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

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

NEWS RELEASE Contact: Public Affairs, (703) 305-0289 Fax: (703) 605-0443

EOIR Publishes Interim Rule for Filing Motions to Reopen under NACARA

Rule Takes Effect Immediately; Filing Period Ends September 11

The Executive Office for Immigration Review (EOIR) published an interim rule in the Federal Register on June 11, 1998, to establish procedures for the one-time filing of motions to reopen deportation or removal proceedings of certain aliens who are eligible to apply for special relief under Section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA). Eligible applicants with administratively final orders of deportation or removal must file a motion to reopen by September 11, 1998, in order to be able to apply for this special 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.)

The rule defines classes of eligible aliens who must file a motion to reopen; permits an eligible alien to file a motion without an application in order to meet the filing deadline; waives the filing fee for the motion; and establishes Immigration Court jurisdiction for adjudicating the motion. As an interim rule, it becomes effective immediately but also provides for a 30-day public comment period.

NACARA, signed into law on November 19, 1997, provides certain benefits to nationals of selected countries. Besides adjustment of status benefits for certain Nicaraguans and Cubans -- applications for which should be filed under rules published in the Federal Register on May 21, 1998 -- NACARA provides special rules regarding applications by certain Guatemalan, Salvadoran, and particular former Soviet bloc nationals for suspension of deportation and cancellation of removal.

In addition, NACARA allows eligible aliens who have received administratively final orders of deportation or removal to file one motion to reopen removal or deportation proceedings to apply for suspension of deportation and special-rule cancellation of removal, without regard to the time and number limitations normally imposed upon motions to reopen. The 240-day time period designated by the Attorney General for filing such motions to reopen began January 16, 1998, and extends until September 11, 1998, as announced in the notice published in the Federal Register on January 21, 1998 (at 63 FR 3154). That same notice waived the filing fee for NACARA motions but changed no other rules governing the filing or adjudication of motions to reopen.

Eligibility

Eligibility for "special rule" cancellation of removal or suspension of deportation under NACARA is limited to certain nationals of El Salvador, Guatemala, and some former Soviet bloc countries, and certain relatives of those nationals, who have been physically present in the United States more than 7 years and who have applied for asylum or other protected status by certain specified dates. They include aliens who are registered as class members under the settlement agreement of the lawsuit American Baptist Churches (ABC) v. Thornburgh. The classes of eligible aliens are listed in section 3.43(b) of the interim rule.

The interim rule clarifies how eligible aliens who have gone through proceedings and have received an administratively final order of deportation or removal from the Board of Immigration Appeals (Board), or from an Immigration Court and not appealed to the Board, must file motions by September 11, 1998, to reopen their cases before they can apply for any relief under NACARA. It also permits them to file their motions to reopen initially without the application and supporting documents for the relief they are seeking.

Simplified Filing Process for Special NACARA Motion

The interim rule provides an exception to the general rule that motions to reopen be accompanied by the completed applications and supporting documents for the relief being sought. Because many prospective NACARA beneficiaries who were in proceedings years ago may need more time to gather the documents necessary to prepare their applications for relief, aliens who are eligible for special relief under NACARA will be permitted to file their motions to reopen by September 11, 1998, without the application and supporting documents.

Those who file such motions will then have until February 8, 1999, to file their applications for the relief and supporting documents with the Immigration Court. A copy of both the motion to reopen and the subsequently filed application with supporting documents must be served on INS also. After the motion has been completed and served, INS will have 45 days to respond. The motion will be adjudicated only after the INS has responded or the time for response has lapsed.

Filing Procedures

A NACARA motion to reopen should be filed with the Immigration Court that last had jurisdiction over the proceedings, even if the Board issued an order in the case. Only NACARA-eligible aliens who have received administratively final orders of deportation or removal are required to file these motions to reopen their cases. A NACARA-eligible alien whose case is still pending before the Immigration Court or the Board, or whose case was administratively closed by the Immigration Court or continued indefinitely by the Board, need not file a motion to reopen.

Aliens who file a NACARA motion to reopen should place the notation "Special NACARA Motion" on any envelope and on the front page of the motion in order to facilitate special handling in the Immigration Court. Each Court will carefully examine all motions filed but the notation will help the Court to avoid any delay in processing the motion and locating the record of proceedings in the case.

The motion to reopen should state clearly that the applicant:

1) 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.

There is no fee required for this motion but it must contain a certificate of service on the INS District Counsel's Office and must have an A-number to identify the case.

The interim rule published in the Federal Register on June 11, 1998, amends Title 8 of the Code of Federal Regulations (8 CFR) by adding a new section 3.43. It becomes effective immediately because the time period for filing motions to reopen under NACARA ends in approximately 3 months. The rule still provides for a 30-day public comment period ending July 10, 1998. Comments may be submitted to the EOIR Office of the General Counsel.

--EOIR--