In re Nolasco-Tofino
| Decision Date | 15 April 1999 |
| Docket Number | Interim Decision No. 3385.,File A74 985 878. |
| Citation | 22 I&N Dec. 632 |
| Parties | In re Sergio NOLASCO-Tofino, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated June 26, 1997, the Immigration Judge found the respondent deportable and pretermitted his application for suspension of deportation under section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1) (1994), but granted him the privilege of voluntary departure. The respondent has appealed from the pretermission of his application for suspension of deportation. The appeal will be dismissed.
The respondent is a 25-year-old male native and citizen of Mexico who entered the United States on or about May 17, 1989. On March 26, 1996, the Immigration and Naturalization Service issued an Order to Show Cause and Notice of Hearing (Form I-221) and placed the respondent in deportation proceedings. On July 17, 1996, the respondent appeared at his master calendar hearing and declared his intention to seek suspension of deportation. On October 9, 1996, the respondent filed an application for that relief. At the merits hearing of June 26, 1997, however, the Immigration Judge pretermitted the application, observing that the respondent had not acquired 7 years' continuous physical presence in the United States prior to the issuance and service of his Order to Show Cause. Citing our decision in Matter of N-J-B-, 21 I&N Dec. 812 (BIA 1997),1 the Immigration Judge concluded that the respondent was prima facie ineligible for suspension of deportation.
On appeal, the respondent argues that the pretermission of his application is based on an improper retroactive application of new law. The respondent maintains that his case is subject to prior law, which requires him to accumulate the requisite 7 years' presence prior to the filing of his application for relief, rather than prior to the issuance of his Order to Show Cause. The respondent also asserts that the decision of the Immigration Judge is fatally flawed because it relies on Matter of N-J-B-, which had been vacated since the time of the hearing. Alternatively, the respondent contends that the new law violates due process because it discriminates between classes of aliens without a rational basis.
In response, the Service cites the recent changes in the law and maintains that the respondent is not eligible for suspension of deportation because he has not shown the period of continuous physical presence required by the revised statute.
The issue in this case is whether the provision for calculating continuous physical presence in section 240A(d) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d) (Supp. II 1996) (the "stop time rule"), applies to applications for suspension of deportation.
At the time the respondent first indicated his interest in suspension of deportation, that relief was governed by section 244(a) of the Act. Section 244(a) required, inter alia, that an applicant for suspension of deportation be physically present in the United States for a continuous period of at least 7 years immediately preceding the date of application.
On September 30, 1996, 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. The IIRIRA 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), 110 Stat. at 3009-594; 308(a)(7), 110 Stat. at 3009-615. It also introduced into the law a provision that closes, or "stops," the period of continuous physical presence upon the service of a charging document on the alien, 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.
In Matter of N-J-B-, supra, we examined and interpreted section 309(c)(5) of the IIRIRA to determine the scope of its transitional rules. In that case, we concluded that the stop time rule applies to applications for suspension of deportation that were pending at the time the IIRIRA took effect. Subsequent to the respondent's appeal, the Attorney General vacated our decision in Matter of N-J-B- and announced that a substitute order would be forthcoming.
Before a new order was issued, however, the President signed into law the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit. II, 111 Stat. 2193 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997) ("NACARA"). This law 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 applies to Orders to Show Cause issued before, on, or after the IIRIRA's enactment date. Id.
For purposes of our review, the respondent's eligibility for suspension of deportation hinges on which methodology is used to compute his period of continuous physical presence. Under the methodology of prior law, the respondent may be eligible for suspension of deportation because he had acquired the requisite period prior to the time he tendered his application for suspension of deportation. Under the methodology of current law, the respondent is prima facie ineligible for relief because he had not acquired the requisite period prior to the service of his charging document. Based on the amended language of the IIRIRA and its legislative underpinnings in the NACARA, we find that the stop time rule applies to applications for suspension of deportation.
As a general matter, persons in deportation or exclusion proceedings that had begun before April 1, 1997, are not subject to the changes made by the IIRIRA. IIRIRA § 309(c)(1), 110 Stat. at 3009-625.2 This general grandfathering provision does not apply, however, where the statute expressly provides otherwise. Id.
As originally enacted, the IIRIRA contained a single provision that addressed pending suspension of deportation cases. That provision, which was entitled "Transitional Rule with Regard to Suspension of Deportation," read as follows:
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.
IIRIRA § 309(c)(5), 110 Stat. at 3009-627.
The NACARA recast that provision as a general rule, complemented by specific exceptions. This general transitional rule essentially tracks the IIRIRA's original wording, but substitutes the reference to "notices to appear" with the following language regarding "orders to show cause":
IN GENERAL.—Subject to subparagraphs (B) and (C), paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act () shall apply to orders to show cause (including those referred to in section 242B(a)(1) of the Immigration and Nationality Act, as in effect before the title
III-A effective date), issued before, on, or after the date of the enactment of this Act. IIRIRA § 309(c)(5)(A), as amended by NACARA § 203(a)(1), 111 Stat. at 2196.3 This language is effective as though included in the IIRIRA and remains in effect today. NACARA § 203(f), 111 Stat. at 2200. It is this language that we must interpret.
In interpreting the general transitional rule of the IIRIRA, we look first to the precise language of the statute as it currently exists. The paramount index of congressional intent is the plain meaning of the words used in the statute taken as a whole. INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); Matter of Michel, 21 I&N Dec. 1101 (BIA 1998). Where the language is clear, we must give effect to the unambiguously expressed intent of Congress. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). On its face, we find the revised language of section 309(c)(5)(A) of the IIRIRA to be unambiguous.
The IIRIRA, as revised by section 203(a)(5) of the NACARA, contains "Transitional Rules With Regard to Suspension of Deportation." Since the IIRIRA removed suspension of deportation from the Act, we glean from this title that Congress intended these rules to apply to suspension of deportation applications pending as of the date the IIRIRA's changes took effect.
Under these transitional rules, the general provision applies the stop time rule of section 240A(d) of the Act to all Orders to Show Cause, irrespective of the date of issuance. We read this language as requiring us to apply the stop time rule of cancellation of removal to all pending applications for suspension of deportation, unless expressly exempted from the general rule.
While we find the language of the general transitional rule to be unambiguous, we observe that this language is the...
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