81 FR 86291 - Procedures Further Implementing the Annual Limitation on Suspension of Deportation and Cancellation of Removal

DEPARTMENT OF JUSTICE
Executive Office for Immigration Review

Federal Register Volume 81, Issue 230 (November 30, 2016)

Page Range		86291-86296
FR Document		2016-28590
The Department of Justice proposes to amend the regulations of the Executive Office for Immigration Review (EOIR) governing the annual statutory limitation on cancellation of removal and suspension of deportation decisions. First, the rule proposes to eliminate 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. The need for such procedures ceased to exist after the end of fiscal year 1998. Second, the Department proposes to authorize 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. This proposed amendment would decrease the high volume of reserved decisions that results 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.
Federal Register, Volume 81 Issue 230 (Wednesday, November 30, 2016)
[Federal Register Volume 81, Number 230 (Wednesday, November 30, 2016)]
[Proposed Rules]
[Pages 86291-86296]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-28590]


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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1240

[EOIR No. 180; AG Order No. 3780-2016]
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: Notice of proposed rulemaking.

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SUMMARY: The Department of Justice proposes to amend the regulations of 
the Executive Office for Immigration Review (EOIR) governing the annual 
statutory limitation on cancellation of removal and suspension of 
deportation decisions. First, the rule proposes to eliminate 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. The need for such 
procedures ceased to exist after the end of fiscal year 1998. Second, 
the Department proposes to authorize 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. This proposed amendment would decrease the 
high volume of reserved decisions that results 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.

DATES: Written comments must be submitted on or before January 30, 
2017. Comments received by mail will be considered timely if they are 
postmarked on or before that date. The electronic Federal Docket 
Management System (FDMS) will accept comments until midnight Eastern 
Time at the end of that day.

ADDRESSES: Please submit written comments to Jean King, General 
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, 
Suite 2600, Falls Church, Virginia 22041. To ensure proper handling, 
please reference RIN No. 1125-AA25 or EOIR docket No. 180 on your 
correspondence. You may submit comments electronically or view an 
electronic version of this proposed rule at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jean King, General Counsel, Executive 
Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls 
Church, Virginia 22041; telephone (703) 605-1744 (not a toll-free 
call).

SUPPLEMENTARY INFORMATION:

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
rule. EOIR also invites comments that relate to the economic, 
environmental, or federalism effects that might result from this rule. 
To provide the most assistance

[[Page 86292]]

to EOIR, comments should reference a specific portion of the rule; 
explain the reason for any recommended change; and include data, 
information, or authority that support such recommended change.
    All comments submitted for this rulemaking should include the 
agency name and EOIR Docket No. 180. Please note that all comments 
received are considered part of the public record and made available 
for public inspection at www.regulations.gov. Such information includes 
personally identifiable information (such as a person's name, address, 
or any other data that might personally identify that individual) 
voluntarily submitted by the commenter.
    If you want to submit personally identifiable information as part 
of your comment, but do not want it to be posted online, you must 
include the phrase ``PERSONALLY IDENTIFIABLE INFORMATION'' in the first 
paragraph of your comment and identify what information you want 
redacted.
    If you want to submit confidential business information as part of 
your comment, but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You also must prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
www.regulations.gov.
    Personally identifiable information and confidential business 
information provided as set forth above will be placed in the agency's 
public docket file, but not posted online. To inspect the agency's 
public docket file in person, you must make an appointment with agency 
counsel. Please see the FOR FURTHER INFORMATION CONTACT paragraph above 
for agency counsel's contact information.

II. Background

    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.\1\ The annual limitation is as follows:
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    \1\ The Department has considered whether section 240A(e) of the 
Act can be interpreted as imposing an annual limitation on 
adjustments of status only, rather than on the immigration judge or 
Board's decision to grant an application for cancellation of removal 
or suspension of deportation. The Department has determined that 
section 240A(e) does not apply only to adjustments of status. The 
language and history of that section indicates that Congress 
intended ``cancellation/suspension'' and ``adjustment of status'' to 
be a single inseparable process, and that the 4,000 annual 
limitation applies to the entire process. To be sure, in other 
sections of the Act, Congress has distinguished between the act of 
granting relief to an alien and the process of adjusting the alien's 
status to lawful permanent resident. See INA sec. 208, 209 (8 U.S.C. 
1158, 1159(b)). But section 240A(b)(1) of the Act indicates that 
Congress did not intend to separate the act of granting cancellation 
of removal or suspension of deportation from adjustment of status in 
section 240A.
    Further justification for the Department's interpretation is 
found in section 240A(e)(1) of the Act which provides that: ``[t]he 
numerical limitation under this paragraph shall apply to the 
aggregate number of decisions in any fiscal year to cancel the 
removal (and adjust the status) of an alien, or suspend the 
deportation (and adjust the status) of an alien under this section . 
. . .'' INA sec. 240A(e)(1) (8 U.S.C. 1229b(e)(1)). The use of the 
phrase ``aggregate number of decisions'' indicates that Congress 
intended the 4,000 annual limitation to apply to ``decisions'' and 
not just the ministerial act of adjusting an alien's status to 
lawful permanent resident.
    The legislative history of section 240A(e) also supports the 
Department's interpretation. When initially passed by the House of 
Representatives, the annual limitation provision stated that: 
``[t]he number of adjustments under this paragraph shall not exceed 
4,000 for any fiscal year.'' See Immigration in the National 
Interest Act of 1996, H.R. 2202, 104th Cong. sec. 304 (as passed by 
House, March 21, 1996). Although the language of the House Bill was 
never signed into law, many of its provisions were later added to 
IIRIRA, including section 240A(e) of the Act which was amended and 
enacted as follows: ``The 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) . . . of a 
total of more than 4,000 aliens in any fiscal year.'' Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996 
(``IIRIRA''), Public Law 104-208, div. C, sec. 304(a), 110 Stat. 
3009-546, 3009-596. The significance of this amendment is a shift 
from a limitation only on adjustments to a limitation on 
cancellation of removal (or suspension of deportation) and 
adjustment of status, which confirms that Congress intended 
``cancellation/suspension'' and ``adjustment of status'' to be a 
single inseparable process for purposes of applying the 4,000 annual 
limitation.
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    [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).

