CRS Report for Congress
Received through the CRS Web
The Nicaraguan Adjustment and Central
American Relief Act: Hardship Relief and LongTerm Illegal Aliens
Updated July 15, 1998
Larry M. Eig
American Law Division
Congressional Research Service ˜ The Library of Congress
The Nicaraguan Adjustment and Central American Relief Act (NACARA) (P.L. 105-100,
title II) establishes special procedures through which hundreds of thousands of aliens in the
U.S., primarily Central Americans, may seek legal permanent resident status. This report
discusses who benefits from NACARA and how the relief granted to Nicaraguans and
Cubans differs from that granted to Salvadorans, Guatemalans, and certain natives of former
Warsaw Pact countries. The report also discusses how enactment of NACARA was
prompted by restrictions contained in the Illegal Immigration and Immigrant Responsibility
Act of 1996 (P.L. 104-208, Division C). The report will be updated as implementation of
The Nicaraguan Adjustment and Central American Relief
Act: Hardship Relief and Long-Term Illegal Aliens
Approximately 5 million illegal aliens were residing in the U.S. as of October
1996. This large population varies by country of origin, motive for entry, length of
stay, family composition, and attachment to the community. Immigration law
historically has taken these differences into account by allowing certain long-term
illegal residents to become legal residents despite their being here in violation of law.
For example, our law has for decades permitted the Attorney General to allow
long-term illegal residents to stay on a case-by-case basis if their removal would
cause undue hardship. The rules governing this hardship relief (known until recently
as suspension of deportation) have changed over time, and, in 1996, Congress
significantly toughened hardship standards in amendments contained in the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA). Furthermore, the
new restrictions on relief potentially could have precluded any hardship relief for
many aliens who had resided here since well before IIRIRA was enacted.
Among the aliens who were already long-term residents when IIRIRA changed
the hardship rules were several hundred thousand Central Americans who came here
during the civil strife of the 1980s. Under court settlements and review policies, the
Government had allowed these Central Americans to reside and work here for over
a decade, during which time many of them established families, careers and
community ties. Not surprisingly, many Members of Congress began questioning
whether it was appropriate to apply new, restrictive hardship policies to these aliens.
The issue of how IIRIRA’s new hardship rules were to affect Central Americans
and others who were residing here when IIRIRA was enacted was addressed in the
Nicaraguan Adjustment and Central American Relief Act (NACARA) (title II of P.L.
105-100). Under this law, approximately 150,000 Nicaraguans and 5,000 Cubans are
eligible to adjust to permanent resident status without having to make any hardship
showing at all. Additionally, approximately 200,000 Salvadorans and 50,000
Guatemalans (along with certain Warsaw Pact natives) will be able to qualify for
hardship relief under the more lenient hardship rules that existed prior to the IIRIRA
amendments. A large majority of these Guatemalans and Salvadorans have an
application pending with the Immigration and Naturalization Service (INS) for
asylum, which is a distinct remedy based on prospective persecution abroad. Under
procedures expected to be implemented in late 1998 or early 1999, these asylum
applicants will be able to have their hardship relief claims decided by asylum officers
(who usually consider asylum applications only) rather than having to wait for a
determination by an immigration judges during removal proceedings.
While NACARA benefits some long-term residents, it makes clear that aliens
not covered by its special rules (e.g., Haitians and Mexicans who entered during the
1980s) must qualify for hardship relief under IIRIRA’s tighter standards. The
Attorney General may have authority to ameliorate the affect of IIRIRA for some
aliens who are in ongoing deportation proceedings that began prior to April 1, 1997.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background on “Pipeline” Aliens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background on Suspension of Deportation . . . . . . . . . . . . . . . . . . . . . . . . 2
IIRIRA Revisions of Hardship Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
New Name, New Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Numerical Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Retroactive Application of Tolling Provisions . . . . . . . . . . . . . . . . . . .
Relief for “Pipeline” Aliens Clarified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Legislative Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Provisions of the NACARA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Nicaraguan and Cuban Adjustment . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hardship Relief for Certain Central Americans and Europeans . . . . . .
Offsets Against Legal Immigration . . . . . . . . . . . . . . . . . . . . . . . . . . .
