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VI.    Suspension of Deportation and Special Rule Cancellation of Removal Under § 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA)

a.    General Eligibility Requirements
    Certain provisions of NACARA make the old suspension of deportation standard available to nationals of Eastern Europe, Guatemala and El Salvador.[37] 
The following conditions apply to Salvadorans seeking relief under NACARA § 203:

•     Must have entered by September 19, 1990.
•     Must have registered for Temporary Protected Status (TPS) or under the settlement agreement (ABC Settlement Agreement) pursuant to American Baptist Church v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) by October 31, 1991 or applied for asylum by April 1, 1990.[38]
• The following conditions apply to Guatemalans seeking relief under NACARA § 203:
•     Must have entered by October 1, 1990;
•     Must have registered for ABC by December 31, 1991 or applied for asylum by April 1, 1990.[39]

The following conditions apply to certain Eastern Europeans seeking relief under NACARA § 203:

•     Must have entered by December 31, 1990;
•     Must have applied for asylum by December 31, 1991.[40]

b.    Derivatives
    Immediate family members of those seeking suspension under NACARA § 203 may qualify if they have 7 years continuous physical presence, and their relationship to the principal parent or spouse exists at the time the principal is granted relief.[41]  Governing regulations now provide that the child need not have the 7 years at the time of the grant so long as he or she has the continuous physical presence at the time of his or her adjudication.[42]

c.    Non-Derivative Sons and Daughters
    Adult sons and daughters may qualify, but only if relationship exists at time of grant, and applicant entered before or on October 1, 1990.[43]

d.    Stop Time Rule
    The issuance of an NTA does not stop time for applicants under NACARA § 203.[44]

e.    Aggravated Felonies 
    Individuals who have been convicted of an “aggravated felony” are not eligible for relief under NACARA § 203.[45] 

f.    Presumption of Extreme Hardship
    NACARA § 203 applicants may qualify by establishing extreme hardship to themselves, or to a spouse, parent or child who is a USC or LPR.  Pursuant to governing regulations, Guatemalans and Salvadorans under the Act are entitled to a rebuttable presumption of “extreme hardship.”  Evidence which might support a rebuttal of the presumption may include, for example, evidence indicating that the applicant had accumulated great wealth in the country of return.[46]

g.    Showing Hardship in Non-Presumption Cases:
    Nationals of the Eastern European States do not benefit from a presumption of extreme hardship, and thus they must affirmatively demonstrate extreme hardship.  However, the test for extreme hardship in these cases is generally liberal.  Note the following cases:

h.    Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996)
    This case stresses the assimilation of the applicant into the American way of life as a single, compelling factor upon which to grant relief. The Board also cited hardship in being returned to a country which has been substantially damaged by civil war. The Board also noted that not granting suspension would take away the respondent’s only avenue for obtaining LPR status.

i.    Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996)
The BIA looked at five factors regarding the country of return.  In finding the respondent eligible for suspension, it noted the following about the country:

1.     It was an “extremely poor country”;
2.     “[S]till in political turmoil”;
3.     Has a “shattered economy”;
4.     Has “very high unemployment”;
5.     Has “minimal governmental services.”

j.    Matter of Pilch, 21 I&N Dec. 627 (BIA 1996)
    In contrast to O-J-O- and L-O-G-, Pilch is a highly unfavorable case that immigration attorneys and respondents should distinguish their cases from when at all possible.  In Pilch, the applicant had founded a U.S. business which was employing numerous U.S. nationals. The applicant showed that he would have to forfeit the years of toil he had spent building the business and likely have to sell it at a distressed value in the event of deportation.  Nevertheless, the Board denied the suspension application.  Pilch, however, deals only with comparative economic hardship, as opposed to absolute economic hardship.  Furthermore, the country of return in Pilch was not found to be in a state of disarray.  Pilch shows that it is incumbent upon a suspension applicant to show not only that comparative economic hardship would result from removal, but also that the applicant and/or members of the applicant’s family would suffer absolute economic hardship, or suffer in human terms in the country of return as the result of an effective absence of critical social rights.

k.    Extreme Hardship in NACARA Suspension and Special Rule Cancellation of
       Removal Cases
    Other forms of “hardship” that arose under the old suspension cases are of interest for a number of reasons. The precedents are relevant to NACARA § 203 applications for suspension as well as to VAWA Cancellation cases due to the similar standards.  Moreover, the sort of generic hardships identified under the old suspension standard are still useful in evaluating cancellation-B cases insofar as understanding how Courts interpret what Congress intended to provide relief for.
    The following considerations found in governing regulations for suspension of deportation have been taken into account by the courts and the Board in establishing "extreme hardship” under the old suspension standard:

