EOIR Memo with Procedures for Suspension/Cancellation

To: All Immigration Judges
All Court Administrators
All Judicial Law Clerks
All Court Personnel

From: Office of the Chief Immigration Judge

Subject: Procedures for Issuing Conditional Grant Orders for Suspension and Cancellation

As you were informed in my E-mail message of September 30, 1997, the Attorney General has signed a regulation providing for the issuance of conditional grants of suspension of deportation and cancellation of removal. A copy of those regulations, 8 CFR Section 240.21(a) is attached.

It is important to note that a conditional grant of suspension of deportation or cancellation of removal is an appealable order. Several points about the procedures should be followed in implementing this regulation. Note that this document is intended as guidance only. It in no way interprets or supersedes the regulation signed by the Attorney General; nor is it intended to interfere with your decision-making on the merits in individual cases.

1. Cases handled prior to October 1, 1997

Pursuant to the policies that were in effect for much of fiscal year 1997, many of you reserved decisions in cases involving applications for suspension of deportation or cancellation of removal. No action should be taken on any of those cases at this time. The Office of the Chief Immigration Judge will be sending out further guidance on handling these cases.

2. Cases handled on or after October 1, 1997

Four points should be emphasized:

a. Alternate orders of voluntary departure

It is important to note that under 8 CFR Section 240.21(a) when an Immigration Judge issues a conditional grant of suspension of deportation or cancellation of removal, he or she must also issue an alternate order of voluntary departure, deportation or removal. The voluntary departure order must state the period of voluntary departure in calendar days commencing on the date when it is determined that the condition (on the grant of suspension or cancellation of removal) will not be removed.

For example, the Order should be as follows:

Order: Suspension of deportation is hereby conditionally granted. In the alternative, if the condition is not removed, the respondent is granted voluntary departure for a period of ___ days, which will commence on the date that a determination is made that the condition will not be removed. If the respondent does not depart the United States by that date, [or by the date of any extension granted by the District Director] he/she shall be removed/deported.* (This order is available in ANSIR by entering new notice code C2.)

*Note: The bracketed phrase relating to an extension by the District Director of the Immigration and Naturalization Service can be deleted if the maximum period allowable by statute and regulation has already been granted.

The Immigration Judge must inform the alien of the right to appeal, and of the consequences for failure to appear under the removal order, including civil and criminal penalties pursuant to section 204(c)(4) and Section 274(D) of the Act.

b. Adjudicating concurrent applications for relief

Many applicants for suspension of deportation or cancellation of removal also have other concurrent applications for relief, especially applications for asylum or adjustment of status. The regulations state that any applicant who receives asylum or adjustment of status shall not receive a favorable exercise of discretion on the application for suspension of deportation or cancellation of removal. See 8 CFR 240.21(a). Therefore, for cases heard on or after October 1, 1997, before issuing any conditional grant of suspension or cancellation in a case that also has a pending asylum or adjustment application, the Immigration Judge must also decide the asylum or adjustment applications.

For example: In a situation where there is a pending asylum application filed in conjunction with an application for suspension of deportation or cancellation of removal, and the asylum application cannot be adjudicated due to the absence of the required records and database checks, the Immigration Judge cannot decide either application. Rather, the Immigration Judge must await the completion of the record and database checks before deciding either application. To do otherwise — to decide the suspension or cancellation application first — would leave the case only partially adjudicated and would run counter to the clear intent of the regulation. Once the records and data base checks have been favorably completed, although asylum or adjustment of status may be granted, the judge may not issue a conditional grant of suspension or cancellation. In such a case, if the Immigration Judge determines that the respondent is statutorily eligible for a grant of suspension or cancellation, that fact should be noted on the record. The Immigration Judge should state, however, that 8 CFR 240.21(a), precludes a favorable exercise of discretion on the suspension or cancellation application.

On the other hand, where there is a pending asylum application based on coercive population control measures (CPC) filed in conjunction with an application for suspension or cancellation of removal and the Immigration Judge is inclined to grant both forms of relief, the order should be as follows:

Order: Asylum is conditionally granted. Suspension of deportation/cancellation of removal is conditionally granted. In the event the condition related to asylum is removed, the conditional grant of suspension/cancellation of removal is rescinded and denied as a matter of discretion pursuant to 8 CFR 240.21(a). (This order is available in ANSIR by entering new notice code C2.)

c. Entries in the ANSIR system

If an Immigration Judge does issue a conditional grant of suspension of deportation or cancellation of removal, the following codes should be entered in ANSIR:

Step One: Enter code “C” (Conditional Grant) in the suspension/cancellation application completion field in Screen PF3.

Step Two: Enter code “R” (Relief Granted) in the decision code field on Screen PF3.

Step Three: Enter the date in the completion date field in Screen PF3.

(Do not make any entries in the Voluntary Departure field.)

d. Tracking:

On the Immigration Judge Worksheet, at the right of the Application Completion Field, the Immigration Judge should note the time that the decision was entered. A copy of the annotated Immigration Judge’s Worksheet should be provided to the Court Administrator, who at the end of each business day will fax the worksheets to Anthony Padden, Chief, Central Operations Unit at 703/305-1448. An E-mail should confirm the fax and list the names and A-numbers of those affected by the conditional grants of suspension/cancellation. The E-mail should be sent to the Chief Immigration Judge, the Assistant Chief Immigration Judge for your court, and Anthony Padden.

If you have any questions, please call Michael Straus, my counsel, at 703/305-1716.

Michael J. Creppy
Chief Immigration Judge

cc: Anthony C. Moscato
Director

Paul Schmidt
Chairman, BIA

Peggy Philbin
General Counsel

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