In re Mendoza-Sandino
| Decision Date | 23 February 2000 |
| Docket Number | Interim Decision No. 3426.,File A28 318 505.,File A28 343 049.,File A28 343 047.,File A28 317 496.,File A28 318 503. |
| Citation | 22 I&N Dec. 1236 |
| Parties | In re: Sandra Carolina MENDOZA-SANDINO et al., Respondents.<SMALL><SUP>1</SUP></SMALL> |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated October 24, 1996, an Immigration Judge granted the respondents' applications for suspension of deportation. The Immigration and Naturalization Service timely appealed.
On June 22, 1998, while the instant appeal was pending, we remanded the respondents' case to the Immigration Judge in light of section 202 of the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II, 111 Stat. 2193, 2193 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997) ("NACARA"), to provide the respondents an opportunity to apply for adjustment of status. Our order included an accompanying notice of hearing, which advised each respondent as follows:
If you fail to appear at your scheduled hearing, your case will be returned to the Board of Immigration Appeals. The Board of Immigration Appeals will issue a decision on your appeal and/or motion to reopen. You may not file an application for adjustment of status under section 202 of the NACARA with the INS while your appeal is pending.
The record reflects that the respondents were notified by certified mail that they were scheduled to appear for a master calendar hearing before an Immigration Judge on December 17, 1998. The respondents failed to appear for the hearing. On December 17, 1998, the Immigration Judge entered a decision noting that the respondents had failed to appear and certified the case to the Board to consider the Service's previously pending appeal. See 8 C.F.R. § 245.13(d)(2) (1999). Therefore, we will adjudicate the underlying appeal. The appeal will be sustained and the decision of the Immigration Judge will be vacated.
The respondents in the instant case are natives and citizens of Nicaragua. Two of the respondents entered the United States on February 28, 1986, and each was served with an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) on March 1, 1986. The other three respondents entered the United States on June 1, 1986, and each was served with an Order to Show Cause on June 2, 1986. After their respective charging documents were issued, the respondents filed applications for asylum and withholding of deportation and motions to change venue. The respondents listed an address in Miami, Florida, in their motions to change venue, which were denied.
The respondents were scheduled to appear for hearings on their applications for asylum and withholding of deportation. The notices of hearing were mailed to the respondents' counsel, who appeared for the scheduled hearings. The respondents failed to appear, however, and counsel indicated that they had not replied to his written or telephonic communications. All of the respondents were deemed to have abandoned their applications for asylum and withholding of deportation. Two of them were granted voluntary departure and the others were ordered deported in absentia.
On April 15, 1996, the respondents filed motions to reopen to apply for suspension of deportation. The Service opposed the motions arguing that the respondents had not shown reasonable cause for their failure to appear at the scheduled hearings. On May 22, 1996, an Immigration Judge granted the respondents' motions. The Service did not appeal the Immigration Judge's decision granting the motions to reopen.
Following a hearing on October 24, 1996, on the respondents' applications for suspension of deportation, the Immigration Judge granted their requests for relief. The Immigration Judge determined that section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (Supp. II 1996), did not apply to the respondents, as they were issued Orders to Show Cause and placed in deportation proceedings, rather than being in removal proceedings after the issuance of a notice to appear.
On appeal, the Service argues that the Immigration Judge erred in considering the respondents' request for discretionary relief, as they were statutorily ineligible for suspension of deportation. According to the Service, the respondents were unable to establish the requisite 7 years of continuous physical presence before the service of the Orders to Show Cause because they were subject to section 240A(d)(1) of the Act and section 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-627 (effective Apr. 1, 1997) ("IIRIRA"), amended by NACARA § 203(a), 111 Stat. at 2196. The issue raised by the Service in this case was resolved by our decision in Matter of Nolasco, 22 I&N Dec. 632 (BIA 1999), which was issued subsequent to the Immigration Judge's decision. However, the dissent addresses an issue that was not raised on appeal by either the respondents or the Service.
The issue before us, therefore, is whether an applicant for suspension of deportation who has not accrued 7 years of continuous physical presence prior to the service of an Order to Show Cause may accrue the requisite continuous physical presence subsequent to its service.
Since the time of the respondents' deportation hearing, there have been many changes in the law regarding suspension of deportation. On September 30, 1996, Congress enacted the IIRIRA, which eliminated the relief of suspension of deportation and substituted a similar remedy, cancellation of removal, at section 240A of the Act. See IIRIRA §§ 304(a)(3), (a)(7), 110 Stat. at 3009-594, 3009-615. The IIRIRA's transitional rules regarding suspension of deportation provided that the period of continuous physical presence stops upon the service on the alien of a charging document, which is referred to as a notice to appear. See section 240A(d)(1) of the Act. This "stop time" rule applies to notices to appear issued before, on, or after the IIRIRA's enactment date. See IIRIRA § 309(c)(5), 110 Stat. at 3009-627.
Subsequently, the NACARA revised certain sections of the IIRIRA, including the transitional provisions for suspension of deportation. See NACARA § 203(a), 111 Stat. at 2196. It provided that the stop time rule in section 240A(d)(1) of the Act applies to Orders to Show Cause issued before, on, or after the IIRIRA's enactment date. Id.
In Matter of Nolasco, supra, we found that section 309(c)(5)(A) of the IIRIRA, as amended by section 203(a)(1) of the NACARA,3 applies to aliens seeking suspension of deportation. We found that service of the Order to Show Cause ends the period during which an alien may accrue the 7 years of continuous physical presence required for suspension eligibility. Id.
In the instant case, the respondents clearly did not have the requisite 7 years of continuous physical presence prior to service of the Orders to Show Cause. The respondents' eligibility for suspension of deportation therefore hinges on whether an alien may accrue 7 years of continuous physical presence after the alien has been served with an Order to Show Cause, as suggested by the dissent. Based on the language of section 240A(d)(1) of the Act and the legislative history of the IIRIRA, we find that the continuous physical presence clock does not start anew after the service of an Order to Show Cause so as to allow an alien to accrue the time required to establish eligibility for suspension of deportation subsequent to the service of an Order to Show Cause.
Section 240A(d) of the Act is entitled "Special Rules Relating to Continuous Residence or Physical Presence." Section 240A(d)(1) specifically relates to events that terminate an alien's continuous residence or continuous physical presence, providing as follows 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 under section 239(a) or when the alien has committed an offense referred to in section 212(a)(2) that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest.
Section 240A(d)(1) of the Act (emphasis added). This provision clearly states that the continuous physical presence or continuous residence "ends" upon the occurrence of one of the specified events, whichever is earliest. The title of section 240A(d)(1) further indicates that Congress intended the accrual of qualifying time to terminate, or permanently stop, upon the first occurrence of either of the referenced actions.
An analysis of section 240A(d)(2), which relates to the treatment of certain breaks in presence, further supports our finding that the clock cannot be reset so that an alien accrues continuous physical presence or continuous residence after the service of an...
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