5/20/99

Section 203 of the Nicaraguan Adjustment
And Central American Relief Act of 1997
INS Publishes Interim Rule
For Guatemalans, Salvadorans, Former Soviet Bloc Nationals
And Their Qualified Family Members

Section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA) provides that certain Guatemalans, Salvadorans and nationals of former Soviet bloc countries are eligible to apply for suspension of deportation or special rule cancellation of removal under standards similar to those that existed for suspension of deportation prior to the enactment of the September 1996 immigration law. Individuals granted suspension of deportation or cancellation of removal under NACARA will have their status adjusted to that of lawful permanent resident.

Q1. What does the interim regulation do?

A. The rule published today by INS creates a new program that expands the authority of INS asylum officers to consider the vast majority of NACARA applications. This expanded authority of INS asylum officers streamlines the process and provides an efficient and simplified method for resolving a large number of the claims at an earlier stage in the administrative process. To provide guidance to applicants and adjudicators, the rule codifies for the first time a non-exhaustive list of the relevant factors for evaluating extreme hardship that are identified within existing case law. The rule further simplifies the process for the majority of NACARA beneficiaries by creating a rebuttable presumption of extreme hardship for class members of the American Baptist Churches vs. Thornburgh (ABC) lawsuit.

Q2: Why is INS issuing an interim rule? Why not a final rule?

A: The adoption of a rebuttable presumption of hardship represents a significant and substantive change from the proposed rule. The Department of Justice and INS felt that issuing an interim rule and allowing comments would be the most appropriate course of action. The rule will become effective on June 21 after a 30 day comment period.

Q3: What is INS' estimate for the number of people who are effected by the regulation? What are the breakdowns?

A: INS believes that there are approximately 300,000 people who are eligible to apply for suspension of deportation or cancellation of removal under section 203 of NACARA. Of that 300,000 INS estimates that 240,000 are ABC class members; 50,000 are Guatemalans and Salvadorans who are non ABC class members and 10,000 are nationals of former Soviet bloc countries.

Q4. What are suspension of deportation and cancellation of removal?

A. Suspension of deportation and cancellation of removal are forms of discretionary relief from deportation or removal for individuals who are subject to deportation or removal. Individuals granted suspension of deportation or cancellation of removal under NACARA will have their status adjusted to that of a lawful permanent resident.

Q5. What is the difference between suspension of deportation and special rule cancellation of removal?

A. Suspension of deportation is available only to people who are deportable from the United States and who were placed in immigration proceedings prior to April 1, 1997.

Special rule cancellation of removal is available to people who are inadmissible or removable and who were placed in immigration proceedings on or after April 1, 1997. The interim rule also makes special rule cancellation of removal available to qualified NACARA beneficiaries who have not been placed in removal proceedings and are eligible to apply for the benefit with the INS Asylum Program. The basic eligibility requirements for suspension of deportation and special rule cancellation of removal are very similar.

Q6. Who can apply for benefits under the suspension/special rule cancellation provisions in NACARA?

A. Individuals may apply for benefits under NACARA if they are in any of the four categories described below and have not been convicted of an aggravated felony,

1 Salvadoran nationals who filed applications for asylum on or before April 1, 1990, OR who meet each of the following requirements:

• First entered the United States on or before September 19, 1990;
• Registered for benefits under the American Baptist Churches vs. Thornburgh (ABC) settlement agreement on or before October 31, 1991, (either by submitting an ABC registration form or by applying for Temporary Protected Status); AND
• Were not apprehended at the time of entry if entry occurred after December 19, 1990.

2.Guatemalan nationals who filed applications for asylum on or before April 1, 1990, OR who meet each of the following requirements:

• First entered the United States on or before October 1, 1990;
• Registered for benefits under ABC on or before December 31, 1991; AND
• Were not apprehended at the time of entry if entry occurred after December 19, 1990.

3. Individuals who at the time they filed an asylum application as noted below were nationals of the Soviet Union, Russia, any republic of the former Soviet Union, Albania, Bulgaria, Czechoslovakia, East Germany, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Yugoslavia or any state of the former Yugoslavia, and

• Entered the United States on or before December 31, 1990; AND
• Filed an application for asylum on or before December 31, 1991.

4, Individuals who are the spouse, child or unmarried son or daughter of a person described in the above categories and who also meet the following requirements:

• The spouse or parent described in the three categories above has been granted suspension of deportation or cancellation of removal;
• The relationship to that spouse or parent existed when the spouse or parent was granted the benefit; AND
• Unmarried sons or daughters who were 21 years of age or older at the time their parent was granted the benefit must have entered the United States on or before October 1, 1990.

