Fieran v. Immigration & Naturalization Service

• Decision Date: 03 May 2001
• Docket Number: No. 00-3379,00-3379
• Parties: (6th Cir. 2001) Viorel Fieran, Petitioner, v. Immigration and Naturalization Service; John Ashcroft, Attorney General, Respondents. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 340

268 F.3d 340 (6th Cir. 2001)

Viorel Fieran, Petitioner, v. Immigration and Naturalization Service; John Ashcroft, Attorney General, Respondents.

No. 00-3379

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: May 3, 2001

Decided and Filed: October 2, 2001

On Petition for Review of an Order of the Board of Immigration Appeals. No. A29 847 457.

[Copyrighted Material Omitted]

Joel A. Perlmutter (argued and briefed), Cleveland, Ohio, for Petitioner.

Carl H. McIntyre, Jr. (briefed), John L. Davis, (briefed), Patrick Shen (argued), UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION LITIGATION, Civil Division, Washington, D.C., Richard M. Evans, U.S. Department of Justice, Office of Litigation, Washington, D.C., for Respondents.

Before: NORRIS and COLE, Circuit Judges; HOLSCHUH, District Judge.^*

OPINION

ALAN E. NORRIS, Circuit Judge.

Petitioner Viorel Fieran challenges a final order of the Board of Immigration Appeals (BIA) denying his motion to remand and reopen deportation proceedings for the purpose of applying for cancellation of removal. We affirm the BIA decision.

I. Factual and Procedural Background

Fieran is a citizen of Romania who entered the United States as a stowaway in May 1990. He was taken into custody by the Immigration and Naturalization Service (INS) and was paroled into the United States (meaning that he was released, but not "lawfully admitted"). He applied for political asylum, but in 1991, the INS issued a notice of intent to deny asylum. On May 21, 1992, he was placed in exclusion proceedings before an immigration judge. At a hearing on December 10, 1993, Fieran admitted that he was excludable and requested asylum and withholding of deportation. On April 19, 1994, at a hearing on the merits, the immigration judge denied the applications and ordered that Fieran be excluded and deported. The judge decided that Fieran had failed to establish past persecution or a well-founded fear or clear probability of future persecution in Romania, as required for asylum or withholding of exclusion and deportation.

Fieran appealed to the BIA. While the appeal was pending, Congress enacted a new law called the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. 104-208, 110 Stat. 3009, 3009-546 (1996) (IIRIRA), which instituted a more restrictive scheme designed to expedite the removal of unlawful aliens and to limit their ability to obtain discretionary relief. Ashki v. INS, 233 F.3d 913, 917 (6th Cir. 2000). Most of the IIRIRA changes went into effect on April1, 1997, and were not retroactive. IIRIRA § 309(a), (c)(1). There were, however, several "transitional rules" that applied to proceedings begun before the effective date of the act. See, e.g., IIRIRA § 309(c)(5)(A).

On November 19, 1997, Congress again changed the law with the enactment of the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, 111 Stat. 2160, 2193 (1997) (NACARA). The act eased the strict requirements of the IIRIRA for certain aliens, including qualified Romanians, by applying the less stringent pre-IIRIRA requirements.See NACARA § 203(a)-(b). At issue in this case is a NACARA amendment on the cancellation of removal--§ 203(b), which inserted § 309(f) in the IIRIRA. ¹ Fieran read this new provision as applying to him, and he filed a motion to remand his case to the immigration judge for consideration of his application for suspension of deportation or cancellation of removal under the new law.

On February 28, 2000, the BIA adopted the decision of the immigration judge and denied Fieran's motion to remand the case for a hearing. In denying Fieran's motion for a remand, the BIA explained:

We find that we must deny the applicant's motion because, as the applicant is in exclusion proceedings, he is statutorily ineligible for suspension of deportation. See Matter of Torres, 19 I&N Dec. 371, 373 (BIA 1986). As such, he does not qualify for the recently-enacted provisions of law governing applications for suspension of deportation for citizens of Romania who have been placed in deportation proceedings. See generally section 203(c) of the NACARA ["Motions to reopen deportation or removal proceedings"].

In re Viorel Fieran, File A29 847 457 Cleveland (BIA Feb.28, 2000) (Joint Appendix at 3).

Fieran petitions this court to review the denial of his motion to remand and reopen.

