The Immigration and Naturalization Service has issued a proposed rule to implement the suspension of deportation and special rule cancellation provisions of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA).  Under these provisions, eligible nationals of El Salvador, Guatemala, and countries formerly within the Soviet Bloc, as well as their spouses and children, may apply for suspension of deportation or cancellation of removal under special, more favorable rules.

1.  Salvadorans or Guatemalans who registered for benefits under the settlement agreement in American Baptist Churches v. Thornburgh (ABC), 760 F. Supp. 796 (N.D.Cal. 1991), and who were not apprehended at the time they entered the U.S., which must have been after Dec. 19, 1990.

2.  Salvadorans or Guatemalans who filed an application for asylum with the INS on or before Apr. 1, 1990.

3.  Nationals 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 of the former Yugoslavia, who entered the U.S. on or before Dec. 31, 1990, and filed an application for asylum on or before Dec. 31, 1991.

4. The spouse, child (unmarried and under 21 years of age), unmarried son, or unmarried daughter of an individual described in any of the above three categories who is granted suspension or cancellation.  Unmarried sons or daughters over 21 years of age must also have entered the U.S. on or before Oct. 1, 1990, in order to be eligible.

Eligible individuals who were placed in deportation proceedings prior to Apr. 1, 1997, may apply for suspension of deportation.  Individuals who were not placed in deportation proceedings may apply for "special rule" cancellation of removal— i.e., cancellation under special NACARA rules that are generally equivalent to the eligibility requirements of suspension of deportation under immigration law as it was constituted before it was amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).  Generally, applicants for either suspension of deportation or special rule cancellation must show that they have maintained continuous physical presence in the U.S. for at least seven years, that they have good moral character, and that their removal from the country would result in extreme hardship to themselves or to a parent, spouse, or child who is a U.S. citizen or lawful permanent resident.  Individuals who are deportable (or, for those in removal proceedings, deportable or inadmissible) because of criminal convictions, terrorist activity, or for having a final document fraud order must establish ten years of continuous physical presence in the U.S. and good moral character subsequent to commission of the offense that made them deportable.  They also most meet a heightened standard of hardship, since to be eligible for relief they must establish that their deportation would result in exceptional and extremely unusual hardship to themselves or to a parent, spouse or child.

There is also a special provision for battered spouses and children, who only need to establish continuous physical presence for a three-year period.

Under the proposed rule, the following individuals would be able to have their cases decided by INS asylum officers:

1.  Guatemalan or Salvadoran nationals who applied for asylum with the INS on or before Apr. 1, 1990, and whose asylum applications are pending with the agency.

2. ABC class-members who are eligible for the benefits of the ABC agreement and who have not yet had a de novo asylum adjudication under the terms of that agreement.

3.  Nationals of former Soviet bloc countries who meet the NACARA eligibility criteria and who have asylum applications pending with the INS.

4.  The spouse, child, unmarried son, and unmarried daughter of an individual in one of the above three categories, as long as the principal applicant has a suspension or special rule cancellation application pending with the INS or has been granted suspension or cancellation (however, as discussed below, in some cases if the relative is already in proceedings, he or she may not be able to apply with the INS).

An individual who has been placed in deportation or removal proceedings still may apply to the INS, but only if an immigration judge or the Board of Immigration Appeals has administratively closed the case because either (1) the applicant is entitled to a de novo asylum adjudication under ABC; (2) the applicant is an ABC class member with a final order of deportation who is entitled to a de novo asylum adjudication under ABC, whose deportation case was reopened pursuant to a NACARA motion to reopen, and who then requested administrative closure to apply for suspension from the INS; or (3) the applicant is the spouse, child, or unmarried son or daughter of a NACARA beneficiary who is eligible to apply, and has applied, for suspension of deportation or special rule cancellation from the INS.

Thus, generally, INS asylum officers will adjudicate NACARA suspension or special rule cancellation cases only when the applicant also has an asylum case pending before them, whether or not it was filed pursuant to ABC.  However, asylum officers will decide suspension or cancellation cases for the spouses, children, or unmarried sons and daughters of NACARA beneficiaries even when these relatives do not have pending asylum cases.  Moreover, in cases where these relatives had deportation or removal proceedings administratively closed in order to seek NACARA relief from the INS, the INS will not allow them to also apply for asylum from the agency.  Instead, the Executive Office for Immigration Review (EOIR) will retain jurisdiction over such cases for all purposes other than NACARA suspension or special rule cancellation.

Applications to the INS for NACARA suspension or special rule cancellation must be made on Form I-881, which the INS is in the process of finalizing.  Individuals will be able to apply when the INS issues interim or final regulations, some time after the Jan. 25, 1999, deadline for comments on the proposed rule.  The INS will not accept applications made on Forms EOIR-40 or EOIR-42, the forms used by the immigration court for suspension and cancellation.  Individuals who are in deportation or removal proceedings may apply now for suspension or special rule cancellation from the immigration judge, using the EOIR forms.  However, once the INS issues interim or final regulations, applicants who are in proceedings will also have to use Form I-881.

Under the proposed rule, the fee for applying to the INS for suspension or cancellation is $215 per applicant, up to a family cap of $430 for a family of two or more qualified relatives.  Each applicant 14 years of age or older will also have to be fingerprinted, even if he or she previously submitted fingerprints with an asylum application; the current fee for fingerprinting is $25.  The fee for suspension or cancellation applications made to the immigration court is $100, which covers all family members in the same proceedings.

