OCIJ Memo on Continuances for Dependents of NACARA

May 13, 1998

To: All Immigration Judges
All Court Administrators
All Judicial Law Clerks

From: Office of the Chief Immigration Judge

Subject: Continuances for Spouses, Children, and Unmarried Sons and Daughters of Aliens Who Are Eligible for Suspension of Deportation or Cancellation of Removal Under NACARA

Our previous memorandum to the Immigration Courts, dated February 3, attached a plan, which was approved by the Attorney General, to have INS asylum officers adjudicate certain applications for suspension of deportation and cancellation of removal for certain nationals of El Salvador, Guatemala, Eastern European countries, and any republic of the former Soviet Union, under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA). It is expected that a final regulation outlining the procedures to apply for suspension of deportation or cancellation of removal with an INS asylum office will be published later this year.

If an alien falls into one of the following categories described in section 203(a) of NACARA, he or she may be eligible for suspension of deportation or cancellation of removal based on registration for temporary protected status or ABC benefits or on filing for asylum before a particular date. Attached is a description of these eligible aliens. These aliens will be referred to as “NACARA principals” for purposes of this memorandum. The special rule for cancellation of removal and suspension of deportation in section 203(a) of NACARA also includes two other groups. These groups are (1) spouses and children of a NACARA principal and (2) unmarried sons and daughters of a NACARA principal, if they entered the United States on or before October 1, 1990. Aliens who fall within these two groups will be referred to as “NACARA dependants” for purposes of this memorandum. It should be noted that NACARA dependants must still file an application and satisfy the statutory criteria for special cancellation of removal under section 203 of NACARA -- extreme hardship, good moral character, and continuous physical presence.

In light of the future changes in the procedures to adjudicate these cases, questions have been raised concerning the status of NACARA dependents who are in Immigration Court proceedings. Under section 203 of NACARA, NACARA dependents can only be granted suspension of deportation or cancellation of removal after or at the time the NACARA principal has been granted suspension of deportation or cancellation of removal.

There are some NACARA dependents who are in Immigration Court proceedings, whose spouse or parent has an asylum application pending with an INS asylum office. In order to allow these NACARA dependents the ability to apply for cancellation of removal or suspension of deportation with their NACARA principal at a later date, NACARA dependants may move for a continuance. Before an Immigration Judge grants a continuance, there must be evidence of the relationship to the NACARA principal, as well as documentation of the parent’s 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 evidence of a pending asylum application with an INS asylum office. In the case of an unmarried son or daughter of a NACARA principal, there must be evidence of an entry into the United States on or before October 1, 1990. The Service should be afforded the opportunity to respond to the motion for continuance and submit any relevant evidence on whether an alien is a NACARA dependant and whether the NACARA principal has an asylum application pending with an INS asylum office. In addition, the record should reflect that the NACARA dependant is not an aggravated felon. v If an Immigration Judge determines that the alien requesting the continuance is indeed a NACARA dependent, he or she must continue the case to a Master Reset Calendar during the month of April 1999. The Immigration Judge must inform the NACARA dependent that he or she should, at the continued hearing in April, 1999, provide evidence that the NACARA principal applied for suspension/cancellation with the INS Asylum Office and that failure to provide this evidence may result in the Immigration Judge going forward with the hearing. At the Master Reset Calendar hearing in April, 1999, if the NACARA dependant provides proof that the NACARA principal has applied for suspension/cancellation and that he or she is not clearly ineligible for suspension/cancellation, the Service will not oppose a motion to administratively close.

If there are any questions concerning this matter, please contact Michael Straus at 703/305-1716.

Michael J. Creppy
Chief Immigration Judge