[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR3.43]

[Page 35-38]
 
                     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  Motions to reopen for suspension of deportation and cancellation of removal pursuant to section 203(c) of NACARA and section 1505(c) of the LIFE Act 
          Amendments.

    (a) Standard for Adjudication. Except as provided in this section, a 
motion to reopen proceedings under section 309(g) or (h) of the Illegal 
Immigration Reform and Immigrant Responsibility Act (Pub. L. 104-208) 
(IIRIRA), as amended by section 203(c) of the Nicaraguan Adjustment and 
Central American Relief Act (Pub. L. 105-100) (NACARA) and by section 
1505(c) of the Legal Immigration Family Equity Act

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Amendments (Pub. L. 106-554) (LIFE Act Amendments), respectively, 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 former section 244(a) of the Act (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
    (ii) For cancellation of removal pursuant to section 240A of the 
Act, 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 six classes of aliens described in 
paragraphs (d)(1) through (d)(6) of this section.
    (c) Aliens eligible to reopen proceedings under section 1505(c) of 
the LIFE Act Amendments. A motion to reopen proceedings to apply for 
suspension of deportation or cancellation of removal under the special 
rules of section 309(h) of IIRIRA, as amended by section 1505(c) of the 
LIFE Act Amendments, must establish that the alien:
    (1) Is prima facie eligible for suspension of deportation pursuant 
to former section 244(a) of the Act (as in effect prior to April 1, 
1997) or cancellation of removal pursuant to section 240A(b) of the Act 
and section 309(f) of IIRIRA, as amended by section 203(b) of NACARA;
    (2) Was or would be ineligible, by operation of section 241(a)(5) of 
the Act, for suspension of deportation pursuant to former section 244(a) 
of the Act (as in effect prior to April 1, 1997) or cancellation of 
removal pursuant to section 240A(b) of the Act and section 309(f) of 
IIRIRA, as amended by section 203(b) of NACARA, but for enactment of 
section 1505(c) of the LIFE Act Amendments;
    (3) Has not been convicted at any time of an aggravated felony; and
    (4) Is within one of the eight classes of aliens described in 
paragraph (d) of this section.
    (d) Classes of Eligible Aliens.
    (1) Class 1. A national of El Salvador who:
    (i) First entered the United States on or before September 19, 1990;
    (ii) 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
    (iii) Was not apprehended after December 19, 1990, at time of entry.
    (2) Class 2. A national of Guatemala who:
    (i) First entered the United States on or before October 1, 1990;
    (ii) Registered for ABC benefits on or before December 31, 1991; and
    (iii) Was not apprehended after December 19, 1990, at time of entry.
    (3) Class 3. A national of Guatemala or El Salvador who applied for 
asylum with the Service on or before April 1, 1990.
    (4) Class 4. An alien who:
    (i) Entered the United States on or before December 31, 1990;
    (ii) Applied for asylum on or before December 31, 1991; and
    (iii) 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.
    (5) Class 5. The spouse or child of a person who is described in 
paragraphs (d)(1) through (d)(4) 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.
    (6) Class 6. An unmarried son or daughter of a person who is 
described in paragraphs (d)(1) through (d)(4) of this section and such 
person is prima

