Many of you may employ or know a national of Central America. The laws concerning the treatment of Central Americans have been in a state of flux, and may be closer to a resolution.
Before the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), discretionary relief known as suspension of deportation was available to foreign nationals who had been continuously physically present in the United States for seven years, had shown good moral character, and had demonstrated that deportation would cause "extreme" hardship to themselves or to immediate family members who are U.S. citizens or lawful permanent residents.
IIRIRA increases the number of years of physical presence required, from seven to ten. Mere "extreme hardship" is no longer sufficient. A foreign national must now show that his/her removal would cause "exceptional and extremely unusual hardship" to a spouse, child, or parent who is a U.S. citizen or lawful permanent resident.
IIRIRA changed how time is counted for purposes of suspension of deportation or cancellation of removal. Until IIRIRA, the applicant continued accruing time toward the required seven years, even after deportation proceedings began with the issuance of an order to show cause. IIRIRA added a provision which imposed a stop-time rule. This rule terminates the period of continuous physical presence at the time when a foreign national is served with a notice to appear. In other words, even if an individual continues to be present in the United States during removal proceedings, he/she does not accrue continuous physical presence for cancellation of removal purposes.
These restrictions to suspension of deportation relief proved controversial. Hundreds of thousands of foreign nationals, many of them from Central America, either had applied for or wanted to apply for suspension of deportation. For example, the Nicaraguan Review Program protected 40,000 Nicaraguans from deportation while their cases were under review. Additionally, a class action settlement resulted in protection for an estimated 190,000 Salvadorans and 50,000 Guatemalans.
The controversy involving the Central Americans flared in February 1997, when the Board of Immigration Appeals ("BIA") held that orders to show cause served before the enactment of IIRIRA would trigger the stop-time rule. Therefore, suspension applicants who had not been continuously present for seven years before they had been served with an order to show cause were no longer eligible for suspension of deportation.
Political pressure began to mount. Central American leaders publicly criticized the new immigration restrictions and worried about massive deportations of people to their homelands. During a visit to Central America this spring, President Clinton promised leaders of Central America that he would propose legislation to remedy the law.
In early fall, President Clinton sent Congress the Immigration Reform Transition Act of 1997. This legislation would delay the effect of IIRIRA's new cancellation of removal provisions so that immigration cases pending before April 1, 1997, would continue to be considered and decided under the rules for suspension of deportation as they existed before that date.
Congress has also finalized legislation which would provide amnesty for most Nicaraguans and Cubans.
We encourage foreign nationals from Central American countries to investigate how the new legislation would affect them.