The Second Circuit Issues an Important Decision on Immigration Detention

Introduction: Lora v. Shanahan

On October 28, 2015, the United States Court of Appeals for the Second Circuit decided Lora v. Shanahan, an important case concerning mandatory detention for pending removal proceedings found in section 236(c)[1] of the Immigration and Nationality Act (INA) for aliens who were inadmissible or deportable for certain offenses listed in sections 212(a) and 237(a) of the INA.[2]

The decision addressed primarily two questions:

• Whether the language “when released” in section 236(c) of the INA requires that an alien have actually been in custody and whether the detention must start immediately after the alien was in custody or released upon a conviction for a crime listed in 236(c).
• Whether the alien in this case could be detained indefinitely without a bond hearing.

On the first question, the Second Circuit held that an alien need not be have been imprisoned or in custody due to his or her underlying conviction in order to be subject to detention. Furthermore, the Second Circuit deferred to Board of Immigration Appeals (BIA) guidance on the matter in determining that immigration authorities need not detain an alien immediately upon his release from state custody in order to properly detain an alien.

On the second question, Second Circuit held that the alien in this case had been entitled to a bail hearing. Second Circuit adopted the standard that after six months of detention, an alien is entitled to a bond hearing wherein the government must provide compelling reasons that further detention is warranted.

In this blog, I will explain the background of the case, Second Circuit's reasoning for its decision, and what the decision means going forward.

Facts of the Case

The petitioner (Alexander Lora) in this case entered the United States as a lawful permanent resident (LPR) in 1990. Lora lived in New York continuously until 2009. In July of 2010, he pled guilty to criminal possession of cocaine with an aggregate weight of one ounce or more, and criminal use of drug paraphernalia under New York law.[3] He was sentenced to five years of probation, and he did not violate any of the terms of his probation.

On November 22, 2013, Lora was arrested by Immigration and Customs Enforcement (ICE) and taken into ICE custody where he was held without bond. He was charged with removability under section 237(a)(2)(B) of the INA (for having been convicted of a crime involving a controlled substance), and under section 237(a)(2)(A)(iii) (for having been convicted of an aggravated felony, in this case trafficking in a controlled substance). The Department of Homeland Security (DHS) decided that the removal charges subjected him to mandatory detention.

During removal proceedings, Lora's motion to have his original conviction set aside was granted, and he was permitted to plead to a minor offense (third degree possession of a controlled substance) was granted. He was re-sentenced to a conditional discharge imposed retroactively to July 21, 2010. Because the new sentence is not an aggravated felony in immigration law, Lora had a strong case for LPR cancellation of removal. However, because his conviction was for a crime involving a controlled substance, he was still technically subject to mandatory detention under section 236(c) of the INA. The Immigration Judge hearing the case granted Lora's request to file for cancellation of removal, but denied his request for a bail hearing.

Lora filed a petition for a writ of habeas corpus to challenge his continued detention. Firstly, he argued that the detention was invalid because he was not taken into custody at the time he was released on his underlying convictions, but instead over three years later.[4] He also argued that since he had never been incarcerated or kept in physical custody following the conviction, he was never subject to detention. Secondly, he argued that his continued detention without a bail hearing violated the Due Process Clause of the Fifth Amendment of the United States Constitution due to his substantial defenses against removal and the possibility that his detention would continue indefinitely (due to immigration processing delays).[5]

The District Court agreed with Lora on both counts, and ordered the government to provide Lora with an individualized bail hearing. Lora was granted bail and released after posting bond. The government appealed the decision to Second Circuit on both counts. First, the government argued that Lora was still subject to mandatory detention due to his conviction under law relating to a controlled substance. Secondly, the government argued that while it could not simply detain aliens indefinitely, that Due Process requires a “fact dependent inquiry” based upon the case rather than definite “bright line” after which detention is no longer presumptively reasonable.

