Interim NACARA Regulations Make It Easier for El Salvadorans, Guatemalans, and Others to Legalize

IMMIGRATION LAW & POLICY

NACARA

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Interim NACARA regulations make it easier for el Salvadorans, Guatemalans, and others to legalize
Immigrants' Rights Update, Vol. 13, No. 3, May 28, 1999

The Immigration and Naturalization Service has issued an interim rule establishing procedures for handling applications for suspension of deportation and cancellation of removal for eligible nationals of El Salvador, Guatemala, and former Soviet Bloc countries under the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA).

The INS issued a proposed rule regarding NACARA suspension and cancellation on Nov. 24, 1998, and received over 400 comments in response (see "Proposed Regulations Issued For NACARA Suspension and Special Rule Cancellation Cases," Immigrants’ Rights Update, Dec. 21, 1998, p. 1). The interim rule contains important changes made in response to comments to the proposed rule. Most significantly, the interim rule establishes a streamlined procedure for processing cases of applicants who are members of the class in American Baptist Churches v. Thornburgh, 760 F.2d 796 (N.D.Cal. 1991) (ABC), affording them a rebuttable presumption that they meet the "extreme hardship" requirement for suspension or special rule cancellation. The interim rule takes effect June 21, 1999.

Extreme Hardship Presumption

The INS declined to accept the proposal made by many commentators that the agency recognize a presumption that all NACARA applicants meet the statute’s "extreme hardship" requirement. Instead, the INS decided to give such a presumption only to applicants who are ABC class members. The agency decided that "the ABC class shares certain characteristics that give rise to a strong likelihood that an ABC class member or qualified relative would suffer extreme hardship if the class member were deported." These characteristics include the fact that ABC class members came to the United States on or before 1990, during a period of civil strife in El Salvador and Guatemala. They were entitled to special asylum adjudication procedures as a result of a settlement of litigation that alleged discriminatory treatment of Guatemalan and Salvadoran asylum applicants. And, for a number of reasons, these special adjudications were postponed for a lengthy period of time.

To be eligible for the hardship presumption, individuals must not have been convicted of an aggravated felony, and they must be included within one of the following categories:

1. Salvadorans who were present in the U.S. as of Sep. 19, 1990, and who applied for temporary protected status (TPS) or registered for benefits under ABC prior to Oct. 31, 1991, and were not "apprehended at the time of entry after Dec. 19, 1990"

2. Guatemalans who were present in the U.S. as of Oct. 1, 1990, and who registered for benefits under ABC prior to Dec. 31, 1991, and were not "apprehended at time of entry after Dec. 19, 1990"

3. Salvadorans or Guatemalans who filed an application for asylum with the INS on or before Apr. 1, 1990, or who filed an asylum application with the immigration court and served a copy on the INS on or before that date

Essentially, all Salvadorans and Guatemalans who are eligible for benefits under the NACARA as principals receive the presumption of hardship, while those who are eligible only as dependents of principals do not. Nationals of former Soviet Bloc countries who are eligible for NACARA relief do not receive the hardship presumption.

The interim rule’s presumption of hardship for ABC class members is rebuttable. To receive the presumption, the applicant must answer a series of "yes/no" questions on the I-881 application form regarding extreme hardship. However, the applicant is not required initially to submit documentary evidence to support these answers. The INS asylum officer is then to evaluate the application to determine "whether, given the presumption, the application contains evidence of factors associated with extreme hardship." These factors are listed in the regulation, as noted below. The supplementary information to the rule notes that the absence of one or more factors is not enough to overcome the presumption, and generally the presumption will be overcome only in two circumstances: (1) where there is no evidence of factors associated with extreme hardship; or (2) where there is evidence in the record that could significantly undermine the presumption of extreme hardship. As an example of such undermining evidence, the information notes that an applicant who "has acquired significant resources or property in his or her home country may be able to return without experiencing extreme hardship," absent other hardship factors. In seeking to overcome the hardship presumption, the INS has the burden of proving that it is more likely than not that neither the applicant nor a qualifying relative would suffer extreme hardship.

