Adjustment of Status for Certain Nationals of Nicaragua and Cuba [65 FR 15846] [FR 13-00]

DOCUMENT NUMBER: FR 13-00

FEDERAL REGISTER CITE: 65 FR 15846

DATE OF PUBLICATION: March 24, 2000

BILLING CODE: 4410-10

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3, 212, 240, 245, 274a and 299

[INS No. 1893-97; AG Order No. 2293-2000]

RIN 1115-AF04

Adjustment of Status for Certain Nationals of Nicaragua and Cuba

AGENCY: Immigration and Naturalization Service, Justice, and Executive Office for Immigration Review, Justice.

ACTION: Final rule.

SUMMARY: This rule implements section 202 of the Nicaraguan Adjustment and Central American Relief Act (NACARA) by establishing procedures for certain nationals of Nicaragua and Cuba who have been residing in the United States to become lawful permanent residents of this country. This rule allows them to obtain lawful permanent resident status without applying for an immigrant visa at a United States consulate abroad, and waives many of the usual requirements for this benefit.

DATES: This final rule is effective March 24, 2000.

FOR FURTHER INFORMATION CONTACT: For matters relating to the Immigration and Naturalization Service -Suzy Nguyen, Adjudications Officer, Office of Adjudications, Immigration and Naturalization Service, 425 I Street NW, Room 3214, Washington, DC 20536, telephone (202) 514-5014; For matters relating to the Executive Office for Immigration Review -Chuck Adkins-Blanch, Acting General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2400, Falls Church, VA 22041, telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION :

What Are the Basic Provisions of Section 202 of NACARA and the Interim Regulation Published on May 21, 1998?

The Nicaraguan Adjustment and Central American Relief Act (NACARA), enacted as title II of the District of Columbia Appropriations Act, 1998, Public Law 105-100 (111 Stat. 2160, 2193), was signed into law on November 19, 1997. As amended by Public Law 105-139 (111 Stat. 2644), which was signed into law the same day, section 202 of NACARA allows certain Nicaraguan and Cuban nationals who are physically present in the United States to adjust status to that of lawful permanent resident. In order to be eligible for benefits under NACARA, an applicant must be a national of Nicaragua or Cuba; must be admissible to the United States under all provisions of section 212(a) of the Immigration and Nationality Act (Act), other than those provisions specifically excepted by NACARA; must have been physically present in the United States for a continuous period beginning not later than December 1, 1995, and ending not earlier than the date the application for adjustment is filed (not counting absences totaling 180 days or l ess); and must properly file an application before April 1, 2000. In addition, certain family members of NACARA beneficiaries are also eligible for adjustment of status under NACARA.

The interim regulation published in the Federal Register by the Department of Justice (Department) on May 21, 1998, explained the forms, supporting documentation, and process through which a principal applicant, or an applicant who is a dependent of a principal applicant, may apply for adjustment of status under section 202 of NACARA. It provided that an alien who is currently in exclusion, deportation, or removal proceedings may file his or her application with the immigration court, unless the immigration court administratively closes such proceedings for the specific purpose of allowing the alien to apply for adjustment before the Immigration and Naturalization Service (Service or INS). The regulation also added an eighth method to the seven contained in the statute for proving commencement of physical presence in the United States. Additionally, it explained the process through which a NACARA adjustment applicant may seek authorization to work in the United States or to travel outside of the country. Finally, the regulation provided a vehicle through which certain aliens who are outside the United States may seek authorization to be paroled into the country for the purpose of applying for adjustment of status.

How Many Comments Were Received From Interested Parties During the Comment Period?

There were 36 separate comments received from various organizations, individuals, and other interested parties. That number included three Members of Congress, one representative of a foreign government, numerous nongovernmental organizations, and several attorneys and law firms. Also included in that number are 2 petitions, 1 with 426 signatures and the other with 66 signatures, and 124 identical letters signed by the members of 1 organization, making a total of 649 individuals and organizations who partic ipated in the public comment process. The Department wishes to thank all participants for their insightful comments.

What Were the Specific Comments and How Is the Department Amending the Regulation as a Result?

The issues raised by commenters generally fell into 14 areas, each of which will be discussed separately, as follows:

1. Treatment of an Ineligible Spouse or Child

A significant number of commenters expressed concern about the requirement that a spouse or child of a principal applicant be a national of Nicaragua or Cuba in order to qualify for the benefits of section 202 of NACARA. Some questioned whether the language of the statute specified that the dependent be a national of Nicaragua or Cuba, while others recognized that the language so specified, but felt that the agency has the authority to “correct” the language through regulation. Still other commenters sugges ted that the Department create a family unity program for ineligible dependents and provide them with a blanket waiver of section 212(a)(9)(B) of the Act (which creates a 3-year bar for aliens who have been unlawfully present for more than 180 days and a 10-year bar for those who have been unlawfully present for 1 year or more). While the Department is sympathetic to the problem faced by non-Nicaraguan, non-Cuban dependents, section 202(d)(1)(A) of NACARA clearly states that the alien spouse must be “a nati onal of Nicaragua or Cuba.” While the courts have held that an agency has a certain amount of latitude in drafting implementing regulations if the statute is unclear on an issue, the agency has no such latitude where the statute is clear. Only a statutory change can redress the issue of eligibility for non-Nicaraguan and non-Cuban dependents. Likewise, a statutory change would be required to create a family unity program for ineligible dependents and to waive the provisions of section 212(a)(9)(B) of the Ac t. Accordingly, no changes are being made to the regulation on this point.

