U.S. Department of Justice
Executive Office for Immigration Review

Office of the Director
5107 Leesburg Pike, Suite 2400
Falls Church, Virginia 22041

June 12, 1998

Procedures for Filing Special NACARA Motions

Interim Rule Published June 11, 1998; Filing Period Ends September 11, 1998

The Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) provides special rules for certain nationals of El Salvador, Guatemala, and former Soviet Bloc countries to file motions to reopen their cases to apply for suspension of deportation or cancellation of removal.


NACARA in Brief

NACARA was signed into law on November 19, 1997. It provides various immigration benefits and relief from deportation to certain Central Americans, Cubans and nationals of former Soviet bloc countries. Specifically, the law provides that eligible Nicaraguans or Cubans can be considered for adjustment of status to that of a permanent resident alien, and that certain Salvadorans, Guatemalans, and nationals of former Soviet Bloc countries are eligible to apply for suspension of deportation or special rule cancellation of removal under the standards that existed for suspension of deportation prior to the enactment of the September 1996 immigration law.

Motions to Reopen to Apply for Suspension of Deportation and Special-Rule Cancellation of Removal for Salvadorans, Guatemalans, and Nationals of Former Soviet Bloc Countries

Section 203(c) of NACARA provided that certain aliens with administratively final orders of deportation and removal will be permitted to file one motion to reopen to apply for suspension of deportation or special-rule cancellation of removal. In a notice published in the Federal Register on January 21, 1998, the Attorney General designated the time period for filing such motions to begin January 16, 1998 and extend to September 11, 1998 (cf. 63 Fed. Reg. 3154). That notice also waived the filing fee for such NACARA motions, but changed no other rules governing the filing of motions to reopen.

The interim rule published in the Federal Register on June 11, 1998, effective immediately, simplifies the procedures for filing motions to reopen under section 203(c) of NACARA.

Questions and Answers About Special NACARA Motions

1. Q: Who is eligible under NACARA to file a motion to reopen proceedings to apply for suspension of deportation or special-rule cancellation?

A: Certain nationals of El Salvador, Guatemala, and former Soviet Bloc countries may be eligible for special-rule cancellation of removal or suspension of deportation as a result of the amendments made by section 203 of NACARA. Eligible aliens who have an administratively final order of deportation or removal, however, must file a motion to reopen their proceedings before they can apply for such relief. This group is specifically defined in paragraph (b) of 8 C.F.R. 3.43. They are permitted to file only one motion to reopen based on NACARA; the motion to reopen must be filed on or before September 11, 1998; and the motion to reopen must be granted by the Immigration Court before the alien can be considered for the relief under NACARA. (An administratively final order is an order of the Board of Immigration Appeals or an order of an Immigration Judge that was not appealed to the Board.)



2. Q: Does everyone who is eligible for relief under NACARA have to file a motion to reopen?

A: No. Only eligible aliens whose cases have resulted in final orders of deportation or removal are required to file motions to reopen. Any alien whose case is still pending before an Immigration Judge, or is under appeal before the Board of Immigration Appeals (the Board), or was administratively closed by an Immigration Judge or continued indefinitely by the Board, does not have a final order and need not file a motion to reopen in order to be able to apply for suspension of deportation or cancellation of removal under section 203 of NACARA.

3. Q: What must I say in my motion to reopen?

A: The motion to reopen should state clearly that the applicant:

falls within one of the six classes of aliens described in section 203 of NACARA and listed in section 3.43(b) of the interim rule;

2) is prima facie eligible for suspension/cancellation under the special rules provided in section 203 of NACARA;

3) was or would be statutorily ineligible for such relief except for NACARA; and

4) has not been convicted of an aggravated felony.

4. Q: When must I file my motion to reopen?

A: You must file your motion to reopen on or before September 11, 1998.

5. Q: Must I file my suspension of deportation/cancellation of removal application

at the time I file my motion to reopen?

A: No. You may choose to file the motion to reopen initially without the application or supporting documents.

6. Q: When must I file my application and supporting documentation?

A: As long as you file your motion to reopen on or before September 11, 1998, you will have until February 8, 1999, to file your application for suspension of deportation/cancellation of removal and supporting documentation. Also, you must serve a copy of both the motion to reopen and the subsequently filed application for suspension of deportation or cancellation of removal with all other supporting evidence on the Immigration and Naturalization Service (INS or Service). Please note that the fee (currently $100) for the application for suspension/cancellation is due when it is filed. Only the fee for the motion to reopen has been waived, not the fee for the application for suspension/cancellation.

