INS on NACARA Motions to Reopen Regarding Dependents

September 1, 1998

Memorandum For All Regional Counsel
All District Counsel
All Section Counsel

From: Paul Virtue
General Counsel

Subject: Motions To Reopen for Relief Under Section 203 of NACARA

THIS MEMORANDUM SUPERSEDES THE GENERAL COUNSEL MEMORANDUM OF DECEMBER 23, 1997 (MOTIONS TO REOPEN POLICY, REVISED), INSOFAR AS THAT MEMORANDUM DEALT WITH MOTIONS TO REOPEN UNDER § 203 OF THE NICARAGUAN ADJUSTMENT AND CENTRAL AMERICAN RELIEF ACT.

The Executive Office for Immigration Review has published an interim rule to simplify the process of filing motions to reopen pursuant to 203(c) of the Nicaraguan Adjustment and Central American Relief Act (Pub. L. No. 105-100, 111 Stat. 2160) (NACARA). See 63 Fed. Reg. 31890 (June 11, 1998) (adding 8 C.F.R. § 3.43). NACARA amended section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Pub. L. No. 104-208, 110 Stat. 3009) (IIRAIRA) to permit certain aliens to apply for suspension of deportation or special-rule cancellation of removal under standards similar to those in effect prior to passage of IIRAIRA.

Section 203 of NACARA allows aliens who have administratively final orders of deportation and have become eligible under NACARA for suspension of deportation or special-rule cancellation of removal to file one motion to reopen removal or deportation proceedings to apply for relief under NACARA. NACARA also requires the Attorney General to designate a period of 240 days or less for the filing of NACARA motions to reopen (NACARA MTRs). The Attorney General has designated January 16, 1998 to September 11, 1998 as the filing period for NACARA MTRs. See 63 Fed. Reg. 3154.

This memorandum provides guidance to INS trial attorneys regarding the criteria under which the INS will oppose or decline to oppose a NACARA MTR.

A. GENERAL PROVISIONS

The interim rule adopting 8 C.F.R. § 3.43 established special procedures for filing and adjudication of MTRs to apply for suspension of deportation and special-rule cancellation of removal under NACARA. A NACARA MTR should be filed no later than September 11, 1998, with the immigration court that last had jurisdiction over the proceedings, even if the Board of Immigration Appeals issued a decision in the case. If an alien files a NACARA MTR on time but in the wrong venue, EOIR will transfer the case to the appropriate immigration court and it will be treated as having been filed on time. Trial attorneys should not oppose such motions on timeliness grounds. District office file clerks should be aware that if a district office obtains the file in a case where a NACARA MTR was filed in the wrong venue, the file will need to be transferred to the appropriate district.

The front page of the NACARA MTR, and its envelope, should bear the notation "Special NACARA Motion." The applicant must allege in the NACARA MTR that he or she meets each of the four requirements listed below in Part B. The fee for fling a NACARA MTR has been waived (although the fee for an application for suspension of deportation or cancellation of removal under NACARA has not been waived).

An eligible alien may file the NACARA MTR before filing the application for NACARA suspension of deportation or special-rule cancellation of removal. The alien must, however, file the application and any supporting documentation on or before February 8, 1999. Trial attorneys should not oppose NACARA MTRs in advance of that date on the ground that the motion was not accompanied by the application and supporting documentation. The application should be filed on form EOIR-40 (not form EOIR-42) until the new Form I-881 becomes available. Once the Form I-881 is available, it must be used for all applications for suspension of deportation or special-rule cancellation of removal under NACARA. When an alien files the application and supporting documentation after the NACARA MTR has been filed, he or she should note that the filing of the application and supporting documentation is for the purpose of completing a NACARA MTR filed earlier without an application and supporting documentation. A copy of the NACARA MTR and the application, with copies of all supporting documentation, must be served by INS. If an alien files a NACARA-MTR without an application, then fails to file the application by February 8, 1999, the MTR will be denied as abandoned, and the alien may not file another NACARA MTR.