    In February 1997, EOIR reached the fiscal year 1997 annual 
limitation and the Chief Immigration Judge directed immigration judges 
to reserve decisions in suspension of deportation cases that they 
intended to grant. See 63 FR 52134, 52134 (Sep. 30, 1998). These 
instructions were intended to serve as a temporary measure to provide 
the Department with time to consider how best to address the annual 
limitation. See id.
    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). On October 
15, 1997, 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. Moreover, 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 to: (1) Create a process to convert 8,000 conditional grants to 
outright grants before the end of fiscal year 1998, see 63 FR at 52138-
39 (codified at 8 CFR 1240.21(b)); and (2) establish a new procedure 
for processing applications for suspension and cancellation in order to 
avoid exceeding the annual limitation, see id. at 52139-40 (codified at 
8 CFR 1240.21(c)).
    First, in order to utilize the 8,000 grants available in fiscal 
year 1998, the rule provided for converting the first 8,000 conditional 
grants made since October 1997 to outright grants of suspension/
cancellation in order of the date the conditional grant was issued by 
the immigration judge or the Board. See id. at 52138 (codified at 8 CFR 
1240.21(b)(1)). Any conditional grants remaining after 1998 were to be 
converted to outright grants in fiscal year 1999 when a grant became 
available. See id. at 52139 (codified at 8 CFR 1240.21(b)(3)).
    Additionally, in an effort to preserve as many grants as possible 
in fiscal year 1998, the rule required nationals of Nicaragua and Cuba 
who received a

[[Page 86293]]

conditional grant of suspension or cancellation to first pursue 
adjustment under section 202 of NACARA, because NACARA exempts the 
adjustment of status of certain nationals from the annual limitation. 
See NACARA sec. 202, 111 Stat. at 2160. The rule directed the former 
Immigration and Naturalization Service (INS) to notify all Cuban and 
Nicaraguan applicants to appear at an INS office to apply for NACARA 
adjustment before December 31, 1998. See 63 FR at 52138-39 (codified at 
8 CFR 1240.21(b)(2)(i)). The rule provided that ``[a]n alien who 
fail[ed] to appear to perfect his or her request for NACARA adjustment 
. . . [had] his or her conditional grant of suspension of deportation 
or cancellation of removal automatically converted . . . to a grant of 
suspension of deportation or cancellation effective December 31, 
1998.'' Id. at 52139 (codified at 8 CFR 1240.21(b)(2)(vi)). Second, the 
rule established a procedure for future processing of suspension of 
deportation and cancellation cases under the annual limitation. 
Specifically, the rule eliminated the conditional grant process, 
stating that ``[t]he Immigration Court and the Board shall no longer 
issue conditional grants . . . .'' Id. at 52138 (codified at 8 CFR 
1240.21(a)(2)). Instead, under the interim rule, immigration judges and 
the Board may issue grants of suspension or cancellation in 
chronological order until grants are no longer available in a fiscal 
year.\2\ When grants are 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.\3\ Id. at 52140 
(codified at 8 CFR 1240.21(c)(1)) (emphasis added). With respect to 
denials, the rule further clarified that immigration judges and the 
Board ``may deny without reserving decision or may 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 rule prohibits 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.
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    \2\ As explained in the rule's preamble, future grants were to 
be issued on a first-in-time basis, but only when numbers became 
available. See 63 FR at 52136-37. As a general matter, the 
immigration courts and the Board continue to follow the first-in-
time rule. However, a limited number of grants that would count 
against the annual limitation are held in reserve, if needed, to 
allow immigration judges and the Board to grant relief in high 
priority cases. Such priority cases currently include, for example, 
cases of aliens who are being held in detention. Other categories of 
cases may be designated as priorities in the future as a result of 
exigent circumstances.
    \3\ The rule's preamble explained: ``[p]ersons with reserved 
decisions will be considered to be `in proceedings' while their 
decision is reserved. They normally cannot be removed from the 
country while they are still in proceedings. Neither can they 
receive any form of relief until the Immigration Court or the Board 
takes further action.'' 63 FR at 52137.
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III. Rationale for the Proposed Amendments

    The Department proposes to make three amendments to the current 
rule before it is finalized. First, the Department proposes to 
eliminate the current text of paragraph (b), which 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. See 8 CFR 1240.21(b). The 
need for such procedures ceased to exist after fiscal year 1998. 
Second, the Department proposes to amend 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 
proposed rule, after the annual limitation has been reached, only 
grants would be required to be reserved. Contra 8 CFR 1240.21(c)(1). 
Finally, the Department proposes to make a technical amendment to the 
current text of 8 CFR 1240.21(c).

A. Elimination of Current Text of Paragraph (b)

    The Department has determined that the current text of paragraph 
(b) in the interim rule should be removed. As discussed, that section 
was added to address a discrete issue that required resolution before 
the end of fiscal year 1998: the interaction between the September 1997 
interim rule authorizing immigration judges and the Board to grant 
applications for suspension and cancellation on a ``conditional basis'' 
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. Specifically, the issue before the 
Department was how best to convert 8,000 conditional grants to outright 
grants before the end of fiscal year 1998. Pursuant to 8 CFR 
1240.21(b)(1), the Department successfully converted all 8,000 
conditional grants to outright grants in fiscal year 1998. 
Additionally, the Department was able to preserve grants for use in 
fiscal year 1998 by offering Nicaraguan and Cuban nationals who 
received a conditional grant of suspension or cancellation in 1997 an 
opportunity to pursue adjustment under NACARA pursuant to the 
procedures in 8 CFR 1240.21(b)(2). Any applicants who did not apply for 
adjustment under NACARA (or whose applications were denied) 
automatically received a grant of cancellation or suspension by the end 
of fiscal year 1998. Given that the purpose of these provisions has 
been achieved, the Department now proposes to remove the current text 
of paragraph (b). This amendment will not affect any applicant who has 
applied or will apply for cancellation of removal, suspension of 
deportation, or NACARA relief.\4\
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    \4\ Paragraph (b) contains other sections concerning the 
conversion of conditional grants into outright grants in fiscal year 
1998. Paragraph (b)(4) allows INS to file a motion to reopen within 
90 days after the alien's conditional grant is converted into a 
final grant. Paragraph (b)(5) enables an alien with a conditional 
grant to remain eligible for conversion to an outright grant in 
fiscal year 1998 notwithstanding the alien's departure from the 
United States. Paragraph (b)(3) provides a rule for conditional 
grants on appeal to the Board to be converted when a grant is 
available. As discussed, the conversion process was completed in 
fiscal year 1998 and remaining grants were converted in 1999. 
Therefore, the Department has determined that these provisions can 
be eliminated because they no longer have any continuing effect.
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B. Authorizing Issuance of Denials