2. Other Statutory Issues

Some commenters wanted clarification in the regulation on whether sections 212(a)(6)(B), 240B(d), 241(a)(5) (and also by extension 212(a)(9)(C)), and “the former section 242B” of the Act applied to NACARA applicants. One party also requested information regarding the number of persons affected by section 241(a)(5) of the Act. Although incorporating a discussion of each of these provisions in 8 CFR 245.13 would unnecessarily complicate the regulation, we have decided to address them in this supplementary inf ormation.

Section 212(a)(6)(B) of the Act provides that if an alien failed to attend a removal hearing, he or she is inadmissible for a period of 5 years from his or her subsequent departure or removal. In order to be barred from adjusting status under NACARA, an alien would (1) have to fail to attend a removal hearing; (2) depart or be removed from the United States; (3) re-enter the United States; and (4) apply for adjustment under NACARA. If any of these four steps is missing, the alien would not be inadmissible u nder section 212(a)(6)(B) of the Act; if all four are present, he or she would be inadmissible and, therefore, ineligible for adjustment of status under section 202 of NACARA.

If an alien was permitted to depart voluntarily but failed to do so, he or she would be barred by section 240B(d) of the Act from receiving benefits under certain specified provisions of the Act. Because a NACARA applicant would not be seeking benefits under one of the sections specified in section 240B(d) of the Act, section 240B(d) of the Act would not apply.

Section 241(a)(5) of the Act provides for the reinstatement of a removal order against any alien who illegally re-enters the United States after having been removed or after having departed voluntarily under an order of removal. It also bars any alien whose removal order has been reinstated from receiving any relief under the Act. An alien who has been previously deported is inadmissible for the applicable period set forth in the Act and may only overcome such inadmissibility by obtaining the applicable wai ver of inadmissibility authorized under section 212(a)(9) of the Act (such waiver is more commonly referred to as permission to reapply for admission after deportation) before being granted adjustment of status (including adjustment under section 202 of NACARA). Because such a waiver is relief (from inadmissibility) under the Act for which an alien subject to reinstatement is ineligible, a previously deported alien who has re-entered the United States illegally at a time when his or her previous exclusion, deportation, or removal rendered him or her inadmissible to the United States is ineligible to adjust status under section 202 of NACARA. The Service does not know how many otherwise-eligible Nicaraguans and Cubans are barred from adjusting under section 202 due to the provisions of section 241(a)(5) of the Act, but judging solely from the volume of inquiries received on the issue, the number may be significant.

The issue of a previous exclusion, deportation, or removal also arises in connection with section 212(a)(9)(C)(i)(II) of the Act, which provides that:

“Any alien who * * * has been ordered removed under section 235(B)(1), section 240, or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible.”

Section 202(a)(2) of NACARA specifically provides that “[a]n alien present in the United States who has been ordered excluded, deported, removed, or ordered to depart voluntarily from the United States under any provision of the Immigration and Nationality Act may, notwithstanding such order, apply for adjustment of status under paragraph (1).” Accordingly, merely having been ordered removed does not make an alien inadmissible to the United States and, therefore, ineligible for adjustment under NACARA, but departing while under such order and then entering or attempting to re-enter without being properly admitted does.

The former section 242B of the Act was replaced by section 308(b)(6) of IIRIRA, and incorporated into the new section 240(b)(7) of the Act. That section bars an alien against whom a final order of removal is entered in absentia from eligibility for relief under certain specified sections of the Act. As with section 240B(d) of the Act, because a NACARA applicant is seeking adjustment under a provision of law that is separate from the Act, section 240(b)(7) (formerly section 242B) of the Act does not apply.

Some commenters inquired whether someone who is already a lawful permanent resident (LPR) may “readjust” under NACARA in order to obtain some ancillary benefit. In accordance with Board precedent, see e.g., Matter of Krastman , 11 I&N Dec. 720, 721 (BIA 1966), the ability of an alien who is an LPR to apply for and be granted adjustment of status to that of an alien lawfully admitted for permanent residence is limited to cases in which the alien is at risk of losing his or her current LPR status, i.e., the alien has been found to be subject to removal from the United States. Otherwise, an alien who is currently an LPR would have to abandon that status by leaving the United States with the intent of abandoning his or her residence in the United States before he or she could be considered eligible for NACARA adjustment. Like other eligible aliens currently abroad, a former LPR whom the Service believes has abandoned his or her status may apply for, and may be granted, parole into the United States in order to file a ACARA adjustment application. However, since each parole request must be considered on its own merits and must be based on either urgent humanitarian reasons or significant public benefit, there are no guarantees that such a parole request would be approved. The alien could end up stranded outside the United States.

One commenter felt that, because NACARA was modeled after the Cuban Adjustment Act of 1966, any Nicaraguan or Cuban who had been in the United States for 1 year should be allowed to adjust status. While there are certain similarities between the two statutes, there are also significant differences, including differences relating to the eligibility requirements. Merely being present in the United States for a year does not enable someone to apply for adjustment of status under NACARA.

Some commenters wanted the Department to provide an exception for those aliens who were deported from the United States more than 180 days before the NACARA enactment date and who as a result had already been absent for more time than allowed under section 202(b)(1) of NACARA. This suggested change exceeds the agency's rulemaking authority and could only be accomplished through new legislation.