Suassuna v. I.N.S.

• Decision Date: 04 September 2003
• Docket Number: No. 02-3084.,02-3084.
• Citation: 342 F.3d 578
• Parties: Ricardo Pacheco SUASSUNA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

342 F.3d 578

Ricardo Pacheco SUASSUNA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 02-3084.

United States Court of Appeals, Sixth Circuit.

Argued: August 7, 2003.

Decided and Filed: September 4, 2003.

Marshal E. Hyman (argued and briefed), Marshal E. Hyman & Associates, PC, Troy, MI, for Petitioner.

Margaret J. Perry (argued and briefed), Mark C. Walters (briefed), United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before: KEITH and COLE, Circuit Judges; WEBER, District Judge.^*

OPINION

KEITH, Circuit Judge.

Petitioner Ricardo Pacheco Suassuna appeals the denial of his application for suspension of deportation. For the reasons set forth below, we AFFIRM the judgment of the Board of Immigration Appeals.

I. BACKGROUND

Suassuna was born on January 27, 1958, in Brazil. He entered the United States as a non-immigrant visitor on December 11, 1986. He was authorized to remain until May of 1987. On July 1, 1987, Suassuna's status changed to that of a non-immigrant student, authorizing him to remain as long as he was in school. On January 15, 1988, Suassuna married Carol Kadoura, a United States citizen. Suassuna and Kadoura have a son named Hamza Suassuna, who was born in Ypsilanti, Michigan on December 14, 1988. Shortly after Hamza was born, Ricardo Suassuna stopped going to school and started working. Suassuna and Kadoura were divorced on January 2, 1992. Since April 9, 1993, Suassuna has had sole physical custody and joint legal custody of Hamza.

On July 18, 1991, the United States Immigration and Naturalization Service (INS) initiated deportation proceedings against Suassuna by serving him with a notice of hearing and order to show cause. The INS charged Suassuna with violating the conditions of his student status. On February 25, 1992, Suassuna appeared with counsel and admitted that he was deportable as charged. The immigration judge (IJ) found Suassuna deportable on the basis of his admission and ordered him to be deported to Brazil. The IJ granted Suassuna the privilege of voluntary departure at his own expense in lieu of forced deportation. Suassuna remained in the United States.

On August 20, 1996, Suassuna moved to reopen his deportation proceeding to apply for suspension of deportation and an extension of his prior grant of voluntary departure. Under then-existing law, an alien was eligible for suspension of deportation if he could show (1) that he had been continually physically present in the United States for seven years preceding his application for relief, and (2) that his deportation would cause "extreme hardship" to himself or to a United States citizen spouse, parent, or child. See former § 244(a) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1254(a) (1994). This relief was not available if the alien had failed to comply with a prior grant of voluntary departure and was unable to show "exceptional circumstances" excusing his failure to depart. See former § 242B(e)(2)(A) of the INA, 8 U.S.C. § 1252b(e)(2)(A) (1994).

While Suassuna's motion to reopen the proceeding was pending, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (IIRIRA). IIRIRA created a "stop-time rule" terminating the continuity of an alien's physical presence for purposes of relief from deportation upon service of the charging document commencing deportation proceedings. INA § 240A(d), 8 U.S.C. § 1229b(d). On October 31, 1996, an IJ issued an order reopening Suassuna's deportation proceedings to permit him to apply for suspension of deportation. The INS moved to pretermit Suassuna's pending suspension application in light of the stop-time rule. On February 27, 1998, the IJ granted the INS's motion and reinstated Suassuna's order of deportation.

Suassuna filed for reconsideration, arguing that the IJ should not have applied the stop-time rule and seeking reinstatement of the order of voluntary departure based on ineffective assistance of counsel. The IJ denied reconsideration. She found that Suassuna was undeserving of reinstatement of voluntary departure, because he had shown by his conduct that he was unwilling to leave the country voluntarily. The IJ was not persuaded by Suassuna's ineffective assistance argument.

Suassuna filed a timely appeal with the Board of Immigration Appeals (BIA). He argued that the IJ erred in applying the stop-time rule. Suassuna also argued that his counsel's ineffectiveness and Suassuna's desire to remain in the United States to obtain custody of his son were "compelling reasons" excusing his failure to depart and warranted reinstatement of voluntary departure.

