July 13, 1998
Margaret M. Philbin
Executive Office for Immigration Review
5107 Leesburg Pike
Falls Church, VA 22041
Dear Ms. Philbin:
The American Immigration Law Foundation, the American Immigration Lawyers Association, and the Immigrant Legal Resource Center hereby submit the following comments in response to the interim regulations published on June 11, 1998, amending 8 CFR Part 3 in order to implement special procedures for motions to reopen proceedings pursuant to the terms of the Nicaraguan Adjustment and Central American Relief Act (NACARA).
The American Immigration Law Foundation is a not-for-profit organization whose mission is to increase public understanding of immigration law and policy, promote public service and professional excellence in immigration legal practice, and advance fundamental fairness in U.S. immigration law and its administration.
The American Immigration Lawyers Association is a voluntary bar association of more than 5,000 attorneys and law professors who practice and teach in the field of immigration and nationality law. AILA members represent businesses, families, and individuals in all aspects of benefits and enforcement proceedings before both the INS and EOIR. AILA’s objectives include the advancement of the law pertaining to immigration and naturalization, to promote reforms and to facilitate justice in the field.
The Immigrant Legal Resource Center is a California-based support center for agencies providing immigration legal assistance to low and moderate-income individuals and families. ILRC provides training, consultation, and support for practitioners and conducts advocacy on behalf of the rights of immigrants.
The undersigned organizations are strongly interested in the implementation of NACARA, because it represents a one-time-only opportunity for hundreds of thousands of de facto refugees in the United States to finally obtain relief from the fear of deportation and stabilize their lives. Although many of the NACARA class members may be represented by attorneys, it appears that the great majority will go forward in their cases pro se, and we urge that the statute be interpreted—as Congress clearly intended—as generously as possible and in a way that will permit all eligible persons, whether represented or not, a fair opportunity to argue their eligibility for benefits under the statute.
We applaud many of the provisions of these regulations. In particular, we believe it is definitely a step in the right direction to permit applicants filing motions to reopen by the statutory deadline of September 11, 1998, to do so without being required to submit at that time a completed application for suspension of deportation or cancellation of removal. We urge the INS and EOIR to be as generous as possible in giving applicants time to adequately prepare their cases.
We do, however, have serious concerns about five aspects of the interim regulations, primarily dealing in some respect with limitations on eligibility to file motions to reopen and/or the underlying application for suspension or cancellation. The first concern relates to the families of NACARA-eligible principals; the second relates to persons the regulations erroneously deem as barred from eligibility; the third relates to whether applicants must articulate their ineligibility for suspension or cancellation absent the NACARA provisions; fourth, whether persons who are statutorily eligible to file a motion to reopen may have that motion denied in the exercise of discretion, and therefore prevented from going forward; and finally, effect of pending FOIA requests on the ability of applicants to meet the final application filing deadline of February 8, 1999.
As preface to our specific comments, we would like to remind the INS and EOIR that Congress and the President explicitly urged that all the provisions of NACARA be interpreted in as generous a manner possible, with the least amount of burden necessary placed on applicants. In the "Explanatory Memorandum" concerning NACARA’s provisions, which was published without objection in the Congressional Record on November 9, 1997 (S12266-67), it was stated:
In recognition of the hardship that those eligible for relief suffered in fleeing their homelands and the delays and uncertainty that they have experienced in pursuing legal status in the United States, the Congress directs the Department of Justice and the Immigration and Naturalization Service to adjudicate applications for relief under this Act expeditiously and humanely. . . .
. . . [I]t would entirely consistent with Congressional intent for the Attorney General to establish procedures that keep to a minimum the burdens an applicant of good character has to shoulder in order to qualify for relief, both in terms of the paperwork the applicant has to complete and the showings that the applicant has to make. [Emphasis added.]. . . .
