Special Rule Cancellation of Removal or Suspension of Deportation Under NACARA § 203

Special rule cancellation

 

Introduction

Certain Salvadorans, Guatemalans, and Eastern Europeans may apply for special rule cancellation of removal under the old suspension of deportation rules, or suspension of deportation, pursuant to section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA). Special rule cancellation or suspension under NACARA § 203 has many advantages over general non-LPR cancellation of removal [see article] and even over special rule cancellation under the Violence Against Women Act (VAWA) [see article]. There are even certain scenarios where special rule cancellation or suspension may be sought affirmatively. If relief is granted, the beneficiary's status will be adjusted to that of lawful permanent resident (LPR). This article will explain who may benefit from the special cancellation rules under NACARA § 203, the application process, and the available benefits.

Eligibility

Certain Salvadorans/Guatemalans, and Eastern Europeans are eligible for special rule cancellation of removal or suspension of deportation under NACARA § 203. Certain qualifying family members are eligible as well. Note that regardless of all other requirements, a conviction for an aggravated felony as defined in INA § 101(a)(43) will render an alien in eligible for NACARA cancellation [8 C.F.R. § 1240.61(b)].

Salvadorans and Guatemalans

Salvadorans and Guatemalans must be ABC class members under the terms of the ABC settlement agreement in American Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D. Cal. 1991). To learn more about which Salvadorans and Guatemalans are ABC class members and other benefits offered by ABC class membership, please see our comprehensive article on the ABC settlement agreement [see article]. Pursuant to the terms of the ABC settlement agreement, a Guatemalan or Salvadoran cannot have been apprehended at a port of entry at any time after December 19, 1990.

Eastern Europeans

Certain Eastern European aliens who entered the United States on or before December 31, 1990 and filed an application or asylum on or before December 1991 [8 C.F.R. § 1240.61(a)(3)]. Eligible Eastern Europeans would have had to be from, at the time of the filing for asylum, a national 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 in the former Yugoslavia [8 C.F.R. § 1240.61(a)(3)].

Qualifying Family Members

Certain family members of eligible Salvadorans, Guatemalans, and Eastern Europeans are eligible as well. An alien spouse or child of a Guatemalan or Salvadoran who benefits from special rule cancellation or suspension will also be eligible provided that the relationship to the principal existed at the time cancellation or suspension was granted [8 C.F.R. § 1240.61(a)(4)]. An unmarried son or daughter of a beneficiary of NACARA cancellation or suspension who is over 21 years of age will be eligible provided that he or she entered the United States on or before October 1, 1990 [8 C.F.R. § 1240.61(a)(5)]. Spouses and children who were subject to battery or extreme cruelty by a person eligible for NACARA § 203 relief may be eligible to apply for benefits before an immigration judge.

General Eligibility Requirements

In order to be eligible for special rule cancellation of removal under NACARA § 203, the applicant must satisfy all of the following requirements listed in 8 C.F.R. § 1240.66(b):

1. Not be inadmissible under section 212(a)(2) or (3) or deportable under section 237(a)(2), 3, or 4 of the Immigration and Nationality Act (relating to certain criminal activity, document fraud, failure to register, and security threats);
2. Have been continuously physically present in the United States for 7 years immediately preceding the filing of the application;
3. Have been a person of good moral character (GMC) for the 7 year statutory period;
4. Demonstrate that removal would result in extreme hardship to the alien, or to the alien's spouse, parent, or child who is either a U.S. citizen (USC) or lawful permanent resident (LPR).

Grounds of Inadmissibility and Deportability

Aliens eligible for NACARA cancellation may apply under more stringent circumstances when inadmissible under INA § 212(a)(2) [criminal activity grounds] or deportable under INA § 237(a)(2) [other than section 237(a)(2)(A)(iii) which covers convictions for aggravated felonies], or section 237(a)(3) [relating to criminal activity, document fraud, and failure to register]. Pursuant to provisions found in 8 C.F.R. § 1240.66(c), an alien with one of the listed inadmissibility or deportability grounds must demonstrate 10 years of continuous physical presence immediately preceding the application for cancellation of removal, and must have been a person of GMC for the 10-year continuous physical presence period. Please consult the next section for more information on continuous physical presence in general. The applicant in this case must demonstrate “exceptional and extremely unusual hardship” in the event of the applicant's removal either to the applicant or his or her USC spouse, parent, or child. The “exceptional and extremely unusual hardship” standard is the same standard that is used for regular cancellation of removal cases and is harder to demonstrate than “extreme hardship” for most NACARA cancellation cases. However, exceptional and extremely unusual hardship to the applicant may still be considered here, whereas it may not be considered for regular cancellation of removal cases. Please follow this link to learn more about exceptional and extremely unusual hardship in cancellation cases.

