AILF-AILA Comment to May 21 NACARA Rule

Comment Letter to INS on May 21, 1999 NACARA Interim Rule

July 15, 1999

Director, Policy Directives and Instructions Branch
Immigration and Naturalization Service
425 I Street, N.W., Room 5307
Washington, DC 20536

Re: Suspension of Deportation & Special Rule Cancellation of Removal (Section 203 of NACARA), 64 Fed. Reg. 27856 (May 21, 1999). INS No. 1915-98

In response to the interim rule implementing the above-mentioned provisions of NACARA, following are the comments of the American Immigration Law Foundation (AILF) and the American Immigration Lawyers Association (AILA). AILF is a non-profit organization that educates the public about the benefits of legal immigration through awareness programs, scholarships and services and mentors attorneys across the country on immigration law issues. AILA is a voluntary bar association of over 5,000 lawyers and law professors practicing and teaching in the field of immigration and nationality law. Its members represent the entire spectrum of those involved with our country's immigration system, and it is anticipated that AILA members will represent a great number of NACARA applicants. We are, therefore, in a unique position to provide preliminary insight on the impact of the interim rule from this perspective.

We commend the Department of Justice for many of the revisions from the November, 1998 proposed rule. Most significantly, we strongly support that the interim rule established a streamlined procedure and a rebuttable presumption for NACARA applicants that are class members in American Baptist Churches v. Thornburgh (ABC). The interim rule helps to bring to a close a long history of discriminatory treatment towards refugees who fled a region wracked by decades of civil war.

A fair and straightforward NACARA application process also serves the United States' national interest. When Central Americans obtain security and stability in the United States, they can earn higher wages, and send more money home to loved ones in Central America. These remittances are essential to sustaining the region's economy, protecting against renewed political instability, and helping Central America recover from Hurricane Mitch.

This comment first discusses expanding eligibility for the presumption of extreme hardship to include ABC class members’ dependants. It then raises concerns, suggestions and favorable comments in ascending numerical order. We thank you for carefully considering the following suggestions.

240.64(4)(d) Eligibility for the Rebuttable Presumption of Extreme Hardship

We strongly commend the Attorney General for establishing a rebuttable presumption of "extreme hardship" for ABC class members' NACARA cases. We agree with the Attorney General's assessment that, "the ABC class shares certain characteristics that give rise to a strong likelihood that an ABC class member or qualified relative would suffer extreme hardship if the class member were deported..."

These characteristics include:

  • having fled civil war and violence in their home countries;
  • living in the United States for a lengthy period of time with employment authorization and without the fear of deportation; and
  • developing significant community ties.

This evidentiary presumption will significantly reduce the time it takes both the Executive Office of Immigration Review (EOIR) and the Immigration and Naturalization Service (INS) to decide a NACARA suspension or cancellation case. This saving of time will contribute to administrative efficiency and save taxpayers considerable sums.

The interim rule's rebuttable presumption advances the twin policy goals of a more accessible process for applicants and administrative economy for both EOIR and INS. We believe that the Department of Justice could increase the benefits from these goals and promote family unity by extending the hardship presumption to the NACARA-eligible family members (spouse, children, and son or daughter) of the NACARA principals.

First, these immediate family members share many or the same characteristics of their parents or spouses for whom hardship is presumed. Most also fled the violence and civil wars in their countries. The INS has authorized many of these individuals to live and work in the United States. For example, the INS granted employment authorization and protection against removal to many children and spouses that were included in the ABC asylum applications of their parent or spouse. These family members face return to the same difficult economic, social and political situations in Guatemala and El Salvador. The NACARA dependents usually share with their ABC class member parents or spouses, the very characteristics that the regulation states give rise to a strong likelihood that an ABC class member would suffer extreme hardship. Therefore, there is a strong probability that the NACARA dependent would also suffer extreme hardship. Furthermore, a large number of NACARA principals' dependent children will suffer even more severe adjustment problems than their parents if forced to return to Guatemala or El Salvador. They speak English. They are going or have gone to school in the United States. In general, they are as much, or even more a part of the cultural fabric of the United States than their parents.

Even more significantly, all NACARA dependents will possess the additional strong hardship factor of having a lawful permanent resident spouse or parent because their applications may only be considered after the application of the principal is granted. Separation suffered by an U.S. citizen or lawful permanent resident spouse or parent from his spouse or child has been one of the most compelling factors in the hardship analysis in long-standing caselaw. The interim rule also lists this separation as a hardship factor.

Given the strong likelihood that the NACARA dependents will also be able to meet the hardship requirement, it also makes sense to extend the rebuttable presumption to them. Doing so will eliminate the confusing and cumbersome situation for adjudicators in which they have to apply a different evidentiary burden for members of the same family in the same interview or hearing.

An example will illustrate the benefits to the agencies of extending the presumption to NACARA dependents of principals from El Salvador and Guatemala. Assume that Pedro registered for TPS. He is therefore eligible for NACARA and for the rebuttable presumption of extreme hardship. He has worked in the U.S. for over 10 years, and lives with his wife, Maria and daughter Deborah, age 14, both of whom entered the U.S. after 1991. Both Pedro and Maria have taken classes to learn English, and Deborah has only attended school here in the U.S. They are all involved in their church, and Deborah is involved in many school activities.

