Arenas-Arenas v. Gonzales

• Decision Date: 25 August 2005
• Docket Number: Docket No. 03-4200.
• Citation: 421 F.3d 111
• Court: U.S. Court of Appeals — Second Circuit
• Parties: Alvaro ARENAS-YEPES, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States, Respondent.

421 F.3d 111

Alvaro ARENAS-YEPES, Petitioner, v. Alberto R. GONZALES,^* Attorney General of the United States, Respondent.

Docket No. 03-4200.

United States Court of Appeals, Second Circuit.

Argued: June 14, 2005.

Decided: August 25, 2005.

Roberto Tschudin Lucheme, Glastonbury, CT, for Petitioner.

Andrew Sparks, Assistant United States Attorney (Gregory F. Van Tatenhove, United States Attorney for the Eastern District of Kentucky, on the brief), United States Attorney's Office for the Eastern District of Kentucky, Lexington, KY, for Respondent.

Before: CABRANES and RAGGI, Circuit Judges, and SAND, Judge.^**

JOSÉ A. CABRANES, Circuit Judge.

Petitioner Alvaro Arenas-Yepes petitions for review of a decision of the Board of Immigration Appeals ("BIA") dismissing his appeal and finding him statutorily ineligible for suspension of deportation. Petitioner asserts, inter alia, that because he received a charging document—namely, an order to show cause—prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act, Pub.L. No. 104-208, 110 Stat. 3009 (1996) ("IIRIRA"), he is subject to the "transitional rules" of IIRIRA and therefore eligible for suspension of deportation. See 8 U.S.C. § 1254(a)(1) (repealed 1996).

The BIA disagreed, holding that petitioner's receipt of an order to show cause prior to the effective date of IIRIRA did not commence deportation proceedings against him and that petitioner was therefore statutorily ineligible for suspension of deportation. Because we hold that the BIA correctly found petitioner ineligible for suspension of deportation, we deny the petition for review.

BACKGROUND

Petitioner, a native and citizen of Colombia, entered the United States on a six-month visitor's visa in 1989. He continued living in the United States after his visa expired. On March 28, 1997, petitioner was served with an order to show cause ("OSC"). The INS, however, failed to file the OSC with the immigration court.¹ On September 4, 1998, seventeen months after the April 1, 1997 effective date of IIRIRA, petitioner was served with a new charging document, a notice to appear ("NTA"). The NTA was filed with the immigration court on September 4, 1998.

On November 9, 1999, an immigration judge ("IJ") found petitioner removable and granted petitioner's request for voluntary departure. Petitioner appealed the IJ's order to the BIA, arguing that he was statutorily eligible for suspension of deportation, a form of discretionary relief previously available under the Immigration and Nationality Act of 1952 ("INA"). See 8 U.S.C. § 1254(a)(1) (repealed 1996) (providing that an alien may be eligible for suspension of deportation if, inter alia, he has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of his suspension of deportation application). Petitioner claimed that he fell within the scope of the pre-IIRIRA provisions of the INA because he received an OSC prior to the April 1, 1997 effective date of IIRIRA.

The BIA disagreed, finding that, because petitioner's OSC was not filed with the immigration court prior to the onset of IIRIRA, petitioner's deportation proceedings did not "commence[ ]" until after April 1, 1997. Accordingly, the BIA found petitioner statutorily ineligible for suspension of deportation. The BIA also found him ineligible for cancellation of removal because he had not been in the United States for a continuous period of ten years prior to being served with an NTA as required by 8 U.S.C. § 1229b(b).²

Petitioner presents two issues to this Court: (1) whether the BIA improperly found him statutorily ineligible for suspension of deportation based on its finding that no charging document was filed against him in the immigration court prior to the April 1, 1997 effective date of IIRIRA, and (2) whether the BIA impermissibly applied the "stop-time" provision of 8 U.S.C. § 1229b(d)(1)³ retroactively when reviewing petitioner's claim for cancellation of removal.

STANDARD OF REVIEW

"We review the BIA's underlying conclusions of law de novo, with the caveat that the BIA's interpretations of ambiguous provisions of the INA are owed substantial deference unless `arbitrary, capricious, or manifestly contrary to the statute.'" Mardones v. McElroy, 197 F.3d 619, 624 (2d Cir.1999) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)) (citation omitted).

