Angel-Ramos v. Reno et al
| Decision Date | 19 September 2000 |
| Docket Number | ANGEL-RAMO,P,No. 99-3126,99-3126 |
| Parties | (7th Cir. 2000) ALMAetitioner, v. JANET RENO and IMMIGRATION AND NATURALIZATION SERVICE, Respondents |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before FLAUM, Chief Judge, RIPPLE and WILLIAMS, Circuit Judges.
Alma Angel-Ramos entered the United States without inspection in 1989. Less than 6 years later, the Immigration and Naturalization Service ("INS") raided her place of business and discovered her presence in the United States as an illegal alien. It thereafter served her with an order to show cause and with charges of deportability. Ms. Angel-Ramos then applied for suspension of deportation, but an immigration judge ("IJ") denied her application. She appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), which affirmed the decision of the IJ, although on alternative grounds. Ms. Angel-Ramos then sought review in this court. For the reasons set forth in the following opinion, we affirm the decision of the BIA.
Ms. Angel-Ramos entered the United States from Mexico without inspection on August 1, 1989, and she claims that she has resided continuously in the United States since that date. In 1995, the INS raided Ms. Angel-Ramos' place of business, arrested her and instituted deportation proceedings against her. On May 10, 1995, the INS served her with an order to show cause, which charged her with deportability for entering the United States without inspection. Ms. Angel-Ramos then applied for a suspension of deportation.
An IJ reviewed Ms. Angel-Ramos' application for a suspension of deportation and explained that, before Ms. Angel-Ramos could be eligible for suspension of deportation, she needed to establish that she had been present continuously in the United States for at least 7 years. In making its decision on whether Ms. Angel-Ramos had established the requisite continuous presence, the IJ relied on the BIA decision of Matter of N-J-B-, Int. Dec. 3309 (BIA 1997), vacated by Att'y Gen. Order No. 2093-97 (Jul. 10, 1997). According to Matter of N-J-B-, the IJ stated, the relevant time frame to establish the 7 years of continuous presence started on the date Ms. Angel-Ramos entered the United States and ended on the date that she was served with her order to show cause. Finding that Ms. Angel- Ramos could establish less than 6 years of physical presence in the United States between those two dates, the IJ denied Ms. Angel-Ramos' application for suspension of deportation. Ms. Angel-Ramos thereafter appealed the IJ's denial of her application to the BIA.
The BIA affirmed the IJ's decision, although on alternative grounds. After the IJ first issued its decision on Ms. Angel-Ramos' application, the Attorney General vacated the decision relied on by the IJ. The BIA found, however, that its own subsequent decision of Matter of Nolasco, Int. Dec. 3385 (BIA 1999) (en banc), still required the denial of Ms. Angel-Ramos' application. In Matter of Nolasco, the BIA explained, it had determined again that service of the order to show cause ended the period of an alien's continuous physical presence in the United States. Because Ms. Angel-Ramos' order to show cause was served less than 6 years after her entry into the United States, the BIA held that she had not established the requisite 7 years of continuous physical presence. Therefore, the BIA denied her application for suspension of deportation.
For an alien such as Ms. Angel-Ramos to be granted a suspension of deportation, she must establish first that she has been continuously present in the United States for 7 years.1 See Urban v. INS, 123 F.3d 644, 648 (7th Cir. 1997). At the time Ms. Angel-Ramos applied for suspension of deportation, sec. 244 of the Immigration and Nationality Act ("INA") was the governing provision in deportation proceedings. In order to determine whether an alien had met the requisite 7 years of continuous physical presence, sec. 244 counted from the alien's date of entry into the United States until the date the alien filed her application for suspension of deportation.