Significantly, it is only after Pedro is granted NACARA special rule cancellation that the Asylum Office or the EOIR will adjudicate the applications of his wife, Maria, and daughter, Deborah. Both automatically acquire the very compelling factor of extreme hardship to their (new) LPR husband and father in the event that the INS removes them. This hardship to Pedro combined with the other hardship factors discussed previously create an extremely high probability that Maria and Deborah will be able to satisfy the hardship requirement.

At the NACARA interview, the adjudicator will presume hardship in Pedro's case, but not in the cases of Maria and Deborah. This will significantly increase the time and expense of adjudicating the applications. It will also create a somewhat confusing situation in which the Attorney General will adjudicate by different evidentiary standards applications for members of the same family. This situation is typical of the vast majority of cases in which at least one family member is presumed to meet the hardship requirement, but other family members are not afforded the presumption.

Given the high probability that the dependents will also be able to demonstrate the hardship requirement, we believe that the increased time and expense for agencies, as well as applicants and their legal representatives in the application process is unnecessary. We urge the Attorney General to extend the presumption of extreme hardship to include the dependents of NACARA principals for whom hardship is presumed.

To accomplish this result we recommend that the Attorney General change 8 C.F.R. § 240.64(d)(1) as follows:

"An applicant described in paragraphs (a)(1), (a)(2) or (a)(4) of § 240.61 who has submitted a completed Form I-881 to either the Service or the Immigration Court shall be presumed to have established that deportation or removal from the United States would result in extreme hardship to the applicant, or to his or her spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." (Proposed changes are underlined).


208.14. Approval, Denial, Referral, or Dismissal of Application

The Attorney General Should Clarify Which Regulations Apply to Persons Applying for or Granted NACARA Who Are Pursuing ABC Asylum Applications

Under the ABC settlement agreement, the 1990 asylum regulations govern asylum applications filed by ABC class members. 8 C.F.R. § 208.14 addresses the relationship between asylum applications and adjustment of status for NACARA applicants. The interim regulation fails to mention that 8 CFR 208.14 does not apply to the asylum applications of ABC class members. The interim regulations should clarify which regulations do apply to the pending asylum applications of ABC class members, and how the INS plans to handle the relationship between an ABC class member’s asylum and NACARA applications. We urge the Attorney General to increase the clarity of this process by including the following suggestions in the final regulations:

  • Stating that the 1990 asylum regulations govern the INS’ adjudication of an ABC class member’s request for asylum.
  • Identifying which regulations are controlling for ABC class members' asylum claims;
  • Clarifying that an ABC class member may apply for asylum even after winning NACARA suspension of deportation or cancellation of removal;
  • Amending 8 C.F.R. § 208.20 to clarify that a person can file an I-730 within two years of receiving asylum even if she or he obtained lawful permanent residence by winning NACARA suspension or cancellation;
  • Extending the period to sixty days during which a person granted NACARA suspension or cancellation can notify the INS that she or he wants to pursue her or his request for asylum; and
  • Allowing any person that wins NACARA suspension or cancellation sixty days to withdraw any waiver of the right to apply for asylum

240.58 Extreme Hardship

We applaud the inclusion of the VAWA (Violence Against Women Act) factors in the regulation as an important recognition of the unique circumstances of battered women and children.

Recommendations for Specific Changes in the Listed Hardship Factors in Proposed 8 C.F.R. § 240.58(b)

Below are recommendations for strengthening some of the factors listed in the subparagraphs in paragraph 8 C.F.R. §240.58(b) of the proposed rule. We believe that the suggestions below more appropriately reflect the circumstances of many NACARA applicants:

(4) The alien's ability to obtain employment that pays a living wage in the country to which the alien would be returned.

(7) The financial impact of the alien's departure and of the alien's return to his or her country of origin, including but not limited to, the loss of basic services such as public education and emergency health care to his or her United States citizen or lawful permanent resident children.

(9) The psychological impact of the alien's deportation, including but not limited to:

    1. The circumstances under which an individual left his or her country;
    2. The political consequences of such a return;1
    3. The inability to continue providing financial support to family members, whether in the U.S. or in the home country; and
    4. Separation from a person who is not a relative defined in the Act's provisions on extreme hardship for suspension.2

(12) Contributions to a community in the United States or to the United States, including but not limited to remittances sent to the person's home country.3

(12a)Ties to a community in the United States, including degree of integration into society.4

(13) Immigration history, including authorized residence in the United States, and the reasons the individual initially sought to immigrate to the United States; and

(14) The ability to adjust status to permanent resident status by other means.

Recommendations For Adding Additional Hardship Factors To 8 C.F.R. § 240.58(b)

We suggest that the final regulations add the following specific additional factors to the list of factors now in the proposed regulations. These factors should be applied to the applicant and to his/her qualified relative(s):

  • The effect on the individual, as well as on his or her home community and nation, of returning to a place where there has been a flood, earthquake, drought, epidemic or other environmental disaster resulting in a substantial disruption of living conditions.

  • Difficulty of readjustment to life in the country of origin, including but not limited to, the inability to find a home and heightened vulnerability to criminal violence as a result of being identified as having returned from the United States.

