Limited Presumption of Extreme Hardship under Section 203 of NACARA

[Editor's Note - Please note that AILA has received word that this memo is for internal INS discussion purposes and is not final INS policy.]

U.S. Department of Justice
Immigration and Naturalization Service
Office of the General Counsel
925 I Street, NW
Washington, DC 20536

HQCOU 90/16.11-C

FEB. 12, 1999

MEMORANDUM FOR JAMES CASTELLO
Associate Deputy Attorney General

FROM: Paul Virtue
General Counsel

You have asked whether it would be legal permissible to create a presumption of extreme hardship for certain persons eligible for relief from deportation or removal under Section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA). After reviewing the applicable statutes, regulations and caselaw, we have concluded that a rebuttable presumption would be permissible under limited circumstances. We have further concluded that only those individuals who are class members as described in the settlement agreement in American Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D. Cal. 1991) would be entitled to such a presumption.

This memorandum sets forth our analysis and includes an explanation of the amendments that must be made to proposed rule 8 CFR 240.58 (factors relating to extreme hardship) in order to ensure that the presumption is consistent with the requirements of the law regarding suspension of deportation and special rule cancellation of removal.

On November 19, 1997, President Clinton signed the Nicaraguan Adjustment and Central American Relief Act (NACARA), enacted as title II of Pub L. No. 105-100, 111 Stat. 2160, 2193 (1997)(as amended by Technical Corrections to the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-139, 111 Stat. 2644, (1997). NACARA created two distinct forms of relief for certain individuals adversely affected by the immigration reforms contained in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Section 202 of NACARA permits eligible Nicaraguans and Cubans to apply for adjustment of status to that of lawful permanent resident, while Section 203 of NACARA permits eligible Salvadorans, Guatemalans, and nationals of the former Soviet bloc to apply for relief from deportation under statutory standards similar to those in effect for suspension of deportation prior to the enactment of IIRIRA.

Because Section 202 places fewer demands on an applicant with respect to statutory requirements and the level of evidence necessary to qualify for relief, it has generally been viewed by the public as a more generous form of relief than that provided for under Section 203. Similarly, President Clinton, in his signing statement on NACARA, noted the disparities in relief and requested that the Attorney General attempt to minimize those differences in the implementation process. The President specifically asked that the Attorney General "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." (Statement by the President, November 19, 1997, White House Press Office).

Sponsors of the legislation have echoed this concern, focusing primarily on "extreme hardship" --one of the statutory factors necessary to establish relief under Section 203-- and have urged that the Attorney General presume hardship for Section 203 applicants. The public advocacy community has repeatedly raised similar requests, initially asking for a presumption of extreme hardship, and, in the wake of Hurricane Mitch, requesting that the Attorney General issue a blanket finding of extreme hardship for all 203 applicants. Prior to the storm, Department of Justice officials concluded that the existing extreme hardship standard, as interpreted by Board of Immigration Appeals (BIA) precedent cases and federal court decisions, was sufficiently broad and flexible to address the unique circumstances of Section 203 applicants. In addition, the Department chose to include a codification of relevant extreme hardship factors in the proposed rule implementing 203 to address concerns that the complexity of the law would make it difficult for unrepresented applicants to adequately present their claims.

In light of the hurricane, as well as the public comments received in response to the proposed rule, the INS has been asked to revisit the issue of extreme hardship to determine whether it would be appropriate under any circumstances to extend such a presumption.

Generally, a person eligible to apply for Section 203 relief must establish that he or she has seven years of continuous physical presence within the United States, has been a person of good moral character during that time, and that either the applicant or the applicant's lawful permanent resident or United States citizen spouse, child or parent will experience extreme hardship if the applicant is returned to the proposed country of removal. If an applicant establishes these factors, the Attorney General may, in her discretion, grant relief to and adjust the status of the applicant.

Under Section 203(a) of NACARA, individuals in the following categories, unless they have committed an aggravated felony, are entitled to apply for suspension of deportation under former Section 244(a) of the Act, without regard to certain changes made by the 1996 amendments, including the calculation of continuous physical presence. The categories are:

For persons in these categories who are either currently in removal proceedings or who might be placed in removal proceedings in the future, Section 203(b) of NACARA creates "special rule cancellation for removal" a hybrid form of cancellation containing the same basic statutory requirements contained in former Section 244(a) of the Act.

