INS to Adjudicate Some NACARA Suspension Cases

IMMIGRATION LAW & POLICY

NACARA

INS TO ADJUDICATE SOME NACARA SUSPENSION CASES
Immigrants' Rights Update, Vol. 12, No. 2, March 24, 1998

The Immigration and Naturalization Service has announced that asylum officers will adjudicate applications for the special cancellation of removal that was created by the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA). This procedure will streamline the adjudication process, since most Central Americans eligible for cancellation relief under NACARA also have asylum applications pending pursuant to the settlement agreement in the class action American Baptist Churches v. Thornburgh (ABC).

Under the NACARA, certain nationals of El Salvador, Guatemala, the former Soviet Union, and certain Eastern European countries may apply for a special form of cancellation of removal. Instead of being subject to the strict eligibility requirements for regular cancellation of removal as created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), qualifying applicants for special cancellation must meet the less stringent eligibility requirements that existed for suspension of deportation under pre-IIRIRA law (for more on cancellation of removal under 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," IRU, Dec. 26, 1997, p. 2).

The INS announced the new program on Feb. 10, 1998. Because the agency has not yet developed procedures for asylum officers to use in processing these cases, it has temporarily suspended interviews of ABC class-members and other NACARA-eligible individuals. However, in its announcement the INS noted that individuals with pending asylum applications may request an expedited asylum interview if they do not want to apply for cancellation.

Because the INS has not yet developed the necessary procedures, individuals eligible to apply for special cancellation should not yet attempt to apply to the INS for the relief. Individuals who are in removal or deportation proceedings may still apply to an immigration judge for cancellation or suspension of deportation. Moreover, individuals who have final orders of deportation or removal must file a motion to reopen with the immigration court prior to Sept. 11, 1998, in order to apply for cancellation under the NACARA (see "Attorney General Publishes Notice Setting September Deadline for NACARA Motions to Reopen," IRU, Feb. 11, 1998, p. 2). Advocates report that the attorney general is considering eliminating the requirement that individuals submitting such motions to reopen submit an application for suspension of deportation with the motion, and practitioners may want to wait to file the motion until this issue is clarified.