240.60. Definitions

We Commend the Interim Rule's Inclusion of Properly Filed Derivative Applications in the Definition of "Filed An Application for Asylum"

We commend the Attorney General for including in the definition of "filed an application for asylum" properly filed derivative applications. This will result in administrative efficiency in the adjudication of the NACARA applications of the family unit. It is also a common sense and very fair approach.

240.61. Applicability

240.61(a)(5)(1) The Final Rule Should Mitigate Harm from Department of Justice Delays in Implementing NACARA §203 by Providing Eligibility to Children Who "Aged Out" After the Statute's Enactment

We recommend changing this section to provide that a son or daughter who entered the U.S. after October 1, 1990, and who turned 21 years of age after the enactment of NACARA and on or before December 31, 1999, remains eligible for NACARA, provided that he or she and his or her NACARA-principal parent applies for suspension or special rule cancellation within 60 days of the effective date of the final rule.

A significant number of sons and daughters of NACARA principals became ineligible for NACARA because they turned 21 years of age before the application period began on the effective date of the interim rule on June 21, 1999. We recommend providing that these persons will retain NACARA eligibility. We recommend that this include children who turn 21 up until a date such as December 31, 1999. In practice, a child who will turn 21 before that date will probably also lose eligibility because it will be difficult to obtain interviews before that date. This recommendation will thus also promote administrative efficiency by eliminating the need for the Asylum Office to use extra resources to expedite NACARA interviews of principals whose children will be turning 21 before this date.

The judicial and the executive branches of government have fashioned equitable approaches to allow a person to remain eligible for a benefit for which Congress intended that she or he be eligible. The Seventh Circuit Court of Appeals has remanded cases to allow individuals to apply for relief who would have been eligible for relief were it not for the Attorney General’s actions.5

The implementation of the Special Immigrant Juvenile (SIJ) provisions illustrate that the Department of Justice is willing to use remedial regulations to prevent delays in implementing a provision from prejudicing innocent applicants. The Immigration Act of 1990 provided that a juvenile could adjust her or his status if a court determined that the juvenile was a dependent juvenile, among other requirements.6 The Department of Justice did not promulgate implementing regulations until 1993. Because of the delay, juveniles that met the statutory requirements on November 29, 1990, (the date the statute became law), would not be eligible.7

The Department of Justice corrected this problem by determining juveniles to be eligible for relief that met the statutory requirements on November 29, 1990. This interpretation enabled juveniles to qualify who would be too old to qualify when the Attorney General adjudicated their requests. The Attorney General's discussion which distinguishes the NACARA aging-out from SIJ aging-out, actually supports commentators' suggestion that the Attorney General has the authority to grandfather eligibility. In both situations, the passage of time threatened to make ineligible individuals that were of concern to Congress. Faced with a group of juveniles that would no longer be juveniles, the Attorney General "grandfathered" their eligibility. We applaud the Attorney General's decision to grandfather juveniles eligible for SIJ status. We urge her to take the same steps for NACARA applicants.

240.61(a)(2) We Commend the Interim Rule's Clarification that Persons Who Filed Asylum Applications With the EOIR Have Also Filed With the Service.

The Attorney General's approach in the interim rule is logical in that every person who files for asylum with the EOIR must by necessity "serve a copy of that application on the Service" as the rule notes.



240.62. Jurisdiction

240.62(a) Establish a Process That Assures All Eligible Persons May Apply for NACARA Benefits By Permitting Persons Who Are Not in Proceedings to Apply With the Asylum Office.

We recommend creating mechanism to permit all eligible individuals to apply for NACARA cancellation of removal. Specifically, those persons who are not in removal or deportation proceedings should be permitted to file their NACARA applications with the Asylum Office. This recommendation is consistent with the policy goal of creating a streamlined adjudication system which enhances administrative efficiency.

In particular, we recommend including the following groups (as long as they are not in deportation or removal proceedings) with those who are able to apply for NACARA relief with the Asylum Office

  • Salvadorans who registered for TPS but have never filed for asylum;
  • Salvadoran and Guatemalan ABC registrants who have never filed a request for asylum or filed a request for asylum after the ABC filing deadlines; and
  • Salvadoran, Guatemalan, and Eastern European nationals who filed a request for asylum with the INS before April 1, 1990 and whose applications are no longer pending with the Service, but who are not in deportation or removal proceedings.

Permitting such persons to apply to the Asylum Office would significantly increase administrative efficiency. Without such a procedure, it is very likely that the Asylum Offices will have to adjudicate a significant number of good faith non-frivolous requests for asylum filed with the knowledge that a referral to the EOIR would provide a forum to apply for NACARA cancellation. An example illustrates the advantages of our recommendation. Under the current procedure in the interim rule, a person who has never been in proceedings but is currently not permitted to file with the Asylum office is unable to file for NACARA with the EOIR because the Service will not issue a NTA (Notice to Appear). He files a bona fide non-frivolous asylum application. The Service Center processes the application, and sets up an interview with the Asylum Office. The Asylum Officer denies his asylum case, refers it to the EOIR, and issues the NTA. Only after this considerable time and expense, is the applicant is able to file his NACARA application. Under our recommendation, the applicant applies for NACARA directly with the Asylum Office, which adjudicates his case.

