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FINAL RULE ON NACARA MOTIONS TO REOPEN
The Executive Office for Immigration Review has released a final rule on the filing of motions to reopen to apply for suspension of deportation and special rule cancellation of removal cases under section 203 of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA). Two primary changes have been made to the interim rule published June 11, 1998 (see the June 1998 issue of Siskind’s Immigration Bulletin at http://www.visalaw.com/98jun/8jun98.html). First, the previous deadline for submission of additional documentation in support of a NACARA motion to reopen, February 8, 1999 has been extended; second, the final rule addresses certain eligibility problems encountered by dependents under a final order of deportation who cannot complete their motion to reopen because the principal alien has not been granted relief.
On November 24, 1998, a proposed regulation for implementing the provisions of section 203 of NACARA, allowing applicants for suspension of deportation or special rule cancellation of removal to have their cases adjudicated by asylum officers. The period for public comment on this rule closed January 25, 1999, and a final rule will be published when all comments have been considered.
Section 203 of NACARA directed the Attorney General to establish a period of not greater than 240 days during which motions to reopen under NACARA could be filed without regard to any other statutory or regulatory time limit. This period was from January 16, 1998 to September 11, 1998. Previously, immigrants who filed an abbreviated motion to reopen by that time had until February 8, 1998 to submit additional documentation. Under this new final rule, applicants will have 150 days from the time the regulations implementing NACARA section 203 are finalized to submit additional documentation. 
Eligibility under NACARA is extended to dependents (spouse, minor child, and unmarried child over 21); however, they are not eligible for suspension of deportation or special rule cancellation of removal until the principal has been granted such relief. Because few motions of principals had been adjudicated by February 8, 1999, the dependent is not able to establish eligibility. This final rule attempts to remedy this omission. Now a dependent must file their motion to reopen in compliance with the deadline for submission of supporting material. The Immigration Judge shall grant the motion to reopen if he finds that the dependent is prima facie eligible for relief under NACARA and that the dependent has submitted proof that the principal has applied for and is prima facie eligible for relief under NACARA.
No change was made in the rule that applicants are ineligible for relief if they are subject to any statutory bar to such relief. Examples of such statutory bars are failure to voluntarily depart after receiving written and oral notice of the consequences of that failure, and failure to appear for hearings after receiving written and oral notice of the hearing. The rule remains unchanged despite the submission of a number of comments on this issue.