Sad v. Immigration & Naturalization Service

Decision Date31 October 2000
Docket NumberNo. 99-4283,99-4283
Citation246 F.3d 811
Parties(6th Cir. 2001) Riad Sad, Petitioner, v. Immigration and Naturalization Service, Respondent. Submitted:
CourtU.S. Court of Appeals — Sixth Circuit

On Appeal from the Immigration & Naturalization Service. No. A22 259 911. [Copyrighted Material Omitted] Noel J. Saleh, SALEH & SALLEY, Detroit, Michigan, for Petitioner.

David M. McConnell, Christopher C. Fuller, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION, Washington, D.C., Matthew R. Hall, U.S. DEPARTMENT OF JUSTICE, OFFICE OF LITIGATION, Washington, D.C., for Respondent.

Before: KRUPANSKY, BATCHELDER, and GILMAN, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge.

OPINION

Riad Yacoub Sad appeals the denial of his application for suspension of deportation, arguing that proper construction of the transitional provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 ("IIRIRA"), forecloses retroactive application of a stop-time rule to his application. He also challenges the rule on due process and equal protection grounds. For the reasons set forth below, we AFFIRM the judgment of the Board of Immigration Appeals.

I. Factual and Procedural Background

Sad, a Jordanian national and citizen, entered the United States as a nonimmigrant visitor on March 5, 1989. When his temporary authorization to enter the country expired on September 4, 1989, Sad remained in the United States and settled outside Detroit. On June 7, 1995, the Immigration and Naturalization Service ("INS") served Sad with an Order to Show Cause and Notice of Hearing ordering Sad to appear before an Immigration Judge ("IJ") to show cause why he should not be deported.

Claiming extreme hardship for his wife and children, Sad sought relief from deportation by applying for suspension of deportation, one condition of which requires continuous physical presence in the United States for seven years. Under the law as it then existed, an alien could satisfy this requirement at any point after proceedings before the INS had begun. While Petitioner's application for suspension of deportation was pending, Congress overhauled the nation's immigration laws by enacting the IIRIRA. Under this regime, Congress created a "stop-time rule" pursuant to which an alien must establish continuous physical presence prior to the initiation of deportation or removal proceedings. The IIRIRA's transitional rules for handling pending cases incorporate the stop-time rule.

Applying the IIRIRA's transitional stop-time rule to Sad's application for suspension of deportation, an IJ sitting in Detroit pretermitted Sad's application on the ground that he had failed to establish physical presence in the United States for seven years prior to being served with the order to show cause. The IJ preserved Sad's challenge to the application of this rule to his case for consideration in an appropriate forum. On the authority of its interpretation of the stop-time rule in In re Nolasco-Tofino, Int. Dec. 3385 (BIA 1999) (en banc), the Board of Immigration Appeals ("BIA") affirmed the IJ's denial of Sad's application for suspension of deportation and dismissed his appeal. Maintaining that the statute precludes application of the stop-time rule to petitions for suspension of deportation pending at the time of the IIRIRA's enactment, Sad timely appealed.

II. Construction of the IIRIRA's Transitional Stop Time Rule

This case presents a question of statutory interpretation, which this court reviews de novo. Mustata v. United States Dep't of Justice, 179 F.3d 1017, 1019 (6th Cir. 1999). Principles of judicial deference to an agency's construction of a statute, however, limit the scope of our inquiry. In INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999), the Supreme Court determined that the doctrine of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (defining the circumstances under which courts must defer to an agency's construction of a statute), applies to the statutory scheme created by the Immigration and Nationality Act ("INA"). The Court recognized immigration matters as particularly appropriate for judicial deference because executive "officials exercise especially sensitive political functions that implicate questions of foreign relations." Id. at 425. Even before the Supreme Court decided Aguirre-Aguirre, we applied principles of judicial deference under Chevron to interpretation of the INA. Hamama v. INS, 78 F.3d 233, 239 (6th Cir. 1996). Although Aguirre-Aguirre and Hamama both involved interpretation of a statutory definition not relevant here, they announced a rule of deference applicable to most if not all of the statutory scheme created by congressional delegation to the Attorney General and the BIA to administer and apply the immigration laws. Therefore, Chevron principles control our review of the statute at issue here.