Q7. What requirements are needed to be granted suspension of deportation or special rule cancellation of removal?

A. Individuals who are inadmissible or deportable from the United States may qualify for special rule cancellation of removal (inadmissible or deportable) or suspension of deportation (only deportable) if:

• They have been continuously present in the United States for seven years;
• They are found to have had good moral character during those seven years;
  • Return to their country would result in extreme hardship to them or their spouse, child or parent who is a U.S. citizen or lawful permanent resident; and
• They merit a favorable exercise of discretion.

Individuals convicted of crimes may still be eligible to apply under a heightened standard, depending on the type of crime committed. The heightened standard includes, among other requirements, a longer continuous physical presence requirement (10 years) and a higher degree of hardship if they are removed or deported. Anyone convicted at any time of a crime defined as an aggravated felony under immigration law is not eligible to apply.

Q8. What factors are considered in evaluating extreme hardship?

A. To establish extreme hardship, an applicant must demonstrate that deportation or removal would result in a degree of hardship beyond that typically associated with deportation or removal. Factors that may be considered in evaluating whether deportation would result in extreme hardship to the individual or to the individual's qualified relative include, but are not limited to, the following:

• Age of the individual, both at the time of entry to the United States and at the time of application for suspension of deportation;
• Age, number and immigration status of the individual's children and their ability to speak the native language and to adjust to life in the country of return;
• Health condition of the individual or the individual's children, spouse or parents and the availability of any required medical treatment in the country to which the individual would be returned;
• Length of residence in the United States;
• Existence of other family members who are or will be legally residing in the United States;
• Financial impact of the individual's departure;
• Impact of a disruption of educational opportunities;
• Psychological impact of the individual's departure;
• Current political and economic conditions in the country to which the individual would be returned;
• Family and other ties to the country to which the individual would be returned;
• Contributions and ties to a community in the United States, including degree of integration into the society;
• Immigration history, including authorized residence in the United States; and
• Availability of other means of adjusting to permanent resident status.

Because ABC class members generally share several identifiable factors that have been found to lead to a finding of extreme hardship, the rule gives NACARA-eligible ABC class members a rebuttable presumption of extreme hardship. All Guatemalans who entered the United States on or before October 1, 1990, and all Salvadorans who entered the United States on or before September 19, 1990, are members of the ABC class.

Q9. What is the effect of a rebuttable presumption of extreme hardship?

A. Because ABC class members generally share several identifiable factors that have been found to lead to a finding of extreme hardship, the rule gives NACARA-eligible ABC class members a rebuttable presumption of extreme hardship. All Guatemalans who entered the United States on or before October 1, 1990, and all Salvadorans who entered the United States on or before September 19, 1990, are members of the ABC class.

ABC class members will be presumed to have established extreme hardship if they submit a completed application form that answers basic questions regarding extreme hardship. The presumption may be rebutted if INS shows that neither the applicant nor the applicant's qualified relative, if any, would suffer extreme hardship. Circumstances that may rebut the presumption include a finding of ample personal financial resources in the country of return or a lack of ties to the community and the absence of any other factors that would result in hardship. The presumption allows INS to adopt a streamlined approach to processing the applications, but still requires a case-by-case review.

Although the presumption of extreme hardship extends only to NACARA-eligible ABC class members, some other NACARA beneficiaries may have characteristics that are similar to those shared by the ABC class. The regulations specifically require adjudicators to consider the presence of those characteristics, such as evidence of an extended stay in the United States without fear of deportation and with the benefit of work authorization, in evaluating extreme hardship.

Q10. Who is eligible to apply with the INS Asylum Program for this benefit?

A. Most NACARA beneficiaries will be able to apply for suspension of deportation or special rule cancellation of removal with the INS Asylum Program. This includes the following:

• ABC class members who are eligible for benefits of the ABC settlement agreement and have asylum applications pending with INS;
• Guatemalan or Salvadoran nationals who applied for asylum on or before April 1, 1990 and whose asylum applications are still pending with INS;
• Former Soviet Bloc nationals who are eligible to apply under section 203 of NACARA and whose asylum applications are still pending with INS and;
• Certain qualified family members of individuals who have applied to INS for benefits under section 203 of NACARA.

Generally, individuals who have been placed in deportation or removal proceedings must apply for relief under section 203 with the immigration judge. However, certain individuals whose proceedings have been closed by the immigration judge or continued by the Board of Immigration Appeals may be able to apply with INS. These include the following:

• An ABC class member who had proceedings administratively closed by the immigration judge or continued by the Board of Immigration Appeals and who is entitled to a new asylum adjudication before INS under the ABC settlement;
• An ABC class member who is entitled to a new asylum adjudication before INS under the ABC settlement and is subject to a final order of deportation or removal and who filed and was granted a motion to reopen as permitted by NACARA.
• A qualified family member of a NACARA beneficiary who has already filed a NACARA application with INS, if the immigration judge has administratively closed the family member's proceedings.

