Rojas-Reyes v. Immigration & Naturalization

• Decision Date: 01 August 2000
• Docket Number: ROJAS-REYES,Docket No. 99-4131
• Citation: 235 F.3d 115
• Parties: (2nd Cir. 2000) LUCINA, a/k/a Lucina Mendoza, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Second Circuit

Page 115

235 F.3d 115 (2nd Cir. 2000)

LUCINA ROJAS-REYES, a/k/a Lucina Mendoza, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Docket No. 99-4131

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: October 23, 2000

Decided: December 15, 2000

Petition for review of a final order of the Board of Immigration Appeals denying petitioner's motion to reopen her deportation proceedings, the Board having found that petitioner was ineligible for suspension of deportation because petitioner's period of continuous physical presence in the United States ended on the date she was served with an order to show cause by Immigration and Naturalization Service officials, and thus that petitioner could not establish the required seven years of continuous physical presence in the United States.

Petition for review denied.

[Copyrighted Material Omitted]

MATTHEW L. GUADAGNO, Bretz & Coven, New York, NY (Kerry William Bretz and Jules Coven, on the brief), for Petitioner.

DIOGENES P. KEKATOS, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney for the Southern District of New York, and Aaron M. Katz and Gideon A. Schor, Assistant United States Attorneys for the Southern District of New York, on the brief), for Respondent.

Before: FEINBERG, MINER, and SACK, Circuit Judges.

MINER, Circuit Judge:

Petitioner Lucina Rojas-Reyes ("Rojas") petitions for review of an order of the Board of Immigration Appeals ("BIA") denying her motion to reopen her deportation proceedings. Rojas entered the country illegally in 1987 and has worked and lived in Queens, New York since that time. Respondent Immigration and Naturalization Service ("INS") instituted deportation proceedings against Rojas with the service of an order to show cause on September 20, 1993. During those proceedings, Rojas applied for a form of relief from deportation then known as "suspension of deportation." In a decision rendered on March 4, 1996, an Immigration Judge ("IJ") denied Rojas' request for suspension of deportation, finding that her deportation would not result in extreme hardship either to herself or to a United States citizen family member. Rojas appealed the IJ's decision to the BIA.

In an order dated April 16, 1997, the BIA dismissed Rojas' appeal after determining that Rojas could not satisfy the statutory requirement of seven years' continuous physical presence in the United States. The BIA's decision was based on an earlier decision in which it interpreted section 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("the IIRIRA"), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546 (1996), as providing that an alien's accrual of residence in the United States for the purpose of determining eligibility for suspension of deportation ends on the date that the alien is served with an order to show cause. Several months after the BIA's dismissal of Rojas' appeal, the Attorney General vacated the BIA's decision that had interpreted the IIRIRA's accrual of residence provisions to apply to suspension of deportation applications pending on the IIRIRA's enactment date. Rojas thereafter moved the BIA to reopen her proceedings and address the merits of her suspension of deportation request. The BIA denied Rojas' motion, finding that she could not establish the required seven years of continuous physical presence in the United States under the methodology for determining time-in-residence established by section 203(a) of the Nicaraguan Adjustment and Central American Relief Act of 1997, Pub. L. No. 105-100, Title II ("the NACARA"), 111 Stat. 2160, 2193-2201 (Nov. 19, 1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (Dec. 2, 1997).

For the reasons that follow, we deny the petition for review.

BACKGROUND

On June 26, 1987, Rojas, a native and citizen of Mexico, entered the United States illegally at San Ysidro, California. Since her arrival in the United States, Rojas has resided in Queens, New York, with her husband, Eduardo Mendoza. For much of her time in this country, Rojas has been employed as a sewing machine operator at a factory owned by the Sun Industrial Company. Rojas has two children: a son, born in Mexico, and a daughter, born in the United States after Rojas' application for suspension of deportation had been heard and denied by an IJ.

On September 20, 1993, INS officials inspected Rojas' workplace and detained her. The INS thereafter issued an order to show cause charging that Rojas was deportable pursuant to the then-existing section 241(a)(1)(B) of the Immigration and Nationality Act ("the INA"). See 8 U.S.C. § 1251(a)(1)(B) (1994). During her deportation proceedings, Rojas did not challenge her deportability under the law, but rather applied for suspension of deportation, a form of relief that existed under the INA prior to recent revisions of that statute. Rojas also sought the right to leave the country voluntarily in lieu of deportation in the event that the IJ denied her suspension of deportation application.

