The Immigration and Naturalization Service and the Executive Office for Immigration Review have separately stated that they plan to issue a regulation to establish a procedure to terminate deportation or exclusion proceedings and initiate removal proceedings in cases where lawful permanent resident respondents would be eligible for relief in removal proceedings.  This regulation would implement section 309(c)(3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).  Pending promulgation of a regulation, the INS has issued field instructions that provide for administratively closing deportation and exclusion cases of LPRs who would qualify for this relief.

The INS announced its intent to issue such a regulation in a Nov. 19, 1998, letter from General Counsel Paul Virtue to Nancy Morawetz, a professor at New York University School of Law.  In a Dec. 9, 1998, memo issued by Chief Immigration Judge Michael J. Creppy, the EOIR confirmed that Attorney General Janet Reno has decided upon such a regulation.  Both the Virtue letter and the Creppy memo clarify that the regulation will allow the INS to terminate deportation or exclusion proceedings and initiate removal proceedings in cases where the respondents are LPRs who would be eligible for section 212(c) waivers but for the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and who would be eligible for cancellation of removal were they in removal proceedings.  The AEDPA barred section 212(c) relief for most LPRs who are deportable because of criminal convictions; in contrast, cancellation of removal is generally available to LPRs deportable because of criminal convictions, unless they have been convicted of an aggravated felony.  The procedure of terminating the old proceedings and initiating removal proceedings is termed "repapering."

The INS has issued field instructions under which aliens may request administrative closure of their cases pending issuance of the regulation.  The instructions also direct INS attorneys to inform aliens or their representatives of the option to request administrative closure, where the alien clearly appears to meet the criteria for repapering.  The instructions state that the INS should refuse to agree to administrative closure only where there are "unusually adverse factors" in the case, and only where the refusal is approved by the Office of the General Counsel.  The INS will not agree to join in a motion to reopen a proceeding for the purpose of administrative closure for repapering, but once a proceeding is reopened on an independent basis, the case may be administratively closed.