PART 240—VOLUNTARY DEPARTURE, SUSPENSION OF DEPORTATION AND SPECIAL RULE CANCELLATION OF REMOVAL Authority: 8 U.S.C. 1103; 1182, 1186a, 1224, 1225, 1226, 1227, 1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277 (112 Stat. 2681); 8 CFR part 2. Source: 62 FR 10367, Mar. 6, 1997, unless otherwise noted. Subpart A—Removal Proceedings [Reserved] Subpart B—Cancellation of Removal § 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. cap (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 Conversion to grants. (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 NACARA adjustment request. (ii) Submission of 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. (iv) NACARA adjustment determination. (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. (vi) Failure to appear. (3) Conditional grants not converted in fiscal year 1998. (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. (5) Travel for aliens conditionally granted suspension of deportation or cancellation of removal. (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 § 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. (1) Applicability of the annual cap. (2) Aliens applying for additional forms of relief. [63 FR 52138, Sept. 30, 1998, as amended at 66 FR 6446, Jan. 22, 2001] Subpart C—Voluntary Departure § 240.25 Voluntary departure—authority of the Service. (a) Authorized officers. (b) Conditions. (c) Decision. (d) Application. (1) Join in a motion to terminate the proceedings, and if the proceedings are terminated, grant voluntary departure; or (2) Join in a motion asking the immigration judge to permit voluntary departure in accordance with § 240.26. (e) Appeals. (f) Revocation. [62 FR 10367, Mar. 6, 1997, as amended at 67 FR 39258, June 7, 2002; 81 FR 62355, Sept. 9, 2016] Subpart D—Exclusion of Aliens (for Proceedings Commenced Prior to April 1, 1997) [Reserved] Subpart E—Proceedings To Determine Deportability of Aliens in the United States: Hearing and Appeal (for Proceedings Commenced Prior to April 1, 1997) [Reserved] Subpart F—Suspension of Deportation and Voluntary Departure (for Proceedings Commenced Prior to April 1, 1997) [Reserved] Subpart G—Civil Penalties for Failure To Depart [Reserved] Subpart H—Applications for Suspension of Deportation or Special Rule Cancellation of Removal Under Section 203 of Pub. L. 105-100 Source: 64 FR 27876, May 21, 1999, unless otherwise noted. § 240.60 Definitions. As used in this subpart the term: ABC American Baptist Churches Thornburgh, ABC class member (1) Any Guatemalan national who first entered the United States on or before October 1, 1990; and (2) Any Salvadoran national who first entered the United States on or before September 19, 1990. Asylum application pending adjudication by the Service Filed an application for asylum IIRIRA NACARA Registered ABC class member (1) In the case of an ABC (2) In the case of an ABC ABC § 240.61 Applicability. (a) Except as provided in paragraph (b) of this section, this subpart H applies to the following aliens: (1) A registered ABC (2) A Guatemalan or Salvadoran national who filed an application for asylum with the Service on or before April 1, 1990, either by filing an application with the Service or filing the application with the Immigration Court and serving a copy of that application on the Service. (3) An alien who entered the United States on or before December 31, 1990, filed an application for asylum on or before December 31, 1991, and, at the time of filing the application, was a national of the Soviet Union, Russia, any republic of the former Soviet Union, Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania, Hungary, Bulgaria, Albania, East Germany, Yugoslavia, or any state of the former Yugoslavia; (4) An alien who is the spouse or child of an individual described in paragraph (a)(1), (a)(2), or (a)(3) of this section at the time a decision is made to suspend the deportation, or cancel the removal, of the individual described in paragraph (a)(1), (a)(2), or (a)(3) of this section; (5) An alien who is: (i) The unmarried son or unmarried daughter of an individual described in paragraph (a)(1), (a)(2), or (a)(3) of this section and is 21 years of age or older at the time a decision is made to suspend the deportation, or cancel the removal, of the parent described in paragraph (a)(1), (a)(2), or (a)(3) of this section; and (ii) Entered the United States on or before October 1, 1990. (b) This subpart H does not apply to any alien who has been convicted at any time of an aggravated felony, as defined in section 101(a)(43) of the Act. § 240.62 Jurisdiction. (a) Office of International Affairs. (1) In the case of a national of El Salvador described in § 240.61(a)(1), the alien filed a complete asylum application on or before January 31, 1996 (with an administrative grace period extending to February 16, 1996), or otherwise met the asylum application filing deadline pursuant to the ABC (2) In the case of a national of Guatemala described in § 240.61(a)(1), the alien filed a complete asylum application on or before January 3, 1995, or otherwise met the asylum application filing deadline pursuant to the ABC (3) In the case of an individual described in § 240.61(a)(2) or (3), the individual's asylum application is pending adjudication by the Service; (4) In the case of an individual described in § 240.61(a)(4) or (5), the individual's parent or spouse has an application pending with the Service under this subpart H or has been granted relief by the Service under this subpart. (b) Immigration Court. (1) Certain ABC class members. ABC (ii) The alien is eligible for benefits of the ABC de novo (iii) The alien has not moved for and been granted a motion to recalendar proceedings before the Immigration Court or the Board to request suspension of deportation. (2) Spouses, children, unmarried sons, and unmarried daughters. (ii) The alien's spouse or parent is described in § 240.61(a)(1), (a)(2), or (a)(3) and has a Form I-881 pending with the Service; and (iii) The alien's proceedings before the Immigration Court have been administratively closed, or the alien's proceedings before the Board have been continued, to permit the alien to file an application for suspension of deportation or special rule cancellation of removal with the Service. § 240.63 Application process. (a) Form and fees. (b) Applications filed with EOIR. (c) Applications filed with the Service. (d) Conditions and consequences of