Relief for Other “Pipeline” Aliens . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Implementation of NACARA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Nicaraguan and Cuban Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . .
Hardship relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Nicaraguan Adjustment and Central
American Relief Act: Hardship Relief and LongTerm Illegal Aliens
Background on “Pipeline” Aliens
On September 30, 1996, the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) became law (P.L. 104-208, Division C). Among its
sweeping changes are new rules on relief from removal for illegal aliens (also called
undocumented aliens) who have resided here for an extended period. These new
rules make it significantly more difficult for long-term illegal residents to obtain
permanent resident status based on the hardship that would result if they were
removed. As enacted, these new rules also had been interpreted as possibly applying
to aliens who already had been residing in the U.S. for extended periods when
IIRIRA was enacted (i.e., aliens already in the “pipeline”).
According to the Immigration and Naturalization Service (INS), approximately
5 million illegal aliens were residing in the U.S. when IIRIRA became law. Of this
population, about 60% entered surreptitiously and 40% overstayed temporary
nonimmigrant visas (e.g., tourist and student visas). Illegal aliens also varied by
country of origin, reasons for staying, length of stay, family composition, and general
attachment to the community.
In late 1990, the Government entered into a settlement in American Baptist
Churches (ABC) v. Thornburgh (760 F. Supp. 796 (N.D. Cal. 1991)), a class action
alleging Government failure to apply nonpolitical standards in deciding asylum cases.
In settling the ABC case, the Government agreed to allow tens of thousands of
Salvadorans and Guatemalans who had come here without documents during the
1980s to reapply for asylum and to work and live here until their asylum applications
were resolved. Approximately 190,000 Salvadorans and 50,000 Guatemalans were
covered by the ABC settlement.
In 1987, Attorney General Edwin Meese initiated a Nicaraguan Review Program
(NRP) that required extended review of deportation orders issued against
Nicaraguans. Thereafter, few deportable Nicaraguans were actually removed, and
those who remained were allowed to work. When the NRP was terminated in 1995,
an estimated 34,000 Nicaraguans were in exclusion or deportation proceedings. In
ending the NRP, Attorney General Janet Reno granted affected Nicaraguans
continued work authorization and encouraged them to apply for relief from removal
known as suspension of deportation.
Between the military coup in Haiti in September 1991 and the institution of a
blanket return policy by President Bush in May 1992, U.S. authorities interdicted
over 35,000 Haitian boat people. As a result of screening interviews conducted at the
U.S. naval base at Guantanamo, Cuba, the Immigration and Naturalization Service
(INS) paroled into the United States approximately 10,490 Haitians who were
determined to have credible asylum claims.
Even though a 1986 law sought to control future illegal migration through
employer sanctions, the number of illegal aliens residing in the U.S. has increased
over the past decade. The INS estimates that the undocumented alien population had
been growing by about 275,000 annually as of October 1996. Of this annual growth,
about 150,000 were Mexicans, according to INS (U.S. DEPT. OF JUSTICE, 1996
STATISTICAL YEARBOOK OF THE INS 197-199).
Though none of the foregoing groups of aliens had visas that permitted
permanent residency, the extent of Government acquiescence in their entry and stay
clearly varied. Differences in equities among various segments of the undocumented
population led many Members of Congress to question whether IIRIRA’s tighter
hardship rules were equally appropriate for all groups of illegal residents. Some
Members believed restrictive hardship standards were inappropriate for aliens who
originally came from countries with repressive regimes or civil violence. Attention
especially focused on Central Americans who had remained and worked in the U.S.
with the Government’s knowledge and tacit approval.1 Greater disagreement arose
over whether it was inequitable to judge the hardship claims of all aliens who had
been here before IIRIRA by that Act’s standards, or whether, on the other hand, date
of entry was an appropriate criterion for setting rules at all.
Congress addressed the issue of hardship standards and “pipeline” aliens in the
Nicaraguan Adjustment and Central American Relief Act, which was enacted on
November 19, 1997, as part of the District of Columbia appropriations Act for
FY1998 (P.L. 105-100). The provisions of this law are discussed below after a
discussion of hardship relief and the changes made to it by IIRIRA.
