Aoun v. I.N.S.

• Citation: 342 F.3d 503
• Decision Date: 26 August 2003
• Docket Number: No. 01-4004.,01-4004.
• Parties: Nemer Ahmad AOUN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

342 F.3d 503

Nemer Ahmad AOUN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 01-4004.

United States Court of Appeals, Sixth Circuit.

Submitted: January 30, 2003.

Decided and Filed August 26, 2003.

Petition for Rehearing Denied En Banc: December 2, 2003. Pursuant to Sixth Circuit Rule 206

ON BRIEF: Richard G. Lehr, RICHARD G. LEHR & ASSOCIATES, Centerline, Michigan, for Petitioner.

James A. Hunolt (briefed), Papu Sandhu (briefed), United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.

Before MARTIN, Chief Circuit Judge; MERRITT and LAY, Circuit Judges.^*

OPINION

MERRITT, Circuit Judge.

Nemer Ahmad Aoun appeals the denial of his Motion to Reopen and Remand his application for Suspension of Deportation. The equities of the case warrant reversal of the Board of Immigration Appeals' denial and a remand for further proceedings. The Board's decision in this matter failed to take into consideration lengthy delays, including continuances and an "administrative closure" in the proceedings, that delayed a decision on Aoun's application for many years and ultimately prejudiced his ability to have his application for suspension of deportation decided before more stringent immigration rules came into effect.

Aoun raises three issues on appeal: (1) whether the denial of the reopening of his application for suspension of deportation based on the "stop time rule" was error; (2) whether the Board erred in failing to allow petitioner to apply for "repapering" and cancellation of removal and (3) whether the Board erred in denying petitioner's application for asylum.

I.

Aoun entered the country legally from Lebanon in October of 1978 on a student visa. Aoun is a Shiite Muslim who, as a Palestinian, describes himself as "stateless." Aoun graduated from the University of Detroit in May 1983 with a degree in electrical engineering. In the winter of 1983-84, he registered as a full-time student at Eastern Michigan University with the intention of studying computer science, but dropped out for financial reasons. Aoun therefore became deportable for failure to comply with the conditions of his status which required him to be a student if he wished to remain in this country legally. Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) and § 1251(a)(9). Aoun then contacted the INS seeking to adjust his status. He did not wish to return to Lebanon because, among other things, the country was engaged in war at that time.

Aoun claims that, upon contacting the INS, he was put in contact with John Owens of the investigations unit of the INS. Aoun claims that Mr. Owens told him that his status could be adjusted if he helped the INS gather information about certain people, mostly fellow Lebanese in the Detroit area. In exchange for the assistance, the INS extended Aoun's visa on a month-to-month basis. Aoun claims that he was also in contact with the FBI and CIA and that the CIA asked him to attend local meetings of the Palestine Liberation Organization and Shiite Muslim groups. He also claims he was asked to return to Lebanon as an agent for the United States but he declined. When Aoun lost his car and could no longer attend the meetings and gather information, the INS stopped the monthly renewal of his visa. See Transcript of June 10, 1986 hearing. While we have no reason to doubt Aoun's testimony, most of the testimony concerning his work for the United States government is uncorroborated and not particularly relevant to our decision in this case except to highlight the role of the United States government in raising Aoun's expectations that by helping the government he would be able to remain in this country permanently.

In November 1984, Aoun sought asylum in the United States. He based his asylum application on the fact that he would be persecuted if returned to Lebanon because he was a "stateless person" as a Palestinian and because people in Lebanon would know he provided information about fellow Arabs to the United States government. His asylum application was denied in July 1985 and, one month later, in August 1985, he was served with an Order to Show Cause why he was not deportable.