After the application is filed, the asylum office will send the applicant notice of the date, time, and place of a scheduled interview.  If the applicant has applied for both asylum and suspension or cancellation, the asylum officer will elicit information relating to eligibility for both forms of relief.  The INS recommends that the applicant bring a copy of the application and the originals of any supporting documents to the interview.  At the interview, the applicant may be represented by an attorney or other representative, in which case the representative must submit a form G-28, Notice of Entry of Appearance.

An applicant who is not fluent in English must bring an interpreter to the interview.   The applicant’s attorney or representative may not 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 that failure to bring a competent interpreter to the interview, if it is without good cause, constitutes an unexcused failure to appear for the interview, which may result in dismissal of the application or referral to the immigration court.

The applicant is required to return in person to the asylum office to receive the decision.  If the applicant is not fluent in English, he or she must bring an interpreter to this appointment.

The INS has determined that before an applicant may be granted suspension of deportation or cancellation of removal the applicant must be found to be deportable (or, in removal cases, deportable or inadmissible).  The commentary to the proposed rule states that "since asylum officers are not authorized to make determinations regarding inadmissibility or deportability in most contexts," applicants will be required to concede inadmissibility or deportability before the INS can grant them relief.   Accordingly, the proposed rule provides that if the INS has made a preliminary determination to grant suspension or cancellation, the applicant will be notified of that decision and asked to sign an admission of deportability or inadmissibility.  If the applicant refuses to concede deportability or inadmissibility, the case will be referred to the immigration court.

The asylum officer is to refer the case to the immigration court if he or she determines that the applicant is not "clearly eligible" for suspension or cancellation.  If the officer decides to grant the suspension or cancellation application but makes a preliminary determination that the applicant is not eligible for asylum, the officer is to notify the applicant of this determination and give the applicant the opportunity to either pursue the application or withdraw it.  If the applicant requests in writing to withdraw the asylum application, it will be dismissed without prejudice.  If the INS grants suspension or cancellation and adjusts the applicant to permanent residence, the INS may notify the applicant that it intends to dismiss the application without prejudice unless the applicant notifies the agency in writing within thirty days of the notice that he or she would like to pursue the asylum application.

If the asylum officer determines that an applicant is eligible for both suspension or cancellation and asylum, the INS will grant the suspension or cancellation application and adjust the applicant to permanent residence.  The INS will also grant the applicant asylum, an action that allows the applicant to immediately apply to bring immediate family members to the U.S. If the asylum officer determines that the applicant is eligible for asylum but not suspension or cancellation, the INS will grant asylum and dismiss the suspension or cancellation application without prejudice.  If the officer determines that the applicant is not eligible for either suspension, cancellation, or asylum, the INS will place the applicant in removal or deportation proceedings or move to recalendar or resume any proceedings that previously were administratively closed.

The proposed rule also addresses the eligibility criteria for suspension and cancellation under the NACARA.  With respect to the continuous physical presence requirement for NACARA suspension of deportation, the burden of proof is on the applicant to establish that any breaks in the period of continuous physical presence were brief, casual, and innocent and did not meaningfully interrupt the applicant’s continuous physical presence in the U.S.  For cancellation of removal, the IIRIRA replaced this test with a "bright-line" test—a single absence of more than 90 days, or cumulative absences totaling over 180 days, disqualifies one from establishing continuous physical presence.  Although the statute does not suggest that absences shorter than 90 days affect continuous physical presence, the proposed rule states that such absences may interrupt continuous physical presence if they are not brief, casual, and innocent.  The commentary to the proposed rule also notes that the "stop-time" rule of IIRIRA section 309(c)(5) (the provision stating that the calculation of continuous physical presence stops upon service of a notice to appear) does not apply in NACARA suspension and special rule cancellation cases.

The commentary to the proposed rule states that asylum officers must interpret the "extreme hardship" requirement for suspension and special rule cancellation under the same legal standards that have been developed by the immigration court in suspension of deportation cases.  Although advocates had urged the INS to simplify the extreme hardship determination by taking into account the history of political turmoil in Central America that led to enactment of the NACARA, as well as the economic devastation recently wrought by Hurricane Mitch, the proposed rule retains the requirement of a case-by-case determination of extreme hardship.

The proposed rule identifies a large number of factors that may be relevant in evaluating whether deportation would result in extreme hardship to an applicant or to his or her qualified relative, including:

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 society

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

The commentary to the proposed rule notes that applicants for NACARA suspension or special rule cancellation are eligible to apply for and be granted employment authorization.  They may apply for work authorization at the time they file a suspension or cancellation application with the INS or the EOIR.

The commentary also notes that nothing in the NACARA authorizes travel outside the U.S. NACARA beneficiaries who leave the country without first obtaining advance parole and who are inadmissible for lack of valid entry documents, or for having false documents, may be subject to expedited removal.  The commentary states that NACARA beneficiaries who leave the country and return with advance parole will no longer be eligible for suspension of deportation, since they would be inadmissible rather than deportable.  Although the commentary does not address the effect of advance parole on individuals in removal proceedings, it should not affect their eligibility for special rule cancellation, since this relief is available to individuals whether they are inadmissible or deportable.

Comments to the proposed rule are due on or before Jan. 25, 1999, after which the INS will issue an interim or final rule to implement the procedure.  Organizations wanting to contribute to model comments currently being prepared by advocates may contact Dan Kesselbrenner of the National Immigration Project of the National Lawyers Guild at (fax) 617-227-5495 or nipdan@nlg.org.