Background on Suspension of Deportation
Since 1940, Congress has allowed the Attorney General to grant lawful status
to certain aliens who, though not lawfully admitted for permanent residency, have
established deep roots here. As first enacted, the Attorney General could suspend the
deportation of aliens who could show 5 years of good moral character and
prospective "serious economic detriment" to lawfully present members of their
immediate families. However, several classes of aliens were ineligible, and Congress
retained power to overturn relief by resolution.
Over time, Congress has changed the basic eligibility rules for suspension of
deportation, the classes of ineligible aliens, and the role of Congress. As enacted, the
Immigration and Nationality Act of 1952 (INA) expanded potential eligibility by
See CONGRESSIONAL RESEARCH SERVICE, CENTRAL AMERICAN ASYLUM SEEKERS:
IMPACT OF 1996 IMMIGRATION LAW (Ruth Ellen Wasem, CRS Rept. 97-810 EPW).
allowing relief premised on hardship to the prospective deportee and by shortening
the list of ineligible groups, but relief could only be granted if both the Attorney
General and Congress acted. The lists of ineligible groups for suspension under the
INA, which still is our primary immigration statute, subsequently were amended
further. Also, the Supreme Court has precluded congressional participation in
individual suspension cases.
IIRIRA Revisions of Hardship Relief
New Name, New Standards
IIRIRA broadly revised the rules for removing aliens who violate immigration
law. Among its changes, IIRIRA consolidates what were formerly separate
"exclusion" and "deportation" procedures into a single "removal" process. Within
the new removal process, long-term undocumented residents are subjected to tighter
standards for obtaining hardship relief than previously existed for such relief under
Before IIRIRA, suspension of deportation could be granted to an alien who had
been physically present for 7 years, who had had good moral character, and whose
deportation would result in extreme hardship to the alien or to the alien's citizen or
permanent resident spouse, child, or parent. Stricter standards -- 10 years' presence
and "exceptional and extremely unusual hardship" -- existed for aliens who were
deportable on certain criminal, fraud, or security grounds, while eased standards
existed for certain abused spouses and children.
IIRIRA tightened standards for suspension of deportation and made it part of a
new remedy called "cancellation of removal." The new "suspension" remedy permits
the Attorney General to cancel the removal of an alien who has been physically
present at least 10 years, has had good moral character, has not been convicted of a
crime that makes the alien removable, and whose removal would result in
exceptional and extremely unusual hardship to the alien's permanent resident or
citizen spouse, parent, or child. Thus, IIRIRA (1) generally adopts the stricter 10year presence and "exceptional and extremely unusual hardship" standards (except
for abused aliens), (2) eliminates prospective hardship to the alien as a basis for
relief, and (3) disqualifies most criminal aliens (previously, criminal conviction was
relevant only as it bore on "good moral character" -- e.g., aliens convicted at any time
of an "aggravated felony" could not be found to possess "good moral character").
Furthermore, IIRIRA restricts relief in two additional ways. First, it limits the
number of aliens who may be granted relief each year. Second, it stops the time that
may be counted toward meeting the physical presence requirement once an alien
commits certain acts or is made subject to removal proceedings, regardless of how
long the alien remains here afterwards.
The procedural changes under IIRIRA generally apply only to "removal" cases
initiated on or after April 1, 1997, by the issuance of a "Notice to Appear." (IIRIRA
also permits the Attorney General to terminate cases that were begun under the old
"deportation" system by an "Order to Show Cause" and to restart them as "removal"
cases, in which instance IIRIRA, not prior law, applies.) Thus, as a general
proposition, IIRIRA would only affect long-term residents if removal proceedings
were begun against them after March 1997. However, the numerical cap and "timestop" rules under IIRIRA were written in a way that could have affected suspension
relief under old deportation cases begun many years ago.
Numerical Limits. IIRIRA imposes three separate limits of 4,000 per fiscal
year on hardship-based relief from removal. A 4,000 per year limit is placed on
adjustments to permanent resident status of aliens granted cancellation of removal.
Another 4,000 per year limit is placed on combined "cancellations and adjustments"
under IIRIRA and "suspensions and adjustments" under cases continued under prior
law. A third 4,000 per year limit is placed on "suspensions and adjustments" under
Both the subject of these limitations and their implementation were problematic.