In 1996, Congress amended the INA by enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009, 3009-627 (1996). With this amendment, Congress changed the applicable terms of art for immigration proceedings. Before the amendment, Congress had referred to orders to show cause, deportations, and suspensions of deportation, but after the amendment, Congress substituted new language for the same actions: notices to appear, removals, and cancellations of removal. Congress also altered somewhat the substantive requirements applicable to aliens in immigration proceedings. When Congress amended the INA, it replaced sec. 244 with sec. 240A. Section 240A, similar to sec. 244, sets forth the requirements for an alien to avoid removal from the United States,2 such as continuous physical presence, but the section also frames a new rule for determining the length of an alien's continuous presence in the United States. As the statute explains, "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" or when the alien is convicted of one of several specified offenses, whichever is earliest. IIRIRA, Pub. L. No. 104-208, sec. 309(c)(5), 110 Stat. 3009, 3009-627 (1996), INA sec. 240A (d)(1), 8 U.S.C. sec. 1229b(d). This is referred to as the "stop time" rule.
Although most of the IIRIRA amendments do not apply to aliens such as Ms. Angel-Ramos, who were placed in deportation proceedings before the effective date of the Act (April 1, 1997), see Note to 8 U.S.C. sec. 1101; Matter of Nolasco, the amendments did create special transitional rules for those aliens in proceedings as of the Act's effective date. See Note to 8 U.S.C. sec. 1101; Matter of Nolasco. Among them is IIRIRA sec. 309(c)(5): "Transitional Rule with Regard to Suspension of Deportation." This provision states that the stop time rule for calculating an alien's continuous presence shall apply to notices to appear issued before, on, or after the effective date of the Act.3 See IIRIRA sec. 309(c)(5). Confusion arose from this provision because the term "notice to appear" was not in use before the effective date of the Act. Also, even though Congress referred to suspension of deportation in the section's title, Congress then used notices to appear in the section's text although orders to show cause, and not notices to appear, applied to suspension of deportation.
In Matter of N-J-B-, the BIA attempted to clarify the ambiguity created by this provision and held that IIRIRA sec. 309(c)(5) applied the stop time rule to orders to show cause. If the stop time rule applied to orders to show cause, the BIA reasoned, then the stop time rule applied to deportation proceedings. Furthermore, because deportation proceedings did not exist after the effective date of IIRIRA, the stop time rule had to apply to deportation proceedings pending at the time of IIRIRA's effective date.
Soon after the BIA issued Matter of N-J-B-, the Attorney General withdrew Matter of N-J-B- as precedent because sec. 309(c)(5) referred explicitly to notices to appear rather than to orders to show cause. Before the Attorney General could rule on the matter herself, however, the President signed into law the Nicaraguan Adjustment and Central American Relief Act ("NACARA"), Pub. L. No. 105-100, sec. 203(a), 111 Stat. 2160, 2196-2198 (1998). Section 203(a)(1) of NACARA, entitled "Transitional Rules with Regard to Suspension of Deportation," amended IIRIRA sec. 309(c)(5). This new amendment clarifies that the stop time rule for determining an alien's continuous presence "shall apply to orders to show cause . . . issued before, on, or after the effective date of the enactment of this Act." NACARA sec. 203(a)(1).4
In the BIA decision of Matter of Nolasco, Int. Dec. 3385 (BIA 1999) (en banc), the BIA determined that the language of IIRIRA sec. 309(c)(5), as revised by NACARA sec. 203(a)(1), was unambiguous. As the BIA discussed, the section is titled "Transitional Rules with Regard to Suspension of Deportation" and requires the stop time rule to apply to orders to show cause. See id. Because, with IIRIRA, Congress removed suspension of deportation from the INA, the BIA assumed that Congress intended the stop time rule to apply to suspension of deportation applications pending as of the date IIRIRA took effect. Also, according to the BIA, in the NACARA amendment, Congress explicitly stated that the stop time rule applied to all orders to show cause issued before, on, or after the effective date of the Act. As the BIA explained, because the stop time rule applied to cases in which an order to show cause had been issued and because orders to show cause were issued only in deportation proceedings, then the stop time rule must apply to deportation proceedings. Moreover, because NACARA sec. 203(a)(1) stated that the stop time rule should apply to all orders to show cause issued before, on, or after the effective date of the Act, and because orders to show cause existed only before the effective date of the Act, then the provision must apply to deportation proceedings pending on the effective date of the Act.
The BIA also found that the legislative history of NACARA supported its conclusion that the stop time rule applied to pending deportation proceedings. As the BIA pointed out, the Senate Appropriations Committee issued an...
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