7. Q: What happens if I fail to file my application and supporting documentation?

A: If you fail to file the required application by February 8, 1999, the motion will be denied as abandoned. In that case, you will have lost your one opportunity to move to reopen under section 203(c) of NACARA, for suspension of deportation or cancellation of removal relief. However, you may still be eligible to reopen for other reasons as permitted by law and regulation.

8. Q: Should my NACARA motion to reopen contain any special label?

A: The front page of the motion to reopen and any envelope containing such motion should include the notation "Special NACARA Motion."

9. Q: Where do I file my NACARA motion to reopen?

A: All motions to reopen filed pursuant to section 203(c) of NACARA should be filed with the Immigration Court that last had jurisdiction over the proceedings.

10. Q: What if the Board last had jurisdiction over my case?

A: You still file the motion to reopen with the Immigration Court that last had jurisdiction over the proceedings before the case went to the Board. No special NACARA motions should be filed with the Board.

11. Q: What if I do not know which Immigration Court last had jurisdiction over the proceedings in my case?

A: If you are unable to determine which Immigration Court last had jurisdiction over your proceedings you must still file a motion to reopen with an Immigration Court on or before September 11, 1998. Please submit with your motion to reopen any documentation you may have relating to your prior proceedings, including any Order to Show Cause (OSC).

12. Q: What if I file my motion with an Immigration Court other than the one that last had jurisdiction over my proceedings?

A: Any special NACARA motion filed on or before September 11, 1998, with an Immigration Court other than the one that last had jurisdiction over the proceedings will be forwarded to the appropriate Immigration Court for adjudication as a timely-filed motion. Keep in mind, however, that the motion will be processed more quickly if it is filed in the appropriate Immigration Court. It is in your best interest to determine the appropriate Immigration Court and file your special NACARA motion to reopen there.

13. Q: If I choose, may I still submit the suspension/cancellation application and supporting documents at the same time I file the special NACARA motion on or before September 11, 1998?

A: Yes. The new regulation does not restrict you from submitting the accompanying application and documents at the same time you file the special NACARA motion on or before September 11, 1998.

14. Q: What if I have moved since my last immigration proceeding and I want my case heard by an Immigration Court near where I now live?

A: You may file a motion to change venue at the same time you file your motion to reopen but you must file with the Immigration Court that last had jurisdiction over your case. In the motion to change venue you may ask the Court to transfer your case to the Immigration Court near where you now live. The motion to change venue will only be considered if the motion to reopen is granted.

15: Q: What form should I use when I submit my application for suspension/cancellation in support of my Special NACARA motion to reopen?

A: At the present time, you should use the Application for Suspension of Deportation (Form EOIR-40). The requirements for an application for suspension/cancellation under NACARA are similar to those of a suspension application under old deportation proceedings. For that reason, special NACARA applications should be submitted on a Form EOIR-40, not the Form EOIR-42.

At some time in the near future, you will have to use a new form that is now being developed by INS especially for NACARA applicants (proposed Form I-881). The new form is expected to be available later this year, at which time it must be used by all applicants for suspension/cancellation under NACARA.

16. Q: Can I apply for relief under NACARA if I haven't received a final order of deportation or removal, or if I have never been in immigration proceedings?

A: Yes. If you are eligible for relief under NACARA but don't have to file a motion to reopen because you do not have a final order in your case, you may still apply for the relief. If your case is still pending before an Immigration Judge, you may submit an application for relief now with the Immigration Court. If your case is under appeal before the Board, you should wait until the Board reviews the case to determine your eligibility for relief under NACARA then remands your case on its own motion to the Immigration Court. You will then have an opportunity to apply for suspension or cancellation under NACARA before the Immigration Court.

17. Q: What if I am a class member of the ABC lawsuit with an administratively final order and I have an asylum application pending with INS?

You must file a motion to reopen your proceedings pursuant to section 3.43 of the interim rule. If your case is reopened, you will be afforded the opportunity to apply for suspension of deportation or cancellation of removal. Procedures for such applications will be implemented by future INS regulations.

--EOIR--