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 or her 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. 8 C.F.R. §§ 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. 8 C.F.R. § 1240.65. Whereas, an applicant
placed in removal proceedings after April 1, 1997, is eligible to
apply for special rule cancellation of removal. 8 C.F.R. § 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 he merits a favorable
exercise of discretion. 8 C.F.R. §§ 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 C.F.R. §§ 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 C.F.R. § 1240.61(b).
To qualify for relief as a Salvadoran 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
September 19, 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 October 31, 1991, either by submitting
an ABC registration form or by applying for temporary protected status,
and not been apprehended at the time of entry, if entry occurred after
December 19, 1990. 8 C.F.R. §§ 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 is eligible for suspension of deportation
or special rule cancellation of removal and that discretion should
be exercised to grant relief. 8 C.F.R § 1240.64(a). However, for nationals
of El Salvador 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 C.F.R. § 1240.64(d)(1). Thus, the burden of proof shifts to DHS
to rebut that presumption. See 8 C.F.R. § 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 C.F.R. §
TO GENERIC ORDER