INS on NACARA Dependents

DATE: May 15, 1998

FROM: Paul W. Virtue, General Counsel

SUBJECT: Spouses, children and unmarried sons and daughters of persons eligible for suspension of deportation or cancellation of removal under Section 203 of NACARA

As you are aware, the INS is in the process of developing a program that permits asylum officers to adjudicate the suspension of deportation or cancellation of removal claims of certain asylum applicants who are beneficiaries of the provisions of Section 203 of the Nicaraguan Adjustment and Cuban American Relief Act (NACARA). In general, persons who are currently in deportation or removal proceedings will submit NACARA applications in those proceedings, while persons who presently have an asylum application pending with the INS will be permitted to submit NACARA applications to the INS for adjudication in connection with the affirmative asylum process. While persons in immigration court may apply for benefits now, persons eligible to apply with the INS must wait until the program has been implemented through regulations.

Under NACARA, spouses, children, and unmarried sons and daughters over the age of 21 (NACARA dependents), with certain exceptions, may be eligible to apply for benefits following a grant of suspension of deportation or cancellation of removal to a qualified spouse or parent (NACARA principal). For those cases where a NACARA dependent is in immigration proceedings, but the principal is eligible to apply for NACARA benefits with the INS, the Department of Justice anticipates permitting the dependents to submit applications with the INS as well. Until this program is implemented, however, procedures are necessary to continue and close proceedings involving eligible NACARA dependents.

In general, according to procedures worked out with EOIR, an apparently eligible NACARA dependent may have his or her case continued to April 1999. This will permit the dependent time to show that the principal has applied with the INS. After April 1999, appropriate cases may be administratively closed to permit the dependent to submit an application with INS. Those procedures are discussed in more detail below.

Background

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) consolidated the dual framework of exclusion and deportation proceedings into the unified procedure of removal proceedings. In the process, Congress replaced the discretionary relief of suspension of deportation under former Section 244 of the Act with Section 240A of the Act, cancellation of removal. Statutory eligibility for cancellation of removal is more rigorous than suspension of deportation, requiring both a longer period of continuous physical presence and a heightened showing of hardship. Congress also provided that, for purposes of cancellation of removal, the period of continuous physical presence terminates at the time that an alien is served with charging documents and placed in proceedings. Section 309(c)(5) of IIRAIRA extended this “stop-time” rule to persons who had applied for or would apply for suspension of deportation. Consequently, many people who might previously have been eligible for suspension of deportation were made ineligible based on a lack of continuous physical presence.

Through NACARA, Congress modified these requirements for certain persons subject to immigration proceedings. Section 203(a)(1) of NACARA amended Section 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) to exempt certain Salvadorans, Guatemalans, and nationals of former Soviet bloc countries from the “stop-time” rule for purposes of eligibility for suspension of deportation under former Section 244 of the Act and for cancellation of removal under Section 240A of the Act. Section 203(b) of NACARA further amended IIRAIRA by creating a “special rule for cancellation of removal” which generally mirrors the statutory elements for suspension of deportation. The following persons are eligible to apply for NACARA-based suspension or cancellation, unless they have been convicted of an aggravated felony:

1. Nationals of El Salvador who:

a. first entered the United States on or before September 19, 1990; and
b. registered for ABC benefits for Temporary Protected Status (TPS) on or before October 31, 1991; and
c. were not apprehended after December 19, 1990 at time of entry.

2. Nationals of Guatemala who

a. first entered the United States on or before October 1, 1990; and
b. registered for ABC benefits on or before December 31, 1991; and
c. were not apprehended after December 19, 1990 at time of entry;

3. Nationals of El Salvador or Guatemala who applied for asylum with INS on or before April 1, 1990.

4. Aliens from the Soviet Union, Russia, any republic of the former Soviet Union[1], Latvia, Estonia; Lithuania, Poland, Czechoslovakia, Romania, Hungary, Bulgaria, Albania, East Germany, Yugoslavia, or any state of the former Yugoslavia who:

a. entered the United States on or before December 31, 1990; and
b. applied for asylum on or before December 31, 1991; and
c. at the time of filing were a national of any of the countries listed above.

5. An alien who is the spouse, child, unmarried son, or unmarried daughter of an individual described within any of the four preceding paragraphs who is granted suspension of deportation or cancellation of removal. The relationship to the parent or spouse must exist at the time that the spouse or parent is granted suspension of deportation or cancellation of removal. Unmarried sons or daughters over the age of 21 must have entered the United States on or before October 1, 1990.

