Case Information
In re N-J-B-, Respondent Decided by Attorney General August 20, 1999 Decided by Attorney General July 10, 1997 Decided by Board February 20, 1997 [1] U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals Ernesto Varas, Esquire, Miami, Florida, for respondent Robert B. Jobe, Esquire, San Francisco, California, amicus curiae [2] Sharon Dulberg, Esquire, San Francisco, California, amicus curiae [2] William C. Cox, Appellate Counsel, for the Immigration and Naturalization Service BEFORE THE ATTORNEY GENERAL (August 20, 1999)
(1) The Attorney General remands the case to the Board for a determination of the respon- dent’s eligibility for adjustment of status under section 202 of the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit.II, 111 Stat. 2193, 2193 (1997). By Attorney General Order No. 2093-97 (July 10, 1997), I directed the Board of Immigration Appeals (“BIA”), pursuant to 8 C.F.R. 3.1(h)(1)(i) (1999), to refer this case to me for review, and the case is currently pending before me. It has come to my attention that the respondent has filed a motion with the BIA to remand the case to the Immigration Court for con- decision in this case were originally published as Matter of N-J-B-, 21 I&N Dec. 812 (BIA, A.G. 1997). For purposes of clarity and convenience, those decisions are reprinted here and should be cited as Interim Decision 3415. curiae’s brief. [1] The Board’s February 20, 1997, decision and the Attorney General’s July 10, 1997, This Board acknowledges with appreciation the thoughtful arguments raised in amici sideration of her eligibility for adjustment of status under section 202 of the Nicaraguan Adjustment and Central American Relief Act of 1997, Pub. L. No. 105-100, 111 Stat. 2193 (“NACARA”). I am remanding the case to the BIA to determine whether the respondent is clearly ineligible for relief under NACARA. If the BIA determines that the respondent is not clearly ineligible for such relief, I direct it to remand the case to the Immigration Court pursuant to 8 C.F.R. 245.13(d)(2) (1999) for adjudication of her application of adjustment of status under section 202 of NACARA.
BEFORE THE ATTORNEY GENERAL (July 10, 1997)
(1) The Attorney General vacates the decision of the Board of Immigration Appeals pend- ing her further determination.
Pursuant to 8 C.F.R. 3.1(h)(1)(i)(1997), I direct the Board of Immigration Appeals (BIA) to refer to me for review its decision in Matter of N-J-B- (A28 626 831) (Feb. 20, 1997), and I vacate the opinion of the BIA pending my further determination.
BEFORE THE BOARD (February 20, 1997)
(1) The general effective date of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRI-
RA”), is April 1, 1997. Section 309(c)(5) of the IIRIRA,
The respondent has timely appealed from that portion of the Immigration Judge’s decision denying her applications for asylum, withholding of deportation, and suspension of deportation. The appeal will be dismissed. I. CONTINUOUS PHYSICAL PRESENCE AND THE ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996 With respect to the respondent’s claim for suspension of deportation, the record reflects that the respondent arrived in the United States on August 5, 1987, and that the Order to Show Cause and Notice of Hearing (Form I-221) was served on August 27, 1993, less than 7 years later. The Immigration Judge’s denial of suspension of deportation was based solely on the respondent’s failure to prove the requisite extreme hardship to her- self. Subsequently, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”), was enacted on September 30, 1996. In light of this legislation, we must decide whether the respondent still has the 7 years of continuous physical presence necessary to be eligible for suspension of deportation. In other words, we must determine whether, and if so to what extent, the requirements of the transitional rule for aliens in proceedings, which is set forth in the IIRIRA, apply to the pending appeal of the denial of this respondent’s application for suspension of deportation. By enacting the IIRIRA, Congress replaced the former suspension of deportation relief with the new cancellation of removal. With these amend- ments, Congress clearly intended to limit the categories of undocumented aliens eligible for such relief and to limit the circumstances under which any relief may be granted. The general effective date for implementing the IIRIRA amendments established under section 309(a) of the IIRIRA, 110 Stat. at 3009-625, is April 1, 1997. Aliens placed in removal proceedings on or after this date face generally higher standards to qualify for cancella- tion of removal: a longer physical presence requirement; a more stringent standard of hardship; and omission of consideration of hardship to the aliens themselves. See Section 240A(b) of the Act (to be codified at 8 U.S.C. 1229b(b)). Section 240A(d) also provides special rules regarding termination and interruption of continuous physical presence, with the result that aliens seeking this relief will face more stringent continuous physical presence requirements. [3]
SPECIAL RULES RELATING TO CONTINUOUS RESIDENCE OR PHYSICAL PRESENCE.— Section 240A(d) of the Act provides in pertinent part as follows: II. THE GENERAL EFFECTIVE DATE UNDER SECTION 309(a)
AND THE TRANSITION RULE UNDER SECTION 309(c) While establishing a general rule for the effective date of the IIRIRA, the language utilized in section 309(a) of the IIRIRA indicates that excep- tions to the general effective date provision exist in this section and else- where. More specifically, the general rule for effective date provisions established in section 309(a) is as follows: Except as otherwise provided in this section and sections 303(b)(2), 306(c),
308(d)(2)(D), or 308(d)(5) of this division, this subtitle and the amendments made
by this subtitle shall take effect on [April 1, 1997] (in this title referred to as the
“title III-A effective date”). (Emphasis added.)