The INS estimates that approximately 300,000 individuals may be entitled to apply for Section 203 relief. Approximately 240,000 of those individuals are members of the ABC class and currently have asylum application pending with the INS, pursuant to the ABC settlement agreement. To facilitate the adjudication f such claims, and mindful of the ameliorative purposes of NACARA, the Attorney General authorized the INS to develop a new program in which asylum officers would be given authority to grant relief under section 203 of NACARA to certain eligible applicants whose asylum applications are pending before the asylum office (the vast majority of whom are ABC class members). Persons found by an asylum officer to be ineligible for either asylum or relief under section 203 of NACARA would be referred to an immigration judge for a de novo adjudication of the NACARA claim.

On November 24, 1998 the Department of Justice published the proposed rule implementing this new program. The comment period closed sixty days later on January 25, 1999. The Department has received over 300 comments, the majority of which urge the Attorney General to make a blanket finding of extreme hardship or give a presumption of extreme hardship for some or all of the individuals included under Section 203. Analytically, the vast majority of comments addressed only the factors that support a find of hardship for the ABC class as a group. The comments essentially raise three points: the prosecutorial discretion of the Attorney General to make such a finding or, at a minimum, to extend a presumption; the legislative history, as recounted in letters from NACARA sponsors to the Attorney General following enactment of the legislation; and the unique circumstances under which the ABC class was formed.

We do not intend, in this memorandum, to address each of the issues raised by the commenter, in part because we believe that on certain issues there is little disagreement. For example, we agree with the commenters that the Attorney General has the power to establish, by regulation, standards under which a claim may be adjudicated, particularly with regard to discretionary decisions. Similarly, the Attorney General has frequently exercised her authority to prescribe presumptions and burden-shifting within the context of the administrative process. The primary dispute with respect to extreme hardship has always been whether the case specific findings required under law in suspension of deportation determinations could accommodate any kind of presumption of hardship.

Upon re-examination, we believe that the law supports the use of a limited rebuttable presumption, one that is specifically tailored to a well-defined group, and which requires a certain initial showing of hardship before the presumption can be granted.

Suspension of deportation is an extraordinary form of relief, requiring an applicant to establish that he or she merits such relief. Perhaps the most difficult factor to establish in raising a claim for suspension is that the hardship faced is extreme - that is, it goes beyond that typically experienced by an individual subject to deportation or removal. The legislative history of the extreme hardship requirement suggest that Congress assumed that suspension of deportation determinations would be made on a case-by-case basis. As the conference committee noted, "As intended by the Senate, relief would be granted to certain aliens physically present in the United States, but under the language agreed to by the committee of conference, the granting of relief will be subject to congressional review and it will be predicated on the showing of specified type and degree of personal hardship which might occur in the absence of such relief." Conf. Rep. ' 7-2552, 87^th Cong., 2^nd Sess, 1962, U.S.C.C.A.N. 4028. In its initial analysis of the committee's report, the Board of Immigration Appeals concluded, "The personal privation contemplated in a situation characterized by >extreme hardship' within the meaning of the statute is not a definable term of fixed and inflexible content or meaning. It necessarily depends on the facts and circumstances peculiar to each case." Matter of Hwang, 10 I&N. Dec. 448, 451 (BIA 1964). The Supreme Court has noted, however, that the Attorney General and her delegates have been left with the task of defining extreme hardship. Se INS v. Wang 450 U.S. 139 (1981). See also Hernandez-Coderov. INS, 819 F. 2d 558 (5^th Cir. 1987)(The Attorney General has "unfettered" discretion to determine extreme hardship).

Until recently, the Attorney General, through the BIA, has chosen to allow the definition of extreme hardship to develop solely through ongoing examination in Board precedent and federal court decisions. With the publication of the proposed 203 rule, the Department of Justice has, for the first time, compiled a list of those factors considered relevant to an extreme hardship determination based on those administrative and federal court decisions. The proposed rule is careful to explain that the list is not exhaustive, and that ultimately, a determination of extreme hardship will be made on a case-by-case basis. Ideally, this codification will assist adjudicators, attorneys and unrepresented individuals in rapidly identifying relevant issues.