filing. (1) The information provided in the application may be used as a basis for the initiation of removal proceedings, or to satisfy any burden of proof in exclusion, deportation, or removal proceedings; (2) The applicant and anyone other than a spouse, parent, son, or daughter of the applicant who assists the applicant in preparing the application must sign the application under penalty of perjury. The applicant's signature establishes a presumption that the applicant is aware of the contents of the application. A person other than a relative specified in this paragraph who assists the applicant in preparing the application also must provide his or her full mailing address; (3) An application that does not include a response to each of the questions contained in the application, is unsigned, or is unaccompanied by the required materials specified in the instructions to the application is incomplete and shall be returned by mail to the applicant within 30 days of receipt of the application by the Service; and (4) Knowing placement of false information on the application may subject the person supplying that information to criminal penalties under title 18 of the United States Code and to civil penalties under section 274C of the Act. [64 FR 27876, May 21, 1999, as amended at 74 FR 26939, June 5, 2009; 85 FR 46926, Aug. 3, 2020; 89 FR 6398, Jan. 31, 2024] § 240.64 Eligibility—general. (a) Burden and standard of proof. (b) Calculation of continuous physical presence and certain breaks in presence. (1) For applications for suspension of deportation made under former section 244 of the Act, as in effect prior to April 1, 1997, the burden of proof is on the applicant to establish that any breaks in continuous physical presence were brief, casual, and innocent and did not meaningfully interrupt the period of continuous physical presence in the United States. For purposes of evaluating whether an absence is brief, single absences in excess of 90 days, or absences that total more than 180 days in the aggregate will be evaluated on a case-by-case basis. An applicant must establish that any absence from the United States was casual and innocent and did not meaningfully interrupt the period of continuous physical presence. (2) For applications for special rule cancellation of removal made under section 309(f)(1) of IIRIRA, as amended by NACARA, the applicant shall be considered to have failed to maintain continuous physical presence in the United States if he or she has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days. The applicant must establish that any period of absence less than 90 days was casual and innocent and did not meaningfully interrupt the period of continuous physical presence in the United States. (3) For all applications made under this subpart, a period of continuous physical presence is terminated whenever an alien is removed from the United States under an order issued pursuant to any provision of the Act or the alien has voluntarily departed under the threat of deportation or when the departure is made for purposes of committing an unlawful act. (4) The requirements of continuous physical presence in the United States under this subpart shall not apply to an alien who: (i) Has served for a minimum period of 24 months in an active-duty status in the Armed Forces of the United States and, if separated from such service, was separated under honorable conditions, and (ii) At the time of the alien's enlistment or induction, was in the United States. (c) Factors relevant to extreme hardship. (d) Rebuttable presumption of extreme hardship for certain classes of aliens Presumption of extreme hardship. (2) Rebuttal of presumption. (3) Burden of proof. (4) Effect of rebuttal. de novo (ii) If the Immigration Court determines that extreme hardship will not result from deportation or removal from the United States, the application will be denied. [64 FR 27876, May 21, 1999; 64 FR 33386, June 23, 1999] § 240.65 Eligibility for suspension of deportation. (a) Applicable statutory provisions. (b) General rule. (1) The alien has been physically present in the United States for a continuous period of not less than 7 years immediately preceding the date the application was filed; (2) During all of such period the alien was and is a person of good moral character; and (3) The alien's deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. (c) Aliens deportable on criminal or certain other grounds. (1) The alien has been physically present in the United States for a continuous period of not less than 10 years immediately following the commission of an act, or the assumption of a status constituting a ground for deportation; (2) The alien has been and is a person of good moral character during all of such period; and (3) The alien's deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien, or to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. (d) Battered spouses and children. (1) The alien has been physically present in the United States for a continuous period of not less than 3 years immediately preceding the date the application was filed; (2) The alien has been battered or subjected to extreme cruelty in the United States by a spouse or parent who is a United States citizen or lawful permanent resident (or is the parent of a child of a United States citizen or lawful permanent resident and the child has been battered or subjected to extreme cruelty in the United States by such citizen or permanent resident parent); and (3) During all of such time in the United States the alien was and is a person of good moral character; and (4) The alien's deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or the alien's parent or child. § 240.66 Eligibility for special rule cancellation of removal. (a) Applicable statutory provisions. (b) General rule. (1) The alien is not inadmissible under section 212(a)(2) or (3) or deportable under section 237(a)(2), (3) or (4) of the Act (relating to criminal activity, document fraud, failure to register, and security threats); (2) The alien has been physically present in the United States for a continuous period of 7 years immediately preceding the date the application was filed; (3) The alien has been a person of good moral character during the required period of continuous physical presence; and (4) The alien's removal from the United States would result in extreme hardship to the alien, or to the alien's spouse, parent or child who is a