Thus, section 309(a) of the IIRIRA refers to the existence in section
309 of exceptions to the general effective date of April 1, 1997. Similarly,
section 309(c)(1) of the IIRIRA,
Section 309(c)(1) is the general rule that the title III-A amendments do (1) TERMINATION OF CONTINUOUS PERIOD. — For purposes of this section, 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) or when the alien has committed an offense referred to in section 212(a)(2) that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest. considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceed- ing 180 days. (2) TREATMENT OF CERTAIN BREAKS IN PRESENCE. — An alien shall be As originally enacted, section 309(c)(1) of the IIRIRA provided: TRANSITION FOR ALIENS IN PROCEEDINGS.— (1) GENERAL RULE THAT NEW RULES DO NOT APPLY.—Subject to the suc-
ceeding provisions of this subsection, in the case of an alien who is in exclusion or deportation proceedings as of the title III-A effective date— (A) the amendments made by this subtitle shall not apply, and (B) the proceedings (including judicial review thereof) shall continue to be conduct- ed without regard to such amendments. not apply to aliens already in proceedings. As originally enacted (i.e., with the “in proceedings as of the title III-A effective date” language), it was clear that this rule was the general rule to apply beginning April 1, 1997, because one would not know whether an alien was in proceedings “as of” that date until April 1, 1997, arrived. This reading of section 309(c)(1) was made somewhat less clear when a technical amendment revised the “as of” language to “before” [5] — because one can determine whether an alien is in proceedings “before” April 1, 1997, without waiting until that date. Obviously all of the cases presently before the Immigration Judges and this Board fall into this category. However, reading section 309(c) in its entire- ty, we conclude that the section 309(c)(1) general rule is still directed to aliens in proceedings on April 1, 1997.
Although there may be other reasons to reach this conclusion, the most persuasive arises from the language of section 309(c)(3) of the IIRIRA, 110 Stat. at 3009-626. That paragraph allows the Attorney General, “[i]n the case described in paragraph (1),” to reinitiate certain proceedings under the IIRI- RA. The Attorney General could not do this (reinitiate these cases) until the effective date of the IIRIRA. Given this fact and the nature of the reference in paragraph (3) to paragraph (1), we are satisfied that the general rule in paragraph (1) still focuses on the transition to take place on April 1, 1997. This reading of the general rule is supported by the Joint Explanatory Statement of the Committee of Conference, which states: “Subsection (c) [of section 309] provides for the transition to new procedures in the case of an alien already in exclusion or deportation proceedings on the effective date .” H.R. Rep. No. 104-828, § 309 (“Joint Explanatory Statement”). Reaching this conclusion regarding the scope of section 309(c)(1), however, does not in itself resolve the question before us because subsec- tion (c)(1) provides that its general rule is “[s]ubject to the succeeding para- graphs of this subsection.” And, the succeeding paragraphs include not only rules that come into effect on April 1, 1997, but other transition rules that came into effect before that date. For example, it is inarguable that section 309(c)(4) of the IIRIRA,110 Stat. at 3009-626 , is clearly a transition pro- vision that comes into effect prior to April 1, 1997. Thus, one cannot sim- ply point to the fact that the section 309(c)(1) general rule pertains to what happens on the title III-A effective date because the provision is subject to exceptions, some of which are intended “to accelerate the implementation of certain of the reforms in title III.” See 142 Cong. Rec. H12,293-01 (daily ed. Oct. 4, 1996) (comments of Rep. Smith).
