Resources for Members
[i][1]NACARA PRACTICE ADVISORY
Q. Which Salvadorans and Guatemalans are eligible for NACARA relief?
A. A Salvadoran described under either of the categories below is eligible to apply for NACARA suspension of deportation or cancellation of removal.
The first category includes a Salvadoran who:
§ first entered the U.S. on or before September 19, 1990 [iv][4]
§ registered for benefits under the American Baptist Churches v. Thornburgh (ABC)[v][5]
settlement agreement
on or before October 31, 1991
either by submitting an ABC
registration or by applying for temporary protected status (TPS)[vi][6]
§ has not been "apprehended at the time of entry" after December 19, 1990[vii][7] and
§ has not been convicted of an aggravated felony[viii][8]
The second category includes a Salvadoran who:
§ filed an application for asylum with the INS on or before April 1, 1990[ix] and
§ has not been convicted of an aggravated felony.[x]
A Guatemalan described under either of the categories below is eligible to apply for NACARA suspension or cancellation. The first category includes a Guatemalan who:
§ seqlevel0
\h \r0 seq level1 \h \r0 seq level2 \h \r0 seq level3 \h \r0 seq level4 \h \r0
seq
level5 \h \r0 seq level6 \h \r0 seq level7 \h \r0 first entered the
United States on or before
October 1, 1990 (ABC class member)[xi]
§ registered for ABC benefits on or before December 31, 1991[xii]
§ has not been apprehended at time of entry after December 19, 1990 [xiii] and
§ has not been convicted of an aggravated felony.[xiv]
The second category includes a Guatemalan who:
§ filed an application for asylum on or before April 1, 1990 and[xv]
§ has not been convicted of an aggravated felony.[xvi]
Q. Are Eastern Europeans and citizens of the former republics of the Soviet Union covered?
A. Yes. A person who was at the time of filing a national of Russia, any republic of the former Soviet Union, Poland, Czechoslovakia, Romania, Hungary, Bulgaria, Albania, East Germany, Yugoslavia, or any state of the former Yugoslavia if she or he:
§ entered the United States on or before December 31, 1990[xvii]
§ filed an application for asylum on or before December 31, 1991[xviii], and
§ has not been convicted of an aggravated felony.[xix]
Q. Can a person's minor children qualify as derivative applicants?
A. No. Each individual must establish her or his eligibility for NACARA suspension or cancellation independently. Each individual must submit a separate application.
Q. Can minor children qualify?
A. Yes. Children under 21 and spouses (dependent applicants) are eligible to apply if the principal applicant (parent or spouse) wins NACARA suspension or cancellation. However, for administrative efficiency and to promote family unity, dependent applicants may apply for NACARA suspension or cancellation before their spouse or parent wins suspension or cancellation only if they provide the following information:
§ evidence that the
individual applicant's parent or spouse has applied or is applying for
NACARA benefits with the INS; and
§ evidence that the spousal or parental relationship exists.
Q. Are unmarried sons and daughters over 21 eligible?
A. Yes, but only if
§ the INS or EOIR has granted suspension or cancellation to her or his parent[xx]
§ she or he entered the United States on or before October 1, 1990 and
§ the relationship
existed at the time the INS or EOIR granted suspension or cancellation to
the principal
Q. What must an applicant who filed a timely motion to reopen do to complete her or his NACARA suspension application?
A. The completed suspension application is due 150 days after June 21, 1999.
Q. Where must a person file the suspension application to supplement a motion to reopen?
A. A person files with the court that issued the deportation or removal order. Under the NACARA motion to reopen regulations, an applicant could file a motion to reopen with any immigration court if she or he did not which court issued the deportation order. The EOIR should have checked the records and notified the applicant of the name and the address of the immigration court that issued the order. If the EOIR did not respond, a person should file the suspension application and supplementary materials with the same court in which the person filed the motion to reopen.
Q. How does a person know if she or he should apply for suspension or cancellation?
A. Any one in proceedings before April 1, 1997 must file for suspension. Everyone else must apply for cancellation.
Q. Is a Salvadoran or Guatemalan eligible for NACARA suspension who filed for asylum with the immigration court before April 1, 1997.
A. Yes. Under the interim regulations, a Salvadoran or Guatemalan who filed an asylum application with the INS or the immigration court on or before April 1, 1990 is eligible for NACARA suspension or cancellation either by filing an application with the INS or with the immigration court, provided that she or he served a copy of that application on the INS. 8 CFR 240.61(a)(2).
