Department of Justice
Executive Office for Immigration Review
July 17, 2001
Interim Rule Published for Certain NACARA Beneficiaries to File Motions to Reopen To Apply for Suspension of Deportation/Cancellation of Removal under LIFE Amendments
Previous Rule Covered Other Beneficiaries; Filing Period Ends October 16, 2001
FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) published an interim rule in the Federal Register today to establish procedures for the filing and adjudication of motions to reopen deportation or removal proceedings of certain aliens who are newly eligible for special relief under section 203 of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) as a result of the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) and the Legal Immigration Family Equity Act Amendments of 2000 (LIFE Act Amendments).
The LIFE Act Amendments, signed into law on December 21, 2000, include provisions for certain waivers and protections against removal (deportation) for aliens identified for, but unable to obtain, special relief under NACARA. Specifically, the LIFE Act Amendments extend eligibility for relief under NACARA section 203 to aliens who were previously barred from applying for any relief from final orders against them because they had illegally reentered the United States after their required departure. The VTVPA extended eligibility for NACARA benefits to certain victims of abuse or extreme cruelty from their spouses or parents who are NACARA applicants.
Specifically, this interim rule does three things. First, this rule fulfills the requirement in the LIFE Act Amendments to establish a motion to reopen procedure for two categories of aliens who previously were barred by the operation of section 241(a)(5) of the Immigration and Nationality Act (INA) from applying for suspension of deportation or special rule cancellation of removal under section 203 of NACARA. This relief is now available to:
(1) aliens who received a reinstatement of a final order of removal for having reentered the United States illegally; and
(2) certain aliens who have a final order which they received after making an illegal reentry.
[Section 241(a)(5) of the INA provides for the reinstatement of a removal order against any alien who illegally reenters the United States after having been removed or having departed voluntarily under an order of removal. It also bars any alien from receiving any relief under the INA and prohibits the reopening or review of the previous order.]
Second, this rule establishes and explains the time frame for filing such a motion to reopen. The LIFE Act Amendments provide for a period of 60 days to publish an implementing rule in the Federal Register and a period of up to 240 days for filing the motions to reopen. The rule therefore designates a filing period beginning February 19, 2001 (or 60 days after the date of enactment of the LIFE Act Amendments) and extending for a period of 240 days to October 16, 2001. The rule establishes October 16, 2001, as the final date for filing a motion to reopen.
Finally, this rule clarifies that aliens now eligible for suspension of deportation or special rule cancellation of removal include the six classes of persons defined under section 203 of NACARA, as well as two additional classes added by sections 1506 and 1510 of the VTVPA. These additional classes of eligible aliens include certain spouses and children who have been battered or subjected to extreme cruelty by a NACARA section 203 applicant, or by a United States citizen or lawful permanent resident.
This rule follows a related rule published by the Immigration and Naturalization Service (INS) on May 31, 2001, concerning other beneficiaries of the LIFE Act Amendments, NACARA, and the Haitian Relief and Immigrant Fairness Act (HRIFA). Because eligibility for relief under these laws is based on a series of separate amendments to the INA by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and the VTVPA, as well as NACARA, HRIFA, and the LIFE Act, this notice will not attempt to provide further explanation of the legislation underlying the interim rule published today. EOIR has provided a full explanation in question-and-answer format in the full text of the published rule. EOIR also encourages individuals who believe they may be eligible for a benefit under the LIFE Act to consult an immigration attorney or a private organization that specializes in advising and assisting individuals in seeking benefits and avoiding penalties under immigration law.
Filing Procedures for Special LIFE Act Motion
An alien who is eligible under the LIFE Act Amendments to file a motion to reopen to apply for suspension of deportation or cancellation of removal under section 203 of NACARA may file only one such motion with the Immigration Court or the Board of Immigration Appeals, whichever last held jurisdiction over the case. The front page of the motion and any envelope containing it should include the notation "Special LIFE 1505(c) Motion" and must have an
A-number to identify the case in order to facilitate special handling and avoid any delay in adjudicating the motion. The motion also must be accompanied by the application for suspension of deportation or cancellation of removal and any supporting documentation required.
The motion to reopen should demonstrate clearly that the applicant satisfies the eligibility requirements of section 203 of NACARA and section 1505(c) of the LIFE Act Amendments and that the applicant is not disqualified by other bars to relief (e.g., aggravated felony conviction). The filing fee for this special motion is waived, but applicants should keep in mind that they may be required to pay the application fee for the relief they are seeking if the motion to reopen is granted. In keeping with standard motion procedures, copies of the motion and supporting documents also must be served on the Immigration and Naturalization Service at the district office which initiated the case proceedings.
Applicants should note that a new, updated Form EOIR-40, Application for Suspension of Deportation, is available and should be used by filers not using the INS Form I-881, Application for Suspension of Deportation or Special Rule Cancellation of Removal (under Section 203 of NACARA). The most current version of the EOIR-40 has an expiration date of 08/31/01. It is available on the EOIR Web site (http://www.usdoj.gov/eoir) and in Immigration Courts nationwide. Applicants should use the Form EOIR-40 dated 08/31/01 until a newer version is available.
The interim rule published in the Federal Register on July 17, 2001, (66 FR 37119) amends Title 8 of the Code of Federal Regulations (8 CFR) by amending section 3.43. (The full text is also available on the Internet at http://www.justice.gov/eoir/vll/fedreg/2000_2001/fr17jy01R.pdf) The rule becomes effective immediately because the time period for filing motions to reopen under the LIFE amendments ends in approximately 3 months. The rule still provides for a 60-day public comment period ending September 17, 2001. Comments may be submitted to the EOIR Office of the General Counsel.
- EOIR -
The Executive Office for Immigration Review (EOIR) is an agency within the Department of Justice. Under delegated authority from the Attorney General, immigration judges and the Board of Immigration Appeals interpret and adjudicate immigration cases according to United States immigration laws. EOIR's immigration judges conduct administrative court proceedings in immigration courts located throughout the nation. They determine whether foreign-born individuals—whom the Department of Homeland Security charges with violating immigration law—should be ordered removed from the United States or should be granted relief from removal and be permitted to remain in this country. The Board of Immigration Appeals primarily reviews appeals of decisions by immigration judges. EOIR's Office of the Chief Administrative Hearing Officer adjudicates immigration-related employment cases. EOIR is committed to ensuring fairness in all of the cases it adjudicates.