Accordingly, the question before us is whether the exception created in October 11, 1996. Extension of Stay in the United States for Nurses Act, Pub. L. No. 104- 302, 110 Stat. 3656 (1996). Congress passed a technical correction amending section 309(c)(1) of the IIRIRA on section 309(c)(5) of the IIRIRA, 110 Stat. at 3009-627, is a transition rule only having effect on April 1, 1997 (as is the case, for example, with sections 309(c)(2) and (3)), or whether section 309(c)(5) is a transition rule with an earlier effective date (as is the case, for example, with section 309(c)(4)) and is intended to accelerate the implementation of a title III reform.
Section 309(c)(5) provides:
TRANSITIONAL RULE WITH REGARD TO SUSPENSION OF DEPORTA- TION. — Paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act (relating to continuous residence or physical presence) shall apply to notices to appear issued before, on, or after the date of the enactment of this Act.
We find that the natural reading of the language of section 309(c)(5) of
the IIRIRA is that it is a provision akin to section 309(c)(4), a transition rule
intended to accelerate a title III reform. Section 309(c)(5) creates an excep-
tion to the general effective date with regard to suspension of deportation
for aliens with pending deportation proceedings and establishes a transition
rule to be applied to such pending cases. Section 309(c)(5), which is specif-
ically captioned as the “Transition Rule With Regard to Suspension of
Deportation,” incorporates paragraphs (1) and (2) of section 240A(d) of the
Act relating to continuous residence or physical presence and provides that
these paragraphs “shall apply to notices to appear issued before, on, or after
the date of the enactment” of the IIRIRA. In our view, particularly given the
additional limitation on suspension of deportation enacted in section
309(c)(7) of the IIRIRA,
We do not disagree with any interpretation of the IIRIRA insofar as it
recognizes the general effective date found in section 309(a) of the IIRIRA
for these amendments as of April 1, 1997.
See Astrero v. INS,
not deal with the language of section 309(c)(1) as amended by the technical amendment. In addition, the court’s discussion reads as though section 309(c) of the IIRIRA only creates transition rules to come into effect on the general effective date of April 1, 1997, and does not acknowledge in its opinion that the exceptions to section 309(c) include transition rules that have an earlier effective date. LIMITATION ON SUSPENSION OF DEPORTATION.—The Attorney General may not suspend the deportation and adjust the status under section 244 of the Immigration and Nationality Act of more than 4,000 aliens in any fiscal year (beginning after the date of the enactment of this Act). The previous sentence shall apply regardless of when an alien applied for such suspension and adjustment. We observe that in Astrero , the United States Court of Appeals for the Ninth Circuit did in sections 240A(d)(1) and (2) of the Act apply to “notices to appear issued before, on, or after the date of enactment ,” section 309(c)(5) carves out an exception to the general effective date. [Emphasis added.] It further requires application of the new rules regarding termination and interruption of con- tinuous physical presence of sections 240A(d)(1) and (2) (which are not otherwise generally effective) to aliens with pending deportation proceed- ings from the September 30, 1996, enactment date.
In the instant case, the respondent was served with an Order to Show Cause initiating deportation proceedings on August 27, 1993, before the IIRIRA’s enactment on September 30, 1996, and deportation proceedings are still pending. Thus, we must consider the effect, if any, on her suspen- sion application of sections 240A(d)(1) and (2), as triggered by section 309(c)(5) of the IIRIRA. In this case, we find that there is no issue arising as to interruption of continuous physical presence in the United States. However, the provision of section 240A(d)(1) of the Act, which required termination of continuous physical presence with the service of a notice to appear, is not so readily resolved.
III. INTERPRETATION OF “NOTICE TO APPEAR” IN SECTION 309(c)(5) OF THE IIRIRA We do not find the general effective date of section 240A of the Act, which is established in section 309(a) of the IIRIRA, dispositive of the issue before us. Because the provisions of section 240A(d)(1) and (2) are incor- porated into section 309(c)(5) of the IIRIRA, it is the effective date of sec- tion 309(c)(5), a transition rule of the IIRIRA, which we consider determi- native. Moreover, we note that section 309(c)(5) is not simply a rule accel- erating the effective date of paragraphs (1) and (2) of section 240A(d) of the Act; rather, it is a substantive transition rule with regard to suspension of deportation that applies the “special rules” enacted in sections 240A(d)(1) and (2) to notices to appear issued before, on, or after the date of enactment of the IIRIRA.