Some argued that the latter two limitations were, like the first, essentially limits on
adjustments only. They interpreted "cancel and adjust" and "suspend and adjust" as
each comprised of two distinct acts and argued that it was permissible to "cancel"
or "suspend" the expulsion of more than 4,000 aliens in one year so long as no more
than 4,000 of them were adjusted in the same year. Such an interpretation bypassed
the apparent arbitrariness of denying relief or delaying consideration to those aliens
with meritorious applications that come before immigration judges after the yearly
cancellation/suspension limit has been reached.
However, such an interpretation also raised issues as to the status of those whose
expulsion had been suspended or canceled but who had not yet been able to adjust.
It also could have been seen as a vehicle for bypassing any meaningful limit on
suspensions or adjustments. If the limit on "suspension and adjustment" meant only
that both acts could not occur in the same year for more than 4,000 aliens, what
would have prevented suspending 20,000 deportations during one year and allowing
those 20,000 to adjust in the subsequent year?
Retroactive Application of Tolling Provisions. IIRIRA changed the practice
of allowing time spent here after the initiation of deportation proceedings to be
counted toward the physical presence requirements. Under IIRIRA, "presence" ends
when an alien (1) commits certain criminal or terrorist acts or (2) is served with a
"Notice to Appear," the document established by IIRIRA for the initiation of removal
Though, as mentioned above, most of the rules changes in IIRIRA apply only
in cases started on or after April 1, 1997, the new "time-stop" rules might be
retroactive. Section 309(c)(5) of IIRIRA, as enacted, stated that the new "time-stop"
rules "shall apply to notices to appear issued before, on, or after" the date of IIRIRA's
enactment (September 30, 1996). The effect of § 309(c)(5) depended on how
"notices to appear issued before, on, or after" September 30, 1996, was interpreted.
More particularly, if the provision were construed to apply to all deportation cases
that were pending when IIRIRA was enacted, tens of thousands of Central Americans
whose cases remained unresolved at that time could have been affected.
For example, INS often began deportation proceedings against Nicaraguans
fleeing civil strife shortly after their arrival in the 1980s. Nevertheless, the
Government tacitly allowed most of these aliens to remain here, and even encouraged
them to apply for suspension of deportation when the Nicaraguan Review Program
ended in 1995. However, if the "time-stop" rules of IIRIRA were applied
retroactively to these aliens, they would be ineligible for suspension relief because
proceedings were initiated against them before they met the minimum 7-year
presence requirement for obtaining relief.
After IIRIRA’s enactment, there were conflicting legal opinions on how the
"time-stop" rules affected long-term residents, especially those against whom
deportation proceedings were begun prior to IIRIRA's enactment. In July 1997,
Attorney General Janet Reno vacated a decision of the Board of Immigration Appeals
(In re N-J-B-, Int. Dec. 3309 (BIA 1997)) that would have put the continued stay of
many long-term Central American residents in jeopardy. Earlier, a federal district
judge, disagreeing with the BIA decision in N-J-B-, had issued a preliminary
injunction barring application of the "time-stop" provisions to a class of Nicaraguans
(Tefel v. Reno, No. 97-0805-CIV-King (S.D. Fla. 1997).
Relief for “Pipeline” Aliens Clarified
During the first session of the 105th Congress, at least two Senate floor
amendments to the District of Columbia appropriations bill (H.R. 2607) and four
freestanding bills addressed how the numerical limit and "time-stop" changes would
apply to aliens who were in the "pipeline" when IIRIRA was enacted.
Though they varied, all but H.R. 2533 (introduced by Rep. Lamar Smith,
chairman of the House Immigration Subcommittee) would have assured that some
of the old suspension of deportation rules, and not the IIRIRA cancellation rules,
would be applied to at least some classes of long-term undocumented residents,
especially aliens who were covered by the ABC settlement. The old suspension rules
that generally would have been applied under these proposals included (1) a 7-year
(rather than a 10-year) presence requirement for most aliens; (2) no automatic
stopping of the presence "clock" by the initiation of proceedings (though one bill
would have stopped the clock at IIRIRA's effective date); (3) relief based upon
personal hardship to the alien; and (4) elimination of numerical caps on relief.
Of the proposals that would have “grandfathered” the old suspension rules, S.
