Ram v. Immigration & Naturalization Serv.
| Decision Date | 15 March 2001 |
| Docket Number | No. 99-70918,99-70918 |
| Citation | 243 F.3d 510 |
| Parties | (9th Cir. 2001) ANANT RAM; SANGEETA RAM; NAZRA BIBI RAM, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent |
| Court | U.S. Court of Appeals — Ninth Circuit |
Nancy A. Fellom, Fellom & Solorio, San Francisco, California, for the petitioners.
Susan K. Houser, United States Department of Justice, Washington, D.C., for the respondent.
Petition for Review of an Order of the Board of Immigration Appeals. INS Nos.A28-962-429 A28-962-432 A28-962-430
Before: Betty B. Fletcher, Diarmuid F. O'Scannlain, and Ronald M. Gould, Circuit Judges.
Anant Ram, his wife, Nazra Bibi Ram, and their daughter, Sangeeta Ram (collectively, "Petitioners") petition for review of their final order of deportation entered by the Board of Immigration Appeals ("BIA") on June 29, 1999. Petitioners contend that they were eligible for suspension of deportation, and challenge the BIA's decision to apply the "stop-time rule" -a new continuous physical presence requirement set forth in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") -to their applications for such relief. We deny the petition and hold that the stop-time rule applies to Petitioners.
Petitioners are ethnic Indian natives and citizens of Fiji. Fleeing a series of coups in Fiji, Petitioners entered the United States on August 22, 1987 as non-immigrant visitors. Because Petitioners remained in this country longer than their visas permitted, the Immigration and Naturalization Service ("INS") served Petitioners with Orders to Show Cause ("OSCs") on May 17, 1988. The OSCs charged Petitioners as aliens deportable under section 241(a)(1)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C.S 1251(a)(1)(B) (1994).
At Petitioners' deportation hearing, the Immigration Judge ("IJ") found them deportable, denied their petitions for asylum and withholding of deportation, and granted voluntary departure. Petitioners appealed first to the BIA, which affirmed the IJ, and then to this court. We denied their petition on January 12, 1995. Ram v. INS, 46 F.3d 1144 (9th Cir. 1995) (unpublished disposition).
On November 16, 1994, while their petition to this court was pending, Petitioners moved to reopen their deportation proceedings to apply for suspension of deportation. Petitioners argued that suspension was appropriate because, while they were in deportation proceedings, they attained the seven years of continuous physical presence necessary to qualify for such relief. The BIA denied Petitioners' motion. 1 On appeal, we reversed and remanded to the BIA for further review of hardship. Ram v. INS, 107 F.3d 17 (9th Cir. 1997) (unpublished disposition).
On remand, the BIA summarily denied Petitioners' motion on the sole ground that they had not satisfied IIRIRA's new stop-time rule. That rule requires aliens to meet the continuous physical presence requirement before their deportation proceedings commence. INA S 240A(d)(1), 8 U.S.C. S 1229b(d)(1) []. Petitioners now petition for review of the BIA final order, contending that: (1) the stop-time rule does not apply to OSCs where an alien seeks suspension of deportation; (2) the application of the stop-time rule to Petitioners violates due process because it is impermissibly retroactive; (3) IIRIRA section 309(c)(5) violates equal protection because it exempts some aliens from the stop-time rule on the basis of their national origin; and (4) in calculating Petitioners' period of continuous physical presence, the BIA should have considered time accumulated after service of the OSCs.
Because this petition falls under IIRIRA's transitional rules, Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997), we have jurisdiction pursuant to 8 U.S.C. S 1105a(a), IIRIRA section 309(c). Avetova-Elisseva v. INS, 213 F.3d 1192, 1195 n.4 (9th Cir. 2000).
Three sets of rules concern us here: (1) the old INA rules, which governed before IIRIRA's effective date; (2) IIRIRA's new permanent rules, which took effect April 1, 1997; and (3) IIRIRA's transitional rules, which determine whether an old rule or a new rule from IIRIRA applies to aliens who were in the administrative process when IIRIRA took effect ("transitional rule aliens"). Here, we consider these rules as they apply to suspension of deportation.
Before IIRIRA, an alien was eligible for suspension of deportation if (1) he or she "ha[d] been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of [the] application" for suspension of deportation; (2) he or she was a "person of good moral character"; and (3) deportation would result in "extreme hardship" to the alien or to an immediate family member who was a United States citizen or a lawful permanent resident. INA S 244(a)(1), 8 U.S.C.S 1254(a)(1) (1994). Aliens accrued time toward the "continuous physical presence in the United States" requirement until they applied for suspension of deportation. In short, the commencement of deportation proceedings had no effect on this accrual.
