Sherifi v. Immigration & Naturalization Service, 99-4254

• Decision Date: 01 August 2001
• Docket Number: No. 99-4254,99-4254
• Citation: 260 F.3d 737
• Parties: (7th Cir. 2001) ARBEN SHERIFI, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Seventh Circuit

Page 737

260 F.3d 737 (7th Cir. 2001)

ARBEN SHERIFI, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 99-4254

In the United States Court of Appeals For the Seventh Circuit

ARGUED SEPTEMBER 8, 2000

DECIDED August 1, 2001

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

Before FLAUM, Chief Judge, POSNER and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

We are presented here with an issue of first impression regarding the applicability of Section 203 of the Nicaraguan Adjustment and Central American Relief Act ("NACARA") to an alien in exclusion proceedings. We agree with the BIA that Arben Sherifi is not eligible for suspension of deportation because, among other reasons, he was in exclusion proceedings before the effective date of the law and does not fit under either of the exceptions to the general rule that the new rules do not apply in the case of an alien who is in exclusion or deportation proceedings before that date.

I.

Arben Sherifi is a citizen of Macedonia. He attempted to enter the United States on June 28, 1990 at O'Hare International Airport in Chicago. He told INS officials at the airport that he wished to apply for asylum. The INS allowed him to enter and placed him in exclusion proceedings. On July 10, 1990, he admitted the charges of inadmissibility against him at a hearing before an immigration judge. She rifi filed an application for asylum before December 31, 1990, and also requested withholding of deportation. On February 4, 1991, the immigration judge issued an oral ruling finding that Sherifi was excludable from the United States based on his own admissions. The judge denied the application for asylum and withholding of deportation and ordered Sherifi excluded and deported. The Board of Immigration Appeals affirmed this decision on June 30, 1994.

For reasons that do not appear in the record, the INS failed to enforce its order against Sherifi. He remained in the United States, married a U.S. citizen and fathered a U.S. citizen child. In the meantime, Congress passed NACARA on November 19, 1997, which amended the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). Sherifi filed a motion to reopen his exclusion proceedings on August 19, 1998, hoping to find relief under NACARA's provisions. The immigration judge denied the motion to reopen, finding that NACARA did not change the statutory or regulatory bars to suspension of deportation. Because suspension of deportation was not available to aliens in exclusion proceedings before the passage of NACARA, it was not available to Sherifi, according to the immigration judge. The BIA agreed that suspension of deportation was not available to aliens placed in exclusion proceedings prior to April 1, 1997, the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). Specifically, the BIA held:

[N]one of the transition rules dealing with suspension of deportation override the general transition rule that subjects a person placed into exclusion proceedings prior to April 1, 1997, to the rules governing exclusion that were in place before the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 . . . was enacted. Included among those rules is the long-standing principle that persons in exclusion proceedings are ineligible to apply for suspension of deportation.

Decision of the BIA, In re Sherifi, Dec. 6, 1999, at 2 (internal citations omitted). Because Sherifi was in exclusion proceedings before April 1, 1997, he was ineligible to apply for suspension of deportation, and the BIA dismissed his appeal. Sherifi appeals from the BIA's decision.

II.

On appeal, Sherifi maintains that NACARA changed the landscape for aliens in exclusion proceedings, rendering them eligible to apply for suspension of deportation. As evidence that Congress intended this result, Sherifi points to Section 203(a)(1) of NACARA which provides, in relevant part:

(C) Special rule for certain aliens granted temporary protection from deportation.--

(i) IN GENERAL.--For purposes of calculating the period of continuous physical presence under section 244(a) of the Immigration and Nationality Act (as in effect before the title III-A effective date) or section 240A of such Act (as in effect after the title III-A effective date), subparagraph (A) of this paragraph and paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act shall not apply in the case of an alien, regardless of whether the alien is in exclusion or deportation proceedings before the title III-A effective date, who has not been convicted at any time of an aggravated felony (as defined in section 101(a) of the Immigration and Nationality Act) and- - . . . .

(V) is an alien who entered the United States on or before December 31, 1990, who filed an application for asylum on or before December 31, 1991, and who, at the time of filing such application, was a national of the Soviet Union, Russia, any republic of the former Soviet Union, Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania, Hungary, Bulgaria, Albania, East Germany, Yugoslavia, or any state of the former Yugoslavia.

NACARA sec. 203(a)(1), 111 Stat. 2160, 2196-98. Sherifi argues that Congress' intent to permit the relief of suspension of deportation to an alien in exclusion proceedings is clear from the phrase "whether the alien is in exclusion or deportation proceedings." According to Sherifi, the reference to exclusion proceedings would be rendered superfluous if Congress had not meant for NACARA to apply to persons in exclusion proceedings. Sherifi maintains that the immigration judge therefore erred in denying his motion to reopen.

A.

In its brief before this Court, the INS countered that suspension of deportation is available only to aliens in deportation proceedings. According to the INS, excludable aliens were never eligible for suspension of deportation, and nothing in NACARA changed that well- established rule. At oral argument before this Court, the INS shifted its argument slightly and relied primarily on the inapplicability of NACARA to persons in exclusion proceedings before April 1, 1997, with certain exceptions that are not available to Sherifi. The INS asserts (and Sherifi does not disagree) that the title III-A effective date referred to in the statute is April 1, 1997. Under section 309(c)(1) of IIRIRA as amended by NACARA, the INS explains that the general rule is that the new provisions of NACARA regarding cancellation of removal do not apply unless the case commenced after April 1, 1997. The INS posits that there are two limited exceptions to this general rule, contained in sections 309(c)(2) and 309(c)(3), which were not affected by the NACARA amendments. Congress provided in 309(c)(2) that in either deportation or exclusion proceedings, where no evidentiary hearing had yet been held, the Attorney General could opt to apply all of the provisions of IIRIRA retroactively, including cancellation of removal under the new section 240A. Section 309(c)(3) allowed a second exception: the Attorney General could terminate the original proceedings and start over with a Notice to Appear at a removal proceeding if no final administrative order had been entered. Because Sherifi had an evidentiary hearing and because a final administrative order had been entered in his case, neither of these exceptions apply to him, according to the INS, and he is therefore subject to the general rule that the new provisions regarding cancellation of removal do not apply unless the case commenced after April 1, 1997. Because Sherifi's case commenced on June 29, 1990, the new cancellation of removal provisions are not available to him, and the INS contends that the immigration judge was thus correct in denying his motion to reopen.

Sherifi's only response to the effective date limitation posed by the INS is that section 203 does not merely modify section 309, but creates a new right for persons in exclusion proceedings to benefit from NACARA. Sherifi repeats his contention that the INS' interpretation of the statute gives no meaning to the words "whether the alien is in exclusion or deportation proceedings." According to Sherifi, the only limitations to the applicability of NACARA are that the alien must have entered the United States before December 31, 1990, must have filed an application for asylum by December 31, 1991, and must be from...