Ashki v. I N S, 99-3857

Citation233 F.3d 913
Decision Date15 September 2000
Docket NumberNo. 99-3857,99-3857
Parties(6th Cir. 2000) Mahin Ashki, Petitioner, v. Immigration and Naturalization Service, Respondent. Submitted:
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

John J. Andre, Laura A. Smith, Gretchen M. Wolfinger, UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION, OFFICE OF IMMIGRATION LITIGATION, Washington, D.C., for Respondent.

Mahin Ashki, Lexington, Kentucky, Marc J. Wigul, Audrea GOLding Bitler, Encino, CA, for Petitioner

Before: JONES, SILER, and CLAY, Circuit Judges.

OPINION

JONES, Circuit Judge.

Petitioner, Mahin Ashki, challenges a final order of the Board of Immigration Appeals ("Board" or "BIA") denying her motion to reopen deportation proceedings for the purpose of applying for suspension of deportation pursuant to section 244 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1254 (1994). For the reasons set forth below, we affirm the Board's order.

I. FACTS

Mahin Ashki is a forty-one year old native and citizen of Iran. She first entered the United States on October 4, 1976 and reentered on August 7, 1984 on a valid non-immigrant student visa. In October 1984, Ms. Ashki married John Evans Yurko, a United States citizen. Shortly thereafter, Yurko filed an "immediate relative petition" on his wife's behalf. On the same day, Petitioner filed an application to adjust her status with the Immigration and Naturalization Service. The petition and application were denied when the immigration judge determined that the marriage was a sham. Ms. Ashki was issued an order to show cause why she should not be deported ("order to show cause") on August 18, 1986.

On or about March 24, 1987, Petitioner applied for relief of asylum and withholding of deportation before an immigration judge. On October 7, 1987, the immigration judge found Petitioner deportable and denied her applications for asylum and withholding of deportation. In September 1996, Mahin Ashki filed a motion with the Board of Immigration Appeals ("Board" or "BIA") to reopen her deportation proceedings for the purpose of applying for suspension of deportation pursuant to INA § 244. The Board found that Ms. Ashki was not eligible for suspension of deportation because she had not been "continuously present in the United States for seven years immediately preceding the date of her application."

Specifically, the Board held that the "stop time" provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) as amended by the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) prevented Ms. Ashki from fulfilling the seven-year residence requirement because this provision dictates that her progress toward this goal was arrested when she was issued an order to show cause on August 18, 1986. The Board concluded that since Ashki had only been "continuously present" in the U.S. for a little more than two years when the order to show cause was issued, she had not fulfilled the seven-year residence requirement. Accordingly, the Board denied her motion to reopen and entered a final order of deportation on June 7, 1999. Mahin Ashki appealed the Board's final order to this Court.

II. STANDARD OF REVIEW

We review the Board's denial of a motion to reopen deportation proceedings for abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323 (1992); see also Watkins v. INS, 63 F.3d 844, 847 (9th Cir. 1995); Arrozal v. INS, 159 F.3d 429, 432 (9th Cir. 1998). Questions of law involved in this deportation proceeding are reviewed de novo. Gjonaj v. INS, 47 F.3d 824, 826 (6th Cir. 1995).

III. ANALYSIS
A. Legislative Background

Prior to 1996, section 244(a) of the Immigration and Nationality Act (INA) gave the Attorney General broad discretion to grant suspension of deportation to illegal aliens. See 8 U.S.C. § 1254(a) (1994) (repealed 1996). However, the Attorney General's discretion was not complete. In order to be eligible for suspension of deportation under § 244(a), an alien was required to prove that: (1) he had been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, (2) that during this period he was and is a person of good moral character, and (3) that he is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship . . . . Id. One of the defects of this regime was that it encouraged illegal aliens to draw out their deportation proceedings so that they could fulfill the seven-year residence requirement and apply for suspension of deportation. H.R. Rep. No. 104-469 (I) (1996).

On September 30, 1996, President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) into law. Pub. L. 104-208, 110 Stat. 3009-546. This act was designed to expedite the removal of deportable aliens and to limit their ability to obtain discretionary relief from deportation. H.R. Rep. No. 104-469 (I) (1996). Accordingly, the IIRIRA section 304 (a) repealed the "suspension of deportation" authority set out in INA section 244 and replaced it with a more limited form of discretionary relief called "cancellation of removal" found in INA section 240A. 8 U.S.C. § 1229b (Supp. III 1997). The order to show cause that had previously been used to initiate deportation was replaced with the notice to appear. Id. § 1229(a)(1).

IIRIRA also changed the method for calculating an alien's period of continuous physical presence. Id. § 1229b(d)(1). Section 304(a) amended INA section 240A to provide that: "any period of continuous residence or continuous physical presence in the United States shall be deemed to end when the alien is served a notice to appear . . . ." Id. This change was specifically designed to eliminate the problem of aliens delaying their deportation proceedings until they could establish the seven years of continuous presence that was required for suspension of deportation. H.R. Rep. No. 104-469 (I) (1996).