Because the final category of eligibility is based on dependent status, persons in this category need not meet the nationality requirements of NACARA, nor are dependents required to demonstrate the other criteria designated within the four preceding categories. A dependent, however, must still establish both that he or she is statutorily eligible for suspension of deportation or cancellation of removal and merits relief as a matter of discretion.

Process for Handling NACARA Dependents seeking Continuations or Administrative Closure

Certain NACARA dependents in immigration proceedings will likely seek to continue or close their cases to await the adjudication of a principal applicant’s case before EOIR or the INS. Where the principal applicant is also in proceedings, INS attorneys should agree to continue the case, as appropriate, to permit consolidation of proceedings. Where the principal applicant appears to be eligible to apply with the INS, INS attorneys should agree to continue a case to the master reset calendars EOIR will schedule for April 1999 (memorandum attached), under the following conditions:

a. The dependent presents reasonable evidence that he or she is the spouse, child, unmarried son, or unmarried daughter of a NACARA principal (an unmarried son or daughter must also show evidence of entry into the United States prior to October 1, 1990);
b. The dependent provides reasonable evidence of the parent or spouse’s status as a NACARA principal, such as proof of ABC or TPS registration or meeting a qualifying asylum filing date, as well as proof that the dependent has an asylum application pending with the INS; and
c. The dependent is not an aggravated felon.

Although the burden is on the dependent to establish that he or she is entitled to a continuance, for purposes of administrative convenience, INS attorneys should attempt to identify potential NACARA dependents when reviewing cases. In cases where the dependent alleges eligibility based on the principal’s membership in the ABC class, INS attorneys may contact the appropriate asylum office ABC coordinator for confirmation of status (a contact list has been included with this memorandum). In addition, INS attorneys should not attempt to litigate the NACARA dependent’s underlying eligibility for suspension of deportation or cancellation of removal within the context of a motion to continue the case.

After April 1999, immigration judges may close appropriate cases with the consent of the alien and the Service. At the time a request for administrative closure is made, the INS should agree to the motion under the following conditions:

a. The NACARA principal is eligible to apply for NACARA benefits with the INS and has filed either 1) an application for suspension of deportation or cancellation of removal with the INS or 2) a motion to reopen pursuant to Section 203(c) of NACARA, if the principal is an ABC class member under a final order of deportation; and
b. The dependent appears statutorily eligible for suspension of deportation or cancellation of removal. Generally, the evaluation of eligibility should be limited to factors that make the individual clearly ineligible for relief. Factors such as the existence of extreme hardship should not be the basis for opposing a motion to close a dependent’s case. Similarly, periods of continuous presence slightly less than the required period of time should not necessarily be the basis for opposing a motion if it appears that the dependent will have met the continuous physical presence requirement at the time he or she files an application for suspension of deportation or cancellation of removal with the INS.

At the time of the master reset calendar, if the principal applicant has not yet filed an application for suspension of deportation or special rule cancellation of removal with the INS, or if the dependent appears clearly ineligible for relief, the case should not be administratively closed. Instead, the case should be scheduled for a hearing or concluded, as appropriate.

The Office of the Chief Immigration Judge will provide the INS with lists of cases, by district, that have been administratively closed for purposes of a NACARA suspension or cancellation adjudication. If a NACARA dependent’s case has been closed for more than six months and the dependent has not applied with the INS, the INS should move to recalendar the case. The procedure for verifying that an application has been filed will be addressed at a later time.

This same guideline should be applied to cases before the Board of Immigration Appeals where the INS receives a request from an alien or the Board to administratively close a NACARA dependent’s case.

Interim Guidance for those cases in which the NACARA principal is ineligible to file with the asylum program

Cases may arise in which the principal applicant is not in immigration proceedings, but is ineligible to file an application with the asylum office. In such cases, the INS should agree to a continuance to the April master calendar schedule, upon proof of relationship to a NACARA eligible principal, but should not agree to administrative closure unless the principal has subsequently been placed in immigration proceedings.

Questions regarding this memorandum should be directed to Mary Giovagnoli at 202/616-0659.

FOOTNOTE:

[1] These include Armenia, Azorbaijan, Delanis, Georgia, Kazakhstan, Kyrgyz Republic, Moldavia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan.

[Editor’s Note: Attachments mentioned in the above memorandum are not available at this time.]