Section 240A(d)(1) of the Act provides, in pertinent part, that any peri- od of continuous residence or physical presence in the United States will be “deemed to end when the alien is served a notice to appear under section 239(a).” Section 240A(d)(1) of the Act. Section 309(c)(5) of the IIRIRA applies this provision to “notices to appear” issued on, before, or after the date of enactment. We must thus determine whether the IIRIRA term, “notice to appear,” utilized in section 309(c)(5), refers to a specific docu- ment or is a more general term applicable to other documents which “initi- ate” proceedings. For an alien to be currently in deportation proceedings and thus trigger application of this transitional rule, the alien necessarily must have been served with an Order to Show Cause, constituting written notice of such proceedings. See section 242B of the Act, 8 U.S.C. § 1252b (1994). Up to the present time, all respondents (this respondent included) have been served with a document informally described as an “Order to Show Cause,” but formally titled an “Order to Show Cause and Notice of Hearing” (Form I-221). This multi-page document orders a respondent to “appear for a hearing before an Immigration Judge” to answer allegations and charges of deportability.
At the time deportation proceedings were initiated against this respon- dent, there was no specific document known as a “Notice to Appear.” This term was first used in section 304 of the IIRIRA, 110 Stat. at 3009-587, (creating the new section 239(a)(1) of the Act, to be codified at 8 U.S.C. § 1229(a)(1)), which provides that initiation of proceedings for removal of an alien on or after April 1, 1997, begins with service of “written notice (in this section referred to as a ‘notice to appear’)” and specifies the information to be included in such notice.
We find upon consideration of the statutory language and legislative history that an “Order to Show Cause and Notice of Hearing” and a “notice to appear” are synonymous terms as used in section 309(c)(5). We thus consider that service of an Order to Show Cause operates to terminate an alien’s period of continuous physical presence. We find in this case that such service occurred prior to the respondent’s acquisition of 7 years’ con- tinuous physical presence in the United States. She is therefore unable to satisfy the physical presence requirement for eligibility for suspension of deportation. Consequently, we need not consider whether she has met the other statutory eligibility requirements for suspension of deportation or whether such relief would be warranted in the exercise of discretion.
In reaching this conclusion, we have taken a number of factors into
account. We note initially that if we found the term “notice to appear” to
encompass only documents identified specifically using that exact term, it
would relate to removal proceedings initiated after the date of enactment of
the IIRIRA or to proceedings converted under section 309(c)(2) of the IIRI-
RA,
We also note that the Joint Explanatory Statement of the Committee of
Conference, accompanying the Conference Report on H.R. 2202, makes
clear that the rules under new sections 240A(d)(1) and (2) were intended to
“apply to any notice to appear
(including an Order to Show Cause under
current section 242A)
issued after the date of enactment.” See Joint
Explanatory Statement,
supra
, 309 (emphasis added).
[8]
It also follows that in order for the section 309(c)(5) exception to the
transitional rule in question to have any independent meaning at all, it must
apply to aliens served with an Order to Show Cause prior to the date of
enactment and not otherwise converted under subsections (c)(2) or (c)(3).
A statute should be construed under the assumption that Congress intended
it to have purpose and meaningful effect.
Mountain States Tel. & Tel. v.
Pueblo of Santa Ana
,
IV. LEGISLATIVE HISTORY In view of the extent to which the dissent has focused on certain aspects of legislative history to buttress its arguments regarding the effect of section 309(c)(5) of the IIRIRA, we include a few additional observations about the legislation and congressional intent. In making these observations, we do not suggest that we find reliance on the legislative history necessary due to the presence of statutory ambiguity. Rather, we merely wish to illustrate that our interpretation of the plain meaning of the legislation is supported by the legislative history. Similarly, given that our construction of the leg- islation is based upon the natural reading or plain meaning of the statute, we decline to comment on every aspect of the dissent’s reading of the specific legislative history it cites. However, in so doing, we do not intend to sug- gest that we accept the dissent’s characterization or reading of the legisla- tive history cited.