We note that because a number of the Eligible Class Members arrived in this country with no understanding of the court system and no English, some may have had court proceedings initiated against them and been tried in absentia. Others were minors too young to remember that they had been in immigration court. . . . We also note that nothing herein prevents the Attorney General from adopting an approach to the deadlines set out here consistent with application of ordinary tolling principles.
President Clinton, in a statement issued by the Office of the Press Secretary on November 19, 1997, expressed concern about the differential treatment offered by NACARA to the two classes of people affected, those eligible for simple adjustment of status, and those eligible for suspension or cancellation. He went on to state:
I believe, however, that these differences can be minimized in the implementation process. I therefore am asking the Attorney General to consider the ameliorative purposes of this legislation and the unique history and circumstances of the people covered by it in giving effect to its provisions.
Given the very specific, express desires of both Congress and the President with regard to the NACARA class, we urge the INS and EOIR to implement these provisions of the law (as well as other provisions) with the goal of facilitating as much as possible the ability of class members to seek and obtain relief.
The Interim Regulations Place an Unfair Burden
On Dependents of NACARA Principals
The interim regulations at 8 CFR 3.43(b)(v) state that spouses and minor children of NACARA principals who have outstanding orders of deportation can only file a motion to reopen if the principal has been granted suspension or cancellation of removal. Given the very short time frame—only two months remain until the deadline for filing—this rule would effectively bar nearly all eligible family members in such cases from obtaining the opportunity to apply for suspension or cancellation. Indeed, those NACARA principals who have never been in deportation proceedings will have no possibility of having their suspension or cancellation applications adjudicated before September 11, 1998. This is the vast majority of members of the class; their spouses and children with outstanding orders of deportation thus have no prospect, under the interim regulations’ interpretation, of being able to file a timely motion.
As a practical matter, it is now unlikely that more than a handful of NACARA-eligible principals will be able to have their suspension or cancellation applications adjudicated before September 11, 1998, so that their family members who must do so may file motions to reopen within the statutory deadline, if they are required to wait until the principal’s application has actually been granted. As such, this requirement would defeat the intent of Congress, which explicitly was to extend the benefit of NACARA to the families of eligible principals, in the form of waiving the limitations of Section 240A(d)(2) of the INA.
Although the language of NACARA at Sections 203(a)(C)(I)(III) and 203(g) is somewhat ambiguous, an overall reading of the statute, and the legislative history cited above, makes it clear that Congress intended to permit spouses and children of NACARA-eligible principals to be granted suspension or cancellation simultaneously with the principals (if eligible and in the exercise of discretion), rather than to require spouses and children to wait until the principal was granted before they would be deemed eligible to apply.
When Congress passed the NACARA legislation, it contemplated that those with final orders of deportation would have a period of 210 days in which to file motions to reopen and demonstrate statutory eligibility for relief. However, implementation of the program through regulation has been delayed for well over half that time period, which, combined with the size of the class and the current state of Immigration Court dockets, makes it impossible for all but a few dependents to meet the requirements of the interim regulations and still timely file a motion to reopen by September 11.
INS should instead do what it has done in the past, which is to recognize that delays not the fault of the affected aliens should not render those aliens unable to apply for a benefit which Congress clearly intended to permit them. Thus, the regulations should be modified to permit dependents with deportation orders to file motions to reopen only with a showing that the principal is statutorily eligible for suspension or cancellation under NACARA, and is applying or will apply.
There is precedent for such an interpretation. In August, 1993, the INS issued regulations implementing long-delayed amendments to IMMACT 90 regarding special immigrant status for minors in the custody of juvenile courts (codified at 8 CFR Section 204.1(c)(7)). Since many eligible minors had been unable to apply for adjustment of status because of the delay, and had subsequently "aged out" of eligibility, the INS permitted those persons to apply for adjustment who had been eligible on the date of passage of IMMACT 90, November 29, 1990.