In the alternative, we recommend that the Asylum Office have the option, resources permitting, to issue a Notice to Appear when a NACARA-eligible individual requests that she or he may apply for special rule cancellation with the EOIR. This will promote administrative efficiency for the Service as a whole because persons in the Asylum Office are much more familiar with eligibility requirements for special rule cancellation than Service personnel in the district offices.

At a minimum, the final regulations should require the INS to place those individuals who are eligible for NACARA cancellation of removal, but who are not currently permitted to apply with the Asylum Office into removal proceedings within 60 days of receiving a written request. This recommendation will significantly increase the agencies’ administrative efficiency as discussed.

240.63. Application Process

240.63(d)(3). The Attorney General Should Change the Definition of "Complete Application" and Modify Consequences of Filing an Incomplete Application.

The requirements for what constitutes a "completed" application are unduly strict. The interim regulations require the return of an application "that does not include a response to each of the questions contained in the application…." To compel the Service to return such applications significantly decreases its administrative efficiency. Such strict scrutiny to applications is not necessary and the forced return of these applications that include a single blank sets a discouraging tone and is inconsistent with the remedial nature of the law. We suggest that the final rule strike 8 CFR § 240.63(d)(3).

Adopting our recommendation will promote administrative efficiency by permitting the agencies to accept I-881 application packets, which are complete enough to adjudicate at the time of the interview. Otherwise, the Attorney General will spend considerable resources in returning I-881 packets to individuals when there is no need to do so.

240.64(b). Continuous Physical Presence

In Determining Continuous Physical Presence in NACARA Cancellation Cases, the Attorney General Should Consider Only Factors That Relate to the Length of a Person's Absence.

The interim regulation states that continuous physical presence is terminated for both suspension and cancellation whenever a person, leaves pursuant to a deportation or removal order; leaves pursuant to an order of voluntary departure; or where the "departure is made for purposes of committing an unlawful act."

We believe that this provision in the interim rule fails to give effect to the unambiguous intent of Congress to replace the subjective "brief, casual, and innocent" test that applied in suspension cases with an objective test based on the length of a person’s absence for cancellation purposes. Therefore, we recommend that this portion be deleted from the final rule. In calculating continuous physical presence for special cancellation, the final regulations should include only factors linked to the length of an absence.

The preamble to the interim regulations offer only conclusions to reject commentators’ suggestions that continuous physical presence for special cancellation can be based only on the length of an absence. The Attorney General's conclusions, however, are not consistent with the statutory language defining continuous physical presence.8

IIRIRA made dramatic changes to the "entry doctrine." The BIA recently analyzed the significance those changes. In determining the effect of IIRIRA on previous legal interpretations of entry, the BIA held that IIRIRA superceded the "brief, casual, and innocent" standard of the Supreme Court’s decision in Fleuti v. Rosenberg, 374 U.S. 449 (1963). Matter of Collado, Int. Dec. #3333 (BIA 1997). The BIA based this conclusion on the fact that IIRIRA replaced the statutory definition of "entry," upon which the Fleuti decision was based, with the new definition of "admission." In the same way, IIRIRA replaced the provision of the suspension statute that allowed for "brief, casual, and innocent" departures, former INA § 244(c), with the straightforward time periods of INA § 240A(d)(2). Under the reasoning the BIA applied in Collado, the statute should be read as replacing the "brief, casual, and innocent" standard for determining continuous presence under suspension with the explicit standard based on the duration of the absence set forth in INA § 240A(d).

A Departure Pursuant to Advance Parole For Those With Final Deportation Orders Should Not Break Continuous Physical Presence for NACARA Suspension or Special Rule Cancellation.

The final rule should include a provision that a departure pursuant to advance parole authorized by the Service which is technically a deportation will not break continuous physical presence for either NACARA suspension of special rule cancellation. The Service granted advance parole to a significant number of persons with final orders of deportation, who have subsequently become eligible for NACARA. Although technically departures under these circumstances may be considered deportations, the Service did not advise the persons of this adverse consequence. It is in the interests of promoting administrative economy as well as basic fairness not to penalize persons for these authorized departures. We recommend that the final rule clarify that an absence of a person with a final order of deportation who departed the United States pursuant to advance parole authorization by the Service does not break the requisite continuous physical presence.


Effect of Advanced Parole on Continuous Physical Presence

It appears from the interim regulations that receipt of advance parole does not necessarily interrupt continuous presence in the United States for purposes of NACARA eligibility. In attempting to provide as transparent an application process as possible, the final regulations should make explicit that an individual with TPS that returned under a grant of advance parole returns to the status that she or he was in when they left. Section 304 of The Miscellaneous and Technical Amendments of 1991 (MTINA) specifically states that individuals who leave and return under a grant of advance parole "shall be inspected and admitted in the same immigration status the alien had at the time of departure."9 The BIA has taken note of this provision.10

MTINA § 304 applies to the successor programs to TPS. On June 26, 1992, President Bush gave Deferred Enforced Departure (DED) to Salvadorans. On May 22, 1993, Attorney General Janet Reno extended DED for eighteen months. Although DED expired on December 31, 1994, the INS automatically extended employment authorization for Salvadorans registered under DED. DED and the special employment authorization for Salvadorans were the successors to their TPS designation. As such, MTINA § 304 should apply to individuals who return under a grant of advance parole, during any of these programs. To achieve uniformity and consistency, we urge the INS to apply the provisions of MTINA § 304 to NACARA-eligible individuals who left and returned under a grant of advance parole regardless of their nationality. If the Attorney General chooses not to extend the provisions of MTINA § 304 to Guatemalans and Eastern Europeans, at a minimum, the Attorney General should apply MTINA § 304 to all Salvadorans who left and returned under a grant of advanced parole.

