[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR240.21]

[Page 440-443]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
      CHAPTER I--DEPARTMENT OF HOMELAND SECURITY (IMMIGRATION AND 
                             NATURALIZATION)
 
PART 240_PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED 
STATES--Table of Contents
 
                    Subpart B_Cancellation of Removal
 
Sec.  240.21  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.

    (a) Applicability of annual cap on suspension of deportation or 
cancellation of removal. (1) As used in this section, the term cap means 
the numerical limitation of 4,000 grants of suspension of deportation or 
cancellation of removal in any fiscal year (except fiscal year 1998, 
which has a limitation of 8,000 grants) pursuant to section 240A(e) of 
the Act.
    (2) The provisions of this section apply to grants of suspension of 
deportation pursuant to section 244(a) of the Act (as in effect before 
April 1, 1997) or cancellation of removal pursuant to section 240A(b) of 
the Act that are subject to a numerical limitation in section 240A(e) of 
the Act for any fiscal year. This section does not apply to grants of 
suspension of deportation or cancellation of removal to aliens described 
in section 309(c)(5)(C)(i) of the Illegal Immigration Reform and 
Immigrant Responsibility Act (IIRIRA), as amended by section 203(a)(1) 
of the Nicaraguan Adjustment and Central American Relief Act (NACARA), 
or aliens in deportation proceedings prior to April 1, 1997, who apply 
for suspension of deportation pursuant to section 244(a)(3) of the Act 
(as in effect prior to April 1, 1997). The Immigration Court and the 
Board shall no longer issue conditional grants of suspension of 
deportation or cancellation of removal as provided in 8 CFR 240.21 (as 
in effect prior to September 30, 1998).
    (b) Conditional grants of suspension of deportation or cancellation 
of removal in fiscal year 1998 cases--(1) Conversion to grants. Except 
with respect to cases described in paragraphs (b)(2) and (b)(3) of this 
section, EOIR shall grant suspension of deportation or cancellation of 
removal without condition prior to October 1, 1998, to the first 8,000 
aliens given conditional grants of suspension of deportation or 
cancellation of removal (as determined by the date of the immigration 
judge's order or, if the order was appealed to the Board, the date such 
order was entered by the Board.)
    (2) Treatment of certain nationals of Nicaragua and Cuba who 
received conditional grants of suspension of deportation or cancellation 
of removal on or before September 30, 1998--(i) NACARA adjustment 
request. An application for suspension of deportation or cancellation of 
removal filed by a national of Nicaragua or Cuba that was granted on a 
conditional basis on or before September 30, 1998, shall be deemed to be 
a

[[Page 441]]

request for adjustment of status pursuant to section 202 of NACARA 
(``NACARA adjustment'') for the period starting September 30, 1998 and 
ending December 31, 1998. The Service shall provide the applicant with 
notice of the date, time, and place at which the applicant must appear 
before a Service officer to perfect the request for NACARA adjustment. 
Such notice shall include an attestation form, Attestation of Alien and 
Memorandum of Creation of Record of Lawful Permanent Residence, Form I-
895, regarding the applicant's eligibility for NACARA adjustment.
    (ii) Submission of documentation. To perfect the request for NACARA 
adjustment, the applicant must appear before a Service officer on the 
date scheduled with the following documentation:
    (A) The order granting suspension of deportation or cancellation of 
removal on a conditional basis issued on or before September 30, 1998;
    (B) A completed, but unsigned Form I-895, which the applicant shall 
be required to sign and to attest to the veracity of the information 
contained therein in the presence of a Service officer;
    (C) Any applicable applications for waiver of inadmissibility; and
    (D) Two ``ADIT-style'' photographs; meeting the specifications in 
the instructions attached to Form I-895.
    (iii) Waiver of documentation and fees. The provisions of Sec.  
245.13(e) and (f) of this chapter relating to documentary requirements 
for NACARA adjustment are waived with respect to an alien seeking to 
perfect a request for adjustment of status pursuant to paragraph (b)(2) 
of this section. In addition, the fees for the NACARA adjustment and for 
any applications for waivers of inadmissibility submitted in conjunction 
with perfecting a request for NACARA adjustment shall be waived.
    (iv) NACARA adjustment determination. In determining an applicant's 
eligibility for NACARA adjustment under the provisions of paragraph 
(b)(2) of this section, unless the Service officer before whom the 
applicant appears is not satisfied that the applicant is admissible to 
the United States in accordance with section 202(a)(1)(B) of NACARA, and 
has continuously resided in the United States from December 1, 1995, 
through the date of appearance before the Service officer (not counting 
an absence or absences from the United States totaling 180 days or less 
or any absences that occurred pursuant to advance authorization for 
parole (Form I-512 issued by the Service)), the Service officer shall 
accept an alien's attestation of admissibility and/or continuous 
physical presence as sufficient evidence that the applicant has met the 
admissibility and/or continuous physical presence requirement for NACARA 
adjustment. If the Service officer grants NACARA adjustment, then the 
Service officer shall create a record of lawful permanent residence and 
the prior order granting suspension of deportation or cancellation of 
removal on a conditional basis shall be automatically vacated and the 
deportation or removal proceedings shall be automatically terminated. 
The Service officer (whose decision in this regard is not subject to 
appeal) shall not adjust the applicant to lawful permanent resident 
status pursuant to section 202 of NACARA if:
    (A) The Service officer is not satisfied that the applicant is 
eligible for NACARA adjustment and so indicates on the attestation form; 
or
    (B) The applicant indicates on the attestation form that he or she 
does not wish to receive NACARA adjustment.
    (v) Automatic conversion. If the Service officer does not adjust the 
applicant to lawful permanent resident status pursuant to section 202 of 
NACARA, the applicant's conditional grant of suspension of deportation 
or cancellation of removal shall be automatically converted to a grant 
of suspension of deportation or cancellation of removal. Upon such a 
conversion, the Service shall create a record of lawful permanent 
residence based upon the grant of suspension of deportation or 
cancellation of removal.
    (vi) Failure to appear. An alien who fails to appear to perfect his 
or her request for NACARA adjustment shall have his or her conditional 
grant of suspension of deportation or cancellation of removal 
automatically converted by the Immigration Court or the