II. Statutory Background

Under the Immigration and Nationality Act (INA) before the 1996 amendments, the law distinguished between deportable and excludable aliens. A deportable alien was an alien who had been admitted into the United States but had to be expelled. See 8 U.S.C. § 1251 (1994). An excludable alien was an alien who was ineligible for admission into the United States; such an alien could be paroled into the United States pending the initiation of exclusion proceedings, but the alien, although physically in the United States, was nevertheless deemed excludable. See 8 U.S.C. § 1182(a) (1994), 8 U.S.C. § 1182(d)(5); Leng May Ma v. Barber, 357 U.S. 185, 188 (1958). The new statutory scheme adopted different terminology that replaced the exclusion/deportation distinction; provisions for "removal" now cover both excludable aliens (now termed "inadmissible") and deportable aliens. See 8 U.S.C. §§ 1182(a), 1229a.

Under the old INA, the Attorney General had the discretion to suspend the deportation of qualified aliens if certain conditions were met; this discretion did not extend to excludable aliens. See 8 U.S.C. § 1254(a) (1996); Leng May Ma, 357 U.S. at 188. The new IIRIRA repealed this authority and replaced it with a provision on "cancellation of removal," which contained more restrictive rules. IIRIRA § 304(a), codified at 8 U.S.C. § 1229b. Congress then amended this new scheme when it enacted the NACARA in the following year to create an exception for qualifying aliens from Central American and former Soviet Bloc countries, who could benefit from the less stringent old rules, rather than the new IIRIRA rules. The provision at issue here is the "special rule for cancellation of removal," NACARA § 203(b). This special rule states that it applies to "an alien who is inadmissible or deportable from the United States" if she or he meets certain requirements. NACARA § 203(b). Fieran argues that this special rule applies to him; since he was in exclusion proceedings, he could not qualify for suspension of deportation under the old law, but his hope is that he would be eligible for cancellation of removal under the NACARA amendment, which mentions both inadmissible and deportable aliens.

III. Statutory Construction

We review the BIA's denial of a motion to remand for abuse of discretion. Ashki, 233 F.3d at 917. ² We review questions of statutory interpretation de novo, id., but with due deference to the interpretation by the Attorney General and BIA. INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). Under this analysis, we must first ask "whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842. We "employ[] traditional tools of statutory construction" to ascertain the intent of Congress on the issue. Id. at 843 n.9. If Congress has addressed the question, its answer "is the law and must be given effect." Id. If there is ambiguity in the statute, then we determine "whether the agency's answer is based on a permissible construction of the statute." Id. at 843.

Fieran claims that he is eligible for cancellation of removal under IIRIRA § 309(f). On appeal, the INS argues that the provision only applies to aliens placed in proceedings on or after April 1, 1997. The BIA in its decision did not address the retroactivity of the IIRIRA provision invoked by Fieran. Instead, it determined that the provision was inapplicable because Fieran was excludable, which would bar him from relief under the old INA. The BIA supported its conclusion with a citation to a 1986 case holding that aliens in exclusion proceedings were not eligible for suspension of deportation under the (old) INA. See Matter of Torres, 19 I. & N. Dec. 371, 373 (BIA 1986). We agree that Fieran was not eligible for suspension of deportation under the old INA, see Leng May Ma, 357 U.S. at 188, but that does not answer the question of whether or not the new statute applies to Fieran.

The effective date of the IIRIRA was April 1, 1997, and the statute is generally prospective: "[s]ubject to the succeeding provisions of this subsection, in the case of an alien who is in exclusion or deportation proceedings before the title III-A effective date [April 1, 1997] -- . . . the amendments made by this subtitle shall not apply[.]" IIRIRA § 309(c)(1); see alsoIIRIRA § 309(a) (effective date). There are nevertheless several rules labeled "transitional rules" or, in our case, a "special rule." The transitional rules are explicit about their application; one on residency qualifications applies, for example, to orders to show cause "issued before, on, or after the date of the enactment of this act." IIRIRA § 309(c)(5)(A).

Fieran invokes a rule captioned "special rule for cancellation of removal." IIRIRA § 309(f). This rule does not say that it applies to orders issued before the enactment date. Congress's failure to include language applying §309(f) to cases initiated prior to the IIRIRA's enactment, and Congress's express application of several other IIRIRA provisions to pre-enactment behavior, lead us to conclude that Congress intended § 309(f) to apply to aliens whose orders of removal were entered after the IIRIRA. See Sherifi v. INS, 260 F.3d 737 (7th Cir.2001) (holding that NACARA suspension of deportation does not apply to an alien placed in exclusion proceedings before the effective date of the law); Castro-Cortez v. INS, 239 F.3d 1037, 1052 (9th Cir. 2001) (holding that an IIRIRA provision on reinstatement of orders...