On December 26, 2001, the BIA issued a written decision affirming in part and reversing in part the IJ's decision. The BIA applied the stop-time rule to Suassuna's pending suspension application and found him ineligible for a suspension because he lacked seven years of continuous physical presence prior to service of the order to show cause. The BIA affirmed that Suassuna was subject to deportation. However, with respect to Suassuna's request for reinstatement of voluntary departure, the BIA reversed the decision of the IJ finding that Suassuna had demonstrated "compelling reasons" for voluntary departure. The "compelling reasons" cited by the BIA focused on various errors made by Suassuna's first lawyer. The BIA's decision permitted Suassuna the privilege of leaving voluntarily within thirty days (or any further extensions granted by the INS), but required that Suassuna be deported if he failed to leave voluntarily.

Suassuna filed this timely appeal. The sole issue before this Court is whether the stop-time rule applies to Suassuna.

II. DISCUSSION

A. Standard of Review

In reviewing the BIA's construction of immigration statutes, we proceed deferentially, setting aside the BIA's reasonable construction if it defies the plain language of the statute or is arbitrary or capricious. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). Other questions of law are reviewed de novo. See Bartoszewska-Zajac v. INS, 237 F.3d 710, 712 (6th Cir.2001); Ashki v. INS, 233 F.3d 913, 917 (6th Cir.2000).

B. Analysis

The stop-time rule changed the method for calculating an alien's period of continuous physical presence in this country for purposes of qualifying for discretionary relief from a deportation order. It provides that "any period of ... continuous physical presence in the United States shall be deemed to end when the alien is served a notice to appear under section 239(a)." INA § 240A(d), 8 U.S.C. § 1229b(d). Prior to the enactment of the stop-time rule, aliens would often delay their deportation proceedings until they accrued sufficient continuous presence in the United States to qualify for relief. See H.R. Rep. 104-879 (1997); see also Bartoszewska-Zajac, 237 F.3d at 713. By terminating the accrual of continuous physical presence upon service of the charging document, the stop-time provision of IIRIRA eliminated an alien's incentive to delay his deportation proceedings.

Suassuna was served a notice of hearing and order to show cause on July 18, 1991. At that time, Suassuna had been in the United States for less than five years. The parties, therefore, agree that if the stop-time rule is applied to Suassuna, he lacks the seven years of continuous physical presence in the United States required for a suspension of deportation under the former § 244(a) or the current § 240 of the INA.

IIRIRA explicitly provided that most of its changes would not apply to aliens with deportation proceedings already pending at the time the statute went into effect. See IIRIRA, § 309(c)(1). However, one of the changes that does apply retroactively is the stop-time rule. Section 309(c)(1) states that § 240A(d) (the stop-time rule) "shall apply to notices to appear issued before, on, or after the date of enactment of this Act [September 30, 1996]." See Ashki, 233 F.3d at 918-19. This clause created some incongruity, because prior to April 1, 1997, the INS initiated deportation proceedings by service of an order to show cause, and not a notice to appear. Congress attempted to clear up this lingering confusion in 1997 when it enacted the Nicaraguan Adjustment and Central American Relief Act, Pub.L. No. 105-100, 111 Stat. 2160 (1997) (NACARA). Section 203(a)(1) of NACARA provides that § 240A(d) of the INA "shall apply to orders to show cause" issued before, on, or after the effective date of NACARA. Sitting en banc in 1999, the BIA held that the stop-time rule applies to all pending deportation proceedings unless the alien satisfies one of several statutory exemptions. See In re Nolasco-Tofino, 1999 WL 261565 (BIA 1999) (en banc).

Courts are generally reluctant to apply statutes retroactively. See Bartoszewska-Zajac, 237 F.3d at 712. "Because it accords with widely held intuitions about how statutes ordinarily operate, a presumption against retroactivity will generally coincide with legislative and public expectations." Landgraf v. USI Film Prods., 511 U.S. 244, 272, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). However, this judicial presumption against retroactivity can be overcome when Congress clearly intends that result. Id. at 272-73, 114 S.Ct. 1483. "When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules." Id. at 280, 114 S.Ct. 1483. If Congress has not expressly prescribed the proper reach of the statute, courts then consider whether retroactive application of the statute "would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already...