We do observe, however, that the IIRIRA resulted from the reconcilia- tion by the Conference Committee of differing House and Senate bills on immigration reform. Both engrossed bills before the Conference Committee contained restrictions on accruing residence or presence in the United States for suspension of deportation purposes. In our view, the restrictions in both bills would have resulted in immediately effective reforms. The relevant amendments in the Senate bill would have taken effect “on the date of enactment” and would have applied “to all aliens upon whom an order to show cause is served on or after the date of enactment of the Act.” See 142 Cong. Rec. S4196-03, 150(d) (daily ed. Apr. 25, 1996). The relevant provision in the House bill would have applied the restrictions “to notices to appear issued after the date of enactment of the Act.” 142 Cong. Rec. H2378-05, § 309(c)(5) (daily ed. Mar. 19, 1996). And, the Conference Report made clear this provision would apply to “ any notice to appear (including an Order to Show Cause under current section 242A) issued after the date of enactment of this Act.” H.R. Rep. No. 104-469(I), § 309 (1996), available in (emphasis added); see also Joint Explanatory Statement, supra , § 309. While the scope of this reform was vastly expand- ed by the last minute inclusion of the “before, on, or” language into section 309(c)(5) of the House bill (to which the Senate receded), we do not see how the addition of this more restrictive language could be viewed as intending to transform the character of section 309(c)(5) into a transitional rule that was not intended to have immediate effect.
Moreover, we point out that the immigration reforms in question were motivated by a desire to remove the incentive for aliens to prolong their cases by ending the accrual of time in residence for suspension of deporta- tion when deportation proceedings were commenced. The legislative his- tory reflects that Congress was displeased with the ability of aliens to pro- tract the deportation hearing process and thereby accrue time that could be counted toward satisfaction of the continuous physical presence require- ment. See H.R. Rep. No. 104-469(I) (1996), available in1996 WL 168955 , at 390 (noting that “[s]uspension of deportation is often abused by aliens seeking to delay proceedings until 7 years have accrued[,] . . . even after they have been placed in deportation proceedings”). This dissatisfaction evidently led Congress to direct that the accrual of qualifying time would stop with the issuance of the notice to appear. See H.R. Rep. No. 104-879 (1997) (noting that reforms in the IIRIRA’s title III included ending the “accrual of time-in-residence on the date an alien is placed into removal proceedings, thus removing the incentive for aliens to prolong their cases in the hope of remaining in the United States. long enough to be eligible for relief”).
Viewing these two factors in combination reinforces our reading of the statutory language. The 6-month general delayed effective date for the IIRIRA is a significant period during which time can accrue toward eligi- bility as to some aliens in proceedings on the date of enactment or placed in proceedings shortly thereafter. And, in view of our determination that an Order to Show Cause amounts to a notice to appear, regardless of when it was issued, it is not apparent why Congress would want some aliens to con- tinue to accrue time for eligibility purposes (and others to remain eligible) during a 6-month delayed effective date period, when Congress had already taken the significant step of directing that these particular new rules would apply to old cases. In other words, Congress could not know which aliens might come up for final adjudications during the 6- month delayed effective date. Due to its displeasure with the old rules respecting accrual of time, Congress decided to apply the new rules to previously initiated cases, elim- inating the ability of aliens to qualify for relief. Congress evidently saw this particular problem of time accrual to be significant enough to warrant an exception to its general rule that the new law would not apply to cases ini- tiated under the old law. Given the intent of Congress to correct the prob- lem to this degree, it makes little sense to construe the legislation in a way that would nevertheless perpetuate the very problem Congress sought to correct, even if only for the 6-month delayed effective date period and even if only for the random subset of aliens fortunate enough to obtain some final merits ruling during that period.
In summary, we have examined the legislative history overall and find that on balance our reading of the statutory language of section 309(c)(5) is consistent with the generally restrictive legislative intent — an intent to ter- minate immediately the accrual of time-in-residence for suspension eligi- bility by encompassing aliens in proceedings before the date of the IIRIRA’s enactment. We therefore find that under the provisions of section 240A(d)(1) of the Immigration and Nationality Act added by the enact- ment of the IIRIRA, as applied in the section 309(c)(5) transitional rule, the Order to Show Cause must be deemed to end the period of continuous phys- ical presence on August 27, 1993, the date it was served, prior to this respondent’s acquisition of the requisite 7 years. Thus, the respondent in the instant case is unable to satisfy the statutory physical presence require- ment now in effect. Because we find the lack of requisite physical presence dispositive in terms of eligibility for suspension, we need not consider whether she has met the other requirements for suspension of deportation eligibility.
V. ASYLUM AND WITHHOLDING OF DEPORTATION
We find no merit in the respondent’s assertion on appeal that the
Immigration Judge erred in denying her applications for asylum and with-
holding of deportation because she was persecuted when she, as a teacher
in Nicaragua, refused to be forced to indoctrinate students with Marxist ide-
ology. The Immigration Judge’s denial of the respondent’s persecution
claim is well supported by the record. The respondent testified that she
worked as a teacher in Nicaragua for 20 years; that the educational system
changed completely such that if “one did not participate” with the army one
would have a “great problem” which she did not further describe; that she
voluntarily resigned from her job because of “pressures”; that she was never
detained or threatened by the Sandinistas; and that she feels her “life would
end” if she returned to Nicaragua because she has no money or family there.