The Final Regulations Should Provide the Opportunity for All Otherwise Eligible Individuals in Exclusion Proceedings to Apply for NACARA Special Rule Cancellation.

The interim regulations do not implement Congress’ unambiguous intent to permit those in exclusion proceedings to apply for suspension of deportation. The NACARA statute provides that in calculating "continuous physical presence" both for suspension of deportation and cancellation of removal under NACARA that the special rules apply "regardless of whether the alien is in exclusion or deportation proceedings." IIRAIRA § 309(c)(5)(c)(i), as amended by NACARA § 203 (emphasis added). The Attorney General can give effect to this statutory provision by allowing who are in exclusion proceedings, but are otherwise eligible, to apply for NACARA relief.

In the preamble to the interim regulations, the Attorney General analyzes this question as follows:

Contrary to showing a congressional intent that NACARA relief be made available to persons in exclusion proceedings, the phrase…simply indicates that Congress did not want the new continuous residence and physical presence rules to apply to NACARA beneficiaries who are eligible to apply for suspension of deportation or cancellation of removal no matter what charging documents, if any, may have been issued to them prior to April 1, 1997.11

This interpretation misconstrues the meaning Congress’s words. In the first place, there is no need for such a clarification -- § 309(c)(5) of IIRIRA as modified by NACARA expressly provides that INA § 240A(d) applies to OSCs and NTAs, and nowhere suggests that it applies to form I-122, the charging document for exclusion cases.

Moreover, Congress would not have used the present tense "in exclusion proceedings" to indicate an exception to the continuous physical presence rules for cases in which the Attorney General exercises her authority to reinitiate proceedings under § 302 of IIRIRA. If the reasoning of the interim regulations were correct, the statute would say "regardless of whether a person 'was' or 'had been' in exclusion proceedings." It makes no sense that Congress would use the present tense verb "is" to describe the reach of the physical presence rules after the Attorney General exercised her authority under IIRIRA § 309(a)(2). Plainly, once the Attorney General reinitiates removal proceedings, exclusion proceedings have ended. Once exclusion proceedings have ended, the noncitizen no longer "is" in exclusion proceedings.

Consequently, the above-quoted interpretation is not a legitimate explanation of the phrase "regardless of whether the alien is in exclusion proceedings." Assuming, without conceding, that the meaning of the phrase is ambiguous, the Attorney General should follow the principle of statutory of resolving ambiguity in the favor of prospective NACARA applicants.12

We commend the Attorney General’s request in the interim rule for comments on the advisability of a regulation or policy which terminates exclusion proceedings and initiates removal proceedings to permit otherwise eligible persons to apply for NACARA. In response to the requests for comments on this issue, we urge the Attorney General to reinitiate removal proceedings under IIRIRA § 309(c)(2) in cases where the immigration court has not conducted a hearing. In those cases where the immigration court has concluded the hearing, the Attorney General should end the exclusion proceedings under IIRAIRA § 309(c)(3). These steps would be in the public interest, promote administrative and judicial economy, and be consistent with the statutory language.

The Attorney General Should Mitigate Harm to Persons Improperly Placed in Exclusion Proceedings in the Event that the Attorney General Does Not Make NACARA Relief Available to All Individuals in Exclusion Proceedings

The INS' practice regarding advance parole varies from district to district. Notwithstanding MTINA § 304, the INS in some districts mistakenly placed individuals in exclusion proceedings when they returned under a grant of advanced parole. There are a number of other examples of the Service incorrectly placing persons in exclusion proceedings.

The INS has placed individuals in exclusion proceedings for other erroneous reasons. For example, at least one federal court has held that the INS should only put a person in exclusion proceedings subsequent to a return with advance parole if the Service provided specific notice in writing of the potential consequences of leaving under advanced parole. Rather than engaging in a labor-intensive effort that would be necessary to correct the errors in these cases, we recommend the adoption of our recommendation to permit these persons to apply for relief under NACARA by terminating the exclusion proceedings and initiating removal proceedings.

240.64(d). Presumption of Extreme Hardship

We applaud the Attorney General for exercising her authority to create appropriate rules and procedures in determining eligibility for suspension of deportation and special rule cancellation of removal and electing to establish a rebuttable presumption of hardship for the ABC class. We would urge however, that in the interest of consistent decision making that reflects the spirit of the regulation and legislation, that the supplementary information’s guidance on the two circumstances when the presumption can be overcome be included in the regulation at section 240.64 (d)(2). The circumstances for challenging the presumption are well described and would offer adjudicators concrete direction in interviews and similarly benefit judges in hearings. Without this important guidance in the regulation itself, it will be too easy for adjudicators and judges alike to seek to overcome the presumption inconsistently, thereby undermining the very purpose of the presumption.