DISCUSSION

Between March 1997, when petitioner was served with an OSC, and September 1998, when petitioner was served with an NTA, IIRIRA became effective. Under IIRIRA, removal proceedings against an alien are initiated by serving that individual and the immigration court with an NTA (as opposed to the pre-IIRIRA charging document, an OSC). See 8 U.S.C. § 1229(a)(1). IIRIRA also repealed the form of relief petitioner seeks here, "suspension of deportation," replacing it with a new form of discretionary relief, "cancellation of removal." See IIRIRA sec. 304(a)(3), 110 Stat. at 3009-598 to -606 (amending the INA to add, inter alia, § 240A(a) & (b), codified at 8 U.S.C. § 1229b(a) & (b)). See generally Medina v. Gonzales, 404 F.3d 628, 634 n. 4 (2d Cir.2005) (describing IIRIRA's amendments to the INA); Rojas-Reyes v. INS, 235 F.3d 115, 120 (2d Cir.2000) (same).

In addition to these changes in nomenclature, IIRIRA imposed stricter eligibility requirements for the granting of discretionary relief. Under IIRIRA, a non-permanent resident alien living in the United States becomes eligible for cancellation of removal only after a period of ten years of continuous physical presence. See 8 U.S.C. § 1229b(b). By contrast, in order to establish eligibility for suspension of deportation prior to IIRIRA, such an alien was only required to show that he had been physically present in the United States for a continuous period of seven years. See 8 U.S.C. § 1254(a)(1) (repealed 1996).

With the enactment of IIRIRA, Congress also created a new method for calculating the period of time an alien has been present in the United States. Under the so-called "stop-time" provision, the period of time to be counted towards the determination of whether an alien has met the continuous physical presence requirement necessary to be eligible for relief from deportation (or removal) ends when the alien is served with a charging document.⁴ See 8 U.S.C. § 1229b(d)(1).

Notably, although the stop-time provision of IIRIRA is fully retroactive, see Rojas-Reyes, 235 F.3d at 120-21, other aspects of the permanent rules of IIRIRA do not apply retroactively to immigration cases that commenced prior to IIRIRA's effective date. Specifically, under IIRIRA's "transitional rules," see IIRIRA § 309(c), 110 Stat. at 3009-625, aliens who were already in deportation proceedings prior to the effective date of IIRIRA remain eligible for suspension of deportation relief. See Baltazar-Alcazar v. INS, 386 F.3d 940, 943-44 n. 1 (9th Cir.2004) ("Under the transitional rules, an applicant may apply for the pre-IIRIRA remedy of suspension of deportation if deportation proceedings against her were commenced before April 1, 1997.") (internal quotations omitted); see also Rojas-Reyes, 235 F.3d at 120 ("The IIRIRA generally applies only to proceedings initiated on or after the statute's effective date of April 1, 1997."); Henderson v. INS, 157 F.3d 106, 117 (2d Cir.1998) ("The transitional provisions (which are not codified in the U.S.Code) control deportation proceedings started prior to April 1, 1997, in which the deportation order became administratively final after October 30, 1996.").

Petitioner's claim therefore depends upon whether his receipt in March 1997 of an OSC triggered the commencement of deportation proceedings against him. If it did, he is subject to IIRIRA's transitional rules and may apply for suspension of deportation. If it did not, he is subject to IIRIRA's permanent provisions and is ineligible for suspension of deportation. See Gelman v. Ashcroft, 372 F.3d 495, 497-98 (2d Cir.2004) (recognizing that IIRIRA's "permanent provisions" apply to aliens whose removal proceedings were commenced after April 1, 1997).

1. Commencement of Proceedings

The applicable regulations provide that proceedings "commence" against an alien when a charging document is first filed with the immigration court. See 8 C.F.R. § 1003.14(a). Similarly, under the pre-IIRIRA regulations, "[e]very proceeding to determine the deportability of an alien in the United States [was] commenced by the filing of an Order to Show Cause with the Office of the Immigration Judge." 8 C.F.R. § 242.1(a) (repealed). Thus, it has never been the case, under either the current IIRIRA regulations or the pre-IIRIRA regulations, that the mere issuance or service on an alien of a charging document "commenced" immigration proceedings against the alien.

In his brief, petitioner does not appear to challenge the Attorney General's authority to promulgate 8 C.F.R. § 1003.14. Nor does he question that the regulation is anything other than a sound exercise of the Attorney General's discretion. Instead, petitioner urges that, under Morales-Ramirez v. Reno, 209 F.3d 977 (7th Cir.2000), the fact that "immigration officials did not file the charging document with an immigration court until after [IIRIRA] does not prevent Petitioner from continuing to have relief under prior law. . . ." Pet'r's Br. at 5 (citing Morales-Ramirez, 209 F.3d at 983).

Petitioner's reliance on Morales-Ramirez is misplaced. In Morales-Ramirez, the Seventh Circuit actually concluded that "exclusion proceedings were not `pending' against [the petitioner] at the time that the relevant provisions of IIRIRA came into force" because "[t]he INS did not file the appropriate charging document with the immigration court until after April 1, 1997." Morales-Ramirez, 209 F.3d at 983 (emphasis added). In the...