INS Additional Guidance on NACARA Motions to Reopen

September 9, 1998

Memorandum For: Regional Counsel
District Counsel

From: Paul Virtue
General Counsel

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

This memorandum addresses questions that have been raised following the release of the September 1, 1998 memorandum from this office on NACARA motions to reopen (NACARA MTRs) and provides additional guidance for both the short-term receipt of motions and subsequent responses to the completed motion to reopen. Additional guidance will be issued as necessary.

As you know, the period for filing initial motions to reopen under Section 203 of NACARA expires Friday, September 11, 1998. Based on reports from your offices and legal service providers, we anticipate that the INS will receive the vast majority of these motions in the next few days. I would like to thank each of you for the extra efforts you have made to handle these special motions to reopen.

It is likely that many of the filings made during this last week will be submitted by pro se applicants unfamiliar with immigration court procedures, particularly local rules governing the format of motions. District Counsel personnel should be instructed not to reject or oppose NACARA motions to reopen based on technical violations of local rules. Similarly, it is likely that many persons will inadvertently file their motions before the wrong immigration court. District offices should not reject or oppose NACARA motions to reopen that have been filed with the wrong immigration court and should continue to make appropriate arrangements to transfer files as necessary.

When responding to a motion to reopen, attorneys should refer to the September 1, 1998 guidance, and should also follow this additional guidance:

1. With respect to determinations of prima facie eligibility under section C.4(b) of the guidance (relating to good moral character), motions should be opposed based on a lack of good moral character only if the person's actions fall within Section 101(f) of the INA.

2. Although the burden of proof remains on the alien to establish eligibility to reopen his or her case under NACARA, it is likely that many pro se applicants will not clearly set forth the components of eligibility required in interim rule 8 CFR 3.43 in their initial motion to reopen. For example, many applicants may not clearly articulate that they have been made ineligible for relief on the basis of the stop-time rule. Motions should not be opposed on the basis of inadequate information alone if it is clear from the file and the subsequent application that the individual falls within the scope of NACARA motions to reopen and is prima facie eligible for relief.

3. Persons who are eligible to file a NACARA motion to reopen who were previously ordered deported or removed in absentia are not required to follow the filing provisions of 8 CFR 3.23(b)(4) with respect to motions to reopen. The consequences of an in absentia order may affect eligibility for relief, however, if a discretionary bar remains in effect. Generally, if it appears that a bar may apply, the alien should be given the opportunity to explain the circumstances of the order.

4. The INS should withdraw any opposition to a motion to reopen that conflicts with the guidance contained either in this memorandum or the memorandum of September 1, 1998.