Here, it would similarly be appropriate to recognize that because of the long delay in implementation, strict construction of NACARA would effectively bar many people from the benefit Congress intended for them. The INS has already gone halfway in that direction, in wisely permitting affected aliens to file motions to reopen without a full suspension or cancellation application attached. It would seem reasonable and fair to take the additional step of permitting motions to reopen for dependents which contemplate future adjudications of the applications of the principals.
Indeed, both the INS and EOIR have recognized this problem, in memoranda issued in May 1998 to INS District Counsels and Immigration Judges, giving NACARA dependents who are in proceedings until April of 1999 to demonstrate that they are in fact eligible and that their NACARA principal spouse or parent has applied for NACARA suspension or cancellation.
Reopening an applicant’s case to permit him to prove his eligibility for suspension or cancellation is not the same as a final adjudication of eligibility for and worthiness of that relief. As a matter of equity, and particularly given the extremely close deadline, NACARA dependents should be permitted to file motions to reopen stating that their principals are eligible to apply, not that they have already been granted suspension of deportation or cancellation of removal. Those dependents whose principals subsequently fail to apply or are denied suspension or cancellation would, of course, again be deportable (barring other relief).
The current relevant language of the interim rule at 8 CFR 3.43(4)(v) (italics added) provides that a spouse or child of a NACARA-eligible individual may submit a Special NACARA motion if he or she is:
(v) The spouse or child of a person described under paragraphs
(b)(4)(i) through (b)(4)(iv) of this section who was a spouse or child
of such person at the time the person was granted suspension of
deportation or cancellation of removal; "
We recommend changing the language of the subsection to more closely correspond to the language in the NACARA statute, § 203(a)(1), which amends IIRIRA § 309(c)(5) by adding § 309(c)(5)(C)(III), which provides NACARA benefits for a person who is (italics added):
``(III) is the spouse or child (as defined in section 101(b)(1) of the Immigration and Nationality Act) of an individual, at the time a decision is rendered to suspend the deportation, or cancel the removal, of such individual, if the individual has been determined to be described in this clause (excluding this subclause and subclause (IV));
Therefore, in order to give effect to the intent of the statute (and of the interim rule), we suggest that 8 CFR Section 3.43(4)(v) be changed so that it is clear that a spouse or child of a NACARA-eligible person may submit a Special NACARA Motion prior to the September 11, 1998 by replacing the "was granted" language which might be interpreted to require that suspension must have been granted to the NACARA principal before his or her spouse or child may submit a Special NACARA Motion.
The following is a suggested change in the language (changed portions in italics) to permit the spouse or child to submit a Special NACARA Motion where he or she is:
(v) The spouse or child of a person described under paragraphs (b)(4)(i) through (b)(4)(iv) of this section who isa spouse or child of such person at the time a decision is or may be in the future rendered to grant the person suspension of deportation or cancellation of removal; "
This language uses wording from the statutory language except for the phrase "or may be in the future rendered." We added this phrase to make it clear that suspension does not need to have been granted at the time of the filing of the Special NACARA Motion.
We also suggest the same change in the wording of 8 CFR Section 3.43(b)(vi) which deals with "unmarried sons and daughters" of NACARA principals.
The Interim Regulations Wrongly Bar
Certain Class Members from Eligibility for Cancellation
The interim regulations state at 8 CFR Section 3.43(a) that "[e]xcept as otherwise provided in this section, a motion to reopen [under NACARA] will be adjudicated under applicable statutes and regulations governing motions to reopen." In the supplementary information preceding the interim regulations, it is stated that certain categories of aliens are ineligible for suspension pursuant to the provisions of previous Section 242B(d) and (e), and for cancellation of removal pursuant to the provisions of new Section 240B(d). The comments state that these provisions, generally barring discretionary relief including suspension or cancellation for failing to depart voluntarily after being granted voluntary departure, or failing to appear for removal hearings, asylum hearings, or deportation, "are not waived by the provisions of NACARA. . . . [T]he Attorney General has no authority to waive these statutory bars in the cases where they do apply."
