EOIR Issues Interim Rule for NACARA Motions to Reopen

IMMIGRATION LAW & POLICY

NACARA

EOIR ISSUES INTERIM RULE FOR NACARA MOTIONS TO REOPEN
Immigrants' Rights Update, Vol. 12, No. 4, June 17, 1998

The Executive Office for Immigration Review (EOIR) has issued interim regulations to establish a procedure for filing and adjudicating motions to reopen to apply for suspension of deportation and special cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA).

The NACARA allows eligible nationals of specified countries to apply for suspension of deportation or cancellation of removal under special rules. To take advantage of these provisions, individuals must be either nationals—or spouses or children of nationals—of El Salvador, Guatemala, 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. (For more background on the NACARA, see "Congress Passes Law Providing Special Relief to Immigrants of Specified Nationalities," Immigrants’ Rights Update, Nov. 26, 1997, p. 1, and "EOIR Issues Guidance on Implementation of NACARA," Immigrants’ Rights Update, Dec. 26, 1997, p.2).

The NACARA contains a provision that allows eligible individuals who are subjects of final deportation or removal orders to file motions to reopen their cases in order to apply for suspension or cancellation without regard to the normal time and number restrictions on such motions. Pursuant to a deadline established by the attorney general (as provided by the statute), a person with a final order who wants to file a motion to reopen to apply for NACARA suspension or cancellation must do so on or before Sept. 11, 1998 (see "Attorney General Publishes Notice Setting September Deadline for NACARA Motions to Reopen," Immigrants’ Rights Update, Feb. 11, 1998, p. 2).

This deadline affects only individuals who would be barred from filing a motion to reopen under the regulations that limit individuals to a single motion to reopen that must be filed within 90 days of the date that a deportation or removal order becomes administratively final. Thus, for example, the deadline does not apply to the case of an American Baptist Churches v. Thornburgh ("ABC") class member whose deportation case was administratively closed pending the processing of an ABC asylum case. (Under the settlement in ABC, a nationwide class action lawsuit, certain Central Americans have been allowed to apply or reapply for asylum under special rules.) However, the deadline does apply to ABC class members who have final deportation orders.

The EOIR interim rule strictly limits eligibility to file a NACARA motion to reopen. Individuals must show that they are prima facie eligible for suspension of deportation (as it existed prior to Apr. 1, 1997) or for special cancellation of removal under the NACARA. Somewhat bizarrely, they also must establish that they would not be eligible for suspension or cancellation if the Board of Immigration Appeals’ interpretation of section 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)—as it existed prior to the NACARA’s enactment—applied to them. The commentary explains that IIRIRA section 309(c)(5) "has been interpreted as applying the [IIRIRA’s] ‘stop-time rules’ . . . also to orders to show cause issued against persons in deportation proceedings seeking suspension of deportation relief." This is evidently a reference to the BIA opinion in Matter of N-J-B-, Int. Dec. 3309 (BIA 1997), which the attorney general subsequently vacated.

Thus, the regulation requires individuals moving to reopen their cases under the NACARA to show that they would not be eligible for suspension or cancellation if the rules of Immigration and Nationality Act section 240A(d) applied to them (i.e., that they did not have seven years’ continuous physical presence in the U.S. before an order to show cause was issued against them, or before they committed a criminal offense, or that their continuous physical presence was interrupted by a departure from the U.S. of more than 90 days, or by several departures adding up to more than 180 days). Individuals moving to reopen their cases under the NACARA also must establish that they have not been convicted at any time of an aggravated felony.

To facilitate the filing of NACARA motions to reopen, the regulation allows individuals initially to file the motion without attaching the NACARA suspension application and attachments. As long as the motion to reopen is filed by Sept. 11, 1998, individuals will have until Feb. 8, 1999, to complete the motion by filing the completed suspension or cancellation application and supporting documents. The motion to reopen will not be adjudicated until the application is also filed.

There is no fee for filing the NACARA motion to reopen. However, if the motion is granted, the applicant must pay the fee for the suspension or cancellation application. The rule directs that all NACARA motions to reopen be filed with the immigration court that last had jurisdiction over the proceedings.

The commentary to the rule notes that the NACARA does not waive certain statutory bars to eligibility for suspension or cancellation. These include bars for individuals who failed to appear for deportation or removal proceedings after receiving oral and written notice of the consequences of failing to appear, or who failed to comply with a grant of voluntary departure after receiving such oral or written notice, or who failed to appear for deportation as ordered.

Finally, the commentary notes that the attorney general will promulgate regulations delegating authority to INS asylum officers to adjudicate NACARA suspension and cancellation applications. ABC class members with final deportation orders who move to reopen their cases may also request that the case be administratively closed in order to have their NACARA application adjudicated by an asylum officer.

The interim rule took effect on June 11, 1998. Written comments must be submitted on or before July 13, 1998.

[63 Fed. Reg. 31,890–95 (June 11, 1998).]