Continuous Physical Presence

Only 7 years of continuous physical presence for NACARA cancellation cases are required, instead of 10 for most regular cancellation of removal cases. The 7-year requirement is the same requirement as for the old suspension of deportation relief. “Brief, casual, and innocent” absences of less than 90 days for any single absence, or 180 days in the aggregate, do not break continuous physical presence [8 C.F.R. 1240.64(b)(1)]. However, note that the burden is on on the applicant to prove that an absence or multiple absences were “brief, casual, and innocent.”

Unlike with regular cancellation of removal cases, the service of a notice to appear (NTA) [or order to show cause (OSC) for suspension of deportation cases] will not stop the clock on continuous physical presence.1 However, departing the United States under a grant of voluntary departure under threat of deportation or removal does break continuous physical presence regardless of how long the departure is.2

The continuous physical presence is inapplicable to an alien who served at least 24 months in an active duty status in the U.S. armed forces, was in the United States when he or she enlisted or was inducted, and if separated from the armed forces, was separated under honorable conditions [8 C.F.R. § 1240.64(b)(4)(i)-(ii)].

Good Moral Character (GMC)

To learn more about establishing GMC in general, please see our comprehensive article on conditional bars to establishing GMC [see article]. In the case of NACARA cancellation, the applicant only needs to demonstrate GMC for the requisite continuous physical presence period. 3 However, while a ground that would bar the establishment of GMC outside of the continuous physical presence period may not bar an applicant from being eligible for NACARA cancellation on mandatory grounds, the offense may be considered in an immigration judge's decision to deny relief on discretionary grounds. 4

Extreme Hardship

Salvadoran and Guatemalans are entitled to the “presumption of extreme hardship” when applying for NACARA cancellation of removal [8 C.F.R. § 1240.64(d)(1)]. Thus, in order to demonstrate that extreme hardship would not be occurred by the applicant or a qualifying relative on account of the applicant's removal, the burden is on United States Citizenship and Immigration Services (USCIS) to rebut the presumption of extreme hardship [8 C.F.R. § 1240.64(d)(3)]. In order to rebut the presumption of extreme hardship, USCIS must demonstrate that it is “more likely than not” that neither the applicant nor a qualifying relative would suffer extreme hardship on account of the applicant's removal [8 C.F.R. § 1240.64(d)(3)]. The two circumstances in which the presumption of extreme hardship may be rebutted are if there is no evidence of factors associated with extreme hardship existing in the case, or if there is evidence in the record that would significantly undermine the assumptions on which the presumption of extreme hardship is based (such as the applicant having significant resources or property in his or her home country). 5

Please note that Eastern European applicants for NACARA cancellation are not entitled the presumption of extreme hardship, and thus have the burden of demonstrating that they or qualifying family members would incur extreme hardship upon removal.

Regulations note that many factors may be considered in determining extreme hardship, including those listed in 8 C.F.R. § 1240.58(b) for evaluating extreme hardship in suspension of deportation cases:

1. The age of the alien both at time of entry into the United States and time of application;
2. The age, number, and immigration status of the alien's children [if applicable] and their ability to adjust to life in the country of return;
3. The health condition of the alien or of qualifying relatives, and availability of medical treatment in the country of return;
4. The alien's ability to obtain employment in the country of return;
5. The length of the alien's residence in the United States;
6. The existence of alien's family members who are or will be legally residing in the United States;
7. The financial impact of the alien's departure;
8. The impact of disruption of educational opportunities [if applicable];
9. The psychological impact of the alien's deportation;
10. The current political and economic conditions in the country of return [note this would only apply to Eastern European NACARA applicants since this is not a rebuttable point to the presumption of extreme hardship for Salvadoran and Guatemalan applicants];
11. Alien's familial and other ties to the country of return;
12. Contributions to and ties to a community in the United States;
13. Immigration history, including authorized residence in the United States; and
14. The availability of other means of adjusting to permanent resident status.

Furthermore, where the special rule cancellation of removal or suspension of deportation applicant is the victim of domestic violence, special extreme hardship factors particular to the abuse may be considered. Please follow this link for more information about those factors. To learn more about extreme hardship in general, please follow this link.

Applying

Applications for NACARA cancellation or suspension are filed on the Form I-881, Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105-100 (NACARA)). If the applicant had already filed a Form EOIR-40, Application for Suspension of Deportation, prior to June 21, 1999, and later qualified to submit the application to the Department of Homeland Security (DHS), he or she may submit the Form EOIR-40 along with the first page of the Form I-881.6

There are two circumstances in which a NACARA cancellation or suspension applicant may apply affirmatively instead of filing a defensive application in removal proceedings. These scenarios are filing at asylum office or filing a motion to reopen proceedings prior to September 11, 1998.