On March 4, 1996, an IJ conducted a hearing on the merits of Rojas' application for suspension of deportation. In support of her suspension application, Rojas was allowed to offer the testimony of only one live witness other than herself. That witness, a neighbor and friend of Rojas', testified that Rojas had lived and worked in Queens since 1987, and that she believed Rojas to be a productive, generous, and honest citizen. In addition, Rojas testified on her own behalf and submitted the affidavits of several neighbors and coworkers. This evidence was offered to establish Rojas' continuous presence in the United States since 1987 and her good moral character. Rojas also submitted as evidence her tax returns for the years 1989 to 1994, a letter from her church, and a marriage certificate demonstrating that she was married in Mexico on December 16, 1992.

On the same day as the hearing, the IJ rendered a decision denying Rojas' application for suspension of deportation. The IJ's decision was based on his finding that Rojas had failed to demonstrate that "extreme hardship" either to herself or to a lawfully resident family member would result from her deportation, as required by the statute. To prove "extreme hardship," Rojas argued that, if deported, she would have difficulty finding employment in Mexico and thus would be unable to support her family. Additionally, she argued that her son would suffer by being forced to move from the United States to Mexico. The IJ held that these averments amounted to "little in the way of hardship" and thus denied Rojas' application. On March 14, 1996, Rojas filed a timely appeal of the IJ's decision to the BIA, primarily challenging certain evidentiary rulings.

While Rojas' appeal to the BIA was pending, the first of several recent changes to the eligibility requirements for discretionary relief from deportation became effective when the IIRIRA was signed into law. Among other changes, the IIRIRA established a new methodology for determining the length of an alien's "continuous physical presence in the United States." After some initial uncertainty over whether the new rule applies to pre-IIRIRA suspension of deportation applications, the BIA held that it does apply in such cases. See In re N-J-B-, Int. Dec. No. 3309, 1997 WL 107593 (BIA Feb. 20, 1997) ("N-J-B-"). Applying its decision in N-J-B- to Rojas' case, the BIA dismissed her appeal in an order dated April 16, 1997. The BIA determined that the INS' service of an order to show cause on Rojas on September 20, 1993 - nine months before the date on which Rojas claimed to have attained the required seven years' continuous physical presence in the United States - rendered Rojas ineligible for suspension of deportation under N-J-B-. Accordingly, the BIA ordered that Rojas voluntarily leave the country within thirty days.

On July 11, 1997, Rojas moved the BIA to stay its order of deportation and to reopen her case. In support of her motion, Rojas made two arguments: (1) that the Attorney General's recent vacatur of the BIA's N-J-B- decision once again made it unclear whether the IIRIRA's framework for determining the length of an alien's residence in the United States applied to suspension of deportation applications pending at the time of the IIRIRA's enactment; and (2) that the level of hardship that would result from her deportation was greater than it was at the time of the IJ's decision in her case as a result of the birth of a United States citizen daughter and unspecified health problems that she and her daughter were suffering from.

On November 19, 1997, during the pendency of Rojas' motion to reopen, the NACARA was signed into law, amending the provision of the IIRIRA that purported to apply its rule for computing an alien's time-in-residence to suspension of deportation applications. Approximately a year and a half later, on April 15, 1999, the BIA issued a precedent decision in which it held that the IIRIRA, as amended by the NACARA, unambiguously demonstrated Congress' intent to apply the new rule for measuring time-in-residence to requests for suspension of deportation pending on the IIRIRA's effective date, April 1, 1997. See In re Nolasco-Tofino, Int. Dec. No. 3385, 1999 WL 261565 (BIA April 15, 1999) ("Nolasco-Tofino").

In an order dated July 26, 1999, the BIA denied Rojas' motion to reopen her deportation proceedings. The BIA relied on Nolasco-Tofino and held that the IIRIRA's rule for determining the length of an alien's time-in-residence, as amended and clarified by the NACARA, applied to pre-IIRIRA suspension applications, and thus operated to terminate Rojas' accrual of time-in-residence on the date that she was served with the order to show cause. Rojas was served with an order to show cause on September 20, 1993, six years and three months after she entered the country from Mexico. The...