1076 (Sens. Mack and Graham), and the similar S. Amd. No.1252, was the broadest
in its coverage. S. Amd. No. 1253 (Sen. Mack), which was adopted by the Senate
as a substitute for S. Amd. No. 1252 by a vote of 99-1, was the narrowest. H.R. 2302
(Rep. Diaz-Balart) was similar to S. 1076 in its coverage of Central Americans, but
it would not have assured that the “time-stop” rules would not be applied in old
deportation cases begun before April 1, 1997 (e.g., against many Nicaraguans). H.R.
2442 (Rep. Meek) was substantially similar to H.R. 2302, but differed from it by its
proposed application of old suspension rules to certain Haitians.
Unlike other proposals, H.R. 2533 limited relief to applying a special “timestop” rule to the classes of aliens it covered — generally aliens covered by the ABC
settlement and certain Nicaraguans. Also, the bill appeared to benefit only those
covered aliens against whom deportation proceedings were pending as of April 1,
1997. H.R. 2533 also would have made clear that “time-stop” provisions under
IIRIRA were to apply in all carried over deportation cases other than those involving
covered aliens. The bill further required that relief granted covered aliens be offset
by reductions in the numbers of visas made available to unskilled laborers.
Provisions of the NACARA
On November 19, 1997, the Nicaraguan Adjustment and Central American
Relief Act (NACARA) became law as title II of the District of Columbia
appropriations Act for FY1998 (P.L. 105-100). The relief contained in it arose
primarily from an agreement negotiated by Rep. Diaz-Balart with Rep. Lamar Smith,
with the backing of the House majority leadership. Like Rep. Diaz-Balart’s bill and
the Senate’s proposal, individual hardship claims made by Salvadorans and
Guatemalans covered by the ABC settlement are to be decided under pre-IIRIRA
standards, regardless of when removal proceedings are initiated. Like Rep. Smith’s
bill, long-term undocumented aliens not in the covered special classes must meet
IIRIRA’s “time-stop” restrictions and numerical limits, and there is a reduction in
certain visa categories to offset hardship relief granted to aliens who are covered by
special rules. Unlike any previous proposal, however, the final bill contains a
legalization provision for Nicaraguans (and certain Cubans) that allows them to
adjust to permanent residency without having to make any individual hardship
showing at all.
Nicaraguan and Cuban Adjustment. The NACARA directs the Attorney
General to adjust to permanent resident status (without offset against the number of
allowable immigrant visas) an alien in one of the classes listed below, if the alien
meets two conditions. First, the alien must apply for adjustment before April 1,
2000. Second, the alien must not be legally inadmissible to the U.S. on grounds
other than being a prospective public charge, failing to have proper documents,
failing to meet certain labor-related requirements, or entering the U.S. surreptitiously
(e.g., aliens who are inadmissible on health grounds or as criminal aliens or security
threats are ineligible for adjustment absent a waiver). The classes of aliens covered
! Nicaraguans and Cubans who have been in the U.S. continuously for a period
beginning before December 1, 1995, and ending the date of application. An
absence, or aggregate absences, of 180 days or less are not considered to
disrupt continuous presence. The ability to adjust is not affected by the
pendency of removal proceedings or a final order of removal. Proof of
continuous presence may be made through any one of specified means or
under any other method allowed by the Attorney General; and
! Nicaraguans and Cubans who are the spouses or unmarried children of aliens
in the foregoing class. The same application deadline and legal admissibility
requirements apply, but the physical presence requirements (i.e., in the U.S.
continuously since before December 1995) apply only to unmarried children
age 21 or older. Children under age 21 and spouses need only be physically
present on date of application. Spouses and unmarried children who are not
Nicaraguan or Cuban are not eligible under NACARA. However, they may
indirectly benefit because aliens who do adjust under NACARA thereby
become eligible to petition for immigration preference under the INA for their
spouses and children regardless of their nationality.