Commenters have argued that the proposed rule does not go far enough to meet the ameliorative purposes of NACARA. Generally, the commenters focus only on the ABC class, noting that this group is historically distinct and that virtually all class members share similar characteristics, including flight form persecution, membership in a legal class which challenged the asylum procedures utilized by the Department of Justice, lengths of authorized residence in the United States, deep community ties, steady employment, and the prospects of a bleak future if returned to El Salvador or Guatemala, particularly following Hurricane Mitch. The commenters have not articulated a set of similar shared characteristics for nationals of the former Soviet bloc, but generally argue that for the sake of consistency and administrative ease, everyone subject to NACARA should receive the benefit of a blanket hardship. Other commenters ask only for a presumption of hardship, arguing that individual NACARA beneficiaries, particularly ABC class members, should not be required to list all relevant factors, but should instead be assured to meet the extreme hardship standard.

Given both the legislative history and the historical development of the extreme hardship standard, it is clear that the factor cannot be "read out" of the statute by issuing a blanket finding of hardship applicable to all Section 203 applicants. To do so would ignore the fact that Section 203 extends eligibility for relief to the nationals of more than twenty countries, many of whom face differing economic and political circumstances upon return to their proposed country of removal. Moreover, a blanket finding of hardship would impermissibly shift the nature of the Section 203 benefit so that it was essentially the same as the adjustment of status provision providing relief to Cubans and Nicaraguans in Section 202 of NACARA. The factual issues raised by the advocates to justify a blanket hardship waiver were well-known by Congress at the time that it considered relief for nationals of Central America, Cuba, and the former Soviet bloc. To adopt a finding of extreme hardship in all cases would create by regulation a benefit that Congress declined to extend under the statute.

Although a blanket finding would be impermissible, given the wide variation in individual circumstances, the commenters have identified a series of factors which sufficiently serve to distinguish the ABC class members from other NACARA beneficiaries. The factors noted above parallel those cited in the proposed rule, particularly the ABC class's recognized status and the commensurate work authorization, and suggest a class of individuals with deep ties to the community who may be particularly harmed by returning to their home countries. This conclusion is all the more likely given the continued impact of Hurricane Mitch. Nonetheless, the clear meaning of the statute requires some showing on an individual's part that he or she will suffer extreme hardship. Consequently, although we believe the concept of a presumption of extreme hardship can be supported for a limited, clearly defined group, it must be accompanied by some kind of threshold showing that the individual falls within the statutory requirement.

Thus we believe that the ameliorative purpose of NACARA and a strict reading of the suspension standard can be harmonized by creating a presumption of hardship in those cases where an ABC class member makes an initial showing, through his or her NACARA application that there will be hardship upon deportation or removal. The individualized showing, coupled with the acknowledged hardships suffered by registered class members as a whole, will be sufficient to meet the extreme hardship standard. The initial showing by the applicant will also ensure that the government is made aware of any factors suggesting that the presumption might be inappropriate in a given case. In those cases, the presumption would still attach to the applicant, but the government could then determine whether or not it could rebut the initial presumption.

Our proposal is analogous to the current burden-shifting authorized for asylum cases in which past persecution has been established. Although the initial burden is on the asylum applicant to establish past persecution or a well-founded fear of persecution, 8 CFR 208.13, an applicant who establishes past persecution on a account of a protected characteristic is accorded a presumption of a well-founded fear of persecution. The INS then has the burden to establish that the applicant no longer has a well-founded fear of persecution, generally through a showing of changed country conditions. The burden-shifting mechanism requires the applicant to make the initial case for relief, but frees him or her from proving every element of the claim, particularly those elements where the Service is arguably in a better position to present evidence rebutting the claim. In NACARA cases, once the applicant produces the initial evidence, it will be the Service's burden to rebut the presumption based on factors raised in the application itself or factors such as changes in country conditions.

Because the great majority of ABC applicants fall within the ABC class, this burden-shifting proposal will also promote administrative efficiency, allowing the INS to process many cases expediently. Additionally, the proposal will permit adjudicators to focus their attention on those cases requiring a more extensive analysis of the extreme hardship requirement. It must be noted, however, that nationals of the former Soviet bloc will continue to have the burden of establishing extreme hardship. Although this may present the possibility of equal protection challenges, the ABC class appears sufficiently distinguishable from other NACARA applicants, based both on class membership and the application of Department of Justice resources, to justify adopting a rebuttable presumption for this group.