Most of the changes set forth in IIRIRA went into effect on April 1, 1997 and were not retroactive. Pub. L. 104-208, 110 Stat. 3009-625. However, IIRIRA section 309(c)(5), "Transitional Rules With Regard to Suspension of Deportation," took effect immediately upon enactment [September 30, 1996] and seemed to be retroactive. 110 Stat. at 3009-627.

Unfortunately, the language of this section was not perfectly clear on the issue of whether the new "stop time" provision should be applied retroactively. Section 309(c)(5), which stated that the "stop time" provision "shall apply to notices to appear issued before, on, or after the date of enactment of this Act," was especially problematic. Id. Although this section made it clear that the new "stop time" provision applied to notices to appear issued before the date of enactment of IIRIRA, it did not indicate whether the "stop time" provision would apply retroactively to orders to show cause. This omission left the act open to conflicting interpretations. Some commentators argued that the "stop time" provision could not be retroactive since it only applied to notices to appear which did not even exist until IIRIRA was enacted. Others alleged that Congress had intended for the stop time provision to apply retroactively and that although the transitional rules did not explicitly mention orders to show cause, the "transitional rules" impliedly included them. In the Matter of N-J-B-, the BIA took the latter position by interpreting the phrase "notices to appear" to encompass all charging documents initiating deportation/ removal proceedings, including orders to show cause. See In re N-J-B-, Int. Dec. 3309 (BIA 1997).

On November 19, 1997, Congress enacted the Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub. L. No. 105-100, 111 Stat. 2160. This act codified the BIA's decision in N-J-B- by amending the "transitional rules" in section 309(d)(5) of IIRIRA. As amended, IIRIRA section 309(c)(5) stipulates that:

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 . . . issued before, on, or after the date of enactment of this act. NACARA § 203 (a), 111 Stat. at 2196 (emphasis added).

NACARA removed any ambiguities that may have previously existed in IIRIRA section 309(c)(5), making it clear that the "stop time" provision set forth in INA section 240A(d)(1) and (2) applies in the cases of aliens who where issued orders to show cause before, on, or after IIRIRA's September 30, 1996 enactment date1.

This interpretation of NACARA has been endorsed by the United States Courts of Appeals for the Fourth, Fifth, Eighth, and the Eleventh Circuits. See Appiah v. INS, 202 F.3d 704, 708 (4th Cir. 2000); Gonzalez-Torres v. INS, 213 F.3d 899, 902-903 (5th Cir. 2000); Afolayan v. INS, 219 F.3d 784, 786 (8th Cir. 2000); Tefel v. Reno, 180 F.3d 1286, 1289-90 fn. 3, 4 (11th Cir. 1999). It is also supported by the Board of Immigration Appeals' decision in the case of In re Nolasco, Int. Dec. 3385 (BIA 1999) (en banc).

B. Petitioner's Statutory Claims

As noted above, the Board of Immigration Appeals applied the "stop time" provision to Ms. Ashki's case. The Board concluded that since she had only been in the United States for a little over two years when a order to show cause was issued against her she had not fulfilled the seven-year residence requirement of § 244 and was not eligible for suspension of deportation.

Ms. Ashki contends that the "stop time" provision should not be applied in her case because the literal language of IIRIRA's original transitional rules, section 309(c)(5), states that the "stop time" provision in INA section 240A "shall...

To continue reading

Request your trial
48 cases
  • Jocham v. Tuscola County, 01-10385-BC.
    • United States
    • U.S. District Court — Eastern District of Michigan
    • 7 Enero 2003
    ...§ 1. If the plaintiff has no cognizable life, liberty, or property interest at stake, no process whatsoever is due. See Askki v. I.N.S., 233 F.3d 913, 921 (6th Cir.2000) (noting that "in order to demonstrate that the Due Process Clause has been violated, Petitioner must establish that she h......
  • Pilica v. Ashcroft
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 15 Noviembre 2004
    ...denial of a motion to remand is reviewed for abuse of discretion. Fieran v. INS, 268 F.3d 340, 344 (6th Cir.2001) (citing Ashki v. INS, 233 F.3d 913, 917 (6th Cir.2000)). "In determining whether the Board abused its discretion, this Court must decide whether the denial of Petitioner's motio......
  • Darby v. Attorney Gen. of the U.S.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 17 Junio 2021
    ...Gonzales , 459 F.3d 500, 508 (4th Cir. 2006) ; Altamirano-Lopez v. Gonzales , 435 F.3d 547, 550–51 (5th Cir. 2006) ; Ashki v. INS , 233 F.3d 913, 920–21 (6th Cir. 2000) ; Iglesias v. Mukasey , 540 F.3d 528, 531 (7th Cir. 2008) ; Baker White v. Wilkinson , 990 F.3d 600, 604–05 (8th Cir. 2021......
  • Ledezma-Cosino v. Sessions
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 30 Mayo 2017
    ...985 F.2d 1407, 1414 n.3 (9th Cir. 1993) ; United States v. Barajas-Guillen, 632 F.2d 749, 752 (9th Cir. 1980).5 E.g., Ashki v. INS, 233 F.3d 913, 919–20 (6th Cir. 2000) ; Breyer v. Meissner, 214 F.3d 416, 422 n.6 (3d Cir. 2000) ; Azizi v. Thornburgh, 908 F.2d 1130, 1133 & n.2 (2d Cir. 1990)......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT