Ms. Margaret M. Philbin
General Counsel
Executive Office for Immigration Review
Suite 2400
5107 Leesburg Pike
Falls Church, VA 22041

Re: Comments to EOIR interim rule providing for implementation of a transitional policy for processing suspension of deportation or cancellation of removal cases [EOIR No. 118I; AG Order No. 2118-97] (62 Federal Register 51760).

Dear Ms. Philbin:

These comments are submitted on behalf of the American Immigration Lawyers Association and the National Immigration Project of the National Lawyers Guild in response to the publication of the interim rule directing the entrance of conditional orders in suspension of deportation and cancellation of removal cases.

The American Immigration Lawyers Association (AILA) is a voluntary bar association of over 5,000 lawyers and law professors who practice and teach in the area of immigration and nationality law. AILA’s objectives include the advancement of the administration of law pertaining to immigration, nationality and naturalization, to promote reforms in these laws and to facilitate the administration of justice in the field.

The National Immigration Project of the National Lawyers Guild (NIP) is a national organization of attorneys, law students and legal advocates engaged in immigration and nationality law projects of public and social concern which promote the fair and human administration of justice relating to immigration law; insure the fair and equal application and adjudication of the policies and programs related thereto; and facilitate the meaningful exercise of civil and constitutional rights regardless of race, religion, nationality, or economic position.

The collective expertise of these two organizations and their members includes significant experience in the field of deportation defense, making AILA and NIP uniquely qualified to assess the impact of the interim rule.

As an initial matter, we appreciate the opportunity to submit these comments on the interim rule.

The Nicaraguan Adjustment and Central American Relief Act (NACARA), enacted on November 19, 1997, profoundly affects the population to whom these regulations apply. All cases where a decision was made granting suspension of deportation or cancellation of removal before April 1, 1997 are exempt from the cap. Additionally, El Salvadorans, Guatemalans and natives of Warsaw Pact countries designated under NACARA are exempt from the cap.

The EOIR should withdraw this interim rule and move to implement §309(c)(7) of IIRAIRA and §240A(b)(3) of the INA permanently. The enactment of NACARA significantly reduces the backlog of reserved cases and thereby reduces the pressure to enact regulations to handle them. NACARA also produces new legal provisions that require interpretation by regulation. For example, the provision that “decisions ... made prior to April 1, 1997” are exempt from the cap requires a definition of that phrase. The promulgation of this interim rule will only serve to confuse matters.

Further, it is not at all clear that more than 4,000 aliens will be granted cancellation of removal in a given fiscal year. The stop-time rule limits the number of people eligible to begin with and the stricter requirements of §240A(b) will certainly make the pool of successful applicants smaller.

The interim rule, as drafted, creates a morass of legal uncertainties and problems as pointed out in our comments. The immediate withdrawal of the regulations will halt the creation of this ambiguously defined class of aliens already being created by Immigration Judges around the country, allow both the EOIR and the Immigration Service to consider all the implications of instituting a 4,000 cap program, and provide for an orderly and rational method for its administration.

An appropriate method for implementing the cap provision, we submit, would be the institution of a priority date system for those aliens granted conditional suspension or cancellation. The alien’s case would be placed on a waiting list with the date and time of the Immigration Judge’s order granting suspension or cancellation and adjustment would be granted when the alien’s turn is reached on the waiting list. Such a scheme is in keeping with NACARA and the explanatory memorandum presented to Congress. See Cong.Record S12267 (November 9, 1997).

Should the EOIR choose to proceed with these interim rules, we submit the following comments:

Conditional grant of suspension of deportation or cancellation of removal

The rule should be amended to clarify that the sole condition of f the conditional order is the availability of one of the 4,000 slots reserved per year for recipients of suspension of deportation or cancellation of removal. No other event may trigger a rescission of the conditional grant.

Alternate order of voluntary departure or deportation

We believe that the requirement that an alternate order of voluntary departure or deportation be entered by an Immigration Judge in all cases is unwise and unnecessary. An alternate order, under the current interim regulation, should only be activated upon a reversal by the Board of Immigration Appeals of the decision of the Immigration Judge to grant suspension or cancellation. Rather than have an alternate order in those cases, the matter may be remanded to the Immigration Judge for an alternate order, or in the alternative, the alternate order may be entered only in cases where the government indicates it will appeal a grant of suspension or cancellation, on the merits, to the BIA. If the Board sustains the Immigration Judge’s grant of suspension or cancellation, the alternate order would then be deleted.

If the provision for an alternate order of voluntary departure and deportation in every case is retained, the rule should be amended to add that, in the case of rescission, the matter is to be automatically remanded to the Immigration Judge before a determination is made that the alternate order shall take effect. This additional due process provision is especially needed because of the future uncertainties regarding these cases. Further rule making by the Justice Department to implement the cap is promised. Any future substantive regulations implementing the cap provision may negatively affect an alien already granted conditional suspension or cancellation with an alternate order of voluntary departure or deportation under these interim rules. Without an additional hearing before actual rescission, such an alien would be left in the untenable position of never being able to challenge the reason why the government decides to effectuate the alternate order of voluntary departure or deportation.

The entry of alternate orders of voluntary departure and deportation in all cases will result in an unnecessary flood of appeals to the BIA. Because the full consequence of having conditional suspension or cancellation status is not known and because of the extreme prejudice an alternate order of deportation would cause, respondents and their counsel will feel compelled to appeal these orders to the BIA, despite an apparent grant of relief. Administrative efficiency, in addition to due process, call for the eradication of this section of the rule.