    The Department proposes to amend the interim rule to allow 
immigration judges and the Board to issue final decisions denying 
applications after the annual limitation has been reached. This 
amendment would (1) decrease the high volume of reserved decisions that 
results from reaching the annual limitation early in the fiscal year; 
(2) reduce the associated delays caused by postponing the resolution of 
pending cases before EOIR; and (3) 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.
    As an initial matter, the Department notes that this proposed 
amendment is permitted by the INA. Section 240A(e)(1) of the INA 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 
statute, however, does not prohibit the issuance of denials

[[Page 86294]]

of suspension of deportation or cancellation of removal applications 
once the annual limitation is reached. Therefore, the current 
regulation at 8 CFR 1240.21(c)(1), which prohibits immigration judges 
and the Board from issuing grants and some denials of suspension of 
deportation or cancellation of removal applications once the annual 
limitation is reached, is not mandated by statute.
    In recent years, immigration judges and the Board have reached the 
annual 4,000 limitation early in the fiscal year. By May 23, 2011, 
approximately 3,800 applications had been granted. Procedures were 
instituted to halt further decisions so as not to exceed the annual 
limitation.\5\ As a result of reaching the annual limitation early in 
fiscal year 2011, a backlog of reserved decisions to grant or deny 
applications was created. EOIR estimates nearly 1,400 decisions were 
reserved after May 23, 2011. EOIR reached the annual limitation even 
earlier in fiscal year 2012 because of the fiscal year 2011 backlog. By 
February 6, 2012, approximately 3,500 applications had been granted. 
Throughout the remainder of fiscal year 2012, approximately 3,547 
decisions were reserved. Given the number of cases being carried over 
from fiscal year 2012, EOIR reached 3,500 grants in the first two 
months of fiscal year 2013. Throughout the remainder of fiscal year 
2013, approximately 5,250 decisions were reserved. EOIR estimates that 
approximately 1,967 of these applications would have been denied in 
fiscal year 2013 if the decision had not been reserved.\6\ Because of 
the large number of decisions that were reserved in fiscal year 2013, 
the annual limitation was not lifted at the beginning of fiscal year 
2014. Instead, immigration judges were required to reserve all 
decisions in non-detained suspension and cancellation of removal cases 
unless notified that a grant was available. To comply with the annual 
limitation, a total of approximately 6,405 decisions had to be reserved 
throughout fiscal year 2014. Of these cases, 4,890 were identified as 
potential grants and 1,814 were identified as potential denials. 
Therefore, the entire 4,000 grants available for fiscal year 2015 must 
be allocated to cases that were reserved in fiscal year 2014 and 
identified as potential grants. In sum, as the multi-year backlog 
grows, more total cases are held, and aliens must wait longer for 
resolution of their cases.\7\
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    \5\ The statutory limitation of 4,000 grants was reached in 
September 2012, once the remaining 200 grants had been allocated.
    \6\ The precise number of reserved decisions that will 
ultimately result in denials cannot be determined because of the 
variety of possible case outcomes (including the withdrawal of the 
application or the grant of another form of relief).
    \7\ A reserved decision is not a final decision and cannot be 
appealed by either party. Unlike a conditional grant, no benefits 
accrue when a decision is reserved. See Executive Office for 
Immigration Review, Operating Policies and Procedures Memorandum 12-
01: Procedures on Handling Applications for Suspension/Cancellation 
in Non-Detained Cases Once Numbers are no Longer Available in a 
Fiscal Year 3-5 (February 3, 2012) (indicating that reserved 
decisions may be rendered as ``draft oral decisions'' or ``draft 
written decisions'' that may become final decisions when a number in 
the queue is available); see also 63 FR at 52137 (preamble to the 
rule explained that ``[p]ersons with reserved decisions will be 
considered to still be `in proceedings' while their decision is 
reserved . . . [and cannot] receive any form of relief until the 
Immigration Court or the Board takes further action''); 8 CFR 
1003.1(b) (jurisdiction of Board of Immigration Appeals over 
decisions of immigration judges).
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    Allowing immigration judges and the Board to issue denials even 
after the annual limitation is reached would significantly reduce the 
number of reserved decisions. This would also reduce administrative 
burden and scheduling complications, as well as related costs, 
associated with suspension and cancellation of removal cases subject to 
the annual limitation.\8\ In turn, the amendment would allow the 
Department to better meet the objectives of expeditious processing of 
removal proceedings.
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    \8\ At present, when a denial is reserved, immigration judges 
and court staff spend significant resources preparing a draft 
decision. Moreover, when the annual limitation is lifted each fiscal 
year, an immigration judge must again review the decision before 
issuing it. See EOIR, OPPM 12-01, supra (outlining current 
procedures immigration judges and court staff must follow to reserve 
denial decisions).
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    Finally, the proposed amendment would provide final case resolution 
to more individuals applying for suspension of deportation and 
cancellation of removal.\9\ An applicant would have knowledge of a 
decision to grant, reserve, or deny the application at or near the date 
of the hearing in which the immigration judge considered the 
applicant's application for suspension or cancellation. As a result, an 
applicant whose case is denied would be able to determine whether to 
file an appeal from the immigration judge's decision with the Board or 
get the applicant's affairs in order and apply for any other relief for 
which an applicant remains eligible. Additionally, an applicant who is 
advised that the applicant's case is reserved, because the applicant's 
case has not been denied, would now have greater certainty in knowing 
that the applicant likely will be granted cancellation or suspension 
once grant numbers become available.\10\
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    \9\ This result is also consistent with views expressed by one 
commenter to the 1998 rule. See Section III infra.
    \10\ Moreover, an applicant who receives a denial may be able to 
appeal to the Board sooner, rather than having to wait in the queue 
for a denial, and then potentially having to go back in the queue if 
the Board grants the appeal and remands to the immigration judge for 
a new decision.
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    For these reasons, the Department is proposing to amend the 
regulations at 8 CFR 1240.21(c)(1) to provide that, even after the 
annual limitation is reached, immigration judges and the Board may 
issue decisions denying the suspension of deportation or cancellation 
of removal application without restriction.\11\
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    \11\ This regulatory amendment mirrors the solution adopted in 
February 1997 when EOIR reached the fiscal year 1997 annual 
limitation. See 63 FR 52134. Specifically, that directive reserved 
the adjudication of grants of suspension of deportation or 
cancellation of removal while allowing immigration judges and the 
Board to continue to issue denials of such relief.
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C. Technical Amendment to 8 CFR 1240.21(c)

    The final sentence of the introductory text of Sec.  1240.21(c) of 
the current rule states that ``[t]he 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)(3) and 1003.39 of this 
chapter.'' The citation to Sec.  1003.1(d)(3), which relates to the 
Board's scope of review, is erroneous. Therefore, the Department 
proposes to replace the reference to Sec.  1003.1(d)(3) with a 
reference to Sec.  1003.1(d)(7), which appropriately relates to 
finality of decisions.