The hardship factors identified in the interim rule as relevant in evaluating whether deportation would result in extreme hardship to an applicant or to his or her qualified relative, are the following:

1. The age of the alien, both at the time of entry to the U.S. and at the time of applying for suspension

2. The age, number, and immigration status of the applicant’s children and their ability to speak the native language and adjust to life in another country

3. The health condition of the alien or the alien’s child, spouse, or parent, and the availability of any required medical treatment in the country to which the alien would be returned

4. The alien’s ability to obtain employment in the country to which the alien would be returned

5. The length of residence in the U.S.

6. The existence of other family members who will be legally residing in the U.S.

7. The financial impact of the alien’s departure

8. The impact of a disruption of educational opportunities

9. The psychological impact of the alien’s deportation or removal

10. The current political and economic conditions in the country to which the alien would be returned

11. Family and other ties to the country to which the alien would be returned

12. Contributions to and ties to a community in the U.S., including the degree of integration into American society

13. Immigration history, including authorized residence in the U.S.

14. The availability of other means of adjusting to permanent resident status

The rule also includes a number of other factors that may apply in addition to, or instead of, the above factors for cases where the applicant seeks suspension or cancellation as an abused spouse, child, the parent of an abused child, or the child of an abused parent. (These provisions relate to suspension or cancellation applications filed under the Violence Against Women Act of 1994 (VAWA), for individuals who were battered or subjected to extreme cruelty by a U.S. citizen or permanent resident spouse or parent.) The INS agreed to include in the interim rule the same hardship factors for VAWA suspension and cancellation cases that the agency has used in determining the existence of "extreme hardship" in VAWA self-petition adjustment cases.

Eligibility Issues

In the interim rule, the INS has abandoned its position that the statute’s provision making eligible Salvadorans and Guatemalans who "filed an application for asylum with the [INS] prior to Apr. 1, 1990" excludes individuals who filed asylum applications only with the immigration court prior to that date. The INS now agrees with commentators that individuals who filed applications with the immigration court necessarily also served copies on the INS, and that individuals who filed either with the INS or the immigration court prior to Apr. 1, 1990, should be considered eligible for relief under the NACARA. In addition, the interim rule provides that any dependent spouse or child who was present in the U.S. and included in the principal’s application at the time it was filed will be considered to have filed an application for asylum on that date. Dependents who are added to an application after it is initially filed will be considered to have filed on the date that they were added to the application.

The INS also has revised its interpretation concerning the eligibility for relief of individuals who were in deportation proceedings and then left the country pursuant to a grant of advance parole. The supplemental information to the proposed rule stated that such individuals would be subject to exclusion proceedings on their return to the U.S. and therefore would no longer be "deportable" and ineligible for suspension of deportation. In the supplementary information to the interim rule, the INS notes that a small number of ABC class members whose deportation proceedings were administratively closed under the settlement left the country with advance parole and subsequently returned. The INS has decided to treat these individuals’ departure from the country as automatically terminating their deportation proceedings as of the date of their departure. If they were not actually placed in exclusion proceedings prior to Apr. 1, 1997, they may apply for special rule cancellation under the NACARA, and if the INS denies them relief, they will be placed in removal proceedings. While the INS believes that the only NACARA-eligible individuals in this situation are ABC class members, the interim rule allows asylum officers to follow this same procedure for any other individuals in this situation who are entitled to apply for NACARA relief from the INS.

For the small number of individuals in this situation who may have been placed in exclusion proceedings prior to Apr. 1, 1997, the INS takes the position that they are not eligible for NACARA relief. The agency recognizes that they could become eligible should the INS agree to terminate the exclusion proceedings and initiate removal proceedings. However, the agency has not decided to do so at this time.

Some commentators proposed that the agency continue to treat as dependent "children" persons who became 21 years old between the date of NACARA’s enactment and the effective date of the regulations, because there were no procedures in place for them to apply for NACARA benefits before they "aged out." (Under the statute, unmarried sons and daughters over the age of 21 at the time their parent is granted NACARA relief, unlike "children," must also establish that they entered the U.S. on or before Oct. 1, 1990.) The INS declined to accept this proposal on the grounds that it would exceed the agency’s statutory authority. However, the INS noted that it has previously issued advisories stating that NACARA-eligible individuals with dependents who may soon age-out could request expedited asylum adjudications.