[[Page 442]]

Board to a grant of suspension of deportation or cancellation of removal 
effective December 31, 1998.
    (3) Conditional grants not converted in fiscal year 1998. The 
provisions of paragraphs (b)(1) and (b)(2) of this section for granting 
relief shall not apply with respect to:
    (i) Any case in which a conditional grant of suspension of 
deportation or cancellation of removal is pending on appeal before the 
Board as of September 30, 1998 or, if the right to appeal to the Board 
has not been waived, the time for an appeal has not expired. After the 
Board issues its decision or the time for appeal has expired, the 
conditional grant shall be converted to a grant when a grant is 
available.
    (ii) Any other conditional grant not described in paragraphs (b)(1), 
(b)(2) or (b)(3)(i) of this section, which was not converted to a grant 
in fiscal year 1998. Such a conditional grant shall be converted to a 
grant when a grant is available.
    (4) Motion to reopen. The Service may file a motion to reopen within 
90 days after the alien is issued a grant of suspension of deportation 
or cancellation of removal pursuant to paragraphs (b)(1), (b)(2), or 
(b)(3) of this section, if after the issuance of a conditional grant by 
the Immigration Court or the Board the applicant committed an act that 
would have rendered him or her ineligible for suspension of deportation 
or cancellation or removal at the time of the conversion.
    (5) Travel for aliens conditionally granted suspension of 
deportation or cancellation of removal. If the Immigration Court or the 
Board granted suspension of deportation or cancellation of removal on a 
conditional basis or, if the conditional grant by the Immigration Court 
was appealed to the Board and the Board issued such a conditional grant, 
the alien shall retain the conditional grant of suspension of 
deportation or cancellation of removal upon return to the United States 
following a temporary absence abroad and be permitted to resume 
completion of his or her case, provided that:
    (i) The alien departed on or before September 30, 1998 with or 
without a grant of advance parole from the District Director; or
    (ii) The alien, prior to his or her departure from the United States 
after September 30, 1998, obtained a grant of advance parole from the 
District Director in accordance with section 212(d)(5) of the Act and 
Sec.  212.5 of this chapter and complied with the terms and conditions 
of the advance parole.
    (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.  3.1(d)(3) and 3.39 of this chapter.
    (1) Applicability of the annual cap. When grants are no longer 
available in a fiscal year, further decisions to grant or deny such 
relief shall be reserved until such time as a grant becomes available 
under the annual limitation in a subsequent fiscal year. 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. The basis of such denial or pretermission may 
not be based 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 Act, 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.
    (2) Aliens applying for additional forms of relief. Whether or not 
the cap has been reached, the Immigration Court or the Board shall 
adjudicate concurrently all other forms of relief for

[[Page 443]]

which the alien has applied. Applications for suspension of deportation 
or cancellation of removal shall be denied in the exercise of discretion 
if the alien is granted asylum or adjustment of status, including 
pursuant to section 202 of NACARA, while the suspension of deportation 
or cancellation of removal application is pending. Where an appeal of a 
decision granting asylum or adjustment is sustained by the Board, a 
decision to deny as a matter of discretion an application for suspension 
of deportation or cancellation of removal on this basis shall be 
reconsidered.

[63 FR 52138, Sept. 30, 1998, as amended at 66 FR 6446, Jan. 22, 2001]