OCIJ on Enactment of NACARA
To: All Immigration Judges
All Court Administrators
All Judicial Law Clerks
All Court Personnel
From: Office of the Chief Immigration Judge
Subject: Enactment of the Nicaraguan Adjustment and Central American Relief Act
The President signed H.R. 2607, which contains the Nicaraguan Adjustment and Central American Relief Act (NACARA) on November 19, 1997. A copy of the legislation which was signed by the President was sent by overnight mail to the Immigration Courts on November 20. Please note that a separate piece of legislation, the Technical Corrections to Nicaraguan Adjustment and Central American Relief Act, was also attached. The purpose of this memorandum is to provide procedural guidance to Immigration Judges. It is not intended to affect the independent substantive decision making of Immigration Judges in cases coming before them.
1. Adjustment of Status for Nicaraguans and Cubans
A. Eligibility Qualifications. The eligibility criteria under this provision are as follows:
1. National of Cuba or Nicaragua; and
2. a) Physical presence in the United States for a continuous period (total absences may not exceed 180 days) beginning on or before December 1, 1995; or
b) A spouse or child of an alien granted adjustment under this section; or
3. An unmarried son or daughter of an alien granted adjustment under this section, if he or she establishes continuous physical presence in the United States beginning on or before December 1, 1995; and
4. The applicant must be admissible, except the following grounds of inadmissibility do not apply-
i. Section 212(a)(4) of the Act (public charge);
ii. Section 212(a)(5) of the Act (labor certification);
iii. Section 212(a)(6)(A) of the Act (present in the United States without being admitted or paroled);
iv. Section 212(a)(7)(A) of the Act (documentary requirements);
v. Section 212(a)(9)(B) of the Act (aliens unlawfully present).
B. Procedure
1. An applicant must apply for adjustment of status before April 1, 2000 (regardless of whether the applicant has been ordered deported). There is no requirement to file a separate motion to reopen to apply.
2. If the applicant is in proceedings, no deportation or removal order can be issued if he or she has applied for adjustment under the NACARA and there has not been a final administrative determination denying the application.
3. Appeals are the same as provided to applicants for adjustment of status under section 245 of the Act or for aliens subject to removal proceedings under section 240 of the Act.
C. Handling Cases in Which the Alien May Be Eligible for Adjustment Under this Provision
Until implementing regulations or further guidance is issued, the issue of how aliens who are in proceedings can apply for adjustment of status under the NACARA has not been determined.
Pending the implementation of further guidance, effective immediately, Immigration Judges should not issue orders of deportation or removal on persons who appear to qualify for adjustment of status under the NACARA. In the interim, if an alien appears before an Immigration Judge and the Immigration Judge determines that alien meets the eligibility qualification of NACARA as summarized in part I, A of this memorandum, he or she should notify the alien about the enactment of this provision and then advise the parties that he or she intends to administratively close the case pending implementation of the legislation, if the parties have no objection. If an Immigration Judge determines that the alien does not meet the eligibility requirement for adjustment pursuant to NACARA, the case should proceed on the merits. A copy of the order granting administrative closure is attached. In order to track these administratively closed cases, a special case identifier (CA) has been established in ANSIR as of November 20. In addition, a new case disposition code will be available in the near future and instructions will be forthcoming.
II. Changes to Suspension of Deportation and Cancellation of Removal
A. Continuous Physical Presence
Section 203(a) of the NACARA provides that paragraphs (1) and (2) of section 240(d) of the Act (relating to continuous residence or physical presence) shall apply to orders to show cause (including those referred to in section 242B(a)(1) of the Act), issued before, on, or after the date of the enactment of the IIRAIRA. This section provides that any period of continuous physical presence shall be deemed to end when the alien is served an order to show cause. [1] This amendment appears to be effective immediately, as section 203 of the NACARA shall take effect as if included in the Immigration Reform and Immigrant Responsibility Act of 1996. The NACARA, however, created certain exceptions to this provision.
B. Exceptions to the Cut-Off of Continuous Physical Presence
There are classes of individuals who are not subject to the provision that service of an order to show cause terminates the required period of continuous physical presence. Persons who have been convicted at any time of an aggravated felony as defined in section 101(a)(43) of the Act cannot qualify under exceptions 2-7 below. Those classes of individuals are as follows:
1. Persons for whom the Attorney General has terminated deportation proceedings and instituted removal proceedings.
2. Nationals of El Salvador who:
i. first entered the United States on or before September 19, 1990; and
ii. registered for ABC benefits or Temporary Protected Status (TPS) on or before October 31, 1991; and
iii. were not apprehended after December 19, 1990 at time of entry.
3. Nationals of Guatemala who:
i. first entered the United States on or before October 1, 1990; and
ii. registered for ABC benefits on or before December 31, 1991; and
iii. were not apprehended after December 19, 1990 at time of entry.
4. Nationals of Guatemala or El Salvador who applied for asylum with INS on or before April 1, 1990.
5. Nationals of the Soviet Union, Russia, any republic of the former Soviet Union, Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania, Hungary, Bulgaria, Albania, East Germany, Yugoslavia, or any state of the former Yugoslavia who:
i. entered the United States on or before December 31, 1990; and
ii. applied for asylum on or before December 31, 1991; and
iii. at the time of filing was a national of the countries listed above.