Asylum officers have the authority to consider NACARA special rule cancellation of removal or suspension of deportation when an alien's ABC asylum application is still pending with the asylum office and the alien is a qualified:

A Salvadoran ABC class member who filed a completed asylum application before January 31, 1996 [with an administrative grace period extended to February 16 of the same year];
A Guatemalan ABC class member who filed a completed asylum application on or before January 3, 1995;
A Salvadoran or Guatemalan ABC class member who filed a completed asylum application on or before April 1, 1990;
An Eastern European who is eligible for NACARA cancellation or suspension and filed for asylum on or before December 31, 1991;
A qualifying spouse, child, or unmarried daughter of any alien described above who has an application pending for NACARA and was granted relief in the asylum office.7

The interview will be conducted in a non-adversarial manner for purpose of eliciting all information relevant to the applicant's eligibility for special rule cancellation of removal or suspension of deportation [8 C.F.R § 1240.67(b)(1)]. The applicant is required to bring an interpreter if necessary, and the interpreter may not be the applicant's representative, a witness, an applicant with a pending asylum application, a representative or employee of the applicant's country of nationality or country of last habitual residence [8 C.F.R. § 1240.67(b)(4)]. If the asylum officer ultimately decides to grant suspension or cancellation, the applicant's status will be adjusted to that of LPR. Please note that this asylum officer adjudication is unique to NACARA cancellation and suspension cases.

Persons qualified for NACARA cancellation or suspension with a final order of deportation or removal had to file a motion to reopen proceedings before September 11, 1998, and the motion may have been supplemented with a suspension application and supporting documents before November 18, 1999.8 The same applied to dependents if DHS determined that the dependent was prima facie eligible. 9 DHS has agreed to consider joining motions to reopen after the deadline if the applicant establishes a valid reason for failing to submit the motion in a timely manner.10 However, persons may not apply for NACARA suspension of deportation if the stop-time rule did not affect the ability to seek suspension.11

Finally, NACARA cancellation or suspension may be sought defensively like regular cancellation and suspension. Immigration judges have exclusive jurisdiction over NACARA special rule cancellation of removal or suspension of deportation when a NTA has been filed with the immigration court (or an OSC in the case of suspension) [8 C.F.R. § 1240.62(b)]. The immigration judge may consider NACARA cancellation or suspension for ABC class members for whom proceedings before the immigration court or Board of Immigration Appeals (BIA) have been administratively closed or reopened in the case where the ABC class member has not had a de novo asylum adjudication [see section] pursuant to ABC settlement agreement or where the ABC class member has not moved for and been granted a motion to calendar proceedings before the immigration court or BIA to request suspension of deportation [8 C.F.R. § 1240.62(b)(1)]. Qualifying family members of a qualifying ABC class member are eligible for immigration judge consideration of NACARA cancellation or suspension when they have a Form I-881 pending and the principal alien's proceedings before the immigration court have been administratively closed, or proceedings before the BIA have been continued to permit the alien to file an application for NACARA cancellation or suspension [8 C.F.R. § 1240.62(b)(2)].

Advice

NACARA special rule cancellation of removal and suspension of deportation are powerful forms of relief for qualifying ABC class members, Eastern Europeans, and family members. While no form of relief is guaranteed, an applicant for NACARA cancellation or suspension has significantly fewer barriers in the way of relief than does an applicant for regular cancellation of removal. Any person who may be eligible and seek one of these benefits should consult with an experienced immigration attorney. An experienced immigration attorney will examine his or her client's case and ensure that every avenue for relief is explored. Furthermore, he or she will help the NACARA cancellation or suspension applicant properly file all required forms and submit the necessary evidence and information to immigration agencies and officials. In the event that an alien is found to to be ineligible for relief under NACARA § 203, he or she should consult an experienced immigration attorney to explore if other forms of relief may be available, such as regular cancellation of removal [see article].

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  1. I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1377
  2. Kurzban 1377, citing 8 C.F.R. § 1240.64(b)(3)
  3. Kurzban 1374, citing Cuadra v. Gonzalez, 417 F.3d 947, 950-52 (8th Cir. 2005); NACARA § 203; 8 C.F.R. § 240.66(b). Also citing Matter of Garcia, 24 I&N Dec. 179 (BIA 2007) [rejecting Cuadra and holding that special rule cancellation applications continue for both GMC and the 7-year requirement and that 7 years can accrue after the application is filed].
  4. Kurzban 1377, citing Argueta v. Holder, 617 F.3d 109, 113 (2d Cir. 2010)
  5. Kurzban 1378, citing 64 FR 27856, 27866 (May 21, 1999)
  6. Kurzban 1377, citing 8 C.F.R. § 1240.63(B)
  7. Citing for the list, Kurzban 1377
  8. Kurzban 1378, citing 8 C.F.R. § 1003.43(e)(2)
  9. Kurzban 1378
  10. Kurzban 1378, citing 64 FR 27856, 27872 (May 21, 1999)
  11. Kurzban 1378, citing Buzdygan v. INS, 259 F.3d 891 (7th Cir. 2001)

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1377-78. Print. Treatises & Primers.