IV. Response to Comments Received on the 1998 Interim Rule

    The Department received the following comments in response to the 
1998 interim rule.
    One commenter stated that the rule does not implement the intent of 
Congress because it does not limit the number of aliens granted 
cancellation or suspension by the immigration courts. The commenter 
suggests that section 240A(e) of the Act requires denial of relief and 
deportation of aliens for whom one of the 4,000 slots is not available 
at the time the case is completed. The Department does not interpret 
section 240A(e) in this manner. Rather, the Department construes the 
annual limitation as a restriction on when, not whether, EOIR may grant 
suspension of deportation or cancellation to an alien who falls outside 
of the annual allotment of 4,000 slots. Accordingly, the interim rule 
was necessary for the Department to create a procedure for reserving a 
decision

[[Page 86295]]

granting a suspension or cancellation of removal application until a 
number becomes available.
    In addition, one commenter expressed concern about the ``adverse 
effect on applicants of the reservation of decision procedure.'' The 
commenter states that the ``reservation of decision results in a secret 
determination causing the applicant to remain in proceedings with no 
knowledge of a decision for an undeterminable amount of time. Although 
the applicant will have presented his or her best case and evidence and 
had his or her day in court, the applicant will be unable to make any 
decisions about the future or get affairs in order in case of a 
denial.'' The Department shares these concerns. As noted above, the 
proposed amendment would provide final case resolution to more 
individuals applying for suspension of deportation and cancellation of 
removal, thereby providing greater certainty and eliminating concerns 
about a ``secret determination'' process. In addition, the alien would 
be able to appeal the denial, whereas at present a reserved decision is 
not appealable until the decision is issued.
    Moreover, two commenters asked why aliens with reserved decisions 
could not receive advance parole to travel outside of the United States 
or work authorization while their cases were pending. EOIR does not 
have jurisdiction over work authorization and advance parole. These 
issues may be raised with the Department of Homeland Security (DHS) 
which does have such jurisdiction.
    Finally, two commenters discussed the procedures designed to 
convert 8,000 conditional grants to outright grants in fiscal year 
1998. As discussed above, all conditional grants were converted into 
outright grants by 1999. Therefore, the proposed rule would eliminate 
the procedures created to convert 8,000 conditional grants of 
suspension of deportation and cancellation of removal to outright 
grants before the end of fiscal year 1998. Accordingly, the Department 
does not address these comments.

V. Regulatory Requirements

A. Regulatory Flexibility Act

    The Department has reviewed this regulation in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)) and has determined 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. See 5 
U.S.C. 804. This rule will not result in an annual effect on the 
economy of $100 million or more; a major increase in costs or prices; 
or significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

D. Executive Orders 12866 and 13563: Regulatory Planning and Review

    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. Nevertheless, the 
Department certifies that this regulation 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 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. Additionally, 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 proposed rule consistent with these 
Executive Orders. This rule would affect the adjudication of suspension 
of deportation and cancellation of removal cases after the annual 
limitation under section 240A(e) has been reached. 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 all 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 proposed 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, it is 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

8 CFR Part 1240

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


[[Page 86296]]