She reported only that before the Sandinistas came to power she was threat-
ened by a “group of young people” in the street. She made no mention in
her testimony of being a member of any organization or group, nor did she
refer to having been arrested, interrogated, convicted or sentenced, or
imprisoned in her home country. The respondent has not met her burden of
proving that she has a well-founded fear of persecution in Nicaragua and a
fortiori she has failed to satisfy the higher standard for withholding of
deportation based on one of the five statutory grounds of race, religion,
nationality, membership in a particular social group, or political opinion.
See
sections 101(a)(42)(A), 208(a), 243(h) of the Act, 8 U.S.C. §§
1101(a)(42)(A), 1158(a), 1253(h) (1994); INS v.
Elias-Zacarias
, 502 U.S.
478 (1992); INS v.
Cardoza-Fonseca
,
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed. DISSENTING OPINION: John W. Guendelsberger, Board Member, in which Paul W. Schmidt, Chairman, joined.
I respectfully dissent.
I. FACTS
The respondent in this case is a 51-year-old single woman from Nicaragua who came to the United States in April 1987 on a tourist visa and remained beyond the period of authorized stay. She was served with an Order to Show Cause in August 1993. At a hearing before an Immigration Judge held on August 17, 1994, the respondent presented claims for asylum and suspension of deportation. The Immigration Judge found that the respondent had satisfied the 7-year physical presence requirement for eligi- bility for suspension of deportation. He found, however, that although she had health problems involving her kidneys, the condition complained of was not serious enough to amount to extreme hardship for suspension of deportation. The Immigration Judge also found that the respondent had not shown eligibility for asylum or withholding of deportation.
The respondent filed an appeal of the Immigration Judge’s decision on August 26, 1994. In her appeal, the respondent challenges the denial of asylum, withholding of deportation, and suspension of deportation. The only issue raised on appeal concerning suspension of deportation is the question of extreme hardship.
On September 30, 1996, over 2 years after the respondent’s appeal, the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) was enacted. [1] Although not raised in this case, the Immigration and Naturalization Service has argued in other cases that the provisions of sec- tion 240A(d) of the Act (to be codified at 8 U.S.C. § 1229b(d)), which were enacted by the IIRIRA, should be applied retroactively. Notably, the instant case is not one in which the Immigration Judge adjudicated the issue of physical presence after the enactment of the IIRIRA. The Immigration Judge’s determination was made in 1994. Thus the actual issues raised on appeal in this case have been eclipsed by a question of applicability of recent legislation to an issue that all parties considered resolved over 2 years of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”) (enacted September 30, 1996). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C ago. This dissent addresses the issue of applicability of the IIRIRA provi- sions to the instant appeal.
II. ISSUE
The issue in this case is whether section 309(c)(5) of the IIRIRA, 110
Stat. at 3009-627, alters the general effective date provision in section
309(a) of the IIRIRA,
III. OVERVIEW The majority reads section 309(c)(5) to counter both the section 309(a) general effective date and the 309(c)(1) general rule of nonapplicability. In reaching this conclusion the majority reasons that Congress generally intended to limit suspension of deportation and that a “natural reading” of section 309(c)(5) calls for a restrictive interpretation. The majority fails to consider the placement and purpose of section 309(c)(5) in the general structure of the section 309 effective date and transition rules and ignores the relevant legislative history. As one of six exceptions to the general rule of nonapplicability in section 309(c)(1), the more “natural reading” of sec- tion 309(c)(5) is that it is an exception to the nonapplicability rule con- tained in section 309(c)(1). When section 309(c)(5) is read with regard to its place in the framework of section 309 and in light of its legislative his- tory, it cannot be applied to any pending cases until after April, 1, 1997, the IIRIRA title III-A effective date. [2]
In this case, the respondent applied for suspension of deportation under
the existing eligibility rules, submitted her evidence and met her burden of
proof as to 7 years of continuous physical presence in 1994. Now, after hav-
ing adjudicated the continuous physical presence requirement, the rules have
been changed and the Service seeks to relitigate the issue of continuous phys-
ical presence. This case falls squarely within the situation described in
1, 1997, there are certain pending cases which may not be affected by the section 240A(d)(1)
directive, i.e., those pending cases which have not been initiated by a “notice to appear under
section 239(a).”
