Tang v. Immigration & Naturalization Serv., 97-2854

• Decision Date: 12 April 2000
• Docket Number: No. 97-2854,97-2854
• Parties: (8th Cir. 2000) ALICIA WAI LING TANG, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 713

223 F.3d 713 (8th Cir. 2000)

ALICIA WAI LING TANG, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.

No. 97-2854

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: April 12, 2000

Filed: September 5, 2000

Petition for Review of an Order of the Immigration & Naturalization Service

Before McMILLIAN, Fagg and Loken, Circuit Judges.

McMILLIAN, Circuit Judge.

Petitioner, Alicia Wai Ling Tang ("Petitioner") seeks judicial review of a final decision of the Board of Immigration Appeals ("BIA") dismissing her appeal from a deportation order entered by an immigration judge ("IJ"). In re Tang, A27 087 058, A27 086 975, and A27 089 076 - Omaha (BIA June 5, 1997) (order dismissing appeal).¹ The IJ found Petitioner deportable denied her application for suspension of deportation, and granted her voluntary departure. Petitioner argues that the BIA erroneously concluded that she did not acquire seven years continuous physical presence in the United States prior to service of an order to show cause ("OSC") issued by the Immigration and Naturalization Service ("INS") and that the "stop-time" amendments to the Immigration and Naturalization Act ("INA") applied to Petitioner. For the reasons discussed below, we grant the petition for review, vacate the order of the BIA, and remand for further proceedings consistent with this opinion.²

The BIA had jurisdiction pursuant to 8 C.F.R. § 3.1(b)(2) and § 240.53 (1998). Jurisdiction in this court is proper based upon 8 U.S.C. § 1105a(a)(1), as modified by § 309(c) of the IIRIRA. The notice of appeal was timely filed pursuant to IIRIRA § 309(c)(4)(C), 110 Stat. at 3009-626 (1996). See Mayard v. INS, 129 F. 3d 438 (8th Cir. 1997).

I. BACKGROUND

Legislative Background

Prior to its repeal date, INA § 244(a)(1), 8 U.S.C. § 1254(a)(1) (1994), allowed the Attorney General to suspend deportation for an alien facing deportation and to adjust his or her status to that of an alien lawfully admitted for permanent residence. In order to be eligible for "suspension of deportation," an alien was required to establish that:

[he or she] is deportable under any law of the United States ...; has been physically present in the United states for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he [or she] was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his [or her] spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence . . . .

Id. Under this INA provision, the time an alien spent in deportation proceedings prior to applying for suspension of deportation counted toward the seven years' physical residence requirement. See Tefel v. Reno, 180 F.3d 1286, 1289 (11th Cir. 1999) (Tefel), cert. denied, 120 S.Ct. 2657 (2000).

On September 30, 1996, Congress passed the the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), amended by Pub. L. 104-302 § 2(2), 110 Stat. 3657 (Oct. 11, 1996). Among its revisions to the INA, IIRIRA § 304(a), enacting INA § 240A(d), 8 U.S.C. § 1229b (Supp. III 1997), replaced "suspension of deportation" under INA § 244 with "cancellation of removal," a more limited form of discretionary relief. See Tefel,180 F.3d at 1289.

The new INA § 240 states that the Attorney General may cancel removal, in the case of a permanent resident alien who is deportable, if the alien "has resided in the United States continuously for 7 years after having been admitted in any status" and, in the case of a non-permanent resident alien, if the alien "has been physically present in the United States for a continuous period of not less than 10 years." 8 U.S.C. § 1229b(a) and (b).³ Additionally, IIRIRA § 304(a)(3) changed the method for calculating an alien's period of continuous physical presence. See 8 U.S.C. § 1229b(d)(1) (Supp. III 1997). The revised statute includes a so-called "stop-time" rule for determining an alien's eligibility for suspension of deportation or cancellation of removal. Under this new statute, an alien's period of continuous physical presence in the United States is deemed to end once the alien is served with a "notice to appear" for removal proceedings. IIRIRA § 304 states that "any period of continuous residence or continuous physical presence in the United states shall be deemed to end when the alien is served with a notice to appear under § 1229(a)." INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) (Supp. III 1997).