    Accordingly, for the reasons stated in the preamble, part 1240 of 
chapter V of title 8 of the Code of Federal Regulations is proposed to 
be amended 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, 1186a, 1186b, 1225, 1226, 
1227, 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:
0
a. Removing and reserving paragraph (b); and
0
b. 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.
    (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, 2016.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2016-28590 Filed 11-29-16; 8:45 am]
 BILLING CODE 4410-30-P
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to EOIR, comments should reference a adjustment of status.1 The annual immigration judges to reserve decisions
specific portion of the rule; explain the limitation is as follows: in suspension of deportation cases that
reason for any recommended change; [T]he Attorney General may not they intended to grant. See 63 FR 52134,
and include data, information, or cancel the removal and adjust the status 52134 (Sep. 30, 1998). These
authority that support such under this section, nor suspend the instructions were intended to serve as a
recommended change. deportation and adjust the status under temporary measure to provide the
All comments submitted for this section 244(a) (as in effect before the Department with time to consider how
rulemaking should include the agency enactment of the Illegal Immigration best to address the annual limitation.
name and EOIR Docket No. 180. Please Reform and Immigrant Responsibility See id.
note that all comments received are Act of 1996), of a total of more than On October 3, 1997, the Department
considered part of the public record and 4,000 aliens in any fiscal year. issued an interim rule, which
made available for public inspection at INA sec. 240A(e)(1), 8 U.S.C. authorized immigration judges and the
www.regulations.gov. Such information 1229b(e)(1). Board to grant applications for
includes personally identifiable suspension of deportation and
In February 1997, EOIR reached the
information (such as a person’s name, cancellation of removal only on a
fiscal year 1997 annual limitation and
address, or any other data that might ‘‘conditional basis.’’ 62 FR 51760, 51762
the Chief Immigration Judge directed
personally identify that individual) (Oct. 3, 1997). On October 15, 1997, the
voluntarily submitted by the 1 The Department has considered whether section
Chief Immigration Judge instructed
commenter. 240A(e) of the Act can be interpreted as imposing immigration judges to convert
If you want to submit personally an annual limitation on adjustments of status only, previously reserved grants of
rather than on the immigration judge or Board’s suspension and cancellation to
identifiable information as part of your decision to grant an application for cancellation of
comment, but do not want it to be removal or suspension of deportation. The
conditional grants.
posted online, you must include the Department has determined that section 240A(e) On November 19, 1997, Congress
phrase ‘‘PERSONALLY IDENTIFIABLE does not apply only to adjustments of status. The enacted the Nicaraguan Adjustment and
INFORMATION’’ in the first paragraph
language and history of that section indicates that Central American Relief Act
Congress intended ‘‘cancellation/suspension’’ and (‘‘NACARA’’), Public Law 105–100, title
of your comment and identify what ‘‘adjustment of status’’ to be a single inseparable
information you want redacted. process, and that the 4,000 annual limitation II, 111 Stat. 2160, 2193–2201, which
applies to the entire process. To be sure, in other amended section 240A(e) of the Act.
If you want to submit confidential sections of the Act, Congress has distinguished NACARA reaffirmed the annual
business information as part of your between the act of granting relief to an alien and limitation of 4,000 grants but exempted
comment, but do not want it to be the process of adjusting the alien’s status to lawful
permanent resident. See INA sec. 208, 209 (8 U.S.C. from the limitation certain nationals of
posted online, you must include the
1158, 1159(b)). But section 240A(b)(1) of the Act Guatemala, El Salvador, and the former
phrase ‘‘CONFIDENTIAL BUSINESS indicates that Congress did not intend to separate Soviet bloc countries. See NACARA sec.
INFORMATION’’ in the first paragraph the act of granting cancellation of removal or 204, 111 Stat. at 2200–01. Moreover,
of your comment. You also must suspension of deportation from adjustment of status
in section 240A. NACARA provided for an additional
prominently identify confidential
Further justification for the Department’s 4,000 suspension/cancellation grants to
business information to be redacted interpretation is found in section 240A(e)(1) of the increase the annual limitation to a total
within the comment. If a comment has Act which provides that: ‘‘[t]he numerical of 8,000 for fiscal year 1998 only. Id.
so much confidential business limitation under this paragraph shall apply to the
On September 30, 1998, the
information that it cannot be effectively aggregate number of decisions in any fiscal year to
cancel the removal (and adjust the status) of an Department issued the current interim
redacted, all or part of that comment alien, or suspend the deportation (and adjust the rule to: (1) Create a process to convert
may not be posted on status) of an alien under this section . . . .’’ INA 8,000 conditional grants to outright
www.regulations.gov. sec. 240A(e)(1) (8 U.S.C. 1229b(e)(1)). The use of the
grants before the end of fiscal year 1998,
Personally identifiable information phrase ‘‘aggregate number of decisions’’ indicates
that Congress intended the 4,000 annual limitation see 63 FR at 52138–39 (codified at 8
and confidential business information to apply to ‘‘decisions’’ and not just the ministerial CFR 1240.21(b)); and (2) establish a new
provided as set forth above will be act of adjusting an alien’s status to lawful procedure for processing applications
placed in the agency’s public docket permanent resident.
for suspension and cancellation in order
file, but not posted online. To inspect The legislative history of section 240A(e) also
supports the Department’s interpretation. When to avoid exceeding the annual
the agency’s public docket file in initially passed by the House of Representatives, the limitation, see id. at 52139–40 (codified
person, you must make an appointment annual limitation provision stated that: ‘‘[t]he at 8 CFR 1240.21(c)).
with agency counsel. Please see the FOR number of adjustments under this paragraph shall First, in order to utilize the 8,000
FURTHER INFORMATION CONTACT not exceed 4,000 for any fiscal year.’’ See
Immigration in the National Interest Act of 1996, grants available in fiscal year 1998, the
paragraph above for agency counsel’s H.R. 2202, 104th Cong. sec. 304 (as passed by rule provided for converting the first
contact information. House, March 21, 1996). Although the language of 8,000 conditional grants made since
the House Bill was never signed into law, many of October 1997 to outright grants of
II. Background its provisions were later added to IIRIRA, including
section 240A(e) of the Act which was amended and suspension/cancellation in order of the
The Illegal Immigration Reform and enacted as follows: ‘‘The Attorney General may not date the conditional grant was issued by
Immigrant Responsibility Act of 1996 cancel the removal and adjust the status under this the immigration judge or the Board. See
(‘‘IIRIRA’’), Public Law 104–208, div. C, section, nor suspend the deportation and adjust the
id. at 52138 (codified at 8 CFR
110 Stat. 3009–546, added section status under section 244(a) . . . of a total of more
than 4,000 aliens in any fiscal year.’’ Illegal 1240.21(b)(1)). Any conditional grants
240A(e) to the Immigration and remaining after 1998 were to be
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Immigration Reform and Immigrant Responsibility
Nationality Act (‘‘INA’’ or the ‘‘Act’’), Act of 1996 (‘‘IIRIRA’’), Public Law 104–208, div. converted to outright grants in fiscal
Public Law 82–414, 66 Stat. 163 (1952) C, sec. 304(a), 110 Stat. 3009–546, 3009–596. The
significance of this amendment is a shift from a
year 1999 when a grant became
(codified as amended in scattered limitation only on adjustments to a limitation on available. See id. at 52139 (codified at
sections of 8, 18, and 22 U.S.C.), by cancellation of removal (or suspension of 8 CFR 1240.21(b)(3)).
establishing an annual limitation on the deportation) and adjustment of status, which Additionally, in an effort to preserve
number of aliens who may be granted confirms that Congress intended ‘‘cancellation/
suspension’’ and ‘‘adjustment of status’’ to be a
as many grants as possible in fiscal year
suspension of deportation or single inseparable process for purposes of applying 1998, the rule required nationals of
cancellation of removal followed by the 4,000 annual limitation. Nicaragua and Cuba who received a

