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).

BIA

RELIEF - ADJUSTMENT OF STATUS - ARRIVING ALIEN - CUBAN REFUGEE ADJUSTMENT ACT
Matter of Martinez-Montalvo, 24 I. & N. Dec. 778 (BIA 2009) (under 8 C.F.R. 245.2(a)(1) and 1245.2(a)(1)(ii), Immigration Judges have no jurisdiction to adjudicate an application filed by an arriving alien seeking adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732,80 Stat. 1161, as amended, with the limited exception of an alien who has been placed in removal proceedings after returning to the United States pursuant to a grant of advance parole to pursue a previously filed application), superseding Matter of Artigas, 23 I. & N. Dec. 99 (BIA 2001).

First Circuit

RELIEF"NACARA"ALIEN CREWMAN
Gonzalez v. Holder, 673 F.3d 35 (1st Cir. Mar. 14, 2012) (BIA properly classified noncitizen as alien crewman, therefore noncitizen was disqualified from NACARA).

Second Circuit

RELIEF - NACARA
Argueta v. Holder, 617 F.3d 109 (2d Cir. Aug. 6, 2010) (Immigration Judge not barred, by NACARA regulatory requirement of showing only seven years good moral character, from considering older criminal convictions in determining whether to grant relief as a matter of discretion).

Ninth Circuit

RELIEF " NACARA " GOOD MORAL CHARACTER
Agragon-Salazar v. Holder, __ F.3d __ (9th Cir. Oct. 2, 2014) (seven year good moral character period ends on the date of filing the application; false statement made after date of filing NACARA application does not bar good moral character). NOTE: This decision also discusses the issue of which, of two, submitted applications should be considered for determining the date of filing for GMC purposes.

RELIEF " ADJUSTMENT OF STATUS " NACARA " NICARAGUAN ADJUSTMENT AND CENTRAL AMERICA RELIEF ACT " BRIEF DEPARTURE FROM UNITED STATES DID NOT ABANDON NACARA AOS APPLICATION
Lezama-Garcia v. Holder, ___ F.3d ___, 2011 WL 5966204 (9th Cir. Nov. 30, 2011) (brief unplanned departure from the United States did not amount to abandonment of pending application for adjustment of status under 202 of the Nicaraguan Adjustment and Central American Relief Act); see 8 C.F.R. 245.13(k)(1), Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963).

Ledezma-Garcia v. Holder, 599 F.3d 1055 (9th Cir. Mar. 22, 2010) (although the "aggravated felony" definition applies regardless of the date of conviction, an aggravated felony conviction occurring prior to November 18, 1988 does not trigger deportability under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii)), overruling Matter of Lettman, 22 I. & N. Dec. 365 (BIA 1998) (en banc). "Special rule" cancellation of removal is available under the Nicaraguan Adjustment and Central American Relief Act to certain noncitizens who are either (1) not deportable or inadmissible under INA 212(a)(2), 237(a)(2), or (2) are deportable or inadmissible under those sections, "other than section 237(a)(2)(A)(iii), relating to aggravated felony convictions" and meet certain other heightened standards. In either case, it appears that Ledezma would apply, so a pre-November 18, 1998 conviction should not bar NACARA as an aggravated felony. Remember, however, that the noncitizen must also establish good moral character.

RELIEF - NACARA SPECIAL RULE CANCELLATION OF REMOVAL
Lanuza v. Holder, 597 F.3d 970 (9th Cir. Mar. 5, 2010) ("The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 309(c)(5)(C)(ii), 110 Stat. 3009 (1996), expressly precludes us from reviewing the BIA's determination of eligibility for NACARA 203 relief.").

RELIEF - NACARA - SPECIAL RULE CANCELLATION
Barrios v. Holder, 567 F.3d 451 (9th Cir. May 27, 2009) (a minor who seeks NACARA special rule cancellation of removal, under Nicaraguan Adjustment and Central American Relief Act 203, as a derivative, must personally satisfy the Act's requirement of seven years of continuous physical presence; the father's physical presence in the United States cannot be imputed to him to satisfy this requirement).

NOTE: The court distinguished Cuevas-Gaspar and Escobar v. Holder (decided the same day as Barrios) on the basis that while the court imputes a parents "status, intent or state of mind" to an unemancipated minor child, it does not impute actual physical presence required under NACARA.

Other

RELIEF - NACARA CANCELLATION OF REMOVAL - REGISTRATION REQUIREMENT
Congress made eligibility for cancellation of removal depend, in part, on ABC registration. The Attorney General expressly conferred authority to IJ's to decide cancellation cases. 8 C.F.R. 1240.62(b). In light of these developments, Congress and the Executive arguably intended for an IJ to have authority to decide ABC registration in the cancellation context. Matter of Morales, 21 I. & N. Dec. 130 (BIA 1995), addressed the issue of the IJ's jurisdiction to decide ABC registration for the purposes of implementing the ABC settlement agreement. Significantly, the BIA decided Morales before Congress created the cancellation provision and before the AG expressly conferred authority on IJ's to decide cancellation cases by promulgating 8 C.F.R. 1240.62(b). In light of the NACARA statute and the regulation, Morales is limited to registration decisions implementing the ABC agreement.