Decision

The Second Circuit held that section 236(c) of the INA is unambiguous in mandating detention for certain crimes. The Second Circuit relied primarily upon the statute itself, which states “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.” This holding, in favor of the government's position, is consistent with multiple BIA decisions.[6] Furthermore, the Second Circuit noted in its opinion that had Congress intended to explicitly limit detention to cases where the alien was sentenced to imprisonment, it would have done so as it has in other immigration statutes.[7]

The Second Circuit also agreed with the government that the District Court was erroneous in its interpretation of the word “when” in “when the alien is released.” The BIA considered this question in Matter of Rojas in 2001, where it determined that “when … released” did not impose a limit on the authority to detain an alien under section 236(c). Given the ambiguity of the statute, and that the Second Circuit did not find the BIA's decision in Matter of Rojas to be “arbitrary or capricious,” the Second Circuit followed the BIA precedent. Furthermore, the Second Circuit noted that the BIA's reasoning accounts for practical considerations pertaining to immigration detention, that it is unrealistic to assume that DHS will be aware of the exact timing of an alien's release from custody and to expect DHS to have the resources to appear at every location where an alien who is subject to mandatory detention is being released.

The Second Circuit decided in Lora's favor on being entitled to a bail hearing. The Supreme Court upheld the mandatory detention statute in 2002 in Demore v. Kim, but it stated that detention must be “for a brief period of time” in order to be reasonable without a bail hearing. Additionally, the Supreme Court has held in multiple cases that aliens are entitled to due process in deportation proceedings.[8] Since Demore v. Kim was decided, multiple Circuit Courts have held that the statute must entail implicit temporal limitations on detention in order to avoid raising Constitutional concerns with indefinite detention.[9] However, while multiple Circuit Courts have found that the mandatory detention statute has implicit temporal limitations, the Second Circuit notes that different Circuits established different criteria for determining whether detention remains “reasonable.”

Both the Third and Sixth Circuits adopted the position favored by the government in Lora v. Shanahan, that a fact-dependent inquiry must be conducted in a given case in order to determine whether detention remains reasonable. However, in Rodriguez v. Robbins, the Ninth Circuit adopted a “bright line approach,” that mandatory detention is only presumptively reasonable for six months, at which point the alien in detention is entitled to a bail hearing. If the government believes that the alien should remain in detention for the duration of proceedings, it must present evidence to that effect at the bail hearing.[10]

In addition to providing more uniformity to detention litigation than the government's preferred approach, the Second Circuit noted that both it and the Ninth Circuit have substantially larger immigration dockets than other Circuits, making the government's preferred approach impractical for detainees, district courts, and the government. Furthermore, the Second Circuit noted that wait time an alien was detained was approximately 47 days when the Supreme Court decided Demore v. Kim, but is substantially longer now due to immigration processing delays.

Analysis

The Second Circuit's decision to adopt the position that detention is only presumptively reasonable for six months is a very significant decision for aliens in immigration detention in its jurisdiction, which covers the entirety of Connecticut, New York, and Vermont. This decision will help prevent many aliens in detention from facing effectively indefinite detention due to immigration processing delays on the part of the government.

However, it is important to note that this decision only applies to the Second Circuit and courts under its jurisdiction. For example, as the decision noted, the Third Circuit, which covers Delaware, New Jersey, and Pennsylvania, held that while indefinite detention is unreasonable, a fact-dependent inquiry must be conducted into a specific case to determine whether detention remains reasonable (as opposed to setting a specific duration for which detention is presumptively reasonable). Until and unless the Supreme Court addresses in more detail how “reasonableness” in terms of length of detention should be determined, the manner in which detention claims are adjudicated will vary depending on where the case is being heard. For this and other reasons, it is imperative for any alien who is contesting his or her immigration detention under section 236(c) of the INA to consult with an experienced immigration attorney who understands the judicial precedents regarding mandatory immigration detention in the given jurisdiction.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.
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1. Please note that the decision uses the corresponding sections in the U.S. Code. In the text of the decision, where this blog says “INA § 236(c)” is “8 U.S.C. § 1226(c).” Both refer to the same statute.
2. Lora v. Shanahan, No. 14-2343-pr (2d. Cir, 2015)
3. Under New York Penal Law §§ 220.16, 220.15
4. See the language of section 236(c) of the INA: “when the alien is released”
5. Lora also argued that his detention was not in the public interest.
6. See Matter of Kotliar, 24 I&N Dec. 124, 125 (2007); Matter of West, 22 I&N Dec. 1405, 1410 (2000)
7. The Second Circuit cited 8 U.S.C. § 1182(a)(2) as an example. The statute renders an alien ineligible for a visa or admission when he or she has been convicted of a crime of moral turpitude for which a sentence of at least six months has been imposed.
8. Zadvydas v. Davis, 533 U.S. 678, 682, 690 (2001); Reno v. Flores, 507 U.S. 292, 306 (1993)
9. The Second Circuit cited as examples Diop v. ICE/DHS., 656 F.3d 222, 231 (3d Cir. 2011); Ly v. Hansen, 351 F.3d 263, 267-68, 271 (6th Cir. 2003)
10. Rodriguez v. Robbins, 715 F.3d 1128 (9th Cir. 2013)

