to ensure that all those who received a conditional grant of suspension of deportation or cancellation of removal which could not be granted in Fiscal Year 1998 have an opportuntity to receive a grant of relief.

3. How to establish a procedure for future implementation of the cap.

The new regulation creates a process to convert the first 8,000 conditional grants approved in the last fiscal year into final grants. The conditional grants will be converted to final grants by a single order of the Chief Immigration Judge or the Chairman of the Board of Immigration Appeals. This month, all conditional grantees eligible to convert will receive copies of the order and the case will be administratively closed. The INS will have the right to file a motion to reopen these cases within 90 days after the conversion is made. The INS will only succeed in these motions if the applicant committed an act while a conditional grantee that would have rendered him or her statutorily ineligible for such relief. Any conditional grants left from the 1998 Fiscal Year shall be converted to grants for the current 1999 Fiscal Year.

Another issue addressed in the rule is the ability of conditional grantees to travel. This is an important issue since a substantial period of time can elapse between when a conditional grant is made and the final grant is made. The Department of Justice recognized this problem and has created a mechanism to allow temporary absences from the United States. Conditional grantees may now qualify for advance parole documents and can apply for them at local INS offices the same way as adjustment of status applicants can. Also, persons who left the country before the new regulation was enacted will still be allowed to convert their cancellations of removal. The new regulations do not comment on the standard to be used by local INS offices in granting advance parole cases. Hopefully, the INS will apply the more liberal "bona fide personal or business reason" standard now applied in adjustment of status cases as opposed to the old emergency-only standard of the past.

The regulation has a number of sections covering NACARA cases. There are over 1,000 nationals of Nicaragua and Cuba who were granted conditional grants of cancellation of removal in the 1998 Fiscal Year. Those applicants are to be offered the right to convert their cases to NACARA cases in order to free up numbers in the cap. Presumably, most will take the offer because they could adjust their status right away. Also, derivative children and spouses could adjust under NACARA with the principal applicant, something that is not necessarily available under a grant of cancellation of removal.

To qualify for a NACARA adjustment, a person must

1. be a national of Cuba or Nicaragua

2. have been physically present in the US since December 1, 1995 and not have been absent for more than 180 days

3. is not inadmissible for reasons in INA Section 212 (e.g. public charge, illegal entry, etc.)

4. applies for adjustment of status before April 1, 2000.

People who have already met the tests for a conditional grant of cancellation of removal should easily meet the NACARA requirements. Therefore, the regulation states that any application by a Cuban or Nicaraguan conditional grantee for cancellation of removal shall be deemed a concurrent request for NACARA adjustment. Furthermore, all Cuban and Nicaraguan conditional grantees will be sent a notice by INS informing them of the date, time and place at which they must appear at the INS to perfect their request for NACARA adjustment. At the interview, the applicant needs to complete a form to document eligibility for NACARA adjustment. If the applicant is inadmissible for some reason, he or she may apply for any available waiver of inadmissibility at that time. There will be no fees for this process or for waivers filed in conjunction with the NACARA adjustment. But if one applied for a NACARA adjustment before this regulation was published, no refund will be provided.

NACARA adjustees should be sure to bring the following to the INS on the day of the interview:

- the order granting cancellation of removal

- a completed but unsigned Attestation of Alien and Memorandum of Creation of Record of Lawful Permanent Residence, Form I-895, which they will be required to sign in the presence of an officer

- any applications for waiver of inadmissibility, if applicable

- two photographs that meet the specifications in the instructions attached to the I-895

For future cancellation of removal cases, there will no longer be a conditional grant of cancellation of removal. Instead, the Immigration Court will issue grants of cancellation of removal until there are no more available in a fiscal year (judges will receive notification if the cap is about to be reached). Judges must reserve all decisions on grants of cancellation of removal when no more grants are available in a fiscal year. Those reserved decisions must wait until the next fiscal year grants are available. Persons with reserved decisions will be considered to be "in proceedings" and, consequently, they cannot be removed during this period.

If an alien has failed to show any statutory eligibility for relief because there is a statutory bar from such relief, a judge may deny cancellation of removal without a reserving decision. A judge may not deny, however, in any of the following circumstances: an unfavorable exercise of discretion, a finding of "no good moral character" on a ground not specifically noted in Section 101(f) of the Immigration and Nationality Act, a failure to establish hardship as required under the statute.

In order to maximize the number of cancellation grants available, if a judge finds another basis for relief - such as a grant of asylum - the application for cancellation of removal will be denied in the exercise of discretion. However, if the asylum or other claim is overturned on appeal, the denial of the cancellation of removal will be reconsidered.

A separate memorandum sent to Immigration Judges in conjunction with the new regulation instructs judges NOT to reschedule a cancellation of removal case to an earlier date for the purpose of permitting an alien to have his or her case heard at a time when numbers may be available under the cap. Cases CAN be rescheduled if there exists a legitimate docket management situation. So if a judge has a bona fide docket management justification, he can exercise some flexibility to move cap cases up.

Because the rule was released at the very end of Fiscal Year 1998, it went into affect immediately.