Q. Can an applicant bring an interpreter to the NACARA interview with an INS asylum officer?
A. Yes. An applicant who is not fluent in English must bring an interpreter to the interview.[xxi] Neither the applicant not the applicant’s attorney or representative may serve as interpreter, nor may any witness in the case. Applicants who have asylum applications pending with the INS cannot use employees of their country of nationality as interpreters. The INS considers failure to bring a competent interpreter to the interview, if it is without good cause, to be an unexcused failure to appear for the interview that may result in referral to the immigration court or dismissal of the application.
Q. Who is eligible for a presumption of extreme hardship?
A. Every Salvadoran and Guatemalan principal applicant for suspension or cancellation. Under the interim regulations the following groups are not eligible for a presumption of hardship:
§ nationals of the
designated Eastern European countries and citizens of the former Soviet
Republics
§ dependent Salvadoran applicants and
§ dependent Guatemalan applicants.
Q. What must a principal NACARA cancellation or
suspension applicant show to benefit from the presumption of extreme hardship?
A. Nothing. The presumption means that she or he has met her or his burden of establishing extreme hardship.
Q. Does that mean a person all NACARA principal
applicants win suspension or cancellation automatically?
A. No. An applicant must establish continuous physical presence in the United States and good moral character, and deserve the favorable exercise of discretion.
Q. Is an adjudicator permitted to consider that
the presumption of extreme hardship has been rebutted?
A. Yes, but only when
there is no evidence of any of the factors associated with extreme hardship or
the evidence in the record undermines the basic assumptions on which the presumption is based. For example, an extremely wealthy individual might return to his or her country without experiencing hardship. Nevertheless, if she or he has a medical condition or if any other hardship factors exist, then she or he would establish extreme hardship despite her or his wealth.
Part III Selected Issues
Q. What does the phrase "apprehended at time of entry" mean?
A. This phrase first appeared in the ABC settlement agreement. Under the ABC settlement, a class member who is "apprehended at time of entry" after December 19, 1990 is not eligible for benefits under the agreement. Congress used the identical language in NACARA to make ineligible for suspension or cancellation any:
· Salvadoran NACARA applicant seeking to qualify because she or he was in the United States prior to September 19, 1990 and she or he registered for ABC or applied for TPS or
· Guatemalan NACARA applicant who was in the United States prior to October 1, 1990 and registered for benefits under the ABC settlement agreement.
The apprehended at time of entry bar does not apply to:
§ to Guatemalans or Salvadorans that applied for asylum on or before April 1, 1990
§ to Salvadoran and Guatemalan dependents and
§ to nationals of the designated Eastern European countries and of the former Soviet Republics
The INS and advocates disagree about what this phrase means. The INS believes that the phrase “apprehended at time of entry” after December 19, 1990 refers to anyone who would have been in exclusion proceedings under the standards that existed for cases that commenced before April 1, 1997. Under that test, a person entered the United States if she or he: (1) crossed into the territorial limits of the US; (2) evaded inspection; and (3) had a period of being free from official restraint, including governmental surveillance.
Advocates assert that the government included the phrase “apprehended at time of entry” in the ABC settlement agreement to prevent Salvadorans and Guatemalans who were then living outside the United States from coming to the United States to obtain benefits under the agreement. Congress repeated the language in NACARA to ensure that NACARA suspension and cancellation eligibility is consistent with eligibility under the ABC agreement. Under the advocates’ view, the parties to the agreement never intended to deny a long-term class members eligibility because the INS arrested him or her seeking to re-enter the United States.
Q. Is there any way to challenge the INS’ characterization that a person was “apprehended at time of entry”?
A. Yes. The ABC agreement allows a person denied benefits under the agreement to file an action in federal district court. The agreement forbids the INS from objecting to the court’s subject matter jurisdiction.
It also may be possible to raise a challenge in the immigration court. The BIA has held that for purposes of the settlement agreement that only an INS asylum officer has jurisdiction to determine whether the INS apprehended a Salvadoran or Guatemalan at time of entry. Matter of Morales, Int. Dec. # 3259 (BIA 1996). Since that decision, however, Congress has conferred jurisdiction on the EOIR to grant NACARA suspension or cancellation. As part of that jurisdiction, the EOIR must now determine eligibility for NACARA suspension or cancellation. As part of that eligibility determination, the EOIR must decide whether the INS apprehended a person at time of entry. This intervening legislative enactment appears to limit the holding in Matter of Morales, Int. Dec. # 3259 (BIA 1996) solely to determinations of eligibility for benefits under the settlement agreement.