Appeal to the Board of Immigration Appeals

The interim rule raises troubling problems regarding the time frame for an appeal of the Immigration Judge’s order. The interim rule provides that the order conditionally granting an ap- plication for suspension or cancellation is appealable to the Board and that the time for appeal “shall run from the date of such order.” If the alien does not appeal within 30 days of the entry of the conditional order, that right appears to be forfeited, even if the conditional grant of suspension or cancellation is subsequently rescinded. Under this procedure the alien would only have the right to an administrative appeal from an order purporting to grant him or her a benefit and not at a later time when the alien is truly prejudiced by a rescission of the conditional grant and the activation of the alternate order of voluntary departure or deportation. To resolve this problem, the interim rule should be amended to provide for the automatic remand of the case to the Immigration Judge upon rescission, as stated above.

Voluntary Departure

The interim rule is vague in stating that “[t]he alternate order shall take effect if the condition is not ultimately removed.” The rule should be clear by providing that the period of voluntary departure only begins to run upon rescission of the conditional grant of suspension or cancellation.

Motions to reopen and reconsider

The rule should clarify that, for purposes of filing motions to reopen and motions to reconsider, the clock only begins to run upon the rescission of the conditional grant of suspension or cancellation of removal, and not upon entry of the original order granting conditional suspension or cancellation. Thus, for example, a conditional suspension or cancellation grantee who becomes eligible for adjustment of status while waiting for a number to become available could make an application for adjustment of status without being foreclosed for failure to file within 90 days from the entry of the order granting conditional suspension or cancellation. In cases where there is a rescission of conditional suspension or cancellation, the alien would also have an additional 90 days after rescission in which to request reopening of the removal proceedings in order to apply for alternative relief.

Employment Authorization

As the successful suspension or cancellation applicant will remain in the United States pending the availability of a number, the rule should clarify that the conditional suspension or cancellation beneficiary is entitled to employment authorization throughout the time they hold that status.

Because the length of time conditional suspension and cancellation grantees will remain in conditional status is unknown, it is important to provide for work authorization so that they may support themselves and their families. Battered spouses obtaining suspension under INA §244(a)(3) or cancellation of removal under INA §240(A)(b)(2) require employment authorization to enable them to flee their abusers.

No current regulatory provision for employment authorization at 8 C.F.R. §274 covers this status, thus a conditional suspension or cancellation recipient would face a denial of employment authorization without an added regulatory provision. Additionally, the rule should clarify that issuance of the Employment Authorization Document in these cases falls under 8 CFR §274a.12(a), “[a]liens authorized employment incident to status” and does not require proof of a prospective employer or a showing of economic necessity.

Advance Parole

Advance parole should also be available to all conditional suspension or cancellation recipients. Again, a lengthy stay by recipients in conditional status will make their need to travel temporarily outside of the U.S. inevitable. A departure unprotected by advance parole could subject such a person to self-deportation under 8 C.F.R . §241.7 because of the alternate order of deportation. The rule should also clarify that a returning conditional suspension grantee with advance parole is restored to the same status upon returning, including preservation of all the rights and benefits granted to conditional suspension grantees who have not left the United States. Nor should a prior unlawful presence trigger the three or ten year bar upon departure and return to the U.S. with advance parole.

Three and ten year bars

An alien in the U.S. under a conditional grant of suspension of deportation or cancellation of removal should not be considered “unlawfully present” for purposes of the three and ten year bars at INA §212(a)(9)(B), even if the condition is at some later time rescinded. This provision makes sense in light of the nature of the relief granted, i.e. permission to remain in the U.S. until a number under the quota becomes available. Additionally, an alien granted conditional suspension or cancellation should not be retroactively prejudiced by either the reversal of the grant by the BIA or court or by the subsequent rescission of the conditional grant.

This interpretation is in keeping with the September 19, 1997 memo from INS Acting Executive Associate Commissioner Paul W. Virtue regarding the three and ten year bars. Mr. Virtue’s memo provides that the accrual of unlawful presence, in cases where an immigration judge finds an applicant inadmissible or removable, but grants relief and the Service appeals, only begins if the Service prevails on appeal, and then only as of the date of the decision on appeal. Time in conditional resident status should count as time in legal permanent resident status for all purposes.

Upon the lifting of the condition, all time spent as a conditional suspension or cancellation grantee should count as time in legal permanent resident status for all purposes, including naturalization. Precedent exists for such treatment. For example, asylees and refugees are permitted to apply for adjustment of status after presence in the U.S. as asylees or refugees for a period of one year. The adjustment of status of asylees and refugees, however, is subject to a quota of 10,000 per year. Because of a backlog of applicants, the asylee or refugee must usually wait some time for adjustment of status after applying. Upon approval, the asylee's legal permanent residence is granted effective one year prior to approval. Those who enter as refugees are considered legal permanent residents as of the date of their arrival in the U.S. Similarly in this case, a conditional suspension or cancellation grantee should have the time spent in that status counted as legal permanent residence upon the lifting of the condition.

We hope that the Immigration Service and the Executive Office for Immigration Review consider our observations and comments when finalizing this rule.

Sincerely,

AMERICAN IMMIGRATION LAWYERS ASSOCIATION

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD

Claudia Slovinsky
Nadine Wettstein

While there will be further opportunity to comment in detail on proposed regulations integrating this phrase, we take this opportunity to urge EOIR to adopt a broad interpretation to include as decision made prior to April 1, 1997, cases that were reserved or held in abeyance prior to April 1, 1997