[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR240.70]



[Page 453-454]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

PART 240_PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED 

STATES--Table of Contents

 

  Subpart H_Applications for Suspension of Deportation or Special Rule 

      Cancellation of Removal Under Section 203 of Pub. L. 105-100

 

Sec. 240.70  Decision by the Service.



    (a) Service of decision. Unless the asylum officer has granted the 

application for suspension of deportation or special rule cancellation 

of removal at the time of the interview or as otherwise provided by an 

Asylum Office, the applicant will be required to return to the Asylum 

Office to receive service of the decision on the applicant's 

application. If the applicant does not speak English fluently, the 

applicant shall bring an interpreter when returning to the office to 

receive service of the decision.

    (b) Grant of suspension of deportation. An asylum officer may grant 

suspension of deportation to an applicant eligible to apply for this 

relief with the Service who qualifies for suspension of deportation 

under former section 244(a)(1) of the Act, as in effect prior to April 

1, 1997, who is not an alien described in former section 241(a)(4)(D) of 

the Act, as in effect prior to April 1, 1997, and who admits 

deportability under any law of the United States, excluding former 

section 241(a)(2), (3), or (4) of the Act, as in effect prior to April 

1, 1997. If the Service has made a preliminary decision to grant the 

applicant suspension of deportation under this subpart, the applicant 

shall be notified of that decision and will be asked to sign an 

admission of deportability or inadmissibility. The applicant must sign 

the admission before the Service may grant the relief sought. If 

suspension of deportation is granted, the Service shall adjust the 

status of the alien to lawful permanent resident, effective as of the 

date that suspension of deportation is granted.

    (c) Grant of cancellation of removal. An asylum officer may grant 

cancellation of removal to an applicant who is eligible to apply for 

this relief with the Service, and who qualifies for cancellation of 

removal under section 309(f)(1)(A) of IIRIRA, as amended by section 203 

of NACARA, and who admits deportability under section 237(a), excluding 

paragraphs (2), (3), and (4), of the Act, or inadmissibility under 

section 212(a), excluding paragraphs (2) or (3), of the Act. If the 

Service has made a preliminary decision to grant the applicant 

cancellation of removal under this subpart, the applicant shall be 

notified of that decision and asked to sign an admission of 

deportability or inadmissibility. The applicant must sign the concession 

before the Service may grant the relief sought. If the Service grants 

cancellation of removal, the Service shall adjust the status of the 

alien to lawful permanent resident, effective as of the date that 

cancellation of removal is granted.

    (d) Referral of the application. Except as provided in paragraphs 

(e) and (f) of this section, and unless the applicant is granted asylum 

or is in lawful immigrant or non-immigrant status, an asylum officer 

shall refer the application for suspension of deportation or special 

rule cancellation of removal to the Immigration Court for adjudication 

in deportation or removal proceedings, and will provide the applicant 

with written notice of the statutory or regulatory basis for the 

referral, if:

    (1) The applicant is not clearly eligible for suspension of 

deportation under former section 244(a)(1) of the Act as in effect prior 

to April 1, 1997, or for cancellation of removal under section 

309(f)(1)(A) of IIRIRA, as amended by NACARA;

    (2) The applicant does not appear to merit relief as a matter of 

discretion;

    (3) The applicant appears to be eligible for suspension of 

deportation or special rule cancellation of removal under this subpart, 

but does not admit deportability or inadmissibility; or

    (4) The applicant failed to appear for a scheduled interview with an 

asylum officer or failed to comply with fingerprinting processing 

requirements and such failure was not excused by the Service, unless the 

application is dismissed.



[[Page 454]]



    (e) Dismissal of the application. An asylum officer shall dismiss 

without prejudice an application for suspension of deportation or 

special rule cancellation of removal submitted by an applicant who has 

been granted asylum, or who is in lawful immigrant or non-immigrant 

status. An asylum officer may also dismiss an application for failure to 

appear, pursuant to Sec. 240.68. The asylum officer will provide the 

applicant written notice of the statutory or regulatory basis for the 

dismissal.

    (f) Special provisions for certain ABC class members whose 

proceedings before EOIR were administratively closed or continued. The 

following provisions shall apply with respect to an ABC class member who 

was in proceedings before the Immigration Court or the Board, and those 

proceedings were closed or continued pursuant to the ABC settlement 

agreement:

    (1) Suspension of deportation or asylum granted. If an asylum 

officer grants asylum or suspension of deportation, the previous 

proceedings before the Immigration Court or Board shall be terminated as 

a matter of law on the date relief is granted.

    (2) Asylum denied and application for suspension of deportation not 

approved. If an asylum officer denies asylum and does not grant the 

applicant suspension of deportation, the Service shall move to 

recalendar proceedings before the Immigration Court or resume 

proceedings before the Board, whichever is appropriate. The Service 

shall refer to the Immigration Court or the Board the application for 

suspension of deportation. In the case where jurisdiction rests with the 

Board, an application for suspension of deportation that is referred to 

the Board will be remanded to the Immigration Court for adjudication.

    (g) Special provisions for dependents whose proceedings before EOIR 

were administratively closed or continued. If an asylum officer grants 

suspension of deportation or special rule cancellation of removal to an 

applicant described in Sec. 240.61(a)(4) or (a)(5), whose proceedings 

before EOIR were administratively closed or continued, those proceedings 

shall terminate as of the date the relief is granted. If suspension of 

deportation or special rule cancellation of removal is not granted, the 

Service shall move to recalendar proceedings before the Immigration 

Court or resume proceedings before the Board, whichever is appropriate. 

The Service shall refer to the Immigration Court or the Board the 

application for suspension of deportation or special rule cancellation 

of removal. In the case where jurisdiction rests with the Board, an 

application for suspension of deportation or special rule cancellation 

of removal that is referred to the Board will be remanded to the 

Immigration Court for adjudication.

    (h) Special provisions for applicants who depart the United States 

and return under a grant of advance parole while in deportation 

proceedings. Notwithstanding paragraphs (f) and (g) of this section, for 

purposes of adjudicating an application for suspension of deportation or 

special rule cancellation of removal under this subpart, if an applicant 

departs and returns to the United States pursuant to a grant of advance 

parole while in deportation proceedings, including deportation 

proceedings administratively closed or continued pursuant to the ABC 

settlement agreement, the deportation proceedings will be considered 

terminated as of the date of applicant's departure from the United 

States. A decision on the NACARA application shall be issued in 

accordance with paragraph (a), and paragraphs (c) through (e) of this 

section.