Q. Since NACARA suspension or cancellation of removal results in a grant of permanent residence, is there any reason to continue with an asylum application after a grant of adjustment of status?
A. Yes. The following scenarios illustrate situations in which it may be in an applicant's interest to be granted asylum as well as adjustment pursuant to NACARA suspension or cancellation.
·the applicant has a spouse or minor child in his or her home country who could enter the U.S. as a derivative asylee by filing Form I-730 after the principal applicant wins asylum or
· the applicant needs public benefits that she or he will be entitled (at least for a period) as an asylee but to which he or she is not entitled by receiving LPR status through NACARA suspension or cancellation.
A person can pursue asylum relief after winning their cancellation or suspension claim. Non-ABC class members who win NACARA suspension or cancellation must notify the INS of their intention to pursue their asylum claim within 30 days of the grant of adjustment of status.[xxii] The Department of Justice acknowledges that the ABC settlement agreement governs asylum interviews for ABC class members, not the interim regulations[xxiii] The Department of Justice is developing a form for ABC class members who win NACARA suspension or cancellation to waive their rights to an ABC asylum interview.
There will be individuals who know that they intend to pursue their asylum claims before the INS asylum officer conducts the NACARA suspension or cancellation interview. There should be no adverse consequences to a person who decides to pursue her or his asylum claim. Any client for whom asylum is beneficial should also pursue asylum and NACARA suspension or cancellation.
Q. What effect does advance parole have on a person's ability to establish continuous physical presence.
A. It appears from the interim regulations that receipt of advance parole does not necessarily interrupt continuous presence in the United States for purposes of NACARA eligibility.
Q. What if the person received advance parole while she or he was in deportation proceedings?
A. The interim regulations take the position that deportation proceedings ended when an ABC class member person left the United States under an order of advance parole.[xxiv]
Q. Is the INS' position as helpful as it seems?
A. It is helpful as long as the INS did not put the person in exclusion proceedings.
Q. What is the INS' position about individuals that it put into exclusion proceedings?
A. According to the
interim regulations, a person in exclusion proceedings is ineligible for
NACARA suspension.
Q. What do advocates say?
A. There is a statutory provision that governs this situation directly that that the interim regulations did not include. Section 304 of The Miscellaneous and Technical Amendments of 1991 (MTINA) provides that an individual with TPS that left and returned under a grant of advance parole "shall be inspected and admitted in the same immigration status the alien had at the time of departure."[xxv] Notwithstanding MTINA § 304, the INS in some districts mistakenly placed individuals in exclusion proceedings when they returned under a grant of advance parole. That the INS overlooked NACARA § 304 should not take away these individuals eligibility for NACARA benefits. Since the Attorney General did not give force to the provision in the interim regulations, it is reasonable to conclude that the Attorney General's designees have overlooked this provision on many other occasions. That a provision is obscure does not make it any less of a law.
Section 304 of MTINA arguably applies to the successor programs to TPS. On June 26, 1992, President Bush created the Deferred Enforced Departure (DED) Program as a successor to Temporary Protected Status for Salvadorans.
There are other problems with the INS' decision to deny NACARA suspension to a person in exclusion proceedings. Anyone who the INS improperly put in proceedings has an argument that the court should end her or his exclusion proceedings. Advocates take the view that the INS can put a person in exclusion proceedings only if the advance parole document provided specific notice of the potential consequences a noncitizen would face for leaving under advance parole. The Ninth Circuit has held it improper to put a noncitizen with a pending registry application in exclusion proceedings when the advance parole document warned only of the risk of exclusion proceedings in case "your adjustment application" is denied. [xxvi] Applying that principle to NACARA-eligible individuals leads to the conclusion that the INS should end exclusion proceedings for anyone that did not get notice that advance parole would effect NACARA eligibility.
Q. Can the Attorney General reinitiate removal proceedings for a person in exclusion proceedings?
A. The interim regulations leave this possibility open. Advocates take the position that the interim regulations ignore Congress’ unambiguous intent to permit noncitizens in exclusion proceedings to apply for suspension of deportation. The NACARA statute provides that in calculating “continuous physical presence” both for suspension of deportation and cancellation of removal under NACARA that the special rules apply “regardless of whether the alien is in exclusion or deportation proceedings.” IIRAIRA § 309(c)(5)(c)(i), as amended by NACARA § 203 (emphasis added). The Attorney General can give effect to this statutory provision by allowing eligible noncitizens in exclusion proceedings to apply for NACARA relief.