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conditional grant of suspension or applications in which the applicant has grants before the end of fiscal year 1998.
cancellation to first pursue adjustment failed to establish statutory eligibility Pursuant to 8 CFR 1240.21(b)(1), the
under section 202 of NACARA, because for relief.’’ Id. However, the rule Department successfully converted all
NACARA exempts the adjustment of prohibits immigration judges and the 8,000 conditional grants to outright
status of certain nationals from the Board from basing such denials ‘‘on an grants in fiscal year 1998. Additionally,
annual limitation. See NACARA sec. unfavorable exercise of discretion, a the Department was able to preserve
202, 111 Stat. at 2160. The rule directed finding of no good moral character on a grants for use in fiscal year 1998 by
the former Immigration and ground not specifically noted in section offering Nicaraguan and Cuban
Naturalization Service (INS) to notify all 101(f) of the [INA], a failure to establish nationals who received a conditional
Cuban and Nicaraguan applicants to exceptional or extremely unusual grant of suspension or cancellation in
appear at an INS office to apply for hardship to a qualifying relative in 1997 an opportunity to pursue
NACARA adjustment before December cancellation cases, or a failure to adjustment under NACARA pursuant to
31, 1998. See 63 FR at 52138–39 establish extreme hardship to the the procedures in 8 CFR 1240.21(b)(2).
(codified at 8 CFR 1240.21(b)(2)(i)). The applicant and/or qualifying relative in Any applicants who did not apply for
rule provided that ‘‘[a]n alien who suspension cases.’’ Id. adjustment under NACARA (or whose
fail[ed] to appear to perfect his or her applications were denied) automatically
III. Rationale for the Proposed
request for NACARA adjustment . . . received a grant of cancellation or
Amendments
[had] his or her conditional grant of suspension by the end of fiscal year
suspension of deportation or The Department proposes to make 1998. Given that the purpose of these
cancellation of removal automatically three amendments to the current rule provisions has been achieved, the
converted . . . to a grant of suspension before it is finalized. First, the Department now proposes to remove the
of deportation or cancellation effective Department proposes to eliminate the current text of paragraph (b). This
December 31, 1998.’’ Id. at 52139 current text of paragraph (b), which amendment will not affect any applicant
(codified at 8 CFR 1240.21(b)(2)(vi)). established a procedure to convert 8,000 who has applied or will apply for
Second, the rule established a procedure conditional grants of suspension of cancellation of removal, suspension of
for future processing of suspension of deportation and cancellation of removal deportation, or NACARA relief.4
deportation and cancellation cases to outright grants before the end of fiscal
year 1998 and to convert some B. Authorizing Issuance of Denials
under the annual limitation.
Specifically, the rule eliminated the conditional grants to grants of The Department proposes to amend
conditional grant process, stating that adjustment of status under NACARA. the interim rule to allow immigration
‘‘[t]he Immigration Court and the Board See 8 CFR 1240.21(b). The need for such judges and the Board to issue final
shall no longer issue conditional procedures ceased to exist after fiscal decisions denying applications after the
grants . . . .’’ Id. at 52138 (codified at year 1998. Second, the Department annual limitation has been reached.
8 CFR 1240.21(a)(2)). Instead, under the proposes to amend the interim rule to This amendment would (1) decrease the
interim rule, immigration judges and the allow immigration judges and the Board high volume of reserved decisions that
Board may issue grants of suspension or to issue final decisions denying results from reaching the annual
cancellation in chronological order until cancellation and suspension limitation early in the fiscal year; (2)
grants are no longer available in a fiscal applications, without restriction, reduce the associated delays caused by
year.2 When grants are no longer regardless of whether the annual postponing the resolution of pending
available in a fiscal year, ‘‘further limitation has been reached. Under the cases before EOIR; and (3) provide an
decisions to grant or deny such relief proposed rule, after the annual applicant with knowledge of a decision
shall be reserved’’ until grants become limitation has been reached, only grants in the applicant’s case on or around the
available in a future fiscal year.3 Id. at would be required to be reserved. date of the hearing held on the
52140 (codified at 8 CFR 1240.21(c)(1)) Contra 8 CFR 1240.21(c)(1). Finally, the applicant’s suspension or cancellation
(emphasis added). With respect to Department proposes to make a application.
denials, the rule further clarified that technical amendment to the current text As an initial matter, the Department
immigration judges and the Board ‘‘may of 8 CFR 1240.21(c). notes that this proposed amendment is
deny without reserving decision or may A. Elimination of Current Text of permitted by the INA. Section
pretermit those suspension of Paragraph (b) 240A(e)(1) of the INA limits the number
deportation or cancellation of removal of aliens who may be granted
The Department has determined that suspension of deportation or
2 As explained in the rule’s preamble, future the current text of paragraph (b) in the cancellation of removal to 4,000 aliens
grants were to be issued on a first-in-time basis, but interim rule should be removed. As in any fiscal year. The statute, however,
only when numbers became available. See 63 FR at discussed, that section was added to
52136–37. As a general matter, the immigration
does not prohibit the issuance of denials
courts and the Board continue to follow the first-
address a discrete issue that required
in-time rule. However, a limited number of grants resolution before the end of fiscal year 4 Paragraph (b) contains other sections concerning

that would count against the annual limitation are 1998: the interaction between the the conversion of conditional grants into outright
held in reserve, if needed, to allow immigration September 1997 interim rule grants in fiscal year 1998. Paragraph (b)(4) allows
judges and the Board to grant relief in high priority INS to file a motion to reopen within 90 days after
cases. Such priority cases currently include, for
authorizing immigration judges and the the alien’s conditional grant is converted into a
example, cases of aliens who are being held in Board to grant applications for final grant. Paragraph (b)(5) enables an alien with
detention. Other categories of cases may be suspension and cancellation on a a conditional grant to remain eligible for conversion
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designated as priorities in the future as a result of ‘‘conditional basis’’ and the enactment to an outright grant in fiscal year 1998
exigent circumstances. notwithstanding the alien’s departure from the
3 The rule’s preamble explained: ‘‘[p]ersons with
of NACARA in November 1997, which United States. Paragraph (b)(3) provides a rule for
reserved decisions will be considered to be ‘in added 4,000 grants to the statutory conditional grants on appeal to the Board to be
proceedings’ while their decision is reserved. They annual limitation, creating a total of converted when a grant is available. As discussed,
normally cannot be removed from the country 8,000 available grants for fiscal year the conversion process was completed in fiscal year
while they are still in proceedings. Neither can they 1998 and remaining grants were converted in 1999.
receive any form of relief until the Immigration
1998. Specifically, the issue before the Therefore, the Department has determined that
Court or the Board takes further action.’’ 63 FR at Department was how best to convert these provisions can be eliminated because they no
52137. 8,000 conditional grants to outright longer have any continuing effect.