Although the language of the NACARA statute is ambiguous, we believe the intent of Congress was otherwise, and that this intent is indeed expressed in the statute. Section 203(c) of the NACARA statute amends Section 309 of IIRIRA to add the following:
Notwithstanding any limitation imposed by law on motions to reopen removal or deportation proceedings (except limitations premised on an alien’s conviction of an aggravated felony. . .) any alien who has become eligible for cancellation of removal or suspension of deportation as a result of the amendments made by Section 203 of the Nicaraguan Adjustment and Central American Relief Act may file one motion to reopen removal or deportation proceedings to apply for cancellation of removal or suspension of deportation. [Emphasis added.]
In drafting this provision, Congress explicitly singled out all aggravated felons, regardless of date of conviction or any other circumstances, as being statutorily ineligible for the relief contemplated in NACARA—but also explicitly waiving all other limitations on motions to reopen.
In the interim regulations, the INS has essentially ignored that language or, at best, presumed that it applied only to the procedural limitations on motions to reopen—specifically, the limit of one motion to reopen per applicant, which must be filed within 90 days of a final administrative order.
In fact, it clearly appears to have been the intent of Congress to waive all limitations, including substantive bars relating to eligibility for the underlying relief. By specifically barring aggravated felons, but no other stated categories, Congress indicated its intent to permit all others to apply for suspension or cancellation if otherwise eligible, notwithstanding bars to eligibility for applicants other than those defined by NACARA.
The overall intent of the NACARA legislation is remedial in nature, and generous by explicit design. Congress recognized that the passage of IIRIRA and subsequent interpretations of it had barred most or nearly all of the American Baptist Churches class, and a comparably defined class of those who fled the former Soviet bloc, from eligibility for suspension of deportation and/or cancellation of removal. It was Congress’ desire to restore that eligibility by removing the bars to that relief.
Indeed, Congress recognized that a significant number of the members of those two groups had been previously ordered deported, and explicitly created a provision permitting them to reopen their cases, notwithstanding the strict provisions of IIRIRA. In truth, of all those NACARA class members who are now in the United States, but who have an outstanding order of deportation or removal, presumably many would be barred from eligibility under Section 240B(d) or the previous Section 242B. It would clearly defeat Congress’ purpose to explicitly make this form of relief available to individuals in this situation, by interpreting the statute to bar virtually everyone from eligibility.
The Statute Does Not Require NACARA Applicants to State
That They Are Ineligible for Suspension or Cancellation
The interim regulations, at Section 3.43(b)(2) and (c)(ii), essentially require applicants to declare themselves ineligible to apply for suspension or cancellation, but for the provisions of NACARA—indeed, the regulations state that motions to reopen must articulate this in order to demonstrate prima facie eligibility for NACARA relief.
Such a requirement turns what Congress intended as an opportunity into yet another obstacle facing applicants, and goes beyond what the statute requires. Section 203(c), in amending Section 309 of IIRIRA, does no more than state that NACARA class members who were made ineligible for suspension or cancellation by the "stop-time" effect of service of Orders to Show Cause or Notices to Appear, pursuant to IIRIRA, but who were now eligible under NACARA’s special rules, could now file motions to reopen. It contains no requirement that applicants must state that they are ineligible under the normal non-NACARA rules.
The requirement that applicants must concede ineligibility for suspension or cancellation, but for NACARA, creates two unnecessary problems, neither of which Congress appears to have intended. First, without a statutory command to do so, it is inappropriate to require that applicants must declare themselves ineligible for another form of relief, thus conceivably waiving their right to apply for that relief, should further investigation or different circumstances make it desirable.