Q11. What if an individual has received a final order of deportation or removal?

An Individual who has a final order of deportation or removal and has become eligible for suspension of deportation or special rule cancellation of removal as a result of NACARA, must have filed and been granted a motion to reopen proceedings before the individual may request relief under section 203 of NACARA.

Q12. If an individual eligible to apply for section 203 NACARA relief has not been placed in proceedings and does not have an asylum application pending with INS, how may that individual apply for NACARA 203 relief?

A. The Department recognizes that registered ABC class members who never applied for asylum and who have not been placed in immigration proceedings are unable to apply for special rule cancellation of removal unless INS places them in removal proceedings by issuing charging documents. A person may request that the INS district office with jurisdiction over his or her place of residence place him or her in proceedings, but INS retains prosecutorial discretion to determine the priority status of such a request.

Q13. When can a person apply with the INS Asylum Office for this benefit?

A. Applications may be submitted to INS once the interim rule is effective on June 21, 1999. Individuals who are in deportation or removal proceedings have been able to submit applications to the Immigration Court since NACARA was enacted and may continue to do so.

Q14. How does a person apply with the INS Asylum Office for this benefit?

A. A separate Form I-881, Application for Suspension of Deportation or Special Rule Cancellation of Removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), must be completed and submitted for each person applying for suspension of deportation or special rule cancellation of removal.

Each applicant must send the following documents to the INS Service Center with jurisdiction over their state of residence:

• Completed Form I-881 (original and one copy);
• Two passport-style photographs; and
• Payment of the appropriate fee.

An applicant is also encouraged to include supporting documents that show the applicant has been continuously present in the United States for the previous seven years, has good moral character and will experience extreme hardship if removed to his or her native country. Applicants who are eligible to apply because of a relationship to another NACARA beneficiary (spouse or parent) should include documentation establishing the relationship.

ABC class members will not initially have to submit documents or other evidence demonstrating extreme hardship.

Q15. What is the fee?

A. The fees for NACARA 203 are as follows:

• Form I-881 - $215 for an individual or $430 for a family if all applications are submitted together in a single packet;
• Fingerprinting Fee - $25 for each applicant over 14 years of age; and
• Form I-765, Application for Employment Authorization - $100 (this form is only needed if an applicant does not have and wishes to receive employment authorization based on eligibility for NACARA benefits).

Q16: When will the form be ready?

A: At this time the form is in the review process. INS expects that the form will be approved and available for use before the effective date of the interim regulation on June 21, 1999.

Q17. Can individuals eligible to apply for suspension of deportation or special rule cancellation of removal under NACARA apply for employment authorization?

A. Yes. INS believes that many people eligible for special rule cancellation of removal under section 203 of NACARA may already have work authorization based on a pending asylum application. However, if the applicant does not have work authorization and is found eligible to apply for section 203 NACARA relief, he or she may submit a Form I-765, application for employment authorization with the appropriate fee to the same Service Center to which the applicant submitted the I-881.

Q18. What will happen after the person applies with INS?

A. Once the INS Service Center receives the application the following steps will be taken:

• Receipts will be mailed to applicants. Applicants should retain this receipt for their records;
• Applications that are either incomplete or are not accompanied by the correct fee will be rejected and returned to the applicants;
• Employment authorization applications, if filed, will be processed for those applicants whose applications are accepted and;
• Applicants will be scheduled for fingerprinting at an Application Support Center if they are 14 years old or older.
• After the INS Asylum Office has received the results of security checks, applicants will be scheduled for non-adversarial interviews with INS Asylum Officers.
• If the Asylum Officer makes a favorable determination, an applicant will be asked to sign a statement conceding inadmissibility or deportability. This will only be done after a favorable determination is made and must be done before INS can actually grant suspension of deportation or cancellation of removal. Once the concession is made the NACARA application will be granted and the applicant's status will be adjusted to that of lawful permanent resident.
• If the Asylum Officer makes a determination that suspension of deportation or cancellation of removal is not warranted the case will be referred to an immigration judge for adjudication.

Q19. How will applicants be notified as to the decision on their application?

A. Where appropriate applicants may be notified at the time of the interview. In other cases applicants will be asked to come to the INS asylum office to receive a written decision or the decision may be mailed.

- INS -