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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 age or older, the son or daughter must 
have entered the United States on or before October 1, 1990.
    (7) Class 7. An alien who was issued an Order to Show Cause or was 
in deportation proceedings before April 1, 1997, and who applied for 
suspension of deportation as a battered alien under former section 
244(a)(3) of the Act (as in effect before September 30, 1996).
    (8) Class 8. An alien:
    (i) Who is or was the spouse or child of a person described in 
paragraphs (d)(1) through (d)(4) of this section:
    (A) At the time a decision is rendered to suspend deportation or 
cancel removal of that person;
    (B) At the time that person filed an application for suspension of 
deportation or cancellation of removal; or
    (C) At the time that person registered for ABC benefits, applied for 
TPS, or applied for asylum; and
    (ii) Who has been battered or subjected to extreme cruelty (or the 
spouse described in paragraph (d)(8)(i) of this section has a child who 
has been battered or subjected to extreme cruelty) by the person 
described in paragraphs (d)(1) through (d)(4) of this section.
    (e) 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. An alien may 
file only one motion to reopen pursuant to section 309(g) of IIRIRA. In 
such motion to reopen, the alien must address each of the four 
requirements for eligibility described in paragraph (b) of this section 
and establish that the alien satisfies each requirement.
    (2) A motion to reopen filed pursuant to paragraph (b) of this 
section 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 November 18, 1999. Aliens described in 
paragraphs (d)(5) or (d)(6) 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 Form EOIR-40 or the Form I-881 
application for suspension of deportation or special rule cancellation 
of removal to respond to that completed motion. If the alien fails to 
submit the required application on or before November 18, 1999, the 
motion will be denied as abandoned.
    (f) Motion to reopen under section 1505(c) of the LIFE Act 
Amendments. (1) An alien filing a motion to reopen proceedings pursuant 
to section 309(h) of IIRIRA, as amended by section 1505(c) of the LIFE 
Act Amendments, must file a motion to reopen with an application for 
suspension of deportation or cancellation of removal and supporting 
documents, on or before October 16, 2001. An alien may file only one 
motion to reopen proceedings pursuant to section 309(h) of IIRIRA. In 
such motion to reopen, the alien must address each of the four 
requirements for eligibility described in paragraph (c) of this section 
and establish that the alien satisfies each requirement.
    (2) A motion to reopen and the accompanying application and 
supporting documents filed pursuant to paragraph (c) of this section 
must be submitted on or before October 16, 2001. Aliens described in 
paragraphs (d)(5) and (d)(6) 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 to respond to that motion to reopen.
    (g) 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) or (h) of IIRIRA, 
as amended by section 203(c)

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of NACARA and by section 1505(c) of the LIFE Act Amendments, 
respectively.
    (h) 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 (Board) 
issued an order in the case. The Immigration Court that last had 
jurisdiction over the proceedings will adjudicate the motion.
    (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.
    (i) Jurisdiction over motions to reopen under section 1505(c) of the 
LIFE Act Amendments and remand of appeals. (1) Notwithstanding any other 
provisions, any motion to reopen filed pursuant to paragraph (f) of this 
section to apply for suspension of deportation or cancellation of 
removal under section 1505(c) of the LIFE Act Amendments shall be filed 
with the Immigration Court or the Board, whichever last held 
jurisdiction over the case. Only an alien with a reinstated final order, 
or an alien with a newly issued final order that was issued based on the 
alien having reentered the United States illegally after having been 
removed or having departed voluntarily under a prior order of removal 
that was subject to reinstatement under section 241(a)(5) of the Act, 
may file a motion to reopen with the Immigration Court or the Board 
pursuant to this section. An alien whose final order has not been 
reinstated and as to whom a newly issued final order, as described in 
this section, has not been issued may apply for suspension of 
deportation or special rule cancellation of removal before the Service 
pursuant to section 309(h)(1) of IIRIRA, as amended by section 1505(c) 
of the LIFE Act Amendments, according to the jurisdictional provisions 
for applications before the Service set forth in 8 CFR 240.62(a) or 
before the Immigration Court as set forth in 8 CFR 240.62(b).
    (2) If the Immigration Court has jurisdiction and grants only the 
motion to reopen filed pursuant to paragraph (f) of this section, the 
scope of the reopened proceeding shall be limited to a determination of 
the alien's eligibility for suspension of deportation or cancellation of 
removal pursuant to section 309(h)(1) of IIRIRA, as amended by section 
1505(c) of the LIFE Act Amendments.
    (3) If the Board has jurisdiction and grants only the motion to 
reopen filed pursuant to paragraph (f) of this section, it shall remand 
the case to the Immigration Court solely for adjudication of the 
application for suspension of deportation or cancellation of removal 
pursuant to section 309(h)(1) of IIRIRA, as amended by section 1505(c) 
of the LIFE Act Amendments.
    (4) Nothing in this section shall be interpreted to preclude or 
restrict the applicability of any other exceptions regarding motions to 
reopen that are provided for in 8 CFR 3.2(c)(3) and 3.23(b).

[66 FR 37123, July 17, 2001]