Section 203 of the Nicaraguan Adjustment and Central American Relief Act of 1997
Section 203 of the Nicaraguan Adjustment and Central American Relief Act (“NACARA”) provides that certain nationals from Guatemala, El Salvador, and former Soviet bloc countries are eligible to apply for suspension of deportation or special rule cancellation of removal under the standards similar to those in effect prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"). See Pub.L. No. 105-100, 111 Stat. 2160 (1997). An applicant who is granted suspension of deportation or cancellation of removal under NACARA may adjust his status to that of a lawful permanent resident.
Whether an applicant is eligible to apply for suspension of deportation or special rule cancellation depends on when he was placed in deportation proceedings. See 8 CFR Sections 1240.65, 1240.66 (2005). If an applicant was placed in deportation proceedings prior to April 1, 1997, and those proceedings have not been terminated, he is eligible to apply for suspension of deportation. See 8 CFR Section 1240.65. Whereas, an applicant placed in removal proceedings after April 1, 1997, is eligible to apply for special rule cancellation of removal. See 8 CFR Section 1240.66.
For either suspension of deportation or special rule cancellation of removal, an applicant must establish that he has been physically present in the United States for a continuous period of seven years immediately preceding the date the application was filed; he has been a person of good moral character during the required period of continuous presence; his removal from the United States would result in extreme hardship to himself, or his spouse, parent, or child who is a United States citizen or a lawful permanent resident; and that he or she merits a favorable exercise of discretion. 8 CFR Sections 1240.65(b)(1)-(3), 1240.66(b)(2)-(4). If the applicant is inadmissible or deportable based on certain criminal or other grounds, then he must demonstrate that he is eligible under a more stringent standard. See 8 CFR Sections 1240.65(c)(1)-(3), 1240.66(c)(1)-(4). The heightened standard includes a longer continuous physical presence requirement of ten years and demonstration of a higher degree of hardship. Id. An applicant is ineligible to apply for relief if he has been convicted of an aggravated felony. 8 CFR Section 1240.61(b).
To qualify for relief as a Guatemalan national under NACARA, the applicant must have filed an application for asylum on or before April 1, 1990, or must have first entered the United States on or before October 1, 1990, and registered for benefits under the ABC settlement agreement (American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991)) on or before December 31, 1991, and not been apprehended at the time of entry, if entry occurred after December 19, 1990. 8 CFR Sections 1240.60, 1240.61(a)(1)-(2).
The burden of proof is on the applicant to establish by a preponderance of the evidence that he or she is eligible for suspension of deportation or special rule cancellation of removal and that discretion should be exercised to grant relief. 8 CFR Section 1240.64(a). However, for nationals of Guatemala who meet the specified qualifications and have submitted the appropriate application, there is a presumption that deportation or removal from the United States would result in extreme hardship. 8 CFR Section 1240.64(d)(1). Thus, the burden of proof shifts to the Department to rebut that presumption. See 8 CFR Section 1240.64(d)(2)-(3).
A spouse, child, or unmarried son or daughter of an applicant who meets the specified qualifications may also qualify for suspension of deportation or special rule cancellation of removal under NACARA, provided that the spouse or parent has been granted suspension of deportation of special rule cancellation of removal, and that the relationship to that spouse or parent existed when the spouse or parent was granted relief. Unmarried sons and daughters who were 21 years of age or older at the time their parent was granted relief must have entered the United States on or before October 1, 1990. 8 CFR Section 1240.61(a)(4)-(5).