Absences and Continuous Physical Presence

In the proposed rule, the INS proposed two different standards for considering absences from the country as not interrupting continuous physical presence for purposes of suspension of deportation and special rule cancellation of removal. Absences for suspension purposes would be evaluated to determine whether they were "brief, casual, and innocent." Absences for special rule cancellation would also have to meet this standard, but in addition, could not exceed 90 days’ duration for any one absence, or 180 days of total cumulative absences. The interim rule essentially establishes a uniform rule for considering absences for both suspension and special rule cancellation.

Under the interim rule, a "brief" absence is defined as a single absence of 90 days or less, or a cumulative total of absences of 180 days or less. For absences shorter than these, the applicant still must show that the absence was "casual and innocent" in nature, for purposes of both suspension and cancellation.

Jurisdiction and Application Procedure

The interim rule retains the jurisdictional structure of the proposed rule, under which applicants who have asylum cases pending at an INS asylum office will have their NACARA suspension or cancellation applications adjudicated by the INS, while applicants with cases pending before the immigration court or Board of Immigration Appeals, as well as those who have never filed an asylum case, generally must have their NACARA cases adjudicated by the immigration court. There are two exceptions to this division of jurisdiction: (1) registered ABC class members whose deportation proceedings were administratively closed or continued, including individuals who filed and were granted NACARA motions to reopen, may file a NACARA application with the INS; and (2) qualified family members of an individual with a NACARA case pending before the INS, or who has been granted NACARA suspension or cancellation, may move to close their deportation or removal proceedings and apply with the INS.

The interim rule retains the proposed fee of $215 for a single individual applying with the INS and $430 for a family collectively applying at the same time with the INS. The fee for applying with the immigration court is $100. Individuals who already have filed a suspension application and paid the fee to the immigration court, and who have their cases closed to pursue an application with the INS, still must pay the INS fee. However, individuals who previously filed Form EOIR-40 with the immigration court and now seek to file for NACARA relief with the INS need not complete the entire Form I-881. Instead, they may complete the first page of the I-881 and attach a copy of the previously filed EOIR-40, together with a copy of the order administratively closing their proceedings before the immigration court or the BIA.

The proposed rule required applicants who failed to appear for fingerprinting or interviews to show good cause in order to reschedule. The interim rule recognizes that this provision conflicts with the manner in which the ABC settlement treats rescheduling of interviews. Accordingly, the interim rule allows applicants to reschedule their interviews if they have a reasonable excuse. The request to reschedule should be submitted in writing before the interview date or immediately thereafter if the reason for missing the interview could not be foreseen. Under the interim rule, applicants who fail to appear for fingerprint appointments must show a reasonable excuse in the same manner as those who fail to appear for NACARA interviews. The INS recognizes that if the notice of fingerprinting or interview was not mailed to the address that the applicant provided to the INS, this constitutes a reasonable excuse. Although the INS does not now have the capability to accept requests to reschedule fingerprint appointments, the agency still believes that applicants should make such requests in order to create a record that they attempted to comply with application requirements.

According to the interim rule, one change that the INS is making in response to commentators is to allow INS asylum officers to grant meritorious cases at the time of the interview. In addition, in cases where the officer decides to refer the case to the immigration court or dismiss the case, he or she must provide the applicant with written notification of the reasons for the decision.

The INS is also making a number of changes to the I-881 NACARA application form. These include modification of the extreme hardship questions to allow applicants who qualify for the hardship presumption simply to provide "yes" or "no" answers. The INS also has agreed to delete the question that inquires whether applicants and their families have ever received public or private benefits. In deleting this question, the INS refers to the new guidance on public charge issues regarding the chilling effect on the legitimate use of benefits caused by such questioning (see special insert on this guidance in this issue).

The interim rule takes effect on June 21, 1999, but written comments to be used in development of a final rule may be submitted on or before July 20, 1999. Model comments to the rule are being developed by the Immigrant Legal Resource Center, which may be contacted by e-mailing Mark Silverman at mark@ilrc.org or faxing him at 415-255-9792.

[64 Fed. Reg. 27,855–82 (May 21, 1999).]