Congress fundamentally altered this system in 1996 when it enacted the stop-time rule set forth in IIRIRA. Motivated by a belief that "[s]uspension of deportation is often abused by aliens seeking to delay proceedings until 7 yearshave accrued . . . even after they have been placed in deportation proceedings," H.R. Rep. No. 104-469(I), at 390 (1996), available in 1996 WL 168955, Congress changed the continuous physical presence requirement. Under IIRIRA's new rule, the period of continuous physical presence ends when deportation proceedings commence:
(1) 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 with a notice to appear under section 1229(a) of this title or when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1882(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest.
INA S 240A(d)(1).
The majority of IIRIRA's new rules do not apply to transitional rule aliens, like Petitioners. IIRIRA S 309(c)(1). However, it is undisputed that the transitional rule applicable here -the "Transitional Rule[ ] with Regard to Suspension of Deportation" -mandates the application of the stop-time rule to at least some of them.
(A) In General. -Subject to subparagraphs (B) and (C), paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act () [the stop-time rule] shall apply to orders to show cause . . . issued before, on, or after the date of the enactment of this Act [September 30, 1996].
The question we must answer, and the issue about which the parties disagree, is whether Petitioners fall within the boundaries of this transitional rule, and thus, the stop-time rule.
Before proceeding with our analysis, it is useful to summarize certain of IIRIRA's changes to the structure and terminology of the INA. In IIRIRA, Congress created proceedings -with different names and slightly different requirements --that paralleled the pre-IIRIRA deportation scheme. Relevant here, before IIRIRA, aliens were placed in deportation proceedings after being served with an OSC, and could seek relief by applying for, inter alia, suspension of deportation. After IIRIRA, aliens were placed in removal proceedings after being served with a Notice to Appear ("NTA"), and could seek relief by applying for cancellation of removal. With these changes in mind, we proceed to our analysis.
"We review de novo an agency's interpretation of a statute." Braun v. INS, 992 F.2d 1016 1018 (9th Cir. 1993) ().
Although IIRIRA section 309(c)(5)(A) begins with the phrase "In General," Petitioners read this transitional rule narrowly and claim that it does not apply to them. Petitioners first note that IIRIRA section 309(c)(5)(A) expressly references and incorporates the stop-time rule set forth in INA section 240A(d)(1). Next, they observe that the stop-time rule itself references only the new immigration proceedings (e.g., "notices to appear," "removal," and "cancellation of removal"). In addition, because INA section 240A(d)(1) begins with the phrase "for purposes of this section," Petitioners claim that the application of the stop-time rule is limited to "this section" (i.e., limited to INA section 240A(d) which is entitled "Cancellation of removal; adjustment of status"). Based on these observations, Petitioners argue that IIRIRA section 309(c)(5)(A) can only apply in one very limited circumstance: namely, where a transitional rule alien served with an OSC under pre-IIRIRA law is ultimately placed in removal proceedings (after April 1, 1997), from which he or she seeks cancellation of removal.2 Petitioners -who were served with OSCs, but remain in deportation proceedings and seek suspension of deportation -argue that they fall outside the scope of IIRIRA section 309(c)(5)(A).
Petitioners' narrow reading of IIRIRA section 309(c)(5)(A) is not frivolous and warrants careful consideration. But we find more reasonable the statutory interpretation urged by the government.
First, the explicit title of IIRIRA section 309(c)(5) (),3 the introductory phrase of IIRIRA section 309(c)(5)(A) ("In General"), and the specific reference to OSCs in IIRIRA section 309(c)(5)(A) suggest that, absent...
To continue reading
Request your trial
-
Robledo-Gonzales v. Ashcroft
...are subject to rational basis review and must be upheld if they are rationally related to a legitimate government purpose. Ram v. INS, 243 F.3d 510, 517 (9th Cir.2001). Section 3.44 permits certain aliens who were in deportation proceedings before April 24, 1996 to file a motion to reopen t......
-
Prince v. Jacoby
...mandatory attendance is required. Because the text is ambiguous, it is necessary to turn to the legislative history. See Ram v. INS, 243 F.3d 510, 515 (9th Cir. 2001). The legislative history makes clear that once student attendance is required, "actual classroom instruction" begins. The Co......
-
Ramirez-Alejandre v. Ashcroft
...rules with respect to the termination and interruption of continuous physical presence. See IIRIRA § 309(c)(5); see also Ram v. INS, 243 F.3d 510, 518 (9th Cir.2001). In addition, the Attorney General recently completely reorganized the procedures used by the BIA. The Attorney General was c......
-
Ramirez-Alejandre v. Ashcroft
...rules with respect to the termination and interruption of continuous physical presence. See IIRIRA § 309(c)(5); see also Ram v. INS, 243 F.3d 510, 518 (9th Cir.2001). In addition, the Attorney General recently completely reorganized the procedures used by the BIA. The Attorney General was c......