Second, and probably more important, it is believed that the majority of individuals filing NACARA motions to reopen are likely to be unrepresented, at least at the outset. Requiring pro se applicants to state—by September 11, less than two months from now—the rather complicated articulation that they are ineligible for suspension or cancellation, but for the application of Section 203 of NACARA, is certain to cause many such motions to reopen to be deemed inadequate, leading to denial. Congress intended to confer a benefit on this specific group of aliens, not to create another means by which their valid, eligible claims may be defeated. These provisions should be eliminated from the regulations.
Motions to Reopen Under NACARA Are Not Discretionary
Among the "applicable statutes and regulations governing motions to reopen" referred to in Section 3.43(a) of the interim regulations is Section 3.23(b)(3), which, inter alia, states that the Immigration Judge "has discretion to deny a motion to reopen even if the moving party has established a prima facie case for relief."
However, as stated above, the NACARA statute explicitly permits identified class members the right to file a motion to reopen in order to apply for suspension or cancellation, "notwithstanding any limitation imposed by law on motions to reopen removal or deportation proceedings," except the aggravated felony bar.
Motions to reopen under the terms of NACARA are in fact different from other, ordinary motions to reopen—as the statute takes great pains to emphasize. Congress’ intent was to permit all NACARA class members the opportunity to apply for suspension of deportation or cancellation of removal. As such, a NACARA motion to reopen is a specifically crafted avenue to apply for relief which differs from the ordinary definition of motions to reopen, which are in most other cases viewed as extraordinary in nature.
Certainly, adjudication of the underlying application for relief—suspension or cancellation—remains a discretionary remedy, not a matter of right. But for purposes of NACARA, it was Congress’ intent that class members who demonstrated prima facie statutory eligibility should be permitted to go forward with their applications. To permit Immigration Judges to deny the motion to reopen at the outset, without a full hearing on the merits of the applicant’s eligibility for suspension or cancellation, thwarts the design of the statute and the intent of Congress.
The February 8 Filing Deadline Should Be Extended
For Those Applicants With Outstanding FOIA Requests
The interim regulations at 8 CFR Section 3.43(c)(2) provide (italics added):
A motion to reopen filed without an application for suspension of deportation or cancellation of removal shall not be considered complete until it has been supplemented with the application for suspension of deportation or cancellation of removal and all other supporting documentation. An alien shall have until February 8, 1999 to complete that motion. A motion to reopen filed without an application and supporting documents will not be adjudicated until it is completed with the required application for suspension of deportation or cancellation of removal and supporting documents. The Service shall have 45 days from the date of service of the application for suspension of deportation or cancellation of removal to respond to that completed motion. If the alien fails to file the required application by 150 days after September 11, 1998 the motion will be denied as abandoned.
It is anticipated that a large number of NACARA motions to reopen will be filed by applicants who are not certain whether such a motion is required in their cases; in fact, it is our understanding that this is already taking place in some parts of the country. Practitioners will usually submit a FOIA (Freedom of Information Act) request at the same time. However, in many parts of the country the Service has not been responding to FOIAs for six months or more. As a result, many applicants will not have the information necessary to determine whether they must go forward with their applications before the Immigration Judge or not, or may be missing critical information necessary to completion of the application in a timely manner. Some service providers with very large numbers of clients in this situation are facing a nightmare in attempting to meet what is an unrealistic—and not statutorily mandated—deadline.
Since the February 8 filing deadline is not statutory, in order to reduce the administrative burden on the EOIR, we propose that persons who submit a timely FOIA with their alien registration number by a specified date such as September 11, 1998 be permitted to delay submitting their suspension or cancellation application until at least 60 days after receiving the Department's final response to the FOIA request, with extensions available for good cause shown; and in any event, no later than one year after the filing of the motion to reopen. By "final response" we mean the information that the Department of Justice chooses to provide the applicant from its (EOIR and INS) files.
In conclusion, we urge EOIR and INS to consider these issues carefully, and amend the interim regulations accordingly to better reflect what Congress intended. We appreciate this opportunity to share our views and remain available to discuss these issues in more detail with the Service and EOIR at any time.