In re N-J-B-
| Decision Date | 10 July 1997 |
| Docket Number | Interim Decision No. 3309. |
| Citation | 21 I&N Dec. 812 |
| Parties | In re N-J-B-, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent has timely appealed from that portion of the Immigration Judge's decision denying her applications for asylum, withholding of deportation, and suspension of deportation. The appeal will be dismissed.
With respect to the respondent's claim for suspension of deportation, the record reflects that the respondent arrived in the United States on August 5, 1987, and that the Order to Show Cause and Notice of Hearing (Form I-221) was served on August 27, 1993, less than 7 years later. The Immigration Judge's denial of suspension of deportation was based solely on the respondent's failure to prove the requisite extreme hardship to herself. Subsequently, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA"), was enacted on September 30, 1996. In light of this legislation, we must decide whether the respondent still has the 7 years of continuous physical presence necessary to be eligible for suspension of deportation. In other words, we must determine whether, and if so to what extent, the requirements of the transitional rule for aliens in proceedings, which is set forth in the IIRIRA, apply to the pending appeal of the denial of this respondent's application for suspension of deportation.
By enacting the IIRIRA, Congress replaced the former suspension of deportation relief with the new cancellation of removal. With these amendments, Congress clearly intended to limit the categories of undocumented aliens eligible for such relief and to limit the circumstances under which any relief may be granted. The general effective date for implementing the IIRIRA amendments established under section 309(a) of the IIRIRA, 110 Stat. at 3009-625, is April 1, 1997. Aliens placed in removal proceedings on or after this date face generally higher standards to qualify for cancellation of removal: a longer physical presence requirement; a more stringent standard of hardship; and omission of consideration of hardship to the aliens themselves. See Section 240A(b) of the Act (to be codified at 8 U.S.C. § 1229b(b)). Section 240A(d) also provides special rules regarding termination and interruption of continuous physical presence, with the result that aliens seeking this relief will face more stringent continuous physical presence requirements.2
While establishing a general rule for the effective date of the IIRIRA, the language utilized in section 309(a) of the IIRIRA indicates that exceptions to the general effective date provision exist in this section and elsewhere. More specifically, the general rule for effective date provisions established in section 309(a) is as follows:
Except as otherwise provided in this section and sections 303(b)(2), 306(c), 308(d)(2)(D), or 308(d)(5) of this division, this subtitle and the amendments made by this subtitle shall take effect on [April 1, 1997] (in this title referred to as the "title III-A effective date"). (Emphasis added.)
Thus, section 309(a) of the IIRIRA refers to the existence in section 309 of exceptions to the general effective date of April 1, 1997. Similarly, section 309(c)(1) of the IIRIRA, 110 Stat. at 3009-625, also refers to the existence of exceptions to its general rule that the title III-A amendments do not apply to aliens already in exclusion or deportation proceedings before April 1, 1997.3 Moreover, as will be further discussed below, these exceptions to the section 309(a)(1) general rule are not limited to transition rules having effect on April 1, 1997, but also include transition rules having an earlier effective date.
Section 309(c)(1) is the general rule that the title III-A amendments do not apply to aliens already in proceedings. As originally enacted (i.e., with the "in proceedings as of the title III-A effective date" language), it was clear that this rule was the general rule to apply beginning April 1, 1997, because one would not know whether an alien was in proceedings "as of" that date until April 1, 1997, arrived. This reading of section 309(c)(1) was made somewhat less clear when a technical amendment revised the "as of" language to "before"4—because one can determine whether an alien is in proceedings "before" April 1, 1997, without waiting until that date. Obviously all of the cases presently before the Immigration Judges and this Board fall into this category. However, reading section 309(c) in its entirety, we conclude that the section 309(c)(1) general rule is still directed to aliens in proceedings on April 1, 1997.
Although there may be other reasons to reach this conclusion, the most persuasive arises from the language of section 309(c)(3) of the IIRIRA, 110 Stat. at 3009-626. That paragraph allows the Attorney General, "[i]n the case described in paragraph (1)," to reinitiate certain proceedings under the IIRIRA. The Attorney General could not do this (reinitiate these cases) until the effective date of the IIRIRA. Given this fact and the nature of the reference in paragraph (3) to paragraph (1), we are satisfied that the general rule in paragraph (1) still focuses on the transition to take place on April 1, 1997. This reading of the general rule is supported by the Joint Explanatory Statement of the Committee of Conference, which states: "Subsection (c) [of section 309] provides for the transition to new procedures in the case of an alien already in exclusion or deportation proceedings on the effective date." H.R. Rep. No. 104-828, § 309 ("Joint Explanatory Statement").
Reaching this conclusion regarding the scope of section 309(c)(1), however, does not in itself resolve the question before us because subsection (c)(1) provides that its general rule is "[s]ubject to the succeeding paragraphs of this subsection." And, the succeeding paragraphs include not only rules that come into effect on April 1, 1997, but other transition rules that came into effect before that date. For example, it is inarguable that section 309(c)(4) of the IIRIRA, 110 Stat. at 3009-626, is clearly a transition provision that comes into effect prior to April 1, 1997. Thus, one cannot simply point to the fact that the section 309(c)(1) general rule pertains to what happens on the title III-A effective date because the provision is subject to exceptions, some of which are intended "to accelerate the implementation of certain of the reforms in title III." See 142 Cong. Rec. H12,293-01 (daily ed. Oct. 4, 1996) (comments of Rep. Smith).
Accordingly, the question before us is whether the exception created in section 309(c)(5) of the IIRIRA, 110 Stat. at 3009-627, is a transition rule only having effect on April 1, 1997 (as is the case, for example, with sections 309(c)(2) and (3)), or whether section 309(c)(5) is a transition rule with an earlier effective date (as is the case, for example, with section 309(c)(4)) and is intended to accelerate the implementation of a title III reform.
Section 309(c)(5) provides TRANSITIONAL RULE WITH REGARD TO SUSPENSION OF DEPORTATION.— Paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act () shall apply to notices to appear issued before, on, or after the date of the enactment of this Act.
We find that the natural reading of the language of section 309(c)(5) of the IIRIRA is that it is a provision akin to section 309(c)(4), a transition rule intended to accelerate a title III reform. Section 309(c)(5) creates an exception to the general effective date with regard to suspension of deportation for aliens with pending deportation proceedings and establishes a transition rule to be applied to such pending cases. Section 309(c)(5), which is specifically captioned as the "Transition Rule With Regard to Suspension of Deportation," incorporates paragraphs (1) and (2) of section 240A(d) of the Act relating to continuous residence or physical...
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