240.65 (suspension) and 240.66 (cancellation). Eligibility for Suspension of Deportation and Special Rule Cancellation of Removal

The Attorney General Should Drop the Bars to Eligibility for NACARA that Lack a Basis in the Statute

Section 240.65(a) of the interim rule disqualifies NACARA suspension applicants if they are "subject to any bars to eligibility in former section 242B(e) of the Act," or "any other provision of law." Where applicable, these bars preclude non-citizens from most forms of discretionary relief, including suspension of deportation, for a five-year period. Section 240.66(a) of the interim rule similarly applies the parallel bars of INA §§ 240(b)(7), 240B(d), and 240A(c) to applicants for special rule cancellation. In enacting NACARA, Congress allowed non-citizens with final deportation orders to reopen their cases to apply for suspension of deportation despite any pre-existing legal barriers, with one exception (for aggravated felons):

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.13

The interim regulation apparently interprets this paragraph to apply only to the procedural limitations on motions to reopen in INA § 240(c)(6), but the plain language of the statute is not amenable to such an interpretation. This is because there is no provision of law that bars aggravated felons from filing a motion to reopen. That Congress in this paragraph expressly excepted "limitations premised on an alien ‘s conviction of an aggravated felony" proves that Congress intended the paragraph to apply to all other limitations to relief, and not just to the statutory limitations on motions to reopen. Otherwise, the express exception for "limitations premised on" aggravated felony convictions is inexplicable.

Thus, it was the intent of Congress to waive all other limitations, including substantive bars relating to eligibility for the underlying relief, for NACARA-eligible individuals seeking to reopen their proceedings. By specifically barring aggravated felons, but no other categories, Congress indicated its intent to permit all others to apply for suspension or cancellation if otherwise eligible, notwithstanding bars to eligibility for other than those defined by NACARA. The language covers all bars. Congress did not intend for any of the limitations on motions to reopen to apply. Thus, the regulation should make clear that INA § 241(a)(5) does not defeat eligibility in these cases.

The overall intent of the NACARA legislation is remedial in nature, and generous by explicit design. Part of this intent is evident in the fact that Congress made special provision for those who are NACARA eligible to reopen their cases despite having final orders of deportation or removal. To interpret the statute to bar relief to most individuals in this situation would defeat Congress’ purpose in making special provision for NACARA motions to reopen.

The Final Regulations Should Make Clear That INA § 241(a)(5) Does Not Apply Retroactively.

The Attorney General takes the position that INA § 241(a)(5) applies to NACARA-eligible individuals.14 INA § 241(a)(5) took effect on April 1, 1997.15 It applies only to certain individuals and cases.16 Applying INA § 241(a)(5) to deportation orders entered before April 1, 1997 will have a serious negative effect on NACARA beneficiaries. Many Salvadorans and Guatemalans have past deportation orders from the middle 1980's. Many of those individuals left the United States under a deportation order after their asylum applications were denied based on procedures which were the subject of the litigation that resulted in the ABC settlement. Many of these individuals found that the situations in Guatemala and El Salvador posed dangers to their safety and they were subsequently were forced to re-enter the United States illegally. There is no indication whatsoever that Congress intended that these individuals be barred from NACARA eligibility. On the contrary, there is every indication that Congress wanted all of these individuals to be eligible for NACARA as long as they specifically met the other eligibility requirements of NACARA. Applying INA § 241(a)(5) to NACARA cases would frustrate Congress' intent in enacting NACARA. Therefore, we recommend that the Attorney General establish either in the final rule or in a policy memorandum that INA 241(a)(5) will not be applied retroactively.


The Attorney General Should Interpret INA § 241(a)(5) to Apply Only to Removal Orders and Not to Past Deportation or Exclusion Orders.

Section 241(a)(5) of the INA allows the INS to remove an individual without a hearing before an Immigration Judge, if the individual was previously removed (or left voluntarily) "under an order of removal," and then subsequently re-entered the United States illegally. On its face, INA § 241(a)(5) applies only to past removal orders. Nevertheless, the INS takes a different view. Language in IIRIRA conforming amendments is apparently the source of the INS' view.17 Section 309(d)(2) states that "any reference in law to an order of removal shall be deemed to include a reference to an order of exclusion and deportation or an order of deportation." This interpretation fails to take into account that there is no express reference in either the INA or IIRIRA that the quoted language applies to reinstatements of removal orders.

At a minimum, the INS should interpret this provision to only apply to past entries to the United States after April 1, 1997. In a recent memorandum dealing with those ordered removed that attempt to enter the United States unlawfully, the INS concluded that the language applied only to entries after April 1, 1997.18 There is no justification for treating people differently under INA § 212(a)(9)(C)(i)(II) than under INA § 241(a)(5) when both provisions apply to the same class of individuals.

