INS FACT SHEET ON NACARA SUSPENSION OF DEPORTATION/CANCELLATION OF REMOVAL
May 20, 1999
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.
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 most NACARA beneficiaries by creating a rebuttable presumption of extreme hardship for class members of the American Baptist Churches vs. Thornburgh (ABC) lawsuit.
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.
• 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 they entered the United States after December 19,1990.
• 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, they entered the United States after December 19,1990.
• 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.
• The spouse or parent described in one of 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.
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 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.
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. Factors that may be considered in evaluating whether deportation or removal 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 NACARA relief;
• 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.
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.
Who Can Apply With INS?
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.
When to Apply 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.
How to Apply
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. INS expects to have this form available to the public by the effective date of the interim rule.
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.
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).
An applicants with an unexpired work authorization may continue to use it during the application process. Any applicant who wishes to obtain initial employment authorization, or continued authorization while a NACARA application is pending, should file a Form I-765, Application for Employment Authorization, with the INS Service Center where the applicant filed the NACARA application.
An applicant who plans to leave the United States before a decision is made on the NACARA application must request and receive advance parole to ensure permission to re-enter the country. Advance parole may be requested on a Form I-131, Application for a Travel Document. Certain absences from the United States, even with advance parole, may interrupt the required continuous physical presence in the United States, depending on the length of the absence and the purpose of the absence.