United States citizen or an alien lawfully admitted for permanent residence. (c) Aliens inadmissible or deportable on criminal or certain other grounds. (1) The alien is inadmissible under section 212(a)(2) of the Act (relating to criminal activity), or deportable under paragraphs (a)(2) (other than section 237(a)(2)(A)(iii), relating to aggravated felony convictions), or (a)(3) of section 237 of the Act (relating to criminal activity, document fraud, and failure to register); (2) The alien has been physically present in the United States for a continuous period of not less than 10 years immediately following the commission of an act, or the assumption of a status constituting a ground for removal; (3) The alien has been a person of good moral character during the required period of continuous physical presence; and (4) The alien's removal from the United States would result in exceptional and extremely unusual hardship to the alien or to the alien's spouse, parent, or child, who is a United States citizen or an alien lawfully admitted for permanent residence. § 240.67 Procedure for interview before an asylum officer. (a) Fingerprinting requirements. (1) Confirmation from the FBI that an applicant does not have an administrative or criminal record; (2) Confirmation from the FBI that an applicant has an administrative or a criminal record; or (3) Confirmation from the FBI that two properly prepared fingerprint cards (Form FD-258) have been determined unclassifiable for the purpose of conducting a criminal background check and have been rejected. (b) Interview. (2) The applicant may have counsel or a representative present, may present witnesses, and may submit affidavits of witnesses and other evidence. (3) An applicant unable to proceed with the interview in English must provide, at no expense to the Service, a competent interpreter fluent in both English and a language in which the applicant is fluent. The interpreter must be at least 18 years of age. The following individuals may not serve as the applicant's interpreter: the applicant's attorney or representative of record; a witness testifying on the applicant's behalf; or, if the applicant also has an asylum application pending with the Service, a representative or employee of the applicant's country of nationality, or, if stateless, country of last habitual residence. Failure without good cause to comply with this paragraph may be considered a failure to appear for the interview for purposes of § 240.68. (4) The asylum officer shall have authority to administer oaths, verify the identity of the applicant (including through the use of electronic means), verify the identity of any interpreter, present and receive evidence, and question the applicant and any witnesses. (5) Upon completion of the interview, the applicant or the applicant's representative shall have an opportunity to make a statement or comment on the evidence presented. The asylum officer may, in the officer's discretion, limit the length of such statement or comment and may require its submission in writing. Upon completion of the interview, and except as otherwise provided by the asylum officer, the applicant shall be informed of the requirement to appear in person to receive and to acknowledge receipt of the decision and any other accompanying material at a time and place designated by the asylum officer. (6) The asylum officer shall consider evidence submitted by the applicant with the application, as well as any evidence submitted by the applicant before or at the interview. As a matter of discretion, the asylum officer may grant the applicant a brief extension of time following an interview, during which the applicant may submit additional evidence. [64 FR 27876, May 21, 1999, as amended at 76 FR 53791, Aug. 29, 2011] § 240.68 Failure to appear at an interview before an asylum officer or failure to follow requirements for fingerprinting. (a) Failure to appear for a scheduled interview without prior authorization may result in dismissal of the application or waiver of the right to an adjudication by an asylum officer. A written request to reschedule will be granted if it is an initial request and is received by the Asylum Office at least 2 days before the scheduled interview date. All other requests to reschedule the interview, including those submitted after the interview date, will be granted only if the applicant has a reasonable excuse for not appearing, and the excuse was received by the Asylum Office in writing within a reasonable time after the scheduled interview date. (b) Failure to comply with fingerprint processing requirements without reasonable excuse may result in dismissal of the application or waiver of the right to an adjudication by an asylum officer. (c) Failure to appear shall be excused if the notice of the interview or fingerprint appointment was not mailed to the applicant's current address and such address had been provided to the Office of International Affairs by the applicant prior to the date of mailing in accordance with section 265 of the Act and Service regulations, unless the asylum officer determines that the applicant received reasonable notice of the interview or fingerprinting appointment. § 240.69 Reliance on information compiled by other sources. In determining whether an applicant is eligible for suspension of deportation or special rule cancellation of removal, the asylum officer may rely on material described in § 208.12 of this chapter. Nothing in this subpart shall be construed to entitle the applicant to conduct discovery directed toward records, officers, agents, or employees of the Service, the Department of Justice, or the Department of State. § 240.70 Decision by the Service. (a) Service of decision. (b) Grant of suspension of deportation. (c) Grant of cancellation of removal. (d) Referral of the application. (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. (e) Dismissal of the application. (f) Special provisions for certain ABC class members whose proceedings before EOIR were administratively closed or continued. ABC ABC (1) Suspension of deportation or asylum granted. (2) Asylum denied and application for suspension of deportation not approved. (g) Special provisions for dependents whose proceedings before EOIR were administratively closed or continued. (h) Special provisions for applicants who depart the United States and return under a grant of advance parole while in deportation proceedings. ABC