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Update: DHS Proposes New Rule to Extend STEM OPT Program

Background: Rules for OPT Extensions for Certain F1 STEM Students Held to be Invalid in August 2015

In a blog two months ago, I discussed a district court decision titled Washington Alliance of Technology Workers v. U.S. Department of Homeland Security [1] (hereafter “Washington Alliance”), wherein the Department of Homeland Security's (DHS's) rules extending occupational practical training (OPT) for certain F-1 (F1) STEM students was held to be invalid.

I encourage you to read that post before continuing in order to learn more about the original decision and the issues that were raised. In short, the District Court held the OPT rules to be invalid on the basis that DHS waived the “notice and public comment requirements” in making the rule without having had good cause to do so. To avoid a significant disruption for affected F1 STEM students are using the STEM OPT program, the ruling was stayed until February 12, 2016. Because the decision only held the rule to be invalid based upon the improper waiving of the notice and comment period, and not because of a problem with the rule itself, DHS had the opportunity to submit a new rule addressing OPT extensions for F1 STEM students with the requisite notice and public comment period. In welcome news for many F1 STEM students, DHS did just that, publishing a new rule proposal in the Federal Register on October 19, 2015.[2]

Proposed New Rules for OPT Extensions for Certain F1 STEM Students

The new rule proposal is open for public comment until November 18, 2015. DHS will take comments into account in making the final rule. By submitting the new rule for notice and public comment, DHS is following the instructions in Washington Alliance for extending the program.

Instead of simply proposing the same rules that were stayed by Washington Alliance, DHS has proposed to dramatically extend the OPT program for certain STEM students. The following are the key points of the new rule proposal:

• It would extend the OPT extension period for STEM students from 17 months under the current rules to 24 months.
• It would make F1 students who subsequently enroll in a new academic program (while on F1 status) and earn another qualifying STEM degree at a higher educational level eligible for one additional 24-month OPT extension.
• It would more clearly define qualifying STEM degrees for extension eligibility, as well as update the Federal Register and the Student and Exchange Visitor Program's (SEVP's) website when the list of qualifying STEM degrees is updated.
• It would require employers of students who have received an OPT extension to implement formal monitoring and training programs to ensure that the students are obtaining practical experience in their selected area of study.
• It would permit an F1 student participating in post-degree completion OPT to use a prior eligible STEM degree from a U.S. institution of higher education as a basis to apply for a STEM OPT extension, provided that the F1 student's most recent degree was from an accredited educational institution. However, in this event, the OPT must be related to the previous degree.
• It would require that the employer demonstrate that the terms of employment for an F1 student using a STEM OPT extension are the same as those for a similarly situated U.S. worker. Furthermore, the employer must demonstrate that it has sufficient resources to provide mentoring and training to the student; that it will not terminate, lay off, or furlough any U.S. worker as a result of providing STEM OPT extension to the F1 student; and that the employment will help the F1 student reach his or her training objectives.
• It would limit eligibility for STEM OPT extensions to students with degrees from schools that are accredited by an accrediting agency recognized by the Department of Education (DoE). It would also clarify DHS's discretion to conduct employer on-site reviews to ensure that an F1 student engaged in STEM OPT is obtaining work-based learning.
• It would extend the maximum amount of time that a student can be unemployed on a STEM OPT extension. Under the current rules that were stayed by Washington Alliance, an F1 student may be unemployed for 90 days during his or her initial 12 month OPT, and for an additional 30 days during the 17-month extension (for a total of 120 in the aggregate). The new rule would maintain the maximum 90 days for the initial 12-month period, but increase the number of days to 60 for the extension period, for a total of 150 days in the aggregate.