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of suspension of deportation or year backlog grows, more total cases are cancellation or suspension once grant
cancellation of removal applications held, and aliens must wait longer for numbers become available.10
once the annual limitation is reached. resolution of their cases.7 For these reasons, the Department is
Therefore, the current regulation at 8 Allowing immigration judges and the proposing to amend the regulations at 8
CFR 1240.21(c)(1), which prohibits Board to issue denials even after the CFR 1240.21(c)(1) to provide that, even
immigration judges and the Board from annual limitation is reached would after the annual limitation is reached,
issuing grants and some denials of significantly reduce the number of immigration judges and the Board may
suspension of deportation or reserved decisions. This would also issue decisions denying the suspension
cancellation of removal applications reduce administrative burden and of deportation or cancellation of
once the annual limitation is reached, is scheduling complications, as well as removal application without
not mandated by statute. related costs, associated with restriction.11
In recent years, immigration judges suspension and cancellation of removal
and the Board have reached the annual C. Technical Amendment to 8 CFR
cases subject to the annual limitation.8 1240.21(c)
4,000 limitation early in the fiscal year. In turn, the amendment would allow the
By May 23, 2011, approximately 3,800 Department to better meet the objectives The final sentence of the introductory
applications had been granted. of expeditious processing of removal text of § 1240.21(c) of the current rule
Procedures were instituted to halt proceedings. states that ‘‘[t]he awarding of such relief
further decisions so as not to exceed the shall be determined according to the
Finally, the proposed amendment
annual limitation.5 As a result of date the order granting such relief
reaching the annual limitation early in would provide final case resolution to
more individuals applying for becomes final as defined in
fiscal year 2011, a backlog of reserved §§ 1003.1(d)(3) and 1003.39 of this
decisions to grant or deny applications suspension of deportation and
cancellation of removal.9 An applicant chapter.’’ The citation to § 1003.1(d)(3),
was created. EOIR estimates nearly which relates to the Board’s scope of
1,400 decisions were reserved after May would have knowledge of a decision to
grant, reserve, or deny the application at review, is erroneous. Therefore, the
23, 2011. EOIR reached the annual Department proposes to replace the
limitation even earlier in fiscal year or near the date of the hearing in which
the immigration judge considered the reference to § 1003.1(d)(3) with a
2012 because of the fiscal year 2011 reference to § 1003.1(d)(7), which
backlog. By February 6, 2012, applicant’s application for suspension
or cancellation. As a result, an applicant appropriately relates to finality of
approximately 3,500 applications had decisions.
been granted. Throughout the remainder whose case is denied would be able to
of fiscal year 2012, approximately 3,547 determine whether to file an appeal IV. Response to Comments Received on
decisions were reserved. Given the from the immigration judge’s decision the 1998 Interim Rule
number of cases being carried over from with the Board or get the applicant’s
The Department received the
fiscal year 2012, EOIR reached 3,500 affairs in order and apply for any other
following comments in response to the
grants in the first two months of fiscal relief for which an applicant remains
1998 interim rule.
year 2013. Throughout the remainder of eligible. Additionally, an applicant who
One commenter stated that the rule
fiscal year 2013, approximately 5,250 is advised that the applicant’s case is
does not implement the intent of
decisions were reserved. EOIR estimates reserved, because the applicant’s case
Congress because it does not limit the
that approximately 1,967 of these has not been denied, would now have
number of aliens granted cancellation or
applications would have been denied in greater certainty in knowing that the
suspension by the immigration courts.
fiscal year 2013 if the decision had not applicant likely will be granted
The commenter suggests that section
been reserved.6 Because of the large 240A(e) of the Act requires denial of
7 A reserved decision is not a final decision and
number of decisions that were reserved relief and deportation of aliens for
cannot be appealed by either party. Unlike a
in fiscal year 2013, the annual limitation conditional grant, no benefits accrue when a whom one of the 4,000 slots is not
was not lifted at the beginning of fiscal decision is reserved. See Executive Office for available at the time the case is
year 2014. Instead, immigration judges Immigration Review, Operating Policies and completed. The Department does not
were required to reserve all decisions in Procedures Memorandum 12–01: Procedures on
Handling Applications for Suspension/Cancellation
interpret section 240A(e) in this
non-detained suspension and in Non-Detained Cases Once Numbers are no manner. Rather, the Department
cancellation of removal cases unless Longer Available in a Fiscal Year 3–5 (February 3, construes the annual limitation as a
notified that a grant was available. To 2012) (indicating that reserved decisions may be restriction on when, not whether, EOIR
comply with the annual limitation, a rendered as ‘‘draft oral decisions’’ or ‘‘draft written
decisions’’ that may become final decisions when
may grant suspension of deportation or
total of approximately 6,405 decisions a number in the queue is available); see also 63 FR cancellation to an alien who falls
had to be reserved throughout fiscal at 52137 (preamble to the rule explained that outside of the annual allotment of 4,000
year 2014. Of these cases, 4,890 were ‘‘[p]ersons with reserved decisions will be slots. Accordingly, the interim rule was
identified as potential grants and 1,814 considered to still be ‘in proceedings’ while their
decision is reserved . . . [and cannot] receive any
necessary for the Department to create a
were identified as potential denials. form of relief until the Immigration Court or the procedure for reserving a decision
Therefore, the entire 4,000 grants Board takes further action’’); 8 CFR 1003.1(b)
available for fiscal year 2015 must be (jurisdiction of Board of Immigration Appeals over 10 Moreover, an applicant who receives a denial

allocated to cases that were reserved in decisions of immigration judges). may be able to appeal to the Board sooner, rather
8 At present, when a denial is reserved, than having to wait in the queue for a denial, and
fiscal year 2014 and identified as
immigration judges and court staff spend significant then potentially having to go back in the queue if
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potential grants. In sum, as the multi- resources preparing a draft decision. Moreover, the Board grants the appeal and remands to the
when the annual limitation is lifted each fiscal year, immigration judge for a new decision.
5 The statutory limitation of 4,000 grants was an immigration judge must again review the 11 This regulatory amendment mirrors the
reached in September 2012, once the remaining 200 decision before issuing it. See EOIR, OPPM 12–01, solution adopted in February 1997 when EOIR
grants had been allocated. supra (outlining current procedures immigration reached the fiscal year 1997 annual limitation. See
6 The precise number of reserved decisions that judges and court staff must follow to reserve denial 63 FR 52134. Specifically, that directive reserved
will ultimately result in denials cannot be decisions). the adjudication of grants of suspension of
determined because of the variety of possible case 9 This result is also consistent with views deportation or cancellation of removal while
outcomes (including the withdrawal of the expressed by one commenter to the 1998 rule. See allowing immigration judges and the Board to
application or the grant of another form of relief). Section III infra. continue to issue denials of such relief.

