[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR3.43]

[Page 35-37]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW--Table of Contents
 
            Subpart C--Immigration Court--Rules of Procedure
 
Sec. 3.43  Motion to reopen for suspension of deportation and cancellation of removal pursuant to section 203(c) of the Nicaraguan Adjustment and Central 
          American Relief Act (NACARA).

    (a) Standard for adjudication. Except as provided in this section, a 
motion to reopen proceedings under section 309(g) of IIRIRA, as amended 
by section 203(c) of NACARA, will be adjudicated under applicable 
statutes and regulations governing motions to reopen.
    (b) Aliens eligible to reopen proceedings under section 203 of 
NACARA. A motion to reopen proceedings to apply for suspension of 
deportation or cancellation of removal under the special rules of 
section 309(g) of IIRIRA, as amended by section 203(c) of NACARA, must 
establish that the alien:
    (1) Is prima facie eligible for suspension of deportation pursuant 
to section 244(a) of the INA (as in effect prior to April 1, 1997) or 
the special rule for cancellation of removal pursuant to section 309(f) 
of IIRIRA, as amended by section 203(b) of NACARA;
    (2) Was or would be ineligible:
    (i) For suspension of deportation by operation of section 309(c)(5) 
of IIRIRA (as in effect prior to November 19, 1997); or

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    (ii) For cancellation of removal pursuant to section 240A of the 
INA, but for operation of section 309(f) of IIRIRA, as amended by 
section 203(b) of NACARA;
    (3) Has not been convicted at any time of an aggravated felony; and
    (4) Is within one of the following six classes:
    (i) A national of El Salvador who:
    (A) First entered the United States on or before September 19, 1990;
    (B) Registered for benefits pursuant to the settlement agreement in 
American Baptist Churches, et al. v. Thornburgh, 760 F.Supp. 796 (N.D. 
Cal. 1991) (ABC) on or before October 31, 1991, or applied for Temporary 
Protected Status (TPS) on or before October 31, 1991; and
    (C) Was not apprehended after December 19, 1990, at time of entry; 
or
    (ii) A national of Guatemala who:
    (A) First entered the United States on or before October 1, 1990;
    (B) Registered for ABC benefits on or before December 31, 1991; and
    (C) Was not apprehended after December 19, 1990, at time of entry; 
or
    (iii) A national of Guatemala or El Salvador who applied for asylum 
with INS on or before April 1, 1990; or
    (iv) An alien who:
    (A) Entered the United States on or before December 31, 1990;
    (B) Applied for asylum on or before December 31, 1991; and
    (C) At the time of filing such application for asylum was a national 
of the Soviet Union, Russia, any republic of the former Soviet Union, 
Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania, Hungary, 
Bulgaria, Albania, East Germany, Yugoslavia, or any state of the former 
Yugoslavia; or
    (v) The spouse or child of a person who is described in paragraphs 
(b)(4)(i) through (b)(4)(iv) of this section and such person is prima 
facie eligible for and has applied for suspension of deportation or 
special rule cancellation of removal under section 203 of NACARA.
    (vi) An unmarried son or daughter of a person who is described in 
paragraph (b)(4)(i) through (b)(4)(iv) of this section and such person 
is prima facie eligible for and has applied for suspension of 
deportation or special rule cancellation of removal under section 203 of 
NACARA. If the son or daughter is 21 years of or older, the son or 
daughter must have entered the United States on or before October 1, 
1990.
    (c) Motion to reopen under section 203 of NACARA. (1) An alien 
filing a motion to reopen proceedings pursuant to section 309(g) of 
IIRIRA, as amended by section 203(c) of NACARA, may initially file a 
motion to reopen without an application for suspension of deportation or 
cancellation of removal and supporting documents, but the motion must be 
filed no later than September 11, 1998. The alien must allege in such 
motion to reopen that the alien:
    (i) Is prima facie eligible for suspension of deportation pursuant 
to section 244(a) of the INA (as in effect prior to April 1, 1997) or 
the special rule for cancellation of removal pursuant to section 309(g) 
of IIRIRA, as amended by section 203(b) of NACARA;
    (ii) Was or would be ineligible:
    (A) For suspension of deportation by operation of section 309(c)(5) 
of IIRIRA (as in effect prior to November 19, 1997); or
    (B) For cancellation of removal pursuant to section 240A of the INA, 
but for operation of section 309(f) of IIRIRA, as amended by section 
203(b) of NACARA;
    (iii) Has not been convicted at any time of an aggravated felony; 
and
    (iv) Falls within one of the six classes described in paragraph 
(b)(4) of this section.
    (2) A motion to reopen filed pursuant to paragraph (c)(1) shall be 
considered complete at the time of submission of an application for 
suspension of deportation or special rule cancellation of removal and 
accompanying documents. Such application must be submitted no later than 
150 days after the effective date of the rule implementing section 203 
of NACARA. Aliens described in paragraph (b)(4)(v) or (b)(4)(vi) of this 
section must include, as part of their submission, proof that their 
parent or spouse is prima facie eligible and has applied for relief 
under section 203 of NACARA.
    (3) The Service shall have 45 days from the date the alien serves 
the Immigration Court with either the EOIR Form 40 or the Form I-881 
application for suspension of deportation or special

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rule cancellation of removal to respond to that completed motion. If the 
alien fails to submit the required application within 150 days after the 
effective date of the rule implementing section 203 of NACARA, the 
motion will be denied as abandoned.
    (d) Fee for motion to reopen waived. No filing fee is required for a 
motion to reopen to apply for suspension of deportation or cancellation 
of removal under the special rules of section 309(g) of IIRIRA, as 
amended by section 203(c) of NACARA.
    (e) Jurisdiction over motions to reopen under section 203 of NACARA 
and remand of appeals. (1) Notwithstanding any other provisions, any 
motion to reopen filed pursuant to the special rules of section 309(g) 
of IIRIRA, as amended by section 203(c) of NACARA, shall be filed with 
the Immigration Court, even if the Board of Immigration Appeals issued 
an order in the case. The Immigration Court that last had jurisdiction 
over the proceedings will adjudicate a motion to reopen filed pursuant 
to the special rules of section 309(g) of IIRIRA, as amended by section 
203(c) of NACARA.
    (2) The Board will remand to the Immigration Court any presently 
pending appeal in which the alien appears eligible to apply for 
suspension of deportation or cancellation of removal under the special 
rules of section 309(g) of IIRIRA, as amended by section 203 of NACARA, 
and appears prima facie eligible for that relief. The alien will then 
have the opportunity to apply for suspension or cancellation under the 
special rules of NACARA before the Immigration Court.

[63 FR 31894, June 11, 1998; 63 FR 35117, June 29, 1998, as amended at 
64 FR 13666, Mar. 22, 1999]

Subpart D  [Reserved]