As pointed out in the dissenting opinion of Board Member Villageliu, even after April
Landgraf v. USI Film Products,
Paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act
(relating to continuous residence or physical presence) shall apply to notices to
appear issued before, on, or after the date of the enactment of this Act.
If section 309(c)(5) is read in isolation, its “before, on, or after the date of
enactment” language may suggest that section 309(c)(5) applies to any case
pending after the IIRIRA’s September 30, 1996, enactment date. Before
jumping to such a conclusion, however, there is a threshold question as to
the effective date of section 309(c)(5) itself. This question must be
answered by considering the language and place of section 309(c)(5) in the
overall structure of the section 309 effective date and transition rules.
See
K Mart Corp. v. Cartier Inc.
,
V. STRUCTURAL ANALYSIS OF SECTION 309 OF THE IIRIRA
Section 309 of the IIRIRA provides a complex framework of effective dates and transition rules. Examination of section 309 reveals two bench- marks concerning the phasing-in of the various provisions of title III-A:
1. The general effective date in section 309(a): April 1, 1997; 2. A general rule of nonapplicability in section 309(c)(1): Even after April 1, 1997, new rules do not apply to cases that were pending on the effective date. The majority ignores the significance of the second benchmark in analyz- ing the language of section 309(c)(5). As explained below, section 309(c)(5) sets forth an exception only to the second benchmark and is inap- plicable to any pending cases until the general effective date of the Act.
A. The General Effective Date in Section 309(a). The general rule for the effective date of sections 301 through 309 of the IIRIRA is established in section 309(a), as follows:
Except as provided in this section and sections 303(b)(2), 306(c), 308(d)(2)(D), or 308(d)(5) of this division, this subtitle and the amendments made by this subtitle shall take effect on [April 1, 1997] (in this title referred to as the “title III-A effec- tive date”).
IIRIRA § 309(a)(emphasis added). This overarching effective date provision in section 309(a) applies to all of the amendments contained in IIRIRA section 304, including the new rules for continuous physical presence in section 240A(d) of the Act. B. The General Rule of Inapplicability in Section 309(c)(1).
The transition rules for the new IIRIRA provisions are contained in sec- tion 309(c). Section 309(c) contains a general rule of inapplicability in paragraph (1) and a number of exceptions to that rule in paragraphs (2) through (7). The general rule of inapplicability in section 309(c)(1) of the IIRIRA provides as follows: GENERAL RULE THAT NEW RULES DO NOT APPLY. — Subject to the suc- ceeding provisions of this subsection, in the case of an alien who is in exclusion or deportation proceedings before [April 1, 1997,]— (A) the amendments made by this subtitle shall not apply , and (B) the proceedings . . . shall continue to be conducted without regard to such
amendments. IIRIRA § 309(c)(1) (emphasis added). Thus the general rule of inapplica- bility contained in section 309(c)(1) is that any alien in deportation pro- ceedings before April 1, 1997, will continue to have the benefit of the rules for section 244(a) suspension of deportation even after the April 1, 1997, effective date.
After April 1, 1997, there will be a two-track system of relief from deportation. Aliens in deportation proceedings prior to April 1, 1997, will continue to be eligible for suspension of deportation under the requirements now contained in section 244(a) of the Act. Aliens placed in deportation proceedings after April 1, 1997, will be subject to the elevated eligibility requirements of cancellation of removal and adjustment of status in new section 240A(b). As discussed in Board Member Villageliu’s dissent, the Attorney General may, after April 1, 1997, elect to apply the new proce- dures of title III-A of the IIRIRA to cases which were initiated prior to April 1, 1997. See IIRIRA § 309(c)(2), which directs that in such circumstances the previously issued Order to Show Cause shall be “valid as if provided under section 239 of such Act.”
C. Exceptions to the Section 309(c)(1) General Rule of Inapplicability in Paragraphs (2)-(7).
Paragraphs (2) through (7) of section 309(c) spell out exceptions to the general rule in section 309(c)(1) that the new IIRIRA provisions are inapplicable even after April 1, 1997, to aliens in proceedings before April 1, 1997. Paragraphs (2) and (3) afford the Attorney General the option to elect to proceed under the new cancellation of removal provi- sions of the IIRIRA in specified cases. Paragraph (4) addresses judicial review of exclusion and deportation proceedings. Paragraph (5) addresses suspension of deportation cases. Paragraph (6) addresses a new exclusion provision as applied to family unity cases. Paragraph (7) refers to ceilings on grants of suspension of deportation in any one fiscal year.