Additionally, IIRIRA § 309(c)(5) provides that an alien's continuous period of physical presence ends once deportation proceedings are commenced with the service of a notice to appear:

Transitional Rule With Regard to Suspension of Deportation. Paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act (relating to continuous residence of physical presence) shall apply to notices to appear issued before, on, or after the date of enactment of this Act [September 30, 1996].

IIRIRA § 309(c)(5), 110 Stat. 3009.

Subsequent to the enactment of the IIRIRA, on November 19, 1997, the Nicaraguan Adjustment and Central American Relief Act ("NACARA") Pub. L. 105-100, 111 Stat. 2160 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997), was signed into law. NACARA clarifies IIRIRA § 304(a)(3), by providing that the "stop-time" rule applies to orders to show cause issued before, on, or after the IIRIRA's enactment date. Section 203(a)(1) of NACARA amends IIRIRA § 309(c)(5) and changes the language "notices to appear" to "orders to show cause." Section 203(a)(1) of NACARA states as follows:

Subject to subparagraphs (B) and (C), paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act (relating to continuous residence or physical presence) shall apply to orders to show cause (including those referred to in section 242(B)(a)(1) of the Immigration and Nationality Act, as in effect before the Title III-A effective date), issued before, on, or after the date of the enactment of this Act.

IIRIRA § 309(c)(5)(A), as amended by NACARA § 203(a)(1), 8 U.S.C. § 1101 note (Supp. III 1997).

Facts and Procedural History

On April 30, 1986, the INS issued an OSC alleging that Petitioner, a native citizen of Hong Kong, entered the United States in New York City, New York, on November 29, 1981, as a visitor for pleasure, that she was authorized to remain in the United States until January 15, 1982, that she remained in the United States without the authority of the INS, and that she was subject to deportation pursuant to § 241(a)(2) of the INA. See Administrative Record ("AR") at 581.

A hearing was held before an IJ on September 8, 1987. The IJ found that Petitioner was deportable on the charges as stated in the OSC and ordered that, in lieu of an order of deportation, Petitioner be granted voluntary departure on or before November 8, 1987. Petitioner moved for reconsideration alleging that she was not properly served with the OSC, and thus, the IJ did not have jurisdiction to hear her case. The IJ denied her motion. See id. at 620-22.

On September 17, 1987, Petitioner filed, with the Executive Office of Immigration Review ("Executive Office"), a notice of appeal of the decision of the IJ alleging a failure to serve. In a letter to the Executive Office, dated December 14, 1987, District Counsel for the INS stated that he had requested that the Omaha district office of the INS investigate whether proper service of the OSC was made and that, pursuant to this investigation, it appeared "that there may be substance to the claims asserted by [Petitioner] on appeal and, accordingly, the INS respectfully [requests that Petitioner's] deportation proceedings be reopened and recalendared for further hearing." Id. at 606. The letter further stated that "if the attorney representing [Petitioner] is willing to withdraw his appeal, the reopening of the proceeding would be facilitated." Id. Consequently, on July 21, 1989, the INS and Petitioner submitted to the Executive Office a joint motion to remand the matter. Petitioner withdrew her appeal, conditioned upon remand.

On September 1, 1989, the Executive Office acknowledged the withdrawal of Petitioner's appeal and returned the case to the IJ. On October 17, 1990,⁴ the parties entered into a stipulation which stated that Petitioner was "duly served with a copy of the Order to Show Cause." The stipulation further gave Petitioner until December 1, 1990, to submit an application for "suspension of deportation" with the Office of Immigration Judge.⁵ On October 26, 1990, the IJ accepted the parties' stipulation. At the time the parties entered into their stipulation, INA § 244, 8 U.S.C. 1254, allowed the Attorney General to suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence for an alien who had applied for suspension of deportation and who met the requirements of the statutory provision, including a continuous physical presence in the United States for not less than seven years preceding the date of application for suspension of deportation. As provided by the stipulation, Petitioner filed an application for suspension of deportation pursuant to INA § 244, 8 U.S.C. § 1254.

The IJ held a hearing on the merits of Petitioner's application for suspension of deportation. Petitioner alleged before the IJ that she would suffer extreme hardship if she were deported.⁶ On April 9, 1991, the IJ issued a decision denying her application for suspension of deportation and granting her voluntary departure before January 2, 1992, pursuant to INA § 244(e), 8 U.S.C. § 1254(e). The IJ stated that, in the joint stipulation, Petitioner admitted that she "was properly served...