•     Age:  The age of the applicant’s children both at the time of entry and at the time of seeking relief;[47]
•     Health:  Health conditions affecting either the applicant or his/her immediate family members;[48]
•     Employment:  The critical issue here being whether the applicant would be able to secure adequate employment in the country of return (Please see above for discussion of economic hardship);[49]
•     Length of Presence in the United States:  Generally, the longer the applicant and his or her immediate family members have resided in the United States, the better the chance is that this will be favorably considered toward establishing the requisite hardship;[50]
•     Educational Harm:  Harm flowing as the result of disruption of educational opportunities can count towards a finding of extreme hardship;[51]
•     Psychological Impact of Return:  Emotional and psychological readjustments which would have to be made by the claimant and/or qualifying relatives may be in assessing whether extreme hardship would occur;[52]
•     Political and Economic Conditions in the Country of Return:  The case need not rise to fear of outright persecution. Residual concerns regarding the political persona of the applicant and its proclivity to bring him or her into conflict with his or her home government should be considered;[53]
•     Social ties to the U.S. and to the Country of Intended Removal:  The applicant’s ties to her community should always be weighed in considering whether the statutory standard has been met, including integration into U.S. society and culture. Conversely, social and cultural ties in the country of intended removal tend to undermine a showing of extreme hardship.[54]
•     Discretionary factors:  Discretion is never entirely divorced from the hardship factor of a suspension claim. Adjudicators will consider the applicant’s entire immigration history as well as his or her avenues for obtaining LPR status in the event of removal.[55]

l.    Special Procedural Concerns
    Under certain circumstances, NACARA § 203 claimants can make their applications for suspension affirmatively. This category would include the following individuals:

•     Guatemalans or Salvadorans who had asylum claims which remained pending at the Asylum Office;
•     Eastern European asylum seekers who had asylum claims still pending at the Asylum Office;
•     Dependents who were not included in proceedings;
•     Applicants whose cases had been administratively closed by an immigration judge or by the Board of Immigration Appeals.[56]
•     When a NACARA § 203 claimant had been in deportation proceedings which had not been administratively closed, and files a motion to reopen by September 11, 1998.[57]  The motion was required to be “perfected,” i.e., by submitting the substantive application for suspension of deportation, by November 18, 1999.[58]  The Office of the General Counsel of the Immigration and Naturalization Service, however, has issued a memorandum of law indicating that, where the non-citizen establishes a plausible excuse for not meeting these deadlines and shows eligibility for relief, the INS (now Department of Homeland Security) should generally join in a motion to reopen.[59]

VII.    VAWA Cancellation of Removal

a.    General Eligibility Requirements
    In addition to the above classes, there is a more limited class of applicants who can qualify for VAWA Cancellation of Removal.[60]  Eligibility is predicated primarily on having been abused by a U.S. citizen or LPR spouse or parent.
Accordingly, the following individuals may, under appropriate circumstances, qualify for VAWA Cancellation of Removal:

•     Abused spouse of an LPR or USC;[61]
•     Abused son and daughter of LPR or USC;[62]
•     Parent of abused child [even if not married to LPR or USC parent];[63]
•     If the applicant is an abused spouse, the underlying marriage must have been entered into in “good faith.”[64]  A divorce does not render the applicant ineligible provided that the marriage was bona fide at the time it was entered into.[65]
•     Intended spouses are included [this means that the alien spouse believes she is married but this is not the case because of the “bigamy” of the spouse with status].[66] 
• The following are things that an applicant for VAWA cancellation may demonstrate that he or she was the victim of in order to establish that he or she is a victim of “battery” or “abuse”:
•     Acts of violence or threats of violence; and
•     psychological or sexual abuse (rape, molestation, incest, forced prostitution); and
•     violence towards a third person intended to affect the victim.[67]

Psychological abuse can consist of the following:

•     Social isolation;
•     accusations against victim;
•     stalking;
•     interrogation of victim’s friends;
•     not allowing victim to have a job;
•     controlling victim’s money;
•     denigration of victim;
•     hiding or destroying documents.[68]

b.    Extreme Hardship
The standard for extreme hardship is the same as in suspension cases.  In order to demonstrate extreme hardship, the hardship must occur to:

