EOIR Memo on Suspension/Cancellation Cap Procedures
Memorandum September 29, 1998
To: All Immigration Judges
All Court Administrators
All Judicial Law Clerks
All Court Staff
From: The Office of the Chief Immigration Judge
Subject: Suspension/Cancellation Cap Memorandum #3 - Procedures on Handling Applications for Suspension/Cancellation Based on the Interim Regulation
I. Introduction
In our memorandum dated September 10, 1998, we informed you that the Department planned to issue a new regulation revising the procedures for implementing the annual cap on grants of cancellation of removal and suspension of deportation. This interim regulation will be published in the Federal Register on September 30, 1998. A copy of this regulation is attached.
This new regulation allows for the conversion of conditional grants of suspension of deportation/cancellation of removal in fiscal year 1998 to final, unconditional grants. It also eliminates conditional grants in the future and creates a process in which the Immigration Court and the Board of Immigration Appeals (BIA) can grant suspension of deportation or cancellation of removal without condition as long as a number within the annual cap is available. Once the annual cap has been reached, Immigration Judges must reserve decision, unless 1) the application can be pretermitted based on lack of statutory eligibility or 2) the alien is eligible for asylum or adjustment of status.
II. Conversion of Fiscal Year 1998 Conditional Grants
On September 30, 1998, conditional grants of suspension of deportation or cancellation of removal issued in fiscal year 1998, which are administratively final, will be converted to a final, unconditional grant by order of the Chief Immigration Judge or the Chairman of the BIA. In the next weeks, each individual who has a conditional grant which is administratively final will receive an order, signed by the Chief Immigration Judge or the Chairman of the BIA and dated September 30, 1998. The Immigration Court which issued the conditional grant order will receive two copies of the Chief Immigration Judge's order-one for the Record of Proceeding (ROP) and one for the INS. The Court Administrator must ensure that the order is placed in the ROP and served on the INS District Counsel's Office. The Office of Information and Program Analysis will change the code in these cases to "F." Immigration Courts need not perform any data entry on these cases. The ROP should then be prepared to be sent to the Federal Records Center.
III. Reserved Cases From Fiscal Year 1998
To the extent possible, all reserved decisions on applications for suspension of deportation or cancellation of removal made before October 1, 1998 must be completed on or before December 31, 1998. Within the next ten days, each Immigration Court will receive a list of these reserved decisions. By October 23, 1998, each Immigration Court must notify its Assistant Chief Immigration Judge of its plan to complete these cases on or before December 31, 1998.
IV. Suspension and Cancellation Cases in Fiscal Year 1999
A. Procedures for Granting Suspension/Cancellation Cases in Fiscal Year 1999
Under the interim regulation, which is effective on October 1, 1998, conditional grants can no longer be issued. Any suspension of deportation or cancellation of removal case in which an Immigration Judge is ready to issue a decision on or after October 1 1998, can be denied or granted without condition until further notice. The Immigration Courts will be notified if the cap is about to be reached.
In fiscal year 1999, the cap will be 4,000 suspension of deportation and cancellation of removal grants. Because of the limited supply of numbers, it is critical that Immigration Judges, in any decision granting suspension of deportation or cancellation of removal, state whether the alien is subject to the cap. In addition, the Immigration Judge's summary order must note whether the alien is subject to the cap. It is important to note that certain nationals of El Salvador, Guatemala, and the former Soviet bloc, described in section 203(a)(3) of NACARA and aliens applying for suspension of deportation under section 244(a)(3) of the Immigration and Nationality Act (as in effect before April 1, 1997) are not subject to the cap.
B. ANSIR Codes
The ANSIR data entry codes for applications for suspension of deportation or cancellation of removal which are granted by an Immigration Judge are as follows:
"F" - Suspension of deportation or cancellation of removal grant which is subject to the cap.
"G" - Suspension of deportation or cancellation of removal grant which is not subject to the cap (i.e. qualifies under 203 of NACARA or a suspension of deportation application as a battered spouse or child). It should be noted that a "G" can be entered only for nationals of the former Soviet bloc, El Salvador, or Guatemala. For those nationals of countries other than the former Soviet bloc, El Salvador and Guatemala who qualify under section 203(a) of NACARA as dependants and battered spouses and children granted suspension of deportation who are granted suspension of deportation or cancellation of removal, the Court Administrator must contact the Information and Program Analysis Office so that the appropriate code can be entered.
C. Concurrent Applications for Relief
It is also important to note that under the interim regulation at 8 C.F.R. section 204.21(c)(2), applications for suspension of deportation or cancellation of removal must be denied in the exercise of discretion, regardless of whether the cap has been reached, if the Immigration Judge determines that the alien is eligible for asylum or adjustment of status. In this circumstance, the Immigration Judge's decision must state whether the respondent is statutorily eligible for suspension of deportation or cancellation of removal and if this relief would be granted in the exercise of discretion, but for the application of 8 C.F.R. section 240.21(c)(2). If the BIA sustains an appeal from a grant of asylum or adjustment of status, the case will be remanded to reconsider the application for suspension of deportation or cancellation of removal.
D. Reserving Decision When the Cap is Reached
This interim regulation, at 8 C.F.R. section 240.21(c)(1), provides that when the cap is reached in a fiscal year, any further decisions whether to grant or deny must be reserved until a number becomes available in a subsequent fiscal year. If the annual cap is reached in a fiscal year, Immigration Judges may, however, deny or pretermit an application based on lack of statutory eligibility. The interim regulation does not, however, allow denial or pretermission based on the following: grounds other than unfavorable exercise of discretion, a finding of lack of good moral character on a ground not enumerated in section 101(f) of the Act, a failure to establish exceptional and extremely unusual hardship to a qualifying relative in cancellation cases or, a failure to establish extreme hardship in suspension cases.
E. Scheduling Suspension/Cancellation Hearings
A suspension of deportation or cancellation of removal case shall not be rescheduled to an earlier date for the purpose of permitting an alien to have his or her case heard at a time when numbers may be available under the cap. Cases can be rescheduled for an earlier date if there exists a legitimate docket management situation.
If there are any questions regarding this instruction, please contact my Legal Counsel, Michael Straus at 703/305-1716.
/s/Michael J. Creppy
Chief Immigration Judge