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granting a suspension or cancellation of B. Unfunded Mandates Reform Act of the adjudication of suspension of
removal application until a number 1995 deportation and cancellation of removal
becomes available. This rule will not result in the cases after the annual limitation under
In addition, one commenter expressed expenditure by State, local, and tribal section 240A(e) has been reached. The
concern about the ‘‘adverse effect on governments, in the aggregate, or by the Department expects this rule would
applicants of the reservation of decision private sector, of $100 million or more reduce the number of reserved
procedure.’’ The commenter states that in any one year, and it will not suspension of deportation and
the ‘‘reservation of decision results in a significantly or uniquely affect small cancellation of removal cases once the
secret determination causing the governments. Therefore, no actions were annual limitation has been reached.
applicant to remain in proceedings with deemed necessary under the provisions Further, this rule will have a positive
no knowledge of a decision for an of the Unfunded Mandates Reform Act economic impact on Department
undeterminable amount of time. of 1995. functions because it will significantly
Although the applicant will have reduce the administrative work and
presented his or her best case and C. Small Business Regulatory scheduling complications associated
evidence and had his or her day in Enforcement Fairness Act of 1996 with suspension of deportation and
court, the applicant will be unable to This rule is not a major rule as cancellation of removal cases subject to
make any decisions about the future or defined by section 251 of the Small the annual limitation. While this rule
get affairs in order in case of a denial.’’ Business Regulatory Enforcement would remove all the current
The Department shares these concerns. Fairness Act of 1996. See 5 U.S.C. 804. restrictions on issuing denials,
As noted above, the proposed This rule will not result in an annual immigration judges and the Board will
amendment would provide final case effect on the economy of $100 million still be required to provide a legal
resolution to more individuals applying or more; a major increase in costs or analysis for all decisions denying a
for suspension of deportation and prices; or significant adverse effects on suspension of deportation or
cancellation of removal, thereby competition, employment, investment, cancellation of removal application.
providing greater certainty and productivity, innovation, or on the Accordingly, the Department does not
eliminating concerns about a ‘‘secret ability of United States-based foresee any burdens to the public as a
determination’’ process. In addition, the enterprises to compete with foreign- result of this proposed rule. To the
alien would be able to appeal the denial, based enterprises in domestic and contrary, it will benefit the public by
whereas at present a reserved decision export markets. saving administrative costs and
is not appealable until the decision is allowing earlier resolution of cases.
issued. D. Executive Orders 12866 and 13563:
Moreover, two commenters asked Regulatory Planning and Review E. Executive Order 13132: Federalism
why aliens with reserved decisions The Department has determined that This rule will not have substantial
could not receive advance parole to this rule is not a ‘‘significant regulatory direct effects on the States, on the
travel outside of the United States or action’’ under section 3(f) of Executive relationship between the National
work authorization while their cases Order 12866, Regulatory Planning and Government and the States, or on the
were pending. EOIR does not have Review, and, therefore, it has not been distribution of power and
jurisdiction over work authorization and reviewed by the Office of Management responsibilities among the various
advance parole. These issues may be and Budget. Nevertheless, the levels of government. Therefore, in
raised with the Department of Department certifies that this regulation accordance with section 6 of Executive
Homeland Security (DHS) which does has been drafted in accordance with the Order 13132, it is determined that this
have such jurisdiction. principles of Executive Order 12866, rule does not have sufficient federalism
Finally, two commenters discussed section 1(b), and Executive Order 13563. implications to warrant the preparation
the procedures designed to convert Executive Orders 12866 and 13563 of a federalism summary impact
8,000 conditional grants to outright direct agencies to assess all costs and statement.
grants in fiscal year 1998. As discussed benefits of available regulatory
above, all conditional grants were F. Executive Order 12988: Civil Justice
alternatives and, if regulation is Reform
converted into outright grants by 1999. necessary, to select regulatory
Therefore, the proposed rule would approaches that maximize net benefits This rule meets the applicable
eliminate the procedures created to (including potential economic, standards set forth in sections 3(a) and
convert 8,000 conditional grants of environmental, public health, and safety 3(b)(2) of Executive Order 12988.
suspension of deportation and effects, distributive impacts, and G. Paperwork Reduction Act
cancellation of removal to outright equity). Executive Order 13563
grants before the end of fiscal year 1998. emphasizes the importance of The provisions of the Paperwork
Accordingly, the Department does not quantifying both costs and benefits, Reduction Act of 1995, Public Law 104–
address these comments. reducing costs, harmonizing rules, and 13, 44 U.S.C. chapter 35, and its
promoting flexibility. Additionally, it implementing regulations, 5 CFR part
V. Regulatory Requirements 1320, do not apply to this rule because
calls on each agency to periodically
A. Regulatory Flexibility Act review its existing regulations and there are no new or revised
The Department has reviewed this determine whether any should be recordkeeping or reporting
sradovich on DSK3GMQ082PROD with PROPOSALS

regulation in accordance with the modified, streamlined, expanded, or requirements.
Regulatory Flexibility Act (5 U.S.C. repealed to make the agency’s regulatory List of Subjects
605(b)) and has determined that this program more effective or less
rule will not have a significant burdensome in achieving its regulatory 8 CFR Part 1240
economic impact on a substantial objectives. Administrative practice and
number of small entities. The rule will The Department is issuing this procedure, Aliens, Immigration, Legal
not regulate ‘‘small entities,’’ as that proposed rule consistent with these services, Organization and functions
term is defined in 5 U.S.C. 601(6). Executive Orders. This rule would affect (Government agencies).

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Document Created: 2016-11-30 02:18:04
Document Modified: 2016-11-30 02:18:04
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Notice of proposed rulemaking.
Dates		Written comments must be submitted on or before January 30, 2017. Comments received by mail will be considered timely if they are postmarked on or before that date. The electronic Federal Docket Management System (FDMS) will accept comments until midnight Eastern Time at the end of that day.
Contact		Jean King, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041; telephone (703) 605-1744 (not a toll-free call).
FR Citation		81 FR 86291
RIN Number		1125-AA25
CFR Associated		Administrative Practice and Procedure; Aliens; Immigration; Legal Services and Organization and Functions (government Agencies)
81 FR 86291 - Procedures Further Implementing the Annual Limitation on Suspension of Deportation and Cancellation of Removal

DEPARTMENT OF JUSTICEExecutive Office for Immigration Review

Federal Register Volume 81, Issue 230 (November 30, 2016)

DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