Hardship Relief for Certain Central Americans and Europeans. Though
they do not have the right to adjust status comparable to covered Nicaraguans and
Cubans, aliens in one of the classes below may (unless they have been convicted of
an aggravated felony) apply for hardship relief in deportation or removal proceedings
free from the “time-stop” and numerical restriction limits of IIRIRA and (with minor
exception) under the standards for suspension of deportation that existed under preIIRIRA law:
! Salvadoran nationals who (1) first entered before September 20, 1990, (2)
were not apprehended at a time of entry after December 19, 1990, and (3)
either registered for benefits under the ABC settlement or applied for
Temporary Protected Status before November 1991;
! Guatemalan nationals who (1) first entered on or before October 1, 1990, (2)
were not apprehended at a time of entry after December 19, 1990, and (3)
registered for benefits under the ABC settlement by December 31, 1991;
! Salvadorans and Guatemalans who filed an asylum application with INS on
or before April 1, 1990;
! Aliens who, at the time a decision to grant relief is rendered, are the unmarried
children under age 21 or the spouses of covered Salvadorans or Guatemalans;
! Aliens who, at the time a decision to grant relief is rendered, are the unmarried
adult children of covered Salvadorans or Guatemalans, if the children entered
the U.S. on or before October 1, 1990; and
! Aliens who entered before 1991, filed an asylum application before 1992, and
are nationals of the former Soviet Union or one of its successor states, Poland,
Czechoslovakia, Romania, Hungary, Bulgaria, Albania, East Germany, Latvia,
Estonia, Lithuania, or Yugoslavia or one of its former components.
Offsets Against Legal Immigration. NACARA requires that the number of
Salvadorans and Guatemalans who obtain permanent resident status under the special
hardship relief rules be partially offset through reductions in two categories of
immigrant visas — diversity visas and visas for unskilled laborers.
Beginning in FY1999, the number of aliens who may be granted immigrant
visas under the diversity program for low-immigration areas is to be reduced by the
following: one-half of the number of covered Salvadorans and Guatemalans
receiving relief the prior fiscal year minus the total number of reductions in diversity
visas for all previous fiscal years. However, in no event may reductions in any year
A similar reduction is required in the number of immigration visas for unskilled
laborers, but the effective date of this reduction is delayed until all aliens who had
visas petitions approved under the unskilled labor category as of the date the
NACARA was enacted (November 19, 1997) are admitted.
Relief for Other “Pipeline” Aliens. At the same time NACARA benefits
specified groups of Central Americans and Warsaw Pact aliens, it assures that other
“pipeline” aliens will be subject to IIRIRA standards for hardship relief.
NACARA modifies § 309(c)(5) of IIRIRA to make clear that the “time-stop”
rules of IIRIRA are to apply in current deportation cases that were begun before April
1, 1997, even though hardship relief in those cases is otherwise governed by the
suspension of deportation standards under pre-IIRIRA law. For example, consider
a hardship application being determined in 1998 in a deportation proceeding begun
in 1993 against an alien who arrived in 1987. The alien would be subject to a 7-year
(not a 10-year) presence requirement because prior suspension rules generally govern
pre-IIRIRA cases, but the alien still would be ineligible for relief because IIRIRA
now “retroactively” stops the presence clock at 1993 (when proceedings were
initiated), and not when the application for relief is determined, as was typical under
pre-IIRIRA practice. The Attorney General apparently has authority under § 203 of
NACARA to avoid retroactive application of the time-stop rules in such a case by
terminating the old deportation case and reinitiating the case as a "removal" case
under IIRIRA. In the reinitiated case, IIRIRA's 10-year presence requirement would
apply, but the relevant "terminating event" would be the date "removal" proceedings
started — 1998 — and not the date the old deportation case began — 1993 in our
example above. Nevertheless, the Attorney General does not appear to have
exercised this authority in any case yet.
The new law also amends the 4,000 per year caps on relief contained in IIRIRA.
First, the law makes clear that “suspend and adjust” and “cancel and adjust” are both
to be considered two parts of a single act, and that for purposes of applying the caps
on relief, the date of the decision to “suspend” or “cancel” governs. Second, the law
retains the aggregate 4,000 per fiscal year limit on suspensions and cancellations, but
makes special provision for FY1997 and FY1998. For FY1997, only grants of relief
made after April 1 counted. For FY1998, the 4,000 limit is increased by another
4,000 minus the number of grants of relief made during FY1997 after April 1.