6. Spouses and children of a person granted suspension or cancellation of removal who is described under classes 2-5 above.
7. Unmarried sons and daughters of a parent granted suspension or cancellation who is defined under classes 2-5 above, if the unmarried son or daughter was 21 years or older at the time the parent was granted suspension of deportation or cancellation of removal. The unmarried sons or daughters must have entered the U.S. before October 1, 1990.
C. Cancellation of Removal for Certain Aliens
Section 203(b) of the NACARA creates special rules for cancellation of removal for certain individuals.
1. Classes of Eligible Aliens
The classes of eligible aliens are comprised of the six classes of aliens described in part II, B, 2-7 of the memorandum.
2. Statutory Criteria for Relief under this Provision.
The persons described above must meet the statutory criteria set forth in section 309(c)(5)(C)(i) of IIRAIRA, as amended by section 203(a)(1) of NACARA. These criteria generally mirror those for the former suspension of deportation (section 244(a)(1) or (2) of the Act, as in effect before September 30, 1996). In addition, the alien must not be removable or inadmissible under criminal or security grounds.
3. Motions to Reopen
Section 203(c) of the NACARA allows an alien, who becomes eligible for suspension or cancellation as a result of the amendments made by section 203 to file one motion to reopen to apply for cancellation of removal/suspension of deportation, regardless of any other statutory or regulatory limitations. The Attorney General is required to designate a time period in which to file such a motion to reopen. This period must begin within 60 days of enactment, and may not exceed 240 days.
D. Annual Cap on Suspension of Deportation/Cancellation of Removal
Section 204(a) of the NACARA sets forth seven classes of aliens who are exempt from the annual cap on suspension of deportation and cancellation of removal provided in section 240(A)(e) of the Act (as amended by IIRAIRA and NACARA). They are as follows:
1. The classes of aliens described in part II, B, 2-7 of the memorandum.
2. Persons in deportation proceedings who are granted suspension of deportation under the former section 244(a)(3) of the Act (as in effect before September 30, 1996) as battered spouses or children.
E. Handling Applications for Suspension of Deportation or Cancellation of Removal
1. Cases Scheduled for a Merits Hearing-
i. Nicaraguan or Cuban Nationals
Any case in which a suspension of deportation or cancellation of removal application has been filed by a Nicaraguan or a Cuban national who is eligible for relief under section 202 of the NACARA should be administratively closed as described in part I, C of this memorandum.
ii. Other Nationalities-
It should be noted that 8 C.F.R. 240.21(a) requires that applications for suspension or deportation and cancellation of removal that meet the statutory requirements and warrant a favorable exercise of discretion be granted only on a conditional basis because such applications are subject to an annual numerical limitation placed on suspension of deportation and cancellation of removal by IIRAIRA. Now, section 204 of NACARA has rewritten the annual limitation provision of IIRAIRA, codified at section 240A(e) of the Act, to state that specified classes of aliens are exempt from the annual cap, and that such exemption was made effective as if it had been included in the enactment of IIRAIRA. Since the conditional grant rule was adopted only in order to deal with cases subject to the annual cap, it should not be interpreted to preclude the granting of suspension of deportation or cancellation of removal in cases for which the cap has been made inapplicable.
Immigration Judges, therefore, may grant suspension or deportation or cancellation of removal to any alien whom the Judge has determined is described in part II, D of this memorandum and, therefore, is exempt from the annual cap. Because the statute requires that those numbers be offset by certain immigrant visa numbers, it will be critical to track and report any applications which are granted without condition. Instructions will be forthcoming in the near future.
All other cases which meet the statutory requirements and warrant a favorable exercise of discretion should continue to be granted on a conditional basis pursuant to the regulation.
2. Reserved Decisions from Fiscal Year 1997
Immigration Judges may begin to issue decisions on those suspension of deportation and cancellation of removal cases in which a decision was reserved in fiscal year 1997 as outlined in my memorandum entitled Procedures for Issuing Conditional Grant Orders for Suspension and Cancellation Cases Reserved in Fiscal Year 1997. Those cases which are not subject to the cap may be issued as an outright grant as outlined in the preceding section. Any other cases must be granted on a conditional basis.
Thomas Pullen
Acting Chief Immigration Judge
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FOOTNOTE:
[1] Even though section 203(a) of the NACARA provides that paragraphs (1) and (2) of section 240A(d) of the Act (relating to continuous physical presence) shall apply to orders to show cause (including those referred to in section 242B(a)(1) of the Act), until the Tefel v. Reno preliminary injunction issued by the United States District Court for the Southern District of Florida is vacated, Immigration Judges in the Courts affected by the Tefel injunction should maintain the status quo.
UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Office of the Chief Immigration Judge Falls Church, Virginia 22041
In the Matter of:
ORDER
The Applicant/Respondent appears to be prima facie eligible for Adjustment of Status to that of a Lawful Permanent Resident pursuant to Section 202 of the Nicaraguan Adjustment and Central American Relief Act (NACARA). It is, therefore, ordered that these proceedings be Administratively Closed.
If either party in this case desires further action on this matter, at any time thereafter, a written motion to reconsider this case (including a certificate of service on the opposing party) may be filed with the Immigration Court having administrative control over the Record of Proceedings in this case.
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Immigration Judge
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Date