•     The alien;
•     The alien’s parent;
•     Child of the alien.[69]

Note that having immigration status under these categories is not required for eligibility.
“Extreme hardship” in VAWA cancellation cases, in addition to the factors that we have looked at thus far, can include the following considerations:

•     Nature of abuse and its psychological consequences.[70]
•     Impact of loss of access to U.S. protective justice system.[71]
•     Likelihood that batterer’s family or friends could abuse the applicant in his or her home country.[72]
•     Applicant’s needs and the needs of his or her children for supportive services relating to social, medical or mental health.[73]
•     Legal and social protections in home country for battered women and children.[74]
•     Abuser’s ability to travel to home country and continue abuse.[75]

c.    Continuous Physical Presence
    The applicant must have three years physical presence in the U.S. as of the time application is made.[76]

d.    Good Moral Character (GMC)
    Applicant must be a person of GMC during the continuous physical presence period. Note, however, that GMC requirements are generally relaxed for VAWA applicants. This may make a significant difference for certain minor crimes or crimes where perjury is involved.[77]

e.    Not Inadmissible or Deportable on Certain Criminal Grounds
    The applicant must not be inadmissible or deportable under INA § 212(a)(2) or 237(a)(2).[78]

f.    Stop Time Rule
    Service of the NTA does not stop continuous physical presence from accruing. However, the commission of a crime rendering the alien inadmissible or deportable will.[79]
    The 90 and 180 day rules for cancellation-B applies to applicants for VAWA cancellation.  However, longer absences will be excused if the applicant demonstrates that they were connected with the battery or abuse.[80]

VIII.    Important Case Law

Recent judicial and administrative developments have significantly affected the right to apply for cancellation of removal, part B, and the omnibus waiver previously contained in section 212(c) of the INA (presently preserved for certain aliens whose convictions predated the passage of IIRIRA).  These developments are discussed in this practice advisory.

a.    Overview of Changes in Cancellation-B Eligibility Interpretation
INA § 240A(b)(1)(C) renders any applicant ineligible for cancellation-B who has been convicted of an offense under INA §§ 212(a)(2), 237(a)(2), or 237(a)(3).  These provisions relate to the criminal grounds of deportability and inadmissibility in the INA.  One portion of section 212(a)(2), for example, contains a ground of inadmissibility for those who either are convicted of a CIMT, or who admit the essential elements of such an offense.  Section 237(a)(2) contains a ground of deportability for noncitizens who have been convicted of a CIMT punishable by at least one year in prison, provided that the crime was committed within five years of admission. Under the “petty offense” exception, a noncitizen would not be deemed inadmissible under section 212(a)(2) if the conviction (or admission of the crime) related to only one CIMT, the maximum sentence for that crime did not exceed one year, and, if the noncitizen had been sentenced, the sentence did not exceed six months confinement.  Practitioners representing noncitizens who appeared eligible for cancellation-B but for a conviction would customarily argue (if the applicant were being charged with inadmissibility) that the crime the individual was convicted of or admitted to committing was subject to the petty offense exception.  However, that any crime that carries a maximum possible sentence of one year is ineligible for the petty offense exception greatly limits its utility.  For example, in New York, crimes punishable by in excess of one year’s confinement constitute felonies, whereas those punishable by a year or less are generally misdemeanors.  The following are two important cases that describe pitfalls for establishing eligibility for non-LPR cancellation of removal with certain criminal convictions.

b.    Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009)
In Matter of Almanza-Areneas, the Board addressed the scope of Section 240A(b)(1)(C).  It found that the determination of whether a crime involves moral turpitude for purposes of Section 240A(b)(1)(C) is governed by passage of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 231 (governing applications filed after May 11, 2005), which places the burden on the applicant for cancellation to demonstrate his or her eligibility for relief.  The Board held that the applicant has the burden of establishing that he or she has not been convicted of a crime described in either the inadmissibility or deportability provisions cited by section 240A(b)(1)(C).  In Almanza, the respondent, despite a conviction for a statutorily specified crime that caused inadmissibility, argued that his conviction was subject to the petty offense exception.   However, the Board held that he had been convicted of a CIMT punishable by at least one year’s confinement; accordingly, even though he was not charged with being deportable, the applicant had been convicted of a crime described in the Act’s deportability provisions, thus rendering him ineligible for cancellation of removal.
The Board in Almanza also turned the categorical analysis generally used in assessing criminal convictions on its head. When the statute under which the alien has been convicted is severable, and it is ambiguous whether the alien’s conviction falls under a part of the act that reaches CIMTs, the alien generally receives the benefit of the doubt under prevailing analysis, and will not be deemed to have been convicted of a CIMT. Under Almanza, however, where the alien has been convicted under a “divisible” statute which arguably reaches both CIMT offenses as well as non-CIMT offenses, the alien bears the burden of establishing that he or she was convicted under the non-CIMT portion of the statute.

c.     Matter of Cortez, 25 I&N Dec. 301 (BIA 2010)
In Matter of Cortez, the Board took the analysis from Matter of Almanza-Arenas a step further.  Generally, an alien is only deportable pursuant to section 237(a)(2)(A) of the INA if the crime in question is committed within 5 years of admission.  However, the Board in Cortez held that the applicant was ineligible for cancellation even though the crime was not committed within 5 years of his admission, thus meaning that the applicant was not deportable.  The Board held that the applicant’s deportability or lack thereof is not important for cancellation eligibility, but rather that he committed a crime described under section 237(a)(2)(A).  The only elements which remained essential for the Board when interpreting application of section 240A(b)(1)(C) were the nature of the crime and the maximum sentence that could be imposed.

d.    Summary
    Taken together, Almanza and Cortez substantially reverse the customary analysis used in cases where it is essential to assess the collateral consequences of weighty criminal convictions (or the admission of such crimes).  Rather than turning to the common analytic approach under which deportation statutes are construed in favor of the noncitizen, since the practical result of deportation is banishment or exile [see Lok v. INS, 548 F.3d 37 (2d. Cir. 1977)], the Board deliberately adopted a highly restrictive interpretation of the statute which promises to preclude many applicants from relief who heretofore would have been regarded as eligible.  All future claims for cancellation part B relief will be governed by the interpretation of section 240A(b)(1)(C) provided by the Board in Almanza and Cortez, and practitioners should make note of this change in the law when representing a cancellation part B applicants.
 
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Reference:
Eligibility for Cancelation-B:
8 INA § 240A(b)(1)(B), 8 USC § 1229b(b)(1)(B).
9 INA § 240A(b)(1)(C), 8 USC § 1229b(b)(1)(C).
10 INA § 240A(b)(1)(D), 8 USC § 1229b(b)(1)(D).

Suspension Eligibility under former law.
INA § 244(a)(1), 8 USC § 1254(a)(1) and INA § 240A(b)(1)(D), 8 USC § 1229b(b)(1)(D).

Stop Time Rule:
5 Pub. L. No. 105-139 (111 Stat. 2644); 8 CFR §§ 1240.60  and 240.70.
6 INA § 240A(b)(1)(A); 8 USC § 1229b(b)(1)(A).
7 INA § 240A(d); 8 USC § 1229b(d).
Vasquez-Lopez v. Ashcroft, 343 F.3d 961 (9th Cir. 2003).
Tapia v. Gonzales, 430 F.3d 997 (9th Cir. 2005).
In re Cisneros-Gonzalez, 23 I&N Dec. 668 (BIA 2004).

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37 IIRIRA § 309(c)(5)(C)(i)(I)(aa) and (II). See also 8 CFR §§ 1240.60 and 1240.61(a)(2).
38  IIRIRA § 309(c)(5)(C)(i)(I)(bb) and (II). See also 8 CFR §§ 1240.60 and 1240.61(a)(2). For both Salvadoran and Guatemalan applicants under section 203 of NACARA, USCIS has determined that “a Guatemalan or Salvadoran national, who affirmatively filed an I-589 application on or after the date the court provisionally approved the Settlement Agreement [in ABC] and prior to the conclusion of the designated registration period, has indicated the intent to receive ABC benefits under the Settlement Agreement and therefore should be considered ‘registered’”. Joseph E. Langlois, Director, Asylum Division, Office of Refugee, Asylum and International Affairs, Making ABC Registration Determinations; see also Chaly-Garcia v. U.S., 508 F.3d 1201 (9th Cir. 2007); Memorandum to Asylum Office Directors (Washington, D.C. Aug. 5, 2008), www.uscis.gov/files/nativedocuments/making_abc_registration_determinations_080508.pdf
39  IIRIRA § 309(c)(5)(C)(i)(V); See also 8 CFR § 1240.61(a)(3).
40  IIRIRA § 309(c)(5)(C)(i)(III)
41  8 CFR § 1240.61(a)(4)
42  IIRIRA § 309(c)(5)(C)(IV)(bb). See also 8 CFR § 1240.61(a)(5)
43  IIRIRA § 309(c)(5)(B). The applicant must establish seven years “continuous physical presence”, the standard requirement in suspension of deportation cases. In Matter of Garcia, 24 I&N Dec. 179 (BIA 2007), the Board addressed the issue of how “continuous physical presence” is to be calculated.
44  As indicated earlier, individuals with criminal convictions which are not aggravated felonies may still apply for either NACARA suspension or Special Rule Cancellation of Removal, provided that they can demonstrate extremely unusual and exceptional hardship either to themselves or to a USC or LPR spouse, parent or child and 10 years of GMC running from the date the offense was committed. In addition to the “aggravated felony” bar, those seeking Special Rule Cancellation of Removal must not be inadmissible or deportable on  security related grounds [INA § 212(a)(3) and INA § 237(a)(4)], and, for those seeking 10 year Special Rule Cancellation, the applicant must not have participated, directly or indirectly, in an act of persecution.  For a further discussion, see Austin Fragomen and Steven Bell, Immigration Fundamentals § 7.4.1(E) (2009).
45  Immigration and Naturalization Service, Asylum Officer Training Manual: Suspension of Deportation and Special Rule Cancellation of Removal 54-55 (June 10, 1999).
46 8 CFR § 1240.58(1) and (2).
47  8 CFR § 1240.58(3).
48 8 CFR § 1240.58(4). 
49 8 CFR § 1240.58(5).
50 8 CFR § 1240.58(8). 
51 8 CFR § 1240.58(9). 
52 8 CFR § 1240.58(10). 
53 8 CFR § 1240.58(11). 
54 8 CFR § 1240.58(13) and (14).
55  See generally Catholic Legal Immigration Network, Inc., NACARA Section 203 Advanced Training (The Nicaraguan   Adjustment and Central American Relief Act) 36-37 (August 6, 1999).
56 8 CFR § 1003.43(e)(1).
57  8 CFR § 1003.43(e)(2).
58  Memorandum of Paul Virtue, General Counsel to the Immigration and Naturalization Service, dated February 8, 1999.
59  See INA § 240A(b)(2).
60  INA § 240A(b)(2)(A)(i)(II and III), 8 USC § 1229b(b)(2)(A)(i)(II and III).
61  INA § 240A(b)(2)(A)(i)(II and III), 8 USC § 1229b(b)(2)(A)(i)(II and III).
62  Id.
63  Marriage fraud will render the claimant clearly ineligible.
64  See generally INS Office of Programs, Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues, reprinted in 74 Interpreter Releases 971 (June 16, 1997).
65  INA § 240A(b)(2)(A)(i)(III), 8 USC § 1229b(b)(2)(A)(i)(III).
66  8 CFR § 204.2(c)(1)(vi) and 8 CFR § 204.2(e)(vi).
67  Gail Pendleton and Ann Block, “Applications for Immigrant Status under the Violence Against Women Act,” I Immigration and Naturalization Handbook 436, 431 (2001-2002).
68  INA § 240A(b)(2)(A)(v), 8 USC § 1229b(b)(2)(A)(v).
69  8 C.F.R. § 1240.58(c)(1)
70  8 C.F.R. § 1240.58(c)(2)
71  8 C.F.R. § 1240.58(c)(3)
72  8 C.F.R. § 1240.58(c)(4)
73  8 C.F.R. § 1240.58(c)(5)
74  8 C.F.R. § 1240.58(c)(6)
75  INA § 240A(b)(2)(A)(ii), 8 USC § 1229b(b)(2)(A)(ii).
76  INA § 240A(b)(2)(C), 8 USC § 1229b(b)(2)(C).
77  INA § 240A(b)(2)(A)(iv), 8 USC § 1229b(b)(2)(A)(iv).
78  INA § 240A(d)(1), 8 USC § 1229b(d)(1).
79  INA § 240A(b)(2)(B), 8 USC § 1229b(b)(2)(B)
80  INA § 240A(b)(2)(B), 8 USC § 1229b(b)(2)(B)

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