Even only applying INA § 241(a)(5) to entries effected after April 1, 1997 would not be sufficient. The INS should reconsider its position and interpret INA § 241(a)(5) to apply to removal orders only. If the INS believes that IIRIRA § 309(d)(2) modifies INA § 241(a)(5), then, at most, it should only apply when either:

  • the Attorney General invokes IIRIRA §309(c)(2) to apply the new IIRIRA amendments to pending deportation proceedings. Under that scenario, an individual who does obtain a "deportation order" after IIRIRA § 309(c)(2) is invoked, and who subsequently re-enters, could properly have § 241(a)(5) applied against him or her; or

  • an individual in a pending deportation proceeding is ordered deported after IIRIRA's April 1, 1997 effective date and subsequently re-enters. In that scenario, IIRIRA §309(d)(2) is applied to the pending deportation proceeding, and can be deemed to modify IIRIRA § 309(c)(1)'s otherwise prohibition on applying the new IIRIRA procedures to pending deportation proceedings.

Absent one of the above two scenarios, the Attorney General should not apply INA § 241(a)(5) to past deportation or exclusion orders. The only way that IIRIRA § 309(d)(2) can possibly modify INA § 241(a)(5) is for a pending deportation proceeding. Otherwise, IIRIRA § 309(d)(2) is inapplicable to a past deportation order (i.e., a deportation that was executed long before the enactment of IIRIRA) and cannot possibly be deemed to modify INA § 241(a)(5).

Applying INA § 241(a)(5) to deportation orders entered before the April 1, 1997 effective date violates the clear intent of Congress, the retroactivity principles set forth by the Supreme Court and due process rights guaranteed by the Constitution.19 Moreover, the Attorney General's view that INA § 241(a)(5) applies to NACARA beneficiaries is inconsistent with the purpose behind NACARA. This is especially true since NACARA is a remedial statute. The interpretation suggested above is consistent with all principles of statutory construction, and with the presumption against retroactively applying new rules to past proceedings.

240.67(a). Avoiding Processing Delays Due to Backlog in CIA Background Checks

There are long delays in fingerprint clearances in many parts of the country. The INS anticipates a lengthy delay for individuals that filed asylum applications before January 4, 1995 due to delays in obtaining clearance from the Central Intelligence Agency (CIA). We recommend that the Attorney General adjudicate NACARA applications notwithstanding the absence of a CIA clearance. In those extremely small numbers of cases in which the CIA search reveals facts that would have prevented the granting of the NACARA application, the Attorney General retains the authority to rescind the grant.

At a minimum, the Attorney General should adjudicate the claims without a CIA clearance for families with children who are nearing 21 and who will "age out. These individuals will no longer be eligible for NACARA relief if they turn 21 before the Attorney General grants the principal’s application for NACARA suspension of deportation.

240.68. Failure to Appear.

We commend the Attorney General for adopting a "reasonable excuse" to excuse failure to attend interviews. While the interim rule is a substantial improvement on the proposed rule, we suggest further changes.

The Attorney General recognizes that an applicant must sometimes reschedule interviews and fingerprint appointments, and promises to accommodate all reasonable requests.20 The final regulations should repeat the language the Service "intends to accommodate all reasonable requests (for rescheduling)" that appears in the preamble.21

The Attorney General should adjudicate the failure to appear under the "reasonable excuse" standard. The Attorney General should instruct asylum officers that the "reasonable excuse" standard is a generous one. In cases where the asylum officer determines that the applicant did not have a reasonable excuse for failure to appear, the INS should refer the case to the immigration court, instead of dismissing it. We suggest that the final regulation include language saying, "in almost all cases in which an applicant fails to appear for an interview of fingerprinting appointment, the Service will refer the application to an Immigration Court for a decision."22

The preamble explains that the INS fingerprinting centers cannot process requests to reschedule interviews. The INS will provide an applicant scheduled for such a center with information about how to reschedule. As applicants may have to take time off work to attend fingerprint appointments, it should be possible to reschedule in the same manner as rescheduling the interview. The community is very much aware that rescheduling will only serve to delay adjudication, and NACARA applicants are interested in having their cases resolved. Therefore, applicants will be seeking rescheduling only when it is truly necessary. The INS should allocate staff to accommodate written requests for rescheduling fingerprinting in the same manner as requests to reschedule interviews.

Therefore, we recommend that in the final rule, 8 C.F.R. § 240.68(b) should mirror the language of 8 C.F.R. § 240.68(a) by adding at the end: "A written request to reschedule a fingerprinting appointment will be granted if it is an initial request and is received by the Application Support Center (ASC) at least two days before the scheduled appointment date. All other requests to reschedule the fingerprinting appointment, including those submitted after the interview date, will be granted if the applicant has a reasonable excuse for not appearing."23

At a minimum, if the Attorney General chooses not to allow rescheduling of all fingerprint appointments, we urge the Attorney General to incorporate the language from the preamble regarding automatic rescheduling. The preamble states that for applicants scheduled at centers that do not have the ability to accommodate requests for rescheduling, the Attorney General will automatically reschedule the applicant.24

240.70 Decision by the Service.

The Interim Rule’s Provision that Allows an Asylum Officer to Grant an Application on the Date of the Interview Promotes Administrative Efficiency

We commend the Department for including a provision in § 240.70(a) which allows the Asylum Office the option in its discretion to grant the suspension or special cancellation decision at the time of the interview. This will result in significant administrative efficiency for the Asylum Office as it eliminates the necessity of scheduling a follow-up appointment.