B. TRIAL ATTORNEY DEADLINE WHEN COMPLETE NACARA MTR IS FILED

The INS must respond to the NACARA MTR within 45 days from the date of service of the completed application. An application is complete when the application and supporting documentation have been filed. The completed application may be filed on or before February 8, 1999. In many of these cases, the A-files will be old and locating them may be time-consuming. District counsel should assign personnel to request files of persons who have filed NACARA MTRs and begin to review cases in time to meet this deadline.

C. ALIENS ELIGIBLE TO FILE A NACARA MTR

NACARA section 203(c) allows a alien who has a final deportation or removal order to file a NACARA MTR if the alien "has become eligible for cancellation of removal or suspension of deportation" as a result of NACARA. Trial attorneys should not oppose a timely NACARA MTR when the following four conditions are met:

1. The alien must fall within one of the six classes of aliens described in NACARA section 203(a)(1). Those classes are:

a) A Salvadoran national who first entered the United States on or before September 19, 1990, registered for benefits under the ABC settlement agreement on or before October 31, 1991 (either by submitting an ABC registration form or by applying for temporary protected status - TPS), and has not been apprehended at the time of entry after December 19, 1990.

b) A Guatemalan national who first entered the United States on or before October 1, 1990, registered for benefits under the ABC settlement agreement on or before December 31, 1991; and, has not been apprehended at the time of entry after December 19, 1990.

c) A Guatemalan or Salvadoran national who filed an application for asylum with the (INS) on or before April 1, 1990.

d) 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, Albania, Bulgaria, Czechoslovakia, East Germany, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Yugoslavia, or any state of the former Yugoslavia.

e) The spouse or child of an individual described in subparagraphs a) through d) who was a spouse or child of such person at the time that the person was granted cancellation of removal or suspension of deportation. (See "DEPENDENTS" below for further explanation.)

f) The unmarried son or unmarried daughter of an individual described in subparagraphs a) through d), who was an unmarried son or unmarried daughter at the time the parent was granted suspension of deportation or cancellation of removal, provided that if the unmarried son or unmarried daughter is 21 years of age or older, he or she entered the United States on or before October 1, 1990. (See "DEPENDENTS" below for further explanation.)

2. The alien must not have been convicted at any time of an aggravated felony.

3. The alien must have been made ineligible for suspension of deportation or cancellation of removal by IIRAIRA. In other words, the alien, but for the passage of IIRAIRA, would have been eligible or become eligible for suspension of deportation or cancellation of removal on or after September 30, 1996. Aliens who were prevented from applying for suspension of deportation by Matter of N-J-B-, Int. Dec. 3309 (BIA 1997), fall into this category. Also included are aliens with final orders who acquired seven years of continuous physical presence on or after September 30, 1996 (ten years for aliens who fall under INA § 244(a)(2), (3) as in effect before September 30, 1996), and who cannot otherwise move to reopen their proceedings. Another category of aliens made ineligible by IIRAIRA are those who were denied cancellation of removal for failure to meet the "exceptional and extremely unusual hardship" requirement under IIRAIRA. Finally, an alien who was denied cancellation of removal and who showed hardship to self but not to a United States citizen or lawful permanent resident spouse, parent, or child has been made ineligible by IIRAIRA.

4. The alien must be prima facie eligible for suspension of deportation or special-rule cancellation of removal pursuant to section 203 of NACARA. In order to be prima facie eligible, the alien must:

a) Acquire seven years of continuous physical presence by September 11, 1998, the deadline for filing NACARA MTRs. The length of the period of continuous physical presence must be calculated without reference to the "stop-time rule." In other words, the issuance of a charging document does not end the accumulation of continuous physical presence,

b) Have been a person of good moral character during the period of continuous physical presence, and

c) Assert that removal would result in extreme hardship to the alien or to a United States citizen or lawful permanent resident spouse, parent, or child. Trial attorneys should not, however, oppose a NACARA MTR based on failure to show extreme hardship.