At his deportation hearing on June 10, 1986, Aoun withdrew his suspension of deportation application based on his attorney's erroneous assumption that a one day trip by Aoun to an amusement park in Canada in 1981 broke Aoun's seven years of "continual physical presence" in the United States, a requirement for demonstrating eligibility for suspension of deportation.¹ Aoun's asylum application and application to withhold deportation were both denied on June 10, 1986, and Aoun filed timely appeals to the Board of Immigration Appeals. In December 1987, Aoun filed his appellate brief concerning the denial of his asylum application and the denial of his application to withhold deportation and, recognizing that the earlier withdrawal of the application for suspension of deportation had been based on an erroneous understanding of the law, moved to remand his case to afford him the opportunity to reapply for suspension of deportation. Before the Board ruled on the appeals, the proceedings were "continued indefinitely" so that Aoun could pursue legalization. Order of Board of Immigration Appeals, Apr. 26, 1988. The Order stated that the appeals could be "reinstated" upon written request by either party. On January 20, 1989, the INS requested that the appeal be recalendared and reinstated because Aoun had not filed for legalization by May 4, 1988, and, in any event, was ineligible because Aoun was not out of status before January 1, 1982, as required by statute. 8 U.S.C. § 1255a (a)(2)(B) (1986).

The next document in the record before us is a "Motion to Recalendar Appeal" filed by the INS on December 14, 1993. The Motion states that "the [INS] believes that the appeal was administratively closed by the Office of the Chief Immigration Judge because [Aoun] is a native of Lebanon of Palestine descent and because Lebanon was designated by the Attorney General under the Temporary Protected Status program[, which was terminated for Lebanon on April 9, 1993]."² On June 9, 2000, the Board of Immigration Appeals issued an Amended Order³ reinstating the proceedings, dismissing Aoun's appeal and denying his motions for remand and for oral argument. No explanation was given for the extensive time lapse between the motion to reinstate Aoun's appeal in April 1993 and the order on June 9, 2000. In that order, the Board allowed Aoun 90 days to file a Motion for Reopen his application for suspension of deportation and Aoun filed a timely Motion to Reopen and Remand on June 21, 2000. The Board summarily denied Aoun's Motion on August 21, 2001, noting only that Aoun's physical presence in the United States began on October 18, 1978 and ended with an Order to Show Cause on August 15, 1985, thereby making him ineligible for suspension due to less than seven years' continuous physical presence.

II.

In 1996, Congress amended the Immigration and Nationality Act by enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009, 3009-627 (1996). Prior to 1996, suspension of deportation was a form of relief from deportation. Before new laws were enacted in 1996, an alien was eligible for suspension of deportation if (1) he or she "ha[d] been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of [the] application" for suspension of deportation; (2) he or she was a "person of good moral character"; and (3) deportation would result in "extreme hardship" to the alien or to an immediate family member who was a U.S. citizen or a lawful permanent resident. Immigration and Nationality Act § 244(a)(1), 8 U.S.C. § 1254(a)(1).

With the 1996 amendment, Congress changed many aspects of immigration law, including replacing "deportation proceedings" with "removal proceedings" and, correspondingly, replacing "suspension of deportation" with "cancellation of removal." Cancellation of removal provides the same general relief as suspension from deportation, but the eligibility requirements are somewhat stricter. The new law became effective on April 1, 1997. A key change in the law under the amendment concerned the calculation of time of an alien's "continuous physical presence" in the United States. Prior to the 1996 amendment, accrual of "continuous physical presence" could continue while the alien was in deportation proceedings. After passage of the amendment, the initiation of deportation proceedings "stopped the clock" on an alien's accrual of time to satisfy the "continuous physical presence" requirement. Under the amendment, "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. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 § 309(c)(5), 110 Stat. 3009, 3009-627 (1996), Immigration and Nationality Act § 240A (d)(1), 8 U.S.C. § 1229b(d). This is referred to as the "stop time" rule.

Although most of the 1996 amendments do not apply to aliens such as Aoun, who were placed in deportation proceedings before the effective date of the 1996 Act (April 1, 1997), the amendments did create special transitional rules for those aliens, like Aoun, in proceedings as of the Act's effective date. Confusion arose from this provision because the term "notice to appear" was not in use before April 1997, the effective date of the 1996 Act. In an effort to clear up some of the confusion, Congress passed the Nicaraguan Adjustment and Central American Relief Act, Pub.L. No. 105-100, § 203(a), 111 Stat. 2160, 2196-2198 (1998). Section 203(a)(1) of the amendment, entitled ...