The proposed new rule will also maintain certain provisions of the current rules that were stayed by Washington Alliance:

• STEM OPT employers must be enrolled in E-Verify and must report certain changes in a STEM OPT student's employment.
• STEM OPT students must report to DHS any changes to their names or addresses, or to their employers' names or addresses.
• The new rule would maintain the “Cap-Gap Extension for F-1 Nonimmigrants with Timely Filed H-1B Petitions and Requests for Change of Status.” This provision allows DHS to temporarily extend an F1 student's duration of status and employment authorization if the student is the beneficiary of a timely filed H1B petition and requests a change of status. This would continue to extend the OPT period until October 1 of the fiscal year for which the H1B visa is being requested.

What Happens Now?

In all likelihood, the final new rule will be similar to the proposed rule. It is important to note that the plaintiffs (the organization challenging the STEM rules) have appealed the Washington Alliance decision to the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit). While the original rule was held to be invalid, the District Court only held that the rule was invalid under narrow procedural grounds, not that DHS had exceeded its authority. The challengers will hope that the D.C. Circuit finds that DHS exceeded its regulatory authority in making the STEM OPT rules. If the proceedings extend past the February 12, 2016 deadline, the D.C. Circuit will likely extend the old rule if the new rule has not been finalized by then.

While the future of the STEM OPT extension is still uncertain, DHS did its part in preserving the program by publishing a new rule proposal expeditiously. Provided that the D.C. Circuit does not find that DHS has exceeded its regulatory authority, the new rules will in fact enhance the STEM OPT extension program in many significant ways. Once the final rule is published, we will update the site with detailed information about how it works. I will continue to write blog posts about this issue, so please be sure to continue following all of our blogs here at Grinberg & Segal to read our expert insights on the most important immigration news.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.
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1.Washington Alliance of Technology Workers v. DHS, Civil Action No. 2014-0529 (D.C. 2015)
2.FR 63376 (Oct. 19, 2015)

Lawyer website: http://myattorneyusa.com

New POMS Evidentiary Requirements for Stateless Persons

New POMS Evidentiary Requirements to Demonstrate “Statelessness”

The Social Security Administration (SSA) has updated the evidentiary requirements for demonstrating “statelessness” in RS 02640.040 of its Program Operations Manual System (POMS). The SSA will use information from the Department of State about an individual to determine whether he or she is stateless. The definition that POMS uses for “statelessness is “the lack of nationality, or the absence of a recognized link between an individual and any state.” The POMS explains how an individual may be found to be de jure (by law) stateless and de facto (as a matter of fact) stateless.

De Jure Statelessness

In order to be found to be de jure stateless, an individual must been one of the following criteria:

• a. Have a civil registration or a “travel document” issued by his or her country of residence that shows both that the individual is stateless and that the document was issued under the United Nations Convention of 28 September 1954 Relating to the Status of Stateless Persons (which will be shown on the document);
• b. Legislation in the individual's country of residence that denies nationality to certain group(s), and the individual is a member of one of those groups;
• c. A document issued by the individual's former country of citizenship that shows that the individual is no longer a citizen of that country.

De jure statelessness is a matter of law, and will be established either if documentation exists that demonstrates an individual's statelessness, or if legislation was passed in the individual's country of residence that denies nationalities to a group of which the individual is a member.

The POMS states that an individual who is found to be de jure stateless will continue to be considered de jure stateless until he or she acquires a nationality of a country.

De Facto Statelessness

The POMS lists the ways in which an individual who claims to be stateless as a matter of fact may establish statelessness:

•     a. The individual claims to be stateless,
•     b. the individual cannot establish de jure stateless status, but
•     c. can establish that:

            -   he or she is outside the country of his or her nationality; and
          -   the government in the country of nationality is either unable or unwilling to recognize the  individual's nationality, or it refuses to allow the individual to return home.

Establishing de facto statelessness is slightly more complicated than establishing de jure statelessness because there is no documentation or legislation which will definitively demonstrate statelessness. Instead, evidence must exist that shows that an individual who claims to be stateless is, for all intents and purposes, stateless.

The POMS states that de facto statelessness will only persist so long as the factors that established de facto statelessness continue to exist. If the person acquires a new nationality of another country, or if the individual returns to his or her country of nationality, de facto statelessness shall cease.