Implementation of NACARA
Nicaraguan and Cuban Adjustments. INS published an interim rule on May
21, 1998 (63 Fed. Reg. 27,823) to govern implementation of the Nicaraguan and
Cuban adjustment provisions of NACARA. The interim rule became effective June
22. Comments on the rule are due by July 20, 1998.
Much of the interim rule focuses on how an applicant may show length and
continuity of presence. NACARA itself lists various types of Federal records related
to work or immigration proceedings that may be submitted to show that continuous
presence began before December 1995, which is the statutory cut-off date.
NACARA also authorizes the Attorney General to accept other types of evidence of
commencement of physical presence. To this end, the interim rules allows
submission of state and local governmental records (e.g., school, hospital, police, or
public assistance records). Furthermore, INS is soliciting suggestions for other
means of proving when continuous presence began.
Regarding proof of continuity of presence, as opposed to proof of
commencement of presence, the interim rule allows submission of one or more
documents issued by a governmental or non-governmental authority, if the document
bears the applicant's name, was dated contemporaneously with its issuance, and bears
the signature of the issuing authority. The number of documents required will vary
with their nature. For example, a single college transcript covering several years'
attendance may suffice alone, while a series of rent or utilities bills may be required.
In general, the documentary evidence should not contain any gap of three or more
Other parts of the interim rule address to whom applications are to be submitted.
This varies depending upon whether the applicant is currently in proceedings before
an immigration judge. The rule also explains what forms, fingerprints, and filing fees
must be submitted.
Finally, the interim rule discusses what procedures are to used in considering
adjustment applications, what documentation will be issued upon approval of an
application, what happens if an application is denied, and what rights to
administrative review exist.
Hardship relief. Statements and memoranda issued by INS and the Office of
the Chief Immigration Judge (OCIJ) have addressed the process for considering
hardship applications filed by Salvadorans, Guatemalans, and Warsaw Pact natives
who are covered under NACARA.
As discussed above, NACARA benefits certain Salvadorans, Guatemalans, and
Warsaw Pact natives in a more limited way than it benefits covered Nicaraguans and
Cubans. Instead of broadly allowing adjustment of status on proof of continuous
residence, NACARA benefits these latter classes of aliens by allowing their claims
for hardship relief to be determined under more lenient pre-IIRIRA standards.
Historically, claims for hardship relief have been considered only by immigration
judges in the context of exclusion, deportation, or (under new IIRIRA procedures)
removal proceedings. There has not been a means for obtaining hardship relief
before INS has actually ordered an alien to appear before an immigration judge to
face possible expulsion.
Only a small portion of the potential beneficiaries of NACARA's hardship
standards are currently in proceedings before immigration judges. Rather, the great
majority of potential beneficiaries — including up to 240,000 Salvadorans and
Guatemalan — still have asylum applications pending before INS asylum officers.
Under normal circumstances, an asylum officer would have to consider and deny an
asylum application (which is a separate form of discretionary relief premised upon
prospective persecution abroad) before the applicant could subsequently be placed
in deportation or removal proceedings before an immigration judge, and only then
could the alien apply for hardship relief (which is premised primarily on deep ties
that have been established here).
However, according to INS press releases and memoranda issued by the OCIJ,
the Attorney General will streamline the process for considering hardship claims
made by asylum applicants covered by NACARA by allowing asylum officers to
determine hardship claims usually determined exclusively by immigration judges.
While the intent to allow consideration by asylum officers was made public in early
1998, procedures still have not been implemented. According to some reports,
asylum officers will begin to consider the hardship claims of NACARA beneficiaries
in late 1998 or early 1999. In the meantime, INS has temporarily suspended
processing the asylum applications of applicants who will be eligible to seek hardship
relief under NACARA. An exception has been made for aliens who request
expedited consideration of their asylum applications.
Regarding NACARA beneficiaries without pending asylum applications, those
potential beneficiaries who have been ordered deported or agreed to voluntary
departure may file one motion to reopen their cases with immigration judges for the
purpose of applying for hardship relief under NACARA standards. A motion to
reopen must be filed on or before September 11, 1998.
Some significant implementation issues apparently have not been completely
resolved. Among these are the standards for proving the degree of hardship required
for relief and whether final regulations will contain presumptions and other guidance
on establishing a hardship case.