Additional Recommendation: The Final Regulations Should Authorize Grants of Advance Parole in NACARA Cases

The interim regulations do not provide authority for granting advance parole to NACARA applicants. The final regulations should state explicitly that advance parole is available to NACARA cancellation or suspension applicants for any bona fide personal or business reason. The Service already uses this standard for adjudicating most advance parole requests – those submitted by adjustment of status applicants.

The adoption of this recommendation will significantly promote administrative efficiency for the Service. It would eliminate the need for Service personnel to engage in the time-consuming determination as to whether an individual applicant established that his or her request was sufficiently urgent to justify her or his travel. There would also be an enormous humanitarian benefit if the Attorney General were to clarify that advance parole is eligible. It would enable thousands of NACARA applicants to visit their parents and other relatives whom they have not been able to visit in their home countries for more than ten years. This has created a great deal of emotional suffering and anxiety in the NACARA-eligible community.

There is no reason to treat NACARA cancellation or suspension applicants differently from adjustment applicants. The final regulations should either amend 8 C.F.R. § 212.5 or 8 C.F.R. § 240.70 to provide for NACARA suspension or cancellation applicants’ eligibility for advance parole.

We also recommend that the final rule permit the local Asylum Offices to adjudicate requests for advance parole from NACARA applicants. Under our recommendation a local Asylum Office would be permitted but not obligated to adjudicate advance parole requests. The advantages in terms of administrative efficiency are: 1) the Asylum Office can process these requests more efficiently because the officers are more familiar with issues concerning NACARA eligibility than Service personnel in general; 2) often they will have access to the parole applicant’s file (if necessary to access); and, 3) Central Office officials in charge of asylum and ABC are in a better position to articulate relevant written warnings specific to NACARA applicants who are requesting advance parole.

Additional Recommendation: The Attorney General Should Amend the Final Rule on Special NACARA Motions to Reopen, 8 CFR 3.43(c)(2), to Extend the Deadline for Filing the I-881 Until February 1, 2000.

At the time of the issuance of the final rule on Special NACARA motions to reopen, many of us commended the Attorney General for extending the filing deadline for the supplementary applications and materials until 150 days after the issuance of the final or interim rule on NACARA. We now recommend an additional extension of time for the filing of the I-881 and supplementary documentation until February 1, 2000 in order to enhance administrative efficiency for the Executive Office of Immigration Review and the Service for a number of reasons. First, the I-881 form was only recently published. Second, many persons who filed timely special NACARA motions to reopen still have not been able to verify whether in fact a final order was ever issued in their case. Granting these persons more time to determine whether a final order was issued will reduce the number of filings to supplement the previously filed motions to reopen with the Executive Office of Immigration Review. Once they have been able to verify that there is no final order in their case, these persons will be able to file for special rule cancellation or suspension either with the Asylum Office or directly with the EOIR rather than supplementing their motions to reopen.

This extension may be accomplished by amending 8 CFR 3.43(c)(2) by substituting "225 days" for "150 days". In the alternative, for the sake of clarity we recommend that the final rule state a concrete filing date, such as February 1, 2000.

Respectfully submitted,


Anna Marie Gallagher
Director, Legal Action Center

Jeanne Butterfield
Executive Director

1      The first two suggestions are taken from the supplementary information to the proposed regulations pg. 64903.

2      This last hardship factor (d) is discussed in cases such as Antoine-Dorcelli v. INS, 703 F.2d 19, 21 (1st Cir. 1983) and Zamora-Garcia v. INS, 737 F.2d 488, 494 (5th Cir. 1984).

3      Congressional NACARA proponents, the administration and elsewhere have noted the remittances from Central Americans to their families and hometowns have contributed to United States' foreign policy goals of promoting the political and economic stability in those countries.

4      We have not numbered the proposed new paragraph. Plainly, if the final regulations adopt this suggestion all the subsequent paragraph numbers would change accordingly.

5      Snadjer v. INS, 29 F.3d 1203 (7th Cir.1994) (allowing non-citizen to apply for all relief sought at time of initial hearing); Batanic v. INS, 12 F. 3d. 662 (7th Cir. 1993) (same for withholding of deportation).

6      Pub. L. 101-649, Section 153 (Nov. 29, 1990).

7      8 C.F.R. 204.1(c)(7).

8      64 Fed. Reg. 27863.

9      Pub.L.102-232.

10      See Matter of GAC, Int. Dec. 3354 (BIA 1998) at note 4.

11      64 Fed. Reg. 27860.

12      See, e.g, INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); INS v. Errico, 385 US 214 (1966).

13      IIRIRA § 309(g), as enacted by section 203(c) of NACARA (emphasis added).

14      64 Fed. Reg. 27863.

15      IIRIRA §§ 309(a), (c).

16      IIRIRA §§ 309(a), (c).

17      See IIRIRA § 309(d)(2).

18      See "Additional Guidance For Implementing Sections 212(a)(6) and 212(a)(9) of the Immigration and Nationality Act," June 17, 1997.

19      Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994); Lindh v. Murphy, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Hughes v. U.S., 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997).

20      64 Fed. Reg. 27869.

21      64 Fed. Reg. 27869.

22      64 Fed. Reg. 27870.

23      64 Fed. Reg. 27869.

24      Ibid.

Cite as AILA Doc. No. 99072650.