PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.
Stephen A. Lagana and Law Offices of Lagana & Associates on brief for petitioner.
Michael C Heyse, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Mary Jane Candaux, Assistant Director, Office of Immigration Litigation, on brief for respondent.
Before Lynch, Lipez, and Thompson, Circuit Judges.
THOMPSON, Circuit Judge.
Petitioner Gilberto Santos-Quiroa seeks review of a decision from the Board of Immigration Appeals (" BIA" ) finding that the so-called " stop-time" rule applies to his application for suspension of deportation and bars him from receiving relief. For the reasons explained below, we agree
with the BIA that the stop-time rule applies to Santos-Quiroa. Accordingly, the petition for review will be denied.
1. The Legal Landscape
We begin with a primer on the principles of immigration law at play in this case, including a discussion of some important changes that took effect on April 1, 1997.
Before April 1, 1997, a noncitizen could be placed into " deportation" proceedings; under current law, they're called " removal" proceedings. Compare 8 U.S.C. § 1251(a)(1)(B) (1994) (describing various classes of " deportable aliens" ), with 8 U.S.C. § 1229a (describing " removal proceedings" ). Per the pre-April 1, 1997 law, a noncitizen " who entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this chapter or any other law of the United States is deportable." 8 U.S.C. § 1251(a)(1)(B) (1994). Deportation proceedings were initiated by serving the noncitizen with a document known as an Order to Show Cause (" OSC" ). An OSC put the noncitizen on notice of the allegations of deportability the government was making against him, and it directed him to appear at a hearing on those charges. If a noncitizen failed to appear at his deportation hearing after having received notice of it, he could be ordered deported in absentia. See 8 U.S.C. § 1229a(b)(5)(A).
A noncitizen found to be deportable could apply for various forms of relief, including what was once called suspension of deportation. See 8 U.S.C. § 1254(a) (1994). To qualify, a noncitizen needed to show that he
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 prove 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 the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence . . . .
Id. § 1254(a)(1) (1994). The requirement of most import to this case is the first one: that the noncitizen have been physically present in the country for at least seven years prior to applying for suspension of deportation.
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (" IIRIRA" ), Pub. L. No. 104-208, Div. C., 110 Stat. 3009, 3546-724 (1997) (Sep. 30, 1996), which took effect on April 1, 1997. Concerned that " aliens would often delay their deportation proceedings until they accrued sufficient continuous presence in the United States to qualify for relief" from deportation, Afful v. Ashcroft, 380 F.3d 1, 6 (1st Cir. 2004) (quoting Suassuna v. I.N.S., 342 F.3d 578, 581 (6th Cir. 2003)),
as part of the IIRIRA Congress altered the suspension of deportation procedure by enacting what has become known as the stop-time rule. The stop-time rule provides, in pertinent part, that " any period of continuous residence or continuous physical presence in the United States shall be deemed to end . . . when the alien is served a notice to appear . . . ." 8 U.S.C. § 1229(b)-(d)(1).
That IIRIRA referred to NTAs but not OSCs raised a question as to whether the stop-time rule applied to OSCs at all. See Afful, 380 F.3d at 7. Congress answered that question in the affirmative when it passed the Nicaraguan Adjustment and Central American Relief Act (" NACARA" ), Pub. L. No. 105-100, Tit. II, § 203(a)(1), 111 Stat. 2160, 2196 (Nov. 19, 1997). See Afful, 380 F.3d at 7. NACARA's Section 203 set forth so-called transitional rules regarding applications for suspension of deportation. One of these rules provided that the stop-time rule " shall apply to orders to show cause . . . issued before, on, or after the date of the enactment of this Act." NACARA § 203(a)(1)-(5)(A); see also Afful, 380 F.3d at 7.
Thus, following passage of NACARA, the stop-time rule was explicitly applied to OSCs. The effect of the rule is that a noncitizen ceases accruing time in the United States towards qualifying for eligibility for suspension of deportation upon the receipt of the OSC charging him with being deportable. This represents a sharp break with the previous regime, under which a noncitizen continued to accrue time towards the seven-year continuous presence requirement even after having been placed into deportation proceedings.
Whether and how the stop-time rule applies to Santos-Quiroa takes center stage in this appeal.
2. Santos-Quiroa's Deportation Proceedings
The facts of this case are generally uncontested. On July 9, 1994, Gilberto Santos-Quiroa, a native and citizen of Guatemala, crossed the U.S.-Mexican border into Arizona. He did so without having been inspected by an immigration officer, making his entry in violation of United States law and rendering him deportable. Santos-Quiroa was apprehended almost immediately, and deportation proceedings began the following day -- July 10 -- with in-hand service upon him of an OSC. The OSC charged Santos-Quiroa as being deportable for having entered the United States without inspection, and it indicated that a hearing would be scheduled and notice thereof mailed to an address Santos-Quiroa had provided.
Santos-Quiroa was released on bond a little over a week later, having told immigration authorities he would be living at an address (his brother's) in Providence, Rhode Island. Notice of the deportation hearing was mailed to that Providence address on August 4 and instructed Santos-Quiroa to appear before an immigration judge (" IJ" ) in Phoenix, Arizona, on December 1, 1994. Although the notice had been sent by certified mail and the signed receipt was returned to the immigration court, Santos-Quiroa was a no-show on December 1. Accordingly, the hearing proceeded without him. The IJ found Santos-Quiroa ...