Crimes of Moral Turpitude

Under NACARA,[296] certain Salvadorans, Guatemalans, nationals of Former Soviet Bloc Countries, Cubans and Nicaraguans[297] are potentially eligible to apply for adjustment of status or 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.[298]  VAWA applicants are included.[299]  The exact requirements, and scope of relief, depend upon which country the applicant is from.  Generally, this form of relief is no longer available because of application and motion deadlines that have already passed.  At least one court held that it has no jurisdiction to review denial of a NACARA application.[300]

Neither suspension of removal, nor special cancellation of removal under NACARA, is available if the noncitizen has been convicted of an aggravated felony.[301] Noncitizens removable because of a crime of moral turpitude, controlled substances offense, domestic violence, or firearms offense are not absolutely barred from application for relief under NACARA special cancellation.[302]  However, a noncitizen subject to a non-aggravated felony criminal ground of removal may be held to higher standard in meeting the qualifications for relief.  Such noncitizens may need to show they have been physically present[303] in the United States for 10 years prior to making the application for relief, rather than seven, and that they were persons of Good Moral Character[304] during those ten years.[305]  They may also be required to meet a more difficult hardship standard.[306]  

[296]  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 M. Silverman, Winning NACARA Suspension Cases (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 8 C.F.R. § § 240.60-240.70.

[297] 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).

[298] 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).

[299] See § 3.37, infra.

[300] 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).

[301] 8 C.F.R. § § 240.65(a), 240.66(a).

[302] See 8 C.F.R. § 240.66(c).

[303] Matter of Garcia, 24 I. & N. Dec. 179 (BIA 2007) (applicant for special rule cancellation may continue to accrue physical presence until the issuance of a final administrative decision), following Matter of Ortega-Cabrera, 23 I. & N. Dec. 793 (BIA 2005). Cuadra v. Gonzales, 417 F.3d 947 (8th Cir. 2005), which holds to the contrary will be followed in that the eighth circuit only.

[304] See § 3.14, supra.

[305] Briseno-Flores v. Attorney General of U.S., 492 F.3d 226 (3d Cir. Jun. 26, 2007) (cancellation stop-time rule applies retroactively to bar application for NACARA suspension of deportation because noncitizen committed CMT prior to accrual of seven years presence, even though noncitizen was convicted of the offenses after the end of the seven years).

[306] See 8 C.F.R. § 240.66(c).