• Special Rule Cancellation of Removal or Suspension of Deportation for ABC Class Members and Certain Eastern Europeans
  • October 22, 2015 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • The American Baptist Churches v. Thornburgh (ABC) Settlement Agreement was a class action settlement between a class of Guatemalan and Salvadoran nationals and the United States government rendered in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) on January 31, 1991. The agreement afforded special benefits to certain Guatemalans and Salvadorans who qualify as ABC class members. One special benefit, codified in section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), is the eligibility to file for special rule cancellation of removal [under the old suspension of deportation rules] or suspension of deportation. In addition to ABC class members, certain Eastern Europeans are also eligible for relief under NACARA § 203. If an alien is granted relief under NACARA § 203, his or her status will be adjusted to that of lawful permanent resident status. This overview will explain the eligibility requirements for special rule cancellation or suspension, the advantages these forms of relief have over regular non-LPR cancellation of removal, and the benefits of being granted relief under NACARA § 203.

    In order for a Guatemalan to qualify for ABC class membership, he or she must:
    • have entered first entered the United States on or before October 1, 1990; and
    • registered for ABC benefits on or before December 31, 1991; and
    • either filed for asylum before January 3, 1995, or filed for asylum before April 1, 1990, and have not received a final decision on your asylum application;
    • not been apprehended at the time of entry into the United States at any time after December 19, 1990.
    In order for a Salvadoran to qualify for ABC class membership, he or she must:
    • Must have entered the United States on or before September 19, 1990;
    • registered for ABC benefits on or before October 31, 1991 (either directly or by applying for Temporary Protected Status (TPS) before that date);
    • applied for asylum on or before February 16, 1996, or filed for asylum before April 1, 1990, and have not received a final decision on your asylum application;
    • not been apprehended at the time of entry into the United States at any time after December 19, 1990.
    In order for an Eastern European to be eligible for NACARA § 203 relief, he or she must:
    • have entered the United States on or before December 31, 1990;
    • applied for asylum on or before December 31, 1991;
    • at the time of filing for asylum, was a national of the Soviet Union, any republic of the former Soviet Union, Russia, Latvia, Estonia, Albania, Bulgaria, Czechoslovakia, East Germany, Hungary, Poland, Romania, Yugoslavia, or any state of the former Yugoslavia.
    Qualifying family members of individuals eligible for NACARA § 203 relief may be eligible as well. In order to be eligible, the family member must be the spouse or daughter of a person granted NACARA § 203 relief and the relationship must have existed at the time relief was granted. An unmarried son or daughter of a beneficiary of NACARA § 203 relief who is over the age of 21 may be eligible provided that he or she entered the United States on or before October 1, 1990 [8 C.F.R. § 1240.61(a)(5)].

    Furthermore, alien spouses or children who were victims of battery or extreme cruelty by an alien described above may be eligible for NACARA § 203 benefits before an immigration judge.

    Assuming that an applicant is a qualifying ABC class member or Eastern European, there are general eligibility requirements that he or she must satisfy for NACARA § 203 relief. Firstly, he or she must not have been convicted of an aggravated felony, as this renders one ineligible NACARA § 203 relief. In addition, an applicant must demonstrate:
    • Seven years of continuous physical presence in the United States prior to applying for relief [“brief, casual, and innocent” absences where no single absence exceeds 90 days or absences in the aggregate exceed 180 days are permitted; exceptions exist for aliens who served at least 24 months in active duty status in the U.S. armed services and were not separated from the armed in anything but honorable circumstances];
    • That he or she has been a person of good moral character for the 7 year continuous physical presence period;
    • That he or she is removable or deportable under certain criminal grounds or for certain acts of fraud;
    • That his or her removal or deportation would result in extreme hardship to him or herself or a U.S. citizen or lawful permanent resident spouse, child, or parent;
    • That he or she deserves the benefit.
    An alien who is inadmissible or deportable under certain grounds may still be eligible for NACARA § 203 benefits under heightened standards. These standards would require 10 years of continuous physical presence, the establishment of good moral character for the 10-year period of continuous physical presence, and the demonstration of exceptional and extremely unusual hardship rather than extreme hardship.

    Special rule cancellation of removal under NACARA § 203 has numerous advantages over regular non-LPR cancellation of removal. These include:
    • Only 7 years of continuous physical presence required instead of 10;
    • Service of a Notice to Appear does not stop the accrual of continuous physical presence (and for suspension under NACARA § 203, the service of an Order to Show Cause does not stop time);
    • Factors that would bar the establishment of good moral character outside of the mandatory continuous physical presence period are generally not considered;
    • Must only demonstrate extreme hardship instead of exceptional and extremely unusual hardship, and hardship to you may be considered
    • ABC class members are entitled to a rebuttable presumption of extreme hardship, however Eastern European applicants are not;
    • ABC class members or Eastern Europeans with original pending asylum applications (provided that they are not de novo asylum applications) may be eligible to affirmatively seek NACARA § 203 relief, and those who filed for motions to reopen proceedings by September 11, 1998, after receiving final orders of deportation or removal may also be permitted to affirmatively seek NACARA § 203 benefits.
    In order to apply for NACARA § 203 relief, an applicant must file for a Form I-881, Application for Suspension of Deportation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105-100 (NACARA)) for NACARA § 203 relief.

    Despite all of the advantages afforded to persons eligible for NACARA § 203 relief, the grant of relief is still discretionary. If you are think that you are eligible and may benefit from relief under NACARA § 203, you should consult with an experienced immigration attorney for a full assessment of your situation, and guidance through each step of the process if you are eligible for relief. If you are ineligible for NACARA § 203 relief for whatever reason, an experienced immigration attorney may help you determine if there is another form of relief available given the specific circumstances of your situation.