Advocates argue that the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) authorize the Attorney General to resolve the issue. According to this view, in cases where the immigration court has not conducted a hearing the Attorney General should initiate removal proceedings under IIRAIRA § 309(c)(2). In those cases where the immigration court has concluded the hearing, the Attorney General should end the exclusion proceedings as provided under IIRAIRA § 309(c)(3).
Q. If a Salvadoran or Guatemalan client has reentered the United States after having been deported can she or he qualify for NACARA cancellation or suspension.
A. Section 241(a)(5) of the Immigration and Nationality Act provides that the INS can reinstate the prior deportation or removal order of a person who enters the United States unlawfully after having been deported. Advocates do not think that reinstatement of removal applies to NACARA applications at all. If it were to apply it would only cover deportation orders entered after April 1, 1997, the effective date for IIRIRA. Challenges to the INS' interpretation are now pending in the circuit courts. The INS' view is that it can reinstate a deportation order regardless of when it was entered. Until the answer to the issue is clear, there is a risk that the INS will attempt to reinstate the prior order of anyone who applies for NACARA. In most cases, a person is better of waiting to file an application until the courts decide the temporal limits of the INS' reinstatement authority.
There is one major exception to the general rule that it is better for persons with deportation orders to avoid filing quickly. The exception is for an individual that submitted a motion to reopen. Since a person who filed a motion to reopen must submit a complete suspension application to supplement her or his motion to reopen, she or he cannot afford to wait. A second possible exception could be for applicants with children who are approaching 21 years of age. A dependent only maintains eligibility if the Attorney General grants NACARA suspension or cancellation to her or his parent before she or he turns twenty-one. Therefore, a principal applicant whose child that is about to age out might choose to file for NACARA suspension or cancellation in time to allow the Attorney General to grant her or his claim while her or his child is still eligible. Each applicant will need to decide whether the risk of reinstatement for the prior order justifies filing for cancellation before it is clear to which orders INA § 241(a)(5) applies.
Q. What are the other bars mentioned and when do they take effect?
A. The Immigration Act of 1990 barred certain individuals from obtaining selected forms of relief for a five-year period. The bars that Congress added in 1990 have different effective dates.
Nature of Bar
Immigration Judge Enters Deportation Order Without Respondent Being Present (in absentia order) [former INA § 242B(e)(1)]
Effective Date
June 13, 1992
Notice Requirements
For this bar to operate the INS must have informed the respondent of the consequences of failing to attend the hearing by providing
§ written notice in English and Spanish as part of the order to show cause
§ oral notice in either the respondent's native language or in another language the respondent understands
Exception
The bar does not apply if the respondent files a motion to rescind the order
§ within 180 days because there were "exceptional circumstances" that caused the failure to appear or
§ at any time because the failure to appear was due to a lack of proper notice
Length of Bar
This bar applies for five years after the entry of the final order of deportation.
Example: The Immigration Judge enters an in absentia deportation order on July 1, 1991. The five-year period of ineligibility begins on July 1, 1991 and ends on July 1, 1996.
Nature of Bar
Failure to Leave under an Order of Voluntary Departure [former INA § 242B(e)(2)]
Effective Date
The bar for failure to depart after an order of voluntary departure took effect on November 29, 1990. See section 545(g)(2) of the Immigration Act of 1990.
Notice Requirements
For this bar to operate the INS must have informed the respondent of these consequences by providing
§ written notice to the respondent in English and Spanish and
§ oral notice in either the respondent's native language or in another language the respondent understands
Exception
The bar does not apply if the respondent can establish that there were "exceptional circumstances" that caused the failure.
Length of Bar
This bar applies for five years after the scheduled date of departure.
Example: The Immigration Judge grants 3 months voluntary departure on July 1, 1991. The respondent's five-year period of ineligibility begins on October 1, 1991 and ends on October 1, 1996.
Nature of Bar
Failure to Report for Deportation [former INA § 242B(e)(3)]
Effective Date
The bar for failure to report for deportation took effect on November 29, 1990.
Notice Requirements
For this bar to operate the INS must have informed the respondent of these consequences by providing
§ written notice in the final order of deportation and
§ oral notice in either the respondent's native language or in another language the respondent understands
Exception
The bar does not apply if the respondent can establish that there were "exceptional circumstances" that caused the failure.
Length of Bar
This bar applies for five years after the date the noncitizen was scheduled to appear.
Example: The respondent receives a letter notifying him or her to report for deportation on July 1, 1991. The respondent's five-year period of ineligibility begins on July 1, 1991 and ends on July 1, 1996.