Procedures Further Implementing the Annual Limitation on Suspension of Deportation and Cancellation of Removal, 86291-86296 [2016-28590]

Download as PDF Federal Register / Vol. 81, No. 230 / Wednesday, November 30, 2016 / Proposed Rules hired from certificates—including through category rating—the pass over rules in 5 U.S.C. 3318 generally apply. See also Dean v. Department of Labor, 808 F.3d 497, 507 (Fed. Cir. 2015); Jarrard v. Department of Justice, 669 F.3d 1320, 1323 (Fed. Cir. 2012). The court in Gingery ruled that the current text in 5 CFR 302.401(b) is invalid, on grounds that it does not provide passover protections generally available to preference-eligible applicants under 5 U.S.C. 3318(b)(1) (since renumbered as 5 U.S.C. 3318(c)(1)), or the pass-over protections specifically available to preference eligibles with 30-percent or more compensable service-connected disabilities under 5 U.S.C. 3318(b)(2) and (b)(4) (since renumbered as 5 U.S.C. 3318(c)(2) and (c)(4)). See 550 F.3d at 1353–54. OPM issued guidance on the Gingery decision on February 9, 2009, and clarified this guidance on March 12, 2009. However, OPM has not yet amended the text of the regulation. We are proposing to amend section 302.401(b) of our regulations to conform to the pass-over procedures in 5 U.S.C. 3318(c). OPM notes that Public Law 114–137, the Competitive Service Act of 2015, recently amended 5 U.S.C. 3318 and 3319 to permit the use of shared certificates. This proposed rule does not address the Competitive Service Act. OPM will initiate a separate regulatory action to implement the Competitive Service Act. E.O. 12866, Regulatory Review This rule has been reviewed by the Office of Management and Budget in accordance with E.O. 12866. under 5 U.S.C. 1104, Pub. L. 95–454, sec. 3(5); § 302.501 also issued under 5 U.S.C. 7701 et seq. 2. Amend § 302.101 to revise paragraph (c)(6) and to add paragraph (c)(11) to read as follows: ■ § 302.101 Positions covered by regulations. * * * * * (c) * * * (6) Positions included in Schedule A (see subpart C of part 213 of this chapter) for which OPM agrees with the agency that the positions should be included hereunder and states in writing that an agency is not required to fill positions according to the procedures in this part. * * * * * (11) Appointment of persons with intellectual disabilities, severe physical disabilities, or psychiatric disabilities to positions filled under 5 CFR 213.3102(u). ■ 3. Revise § 302.401(b) to read as follows: § 302.401 Selection and appointment. * * * * * (b) Passing over a preference applicant. When an agency, in making an appointment as provided in paragraph (a) of this section, passes over the name of a preference eligible, it shall follow the procedures in 5 U.S.C. 3318(c) and 3319(c)(7) as described in the Delegated Examining Operations Handbook. An agency may discontinue consideration of the name of a preference eligible for a position as described in 5 U.S.C. 3318(c). [FR Doc. 2016–28783 Filed 11–29–16; 8:45 am] BILLING CODE 6325–39–P Regulatory Flexibility Act I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would apply only to Federal agencies and employees. DEPARTMENT OF JUSTICE List of Subjects in 5 CFR Part 302 8 CFR Part 1240 [EOIR No. 180; AG Order No. 3780–2016] Government employees. RIN 1125–AA25 sradovich on DSK3GMQ082PROD with PROPOSALS U.S. Office of Personnel Management. Beth F. Cobert, Acting Director. Procedures Further Implementing the Annual Limitation on Suspension of Deportation and Cancellation of Removal Accordingly, OPM is proposing to revise 5 CFR part 302 as follows: Executive Office for Immigration Review, Department of Justice. ACTION: Notice of proposed rulemaking. AGENCY: PART 302—EMPLOYMENT IN THE EXCEPTED SERVICE 1. The authority citation for part 302 continues to read as follows: ■ Authority: 5 U.S.C. 1302, 3301, 3302, 3317, 3318, 3320, 8151, E.O. 10577 (3 CFR 1954– 1958 Comp., p. 218); § 302.105 also issued VerDate Sep<11>2014 16:37 Nov 29, 2016 Executive Office for Immigration Review Jkt 241001 The Department of Justice proposes to amend the regulations of the Executive Office for Immigration SUMMARY: PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 86291 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 E:\FR\FM\30NOP1.SGM 30NOP1 86292 Federal Register / Vol. 81, No. 230 / Wednesday, November 30, 2016 / Proposed Rules 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. sradovich on DSK3GMQ082PROD with PROPOSALS 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 VerDate Sep<11>2014 16:37 Nov 29, 2016 Jkt 241001 adjustment of status.1 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). In February 1997, EOIR reached the fiscal year 1997 annual limitation and the Chief Immigration Judge directed 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. PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 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 E:\FR\FM\30NOP1.SGM 30NOP1 Federal Register / Vol. 81, No. 230 / Wednesday, November 30, 2016 / Proposed Rules sradovich on DSK3GMQ082PROD with PROPOSALS 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 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 firstin-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. VerDate Sep<11>2014 16:37 Nov 29, 2016 Jkt 241001 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. 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 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 86293 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 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 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. E:\FR\FM\30NOP1.SGM 30NOP1 sradovich on DSK3GMQ082PROD with PROPOSALS 86294 Federal Register / Vol. 81, No. 230 / Wednesday, November 30, 2016 / Proposed Rules 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 multi5 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). VerDate Sep<11>2014 16:37 Nov 29, 2016 Jkt 241001 year backlog grows, more total cases are held, and aliens must wait longer for resolution of their cases.7 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. 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 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). 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). 9 This result is also consistent with views expressed by one commenter to the 1998 rule. See Section III infra. PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 cancellation or suspension once grant numbers become available.10 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 C. Technical Amendment to 8 CFR 1240.21(c) The final sentence of the introductory text of § 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 §§ 1003.1(d)(3) and 1003.39 of this chapter.’’ The citation to § 1003.1(d)(3), which relates to the Board’s scope of review, is erroneous. Therefore, the Department proposes to replace the reference to § 1003.1(d)(3) with a reference to § 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 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. 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. E:\FR\FM\30NOP1.SGM 30NOP1 Federal Register / Vol. 81, No. 230 / Wednesday, November 30, 2016 / Proposed Rules 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. sradovich on DSK3GMQ082PROD with PROPOSALS 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). VerDate Sep<11>2014 16:37 Nov 29, 2016 Jkt 241001 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 foreignbased 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 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 86295 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). E:\FR\FM\30NOP1.SGM 30NOP1 86296 Federal Register / Vol. 81, No. 230 / Wednesday, November 30, 2016 / Proposed Rules 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: 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). 2. Amend § 1240.21 by: ■ a. Removing and reserving paragraph (b); and ■ b. Revising paragraphs (c) introductory text, and (c)(1) to read as follows: ■ § 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. sradovich on DSK3GMQ082PROD with PROPOSALS * * * * (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 §§ 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. * * * * * [FR Doc. 2016–28590 Filed 11–29–16; 8:45 am] BILLING CODE 4410–30–P VerDate Sep<11>2014 16:37 Nov 29, 2016 Jkt 241001 [Docket No. FAA–2016–9452] Airworthiness Criteria: Glider Design Criteria for Stemme AG Model Stemme S12 Powered Glider ■ Dated: November 21, 2016. Loretta E. Lynch, Attorney General. Federal Aviation Administration 14 CFR Part 21 PART 1240—PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED STATES * DEPARTMENT OF TRANSPORTATION Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed design criteria. AGENCY: This notice announces the availability of and requests comments on the proposed design criteria for the Stemme AG model Stemme S12 powered glider. The Administrator finds the proposed design criteria, which make up the certification basis for the Stemme S12, acceptable.These final design criteria will be published in the Federal Register. DATES: Comments must be received on or before December 30, 2016. ADDRESSES: Send comments identified by docket number FAA–2016–9452 using any of the following methods: • Federal eRegulations Portal: Go to https://www.regulations.gov and follow the online instructions for sending your comments electronically. • Mail: Send comments to Docket Operations, M–30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12–140, West Building Ground Floor, Washington, DC 20590–0001. • Hand Delivery of Courier: Take comments to Docket Operations in Room W12–140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m., and 5 p.m., Monday through Friday, except Federal holidays. • Fax: Fax comments to Docket Operations at 202–493–2251. Privacy: The FAA will post all comments it receives, without change, to https://regulations.gov, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT’s complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477–19478), as well as at https://DocketsInfo.dot.gov. Docket: Background documents or comments received may be read at https://www.regulations.gov at any time. SUMMARY: PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 Follow the online instructions for accessing the docket or go to the Docket Operations in Room W12–140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m., and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Mr. Jim Rutherford, Federal Aviation Administration, Small Airplane Directorate, Aircraft Certification Service, 901 Locust, Room 301, Kansas City, MO 64106, telephone (816) 329– 4165, facsimile (816) 329–4090. SUPPLEMENTARY INFORMATION: Comments Invited We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the design criteria, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments. We will consider all comments received on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these airworthiness design criteria based on received comments. Background On January 08, 2016, Stemme AG submitted an application for type validation of the Stemme S12 in accordance with the Technical Implementation Procedures for Airworthiness and Environmental Certification Between the FAA and the European Aviation Safety Agency (EASA), Revision 5, dated September 15, 2015. The Stemme S12 is a two-seat, self-launching, powered glider with a liquid cooled, turbocharged engine mounted in the center fuselage, an indirect drive shaft, and a fully-foldable, variable-pitch composite propeller in the nose. It is constructed from glass and carbon fiber reinforced composites, features a conventional T-type tailplane, and has a retractable main landing gear. The glider has a maximum weight of 1,984 pounds (900 kilograms) and may be equipped with an optional dual-axis autopilot system. EASA type certificated the Stemme S12 under Type Certificate Number (No.) EASA.A.054 on March 11, 2016. The associated EASA Type Certificate Data Sheet (TCDS) No. EASA.A.054 defined the certification basis Stemme AG submitted to the FAA for review and acceptance. The applicable requirements for glider certification in the United States can be E:\FR\FM\30NOP1.SGM 30NOP1

Agencies

[Federal Register Volume 81, Number 230 (Wednesday, November 30, 2016)]
[Proposed Rules]
[Pages 86291-86296]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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:
---------------------------------------------------------------------------

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

    [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.
---------------------------------------------------------------------------

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

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\
---------------------------------------------------------------------------

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

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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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

    \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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