McBride v. I.N.S.

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: Before HIGGINBOTHAM, WIENER, and DENNIS; WIENER
• Citation: McBride v. I.N.S., 238 F.3d 371 (5th Cir. 2001)
• Decision Date: 19 January 2001
• Docket Number: Nos. 97-60349,99-60610,s. 97-60349
• Parties: (5th Cir. 2001) MANDANA KASHANIAN MCBRIDE, also known as Mandana Kashanian Milne, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent, MEHRANGIZ EGHBAL PIXLEY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent

Page 371

238 F.3d 371 (5th Cir. 2001)

MANDANA KASHANIAN MCBRIDE, also known as Mandana Kashanian Milne, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent, MEHRANGIZ EGHBAL PIXLEY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 97-60349, 99-60610.

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

January 19, 2001

Petition for Review of an Order of the Board of Immigration Appeals.

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

WIENER, Circuit Judge:

Petitioners Mandana Kashanian Milne, previously known as Mandana Kashanian McBride ("Milne"), and Mehrangiz Eghbal Pixley are aliens whose petitions for suspension of deportation were denied and who now face deportation. They contend that the Board of Immigration Appeals ("BIA") erred in denying their respective petitions for suspension of deportation because they were not continuously present in the United States for at least seven years before receiving notice of the commencement of deportation proceedings against them. Although each petitioner concedes that she had not been present for the required seven years at the time that she was served with an order to show cause¹ (notifying her of the commencement of deportation proceedings), both argue that, because they have been continuously present in the United States for more than seven years since receiving the show cause order, they are eligible to petition for suspension of deportation. They thus ask us to reverse the interpretation of the BIA that § 240A(d)(1) of the Immigration and Naturalization Act² ("the stop-time rule") not only terminates the running of the clock for continuous presence accrued up to the time that the alien is served with notice of deportation proceedings but also prevents that clock from beginning to run anew thereafter.

Given the deference that we owe to the BIA's interpretation of statutes involving immigration matters and the cogent reasoning that it has advanced in support of its interpretation of the stop-time rule, we decline to substitute a different interpretation for the BIA's, and therefore affirm the BIA's denial of the Petitioners' petitions for the suspension of deportation.

I. Facts and Proceedings

A. Milne

Milne is a 38-year old female native and citizen of Iran. She was admitted to the United States on July 24, 1978 on a nonimmigrant student visa and gained authorization to remain in the U.S. until May 31, 1983 by changing her status to that of a spouse of a nonimmigrant student. When that time elapsed, the Immigration and Naturalization Service ("INS") commenced deportation proceedings against her by serving her with a notice to appear. Eventually, an immigration judge (IJ) denied Milne's request for asylum, ruling, inter alia, that she failed to demonstrate that she would suffer extreme hardship if deported. The IJ entered an order allowing 90 days for her to depart voluntarily and, alternatively, for her to be deported should she fail to do so. Milne appealed that decision to the BIA.

The BIA affirmed the IJ's decision in a per curiam opinion in 1992 and reinstated an order allowing 30 days for voluntary departure, again with an alternate order of deportation. Milne appealed that decision to us, and we affirmed the BIA's decision in an unpublished opinion.³ She then filed a motion with the BIA to reopen her appeal claiming that facts arising after the initial BIA decision ---- specifically, her remarriage to a United States citizen by whom she had borne a child in 1993 ---- established that she would indeed experience extreme hardship if deported.⁴ The BIA denied this motion in 1997 without reaching the merits, finding that § 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"),⁵ rendered Milne ineligible for reopening as a matter of law because she had not established seven years of continuous physical presence here. In so ruling, the BIA relied on its decision in Matter of N-J-B- as precedent.⁶ Milne now appeals the BIA's decision to us.

B. Pixley

Pixley is a 43-year old female native and citizen of Iran who entered this country on October 21, 1985 as a nonimmigrant visitor for pleasure and has resided here ever since. An order to show cause was issued against her on January 9, 1991, alleging that she was deportable under § 241(a)(9)(B) of the INA because she had gained conditional resident status through a fraudulent marriage to a United States citizen. In January of 1993, the INS withdrew that allegation but left in place a charge that Pixley had failed to convert her status from conditional to permanent within the required two years. Pixley then filed for suspension of deportation under former § 244(a) of the INA.⁷

In August of 1993, an IJ denied Pixley's claim for failure to establish the required seven years continuous physical presence in the United States during which the alien must demonstrate good moral character. Although Pixley had been continuously present for more than the requisite seven years, she was found not to have demonstrated good moral character during that time because she had falsely represented under oath that she was living with her husband at the time she received conditional residential status. Pixley appealed that decision to the BIA, claiming that the record did not show that her alleged misrepresentation had been made orally and under oath as required by relevant case law defining what constitutes a bar to the showing of good moral character. She subsequently petitioned for suspension of deportation on the ground that she had demonstrated a new period of seven years physical presence and good moral character, all accruing while her case was pending before the BIA and after the date of her alleged misrepresentation. Following additional briefing that addressed the 1998 changes in the law governing suspension of deportation, the BIA dismissed Pixley's appeal. It held that her initial period of continuous physical presence had been terminated by the commencement of deportation proceedings against her; however, the BIA's opinion did not address Pixley's claim that she had accrued seven years of continuous presence as a person of good moral character following the commencement of those deportation proceedings.⁸

II. Analysis

A. Standard of Review

We defer to an agency's interpretation of a federal statute unless that interpretation violates "the unambiguously expressed intent of Congress."⁹ We also note that "judicial deference to the Executive Branch is especially appropriate in the immigration context where officials 'exercise especially sensitive political functions that implicate questions of foreign relations.'"¹⁰

B. The Attorney General's Action

Milne argues that because the BIA decision denying her claim was based on an earlier BIA decision that was vacated subsequent to the decision in her case, we should either reverse the BIA's decision in her case or remand it to the BIA for reconsideration. In the proceedings against Milne, the BIA had ruled that she could not petition for suspension of deportation because she was not continuously present in the United States for at least seven years before commencement of deportation proceedings against her. In so ruling, the BIA did rely on its previous decision in N-G-B-, a decision interpreting the stop-time rule, the construction of which is the crux of the substantive decision to be made in these two cases.

The Attorney General referred N-G-B- to herself for review and vacated that decision in July of 1997.¹¹ In November of that year, Congress enacted the Nicaraguan and Central Relief Act of 1997 (the "NACARA"),¹² which, inter alia, amended and clarified the IIRIRA with respect to the issue raised in N-G-B-. Thereafter, in Matter of Nolasco,¹³ the BIA made clear that in enacting the NACARA Congress had codified the substance of the BIA's holding in N-G-B- to the effect that the stop-time rule did apply to applications for suspension of deportation. Recently, in In re Mendoza-Sandino,¹⁴ the BIA interpreted § 240A(d)(1) as providing that once continuous physical presence is interrupted by service of a notice of deportation proceedings, the seven-year clock not only stops but never starts to run anew either.

Milne's claim is unavailing. The basis of the BIA's decision was made clear, and, even though the supporting decision it cited was subsequently vacated, the substance of the vacated decision was reaffirmed by the BIA when it interpreted the new legislation enacted by Congress in response to the Attorney General's reversal of the BIA's decision in N-G-B-. Moreover, its recent decision in In re Mendoza-Sandino, interpreting the stop-time rule to bar a fresh start of the seven-year clock after service of a notice to appear, further clarifies the BIA's stance on this issue. Remanding this case to the BIA would therefore be a fruitless exercise.

C. Interpretation of the Stop-Time Rule

Currently, under the IIRIRA an alien who has been continuously present in the United States for ten years prior to the commencement of deportation proceedings against him and can meet other restrictive requirements is eligible to petition for suspension of his deportation order.¹⁵ The transitional provisions of the IIRIRA specify that all such proceedings that had commenced prior to April 1, 1997 ---- including those that were initiated under former INA § 244 (pursuant to which each of the instant cases were brought) ---- are left intact under then-existing law.¹⁶ Former § 244(a) of the INA vested the Attorney General with discretion to grant suspension of an alien who

is deportable [and]. . .has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of ...