Effect of the New POMS Evidentiary Requirements for Demonstrating Statelessness

The POMS instructions affect the issuance of social security numbers (SSNs). Furthermore, some Totalization agreements (which benefit non-citizens who work in the United States and a country with which the United States has a Totalization agreement with) that the United States has with other countries includes refugees and stateless persons. For example, the United States' Totalization agreement with Germany includes stateless persons. POMS GN 01072.225 discusses the policies regarding refugees and stateless persons in the context of Totalization agreements. For these reasons, it is important for individuals who are de jure stateless or who may qualify as de facto stateless and attorneys to understand the new POMS evidentiary requirements for demonstrating statelessness.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States. 

Lawyer website: http://myattorneyusa.com

Refugee Numbers for Fiscal Year 2016

Section 207 of the Immigration and Nationality Act (INA) gives the President the authority to allocate a limited number of refugee numbers for each fiscal year (subject to consultation with Congress and certain other concerns). This effectively sets the limits for how many refugees may be admitted in the fiscal year. On September 29, 2015, the President announced the allocation of refugee numbers for fiscal year (FY) 2016.[1]

• Up to 85,000 refugees may be admitted during FY 2016

Available refugee numbers for FY 2016 are allocated by region:

• Africa (25,000)
• East Asia (13,000)
• Europe and Central Asia (4,000)
• Latin America/Caribbean (3,000)
• Near East/South Asia (34,000)
• Unallocated (6,000)

The 6,000 unallocated refugee numbers shall be allocated to allow any of the regions to exceed their ceilings as needed.

In accordance with section 101(a)(42) of the INA, the President, in consultation with Congress, may designate persons who are otherwise qualified to be considered refugees for purpose of admission to the United States from within their countries or nationalities of habitual residence:

• a. Persons in Cuba
• b. Persons in Eurasia and the Baltics
• c. Persons in Iraq
• d. Persons in Honduras, Guatemala, and El Salvador
• e. In exceptional circumstances, persons identified by a United States Embassy in any location

The 85,000 refugee numbers available for FY 2016 is an increase over the 70,000 that were available for FY 2015. Secretary of State John Kerry stated that the Administration plans to admit at least 10,000 Syrian refugees in FY 2016. Furthermore, Secretary Kerry said that the administration hopes to make at least 100,000 refugee numbers available for FY 2017.[2]

Please consult Asylum and Refugee Protection section to learn about asylum and refugee protection in immigration law.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.
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1.  FR 62433
2.  Secretary Kerry said in remarks to the press: “Last year I think we were at 70,000 [refugees]. We are now going to go up to 85,000 with at least, and I underscore the “at least” — it is not a ceiling, it's a floor — of 10,000 over the next year from Syria… And in the next fiscal year, we'll target 100,000, and if it's possible to do more, we'll do.”

Resources and Materials:

DOS, “Joint Press Availability with German Foreign Minister Frank-Walter Steinmeier,” published on September 20, 2015, available at http://www.state.gov/secretary/remarks/2015/09/247077.htm (PDF version)

Lawyer website: http://myattorneyusa.com

Special Rule Cancellation of Removal or Suspension of Deportation for ABC Class Members and Certain Eastern Europeans

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.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Source:

“Nicaraguan Adjustment and Central American Relief Act (NACARA) 203: Eligibility to Apply with USCIS,” July 15, 2015, available at http://www.uscis.gov/humanitarian/refugees-asylum/asylum/nicaraguan-adjustment-and-central-american-relief-act-nacara-203-eligibility-apply-uscis

See more about this and many other immigration issues at myattorneyusa.com:

NACARA § 203 Relief:

http://myattorneyusa.com/immigration-law-and-practice/deportation-and-removal/removal-and-deportation-defense/special-rule-cancellation-of-removal-or-suspension-of-deportation-under-nacara-ss-203 

Regular Non-LPR Cancellation of Removal:

http://myattorneyusa.com/immigration-law-and-practice/deportation-and-removal/removal-and-deportation-defense/cancellation-of-removal-for-non-lawful-permanent-residents-under-ina-ss-240ab1 

ABC Settlement Agreement:

http://myattorneyusa.com/immigration-law-and-practice/deportation-and-removal/removal-and-deportation-defense/the-abc-settlement-agreement 

Demonstrating Extreme Hardship:

http://myattorneyusa.com/immigration-law-and-practice/deportation-and-removal/removal-and-deportation-defense/extreme-hardship 

Lawyer website: http://myattorneyusa.com