The threshold inquiry under Chevron is "whether Congress has directly spoken to the precise question at issue." 467 U.S. at 842-43. If so, the agency and the courts must give effect to the unambiguously expressed intent of Congress. Id. Courts may employ traditional tools of statutory construction in determining congressional intent under this threshold inquiry. Id. at 843 n.9. If the statute is ambiguous, however, "the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843. Under this secondary inquiry, the court need not conclude that the agency's construction was the only one it could have adopted or the reading a court would have reached. Id. at 843 n.11. If the agency's construction is permissible, it controls unless "arbitrary, capricious, or manifestly contrary to the statute." Id. at 844.

A. The Transitional Stop-Time Rule

Prior to enactment of the IIRIRA, aliens facing deportation could apply for "suspension of deportation" if they satisfied three conditions. INA § 244(a)(1), 8 U.S.C. § 1254(a)(1) (1994). One of these conditions required the applicant to demonstrate continuous physical presence in the United States for seven years. Id. Satisfying all three conditions, however, did not entitle an alien to suspension of deportation. Rather, the Attorney General in his discretion could grant the relief. Deportation proceedings began under the INA when the INS served an alien with an order to show cause. During the pendency of proceedings, aliens continued to accrue time toward the physical presence requirement. Therefore, aliens could become eligible for suspension of deportation during the course of administrative proceedings before the INS.

The IIRIRA amendments to the INA altered this framework. Congress replaced "deportation" with a procedure called "removal." IIRIRA § 304, 8 U.S.C. §1229a. In addition, the IIRIRA substituted "suspension of deportation" with a more limited form of discretionary relief known as "cancellation of removal," which contains additional eligibility requirements. IIRIRA § 304(a), 8U.S.C. § 1229b. For purposes of this case, the most significant change effected by the IIRIRA concerns the creation of the stop-time rule. Rather than allowing aliens to continue accruing time toward the physical presence requirement once administrative proceedings commenced, as happened under the INA, the IIRIRA terminates the accrual of time toward the physical presence requirement when the INS serves an alien with a "notice to appear," a document that the IIRIRA created and that operates like an order to show cause under the INA. Hence, under the IIRIRA framework, an alien can no longer accumulate time toward satisfaction of the continuous physical presence requirement after the INS initiates removal proceedings. The change from a deportation to a removal system had an effective date, the "title III-A effective date," of April 1, 1997.

The IIRIRA contains transitional rules to govern cases pending as of the September 3, 1996, date of the IIRIRA's enactment. Section 309 of the IIRIRA contains the relevant transitional rules the INS applied in Sad's case:

(c) Transition for Aliens in Proceedings.

(1)General Rule that New Rules Do Not Apply. Subject to the succeeding provisions of this subsection, in the case of an alien who is in exclusion proceedings as of the title III-A effective date

(A)the amendments made by this subtitle shall not apply, and

(B)the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments.

(5)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 or physical presence) shall apply to notices to appear issued before, on, or after the date of the enactment of this Act.

IIRIRA § 309 (emphasis added). Section 240A(d)(1) of the INA, referenced in this section, contains the new stop-time rule and provides:

(d)Special Rules relating to Continuous Residence or Physical Presence

(1)Termination of Continuous Period. For purposes of this section, 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.

INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) (emphasis added). Therefore, because section 309(c)(5) embodies an express exception to the general rule of nonapplicability contained in section 309(c)(1)(A), this transitional rule attempts to apply the stop-time rule to pending applications for suspension of deportation. Because "notices to appear" did not exist prior to the effective date of the IIRIRA, however, section 309(c)(5) presents a facial ambiguity: either "notices to appear" encompasses orders to show cause or the reference to notices to appear "issued before" the effective date of the IIRIRA is an error in drafting. Additionally, ...

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