Aggravated Felonies

Under NACARA,[307] certain Salvadorans, Guatemalans, Nationals of Former Soviet Bloc Countries, Cubans and Nicaraguans[308] are potentially eligible to apply for suspension of deportation or cancellation of removal based on the more generous suspension of deportation standards that were in place before IIRAIRA took effect on April 1, 1997.[309]  VAWA applicants are included.[310]  Persons who became deportable[311] for a criminal offense more than ten years before applying can still apply under the rules governing the former “ten-year” suspension.[312]  At least one court had held that it has no jurisdiction to review denial of a NACARA application.[313]

Neither suspension of removal, nor special cancellation of removal under NACARA, is available if the noncitizen is convicted of an aggravated felony.[314]  If a person is not inadmissible, however, s/he is not disqualified from eligibility for NACARA special cancellation.[315]

[307]  Nicaraguan Adjustment and Central American Relief Act (NACARA), enacted as Title II of the District of Columbia Appropriations Act for fiscal year 1998, Pub. L. No. 105-100, 111 Stat. 2160 (Nov. 19, 1997). For more information about NACARA, see Silverman, Winning NACARA Suspension Cases (ILRC 1999), available from the Immigrant Legal Resource Center, http://www.ILRC.org.  The NACARA provisions discussed here are codified at IIRAIRA § 309(c)(5), as amended by NACARA § 203(a)(1), and IIRAIRA § 309(f), as created by NACARA § 203(b).  See proposed regulation at 8 C.F.R. § § 240.61, 240.65.

[308] Masnauskas v. Gonzales, 432 F.3d 1067 (9th Cir. Dec. 30, 2005) (rejecting equal protection challenge that NACARA special adjustment should be available to persons not from Nicaragua or Cuba).

[309] For example, the current “stop-time” rule for cancellation of removal at INA § 240A(d), 8 U.S.C. § 1229b(d) is inapplicable to applicants for suspension under NACARA.  See Rodriguez-Silva v. INS, 242 F.3d 243 (5th Cir. 2001).

[310] See § 2.38, infra.

[311] Noncitizens in exclusion proceedings are ineligible for suspension, even taking NACARA into account. Simeonov v. Ashcroft, 371 F.3d 532 (9th Cir. May 27, 2004).

[312] See former INA § 244(a)(2), 8 U.S.C. § 1254(a)(2).

[313] Centeno v. US Att’y Gen., 441 F.3d 904 (11th Cir. Feb. 17, 2006) (under NACARA § 202(f), no jurisdiction exists to review denial of NACARA relief, even on an issue of statutory eligibility).

[314] 8 C.F.R. § § 240.65(a), 240.66(a).

[315] Reyes-Morales v. Ashcroft, 435 F.3d 937 (8th Cir. Jan. 31, 2006) (since one of two convictions was not a crime of moral turpitude, and the other qualified for the petty offense exception to inadmissibility, respondent was not inadmissible for crimes under INA § 212(a)(2), 8 U.S.C. § 1182(a)(2), and therefore not disqualified from eligibility for NACARA special cancellation of removal under NACARA § 203), citing Cuadra v. Gonzales, 417 F.3d 947, 949 (8th Cir. 2005).