When reviewing prima facie eligibility, attorneys should also determine whether any statutory bars apply to the alien's case. NACARA does not waive any of the statutory bars to suspension of deportation or cancellation of removal. An alien applying under NACARA will be subject to the mandatory bars or restrictions that currently apply to cancellation of removal (for applicants for NACARA special-rule cancellation of removal) or that applied to suspension of deportation before April 1, 1997 (for applicants for NACARA suspension of deportation).

Bars to suspension of deportation that were in effect before April 1, 1997 include:

INA § 244(f)(1996)(bars to suspension of deportation)

INA § 242B(e)(2)(1996) (bar for failure to voluntary depart)(5 year bar)

INA § 242B(e)(1),(3),(4)(1996) (bar for failure to appear) (5 year bar)

Bars to cancellation of removal include:

INA § 240A(c) (current) (bars to cancellation of removal)

INA § 240B(d) (current) (bar for failure to voluntarily depart) (10 year bar)

INA § 240(b)(7) (current) (bar for failure to appear) (10 year bar)

Trial attorneys should be aware, however, that these bars may not apply if inadequate notice was given or exceptional circumstances apply. See INA § 242B(e) as in effect before April 1, 1997 and current INA § 240(b)(7), 240B(d). A trial attorney should, when the applicability of a bar is not clear, give the alien the benefit of the doubt when deciding whether to oppose a NACARA MTR.

DEPENDENTS

A NACARA dependent (defined in section 309(c)(5)(C)(i)(III), (IV) of IIRAIRA as modified by NACARA; see B.1.e. and f. above) who applies to reopen must file his or her individual NACARA MTR by September 11, 1998, and must file the supporting application and evidence by February 8, 1999 (see Part A above). The dependent may not apply as part of the principal's application. The dependent must individually meet the four requirements for eligibility to reopen contained in this Part and may not ride on the principal's eligibility. For example, a dependent who has continuous physical presence in the U.S. of only three years will not be eligible to reopen just because the principal is eligible.

The INS should not oppose a properly filed NACARA MTR for a dependent who meets the four requirements listed in this Part AND who shows that the principal is in immigration proceedings, has a NACARA MTR pending, or has applied for NACARA benefits with INS on or before February 8, 1999. Categories B.1.e and B.1.f. above apply only to dependents who have the status of spouse, child, unmarried son, or unmarried daughter at the time the person described in B.1.a. to B.1.d. (the "principal") is granted suspension of deportation or cancellation of removal. This means that NACARA benefits cannot be granted to a dependent until the dependent's principal has received a grant of NACARA benefits. INS trial attorneys should not oppose NACARA MTRs filed by otherwise eligible individuals who fall into category B.1.e or B.1.f., even if the principal applicant has not yet been granted NACARA benefits. If the case is reopened, it may then be treated the same as cases of dependents who are in ongoing proceedings before EOIR - that is, if the principal has applied with INS by February 8, 1999, the dependent's case may be administratively closed to permit the dependent to apply with INS.

ABC CLASS MEMBERS

The Attorney General is drafting regulations that will allow INS asylum officers to decide the NACARA claims of ABC class members who are eligible for ABC benefits. ABC class members who have received a final order of deportation must file a NACARA MTR in order to receive benefits under NACARA, but will have the option of requesting administrative closure of the case (once it is reopened) in order to pursue the NACARA claim before INS. An ABC class member can request administrative closure of a reopened case at the same time the class member files the NACARA MTR, or may request administrative closure after the NACARA MTR is granted. In either case, the alien must also file a NACARA application by the applicable deadline.

ABC class members who do not have a final order and whose cases were previously administratively closed need not file a NACARA MTR in order to pursue their NACARA claims before INS. They may file a timely NACARA application and supporting documents directly with the INS.

cc. Joseph Langlois, Office of International Affairs