As discussed above, the language of section 309(c)(5) counters the gen- eral rule of inapplicability in section 309(c)(1). The heart of the issue in this case is whether section 309(c)(5) also alters the general effective date in section 309(a).
D. The Reach of Section 309(c)(5) of the IIRIRA.
Some of the paragraphs of section 309(c) address events occurring
prior to April 1, 1997. Section 309(c)(4) of the IIRIRA,
Unlike the paragraphs described above, section 309(c)(5) is ambigu- ous as to whether it applies from the effective date or the enactment date. We know that section 309(c)(5) counters the general rule of inapplicabil- ity in section 309(c)(1) that proceedings underway before April 1, 1997, “ shall continue to be conducted without regard to [IIRIRA title III-A] amendments.” (Emphasis added.) The critical issue is whether section 309(c)(5) also countermands the section 309(a) general effective date. The majority attributes a double effect to section 309(c)(5) so that it changes not only the section 309(c)(1) general rule of inapplicability, but also the general effective date in section 309(a). The unresolved ambigu- ity presented by the language of section 309(c)(5) is whether it counters the Immigration and Nationality Act in effect prior to passage of the IIRIRA in the case of final orders entered more than 30 days after the date of the enactment of the IIRIRA. Thus, section 309(c)(4) does not modify the effective date of any provisions of the IIRIRA relating to judicial review. It should be noted that section 309(c)(4) instructs as to the applicability of provisions of the section 309(a) effective date as well as the section 309(c)(1) rule of inapplicability.
Had Congress intended section 309(c)(5) to alter the general effective date as well as the general transition rule, it could have clearly so directed. See, for example, section 348(b) of the IIRIRA which, in amending section 212(h) of the Act, provides: The amendment made by subsection (a) [A] shall be effective on the date of the enactment of this Act and [B] shall apply in the case of any alien who is in exclu-
sion or deportation proceedings as of such date unless a final administrative order in such proceedings has been entered as of such date. IIRIRA § 348(b),110 Stat. at 3009-639 (emphasis added). Clause A of sec- tion 348 explicitly states the effective date. Clause B of section 348 speci- fies which cases are affected on the effective date. Notably, section 309(c)(5) lacks a Clause A specifying an effective date. It contains only the Clause B instruction as to which cases are affected on the general effective date of the Act. Had Congress intended to alter the general effective date in section 309(c)(5), it could have followed the pattern used in section 348, and section 309(c)(5) would have read: Paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act (relating to continuous residence or physical presence) [A] shall be effective on the date of enactment and [B] shall apply to notices to appear issued before, on, or after the date of the enactment of this Act. Because of the omission of the above-emphasized language from section 309(c)(5), the general effective date of section 309(a) is not countermand- ed by the language of section 309(c)(5). See also the directives in section 308(d)(2)(D), “effective upon enactment of this Act” and in section 308(d)(5), “[e]ffective as of the date of the enactment of the Antiterrorism and Effective Death Penalty Act of 1996.” The omission of such plain lan- guage in section 309(c)(5) negates the majority claim that this section alters the general effective date in section 309(a).
The majority claims that the “before, on, or after the date of enactment” clause in section 309(c)(5) would have no purpose were it not meant to alter the general effective date in section 309(a). But in making this statement, the majority overlooks or ignores the directives in sections 309(c)(1)(A) and (B) that none of the new suspension rules shall apply even after the gen- eral effective date, April 1, 1997. Thus, section 309(c)(5) is not surplusage. It counters the general rules of sections 309(c)(1)(A) and (B) in cases in which deportation proceedings were commenced before, and remain pend- ing after, April 1, 1997.
For these reasons, section 240A(d) is not effective until April 1, 1997, and section 309(c)(5) does not apply to suspension applications which are considered prior to April 1, 1997.
VI. LEGISLATIVE HISTORY As originally enacted, the general transition rule in section 309(c)(1) applied “to the case of an alien who is in exclusion or deportation proceed- ings as of the title III-A effective date.” (Emphasis added.) Eleven days after the IIRIRA’s enactment, a technical amendment struck and replaced the term “as of” with the term “before.” See Extension of Stay in the United States for Nurses Act, Pub. L. No. 104-302, § 2, 110 Stat. 3656 (1996).
It was clear under the unamended version of section 309(c)(1), that section 309(c)(5) applied only after April 1, 1997, because one would not know whether an alien was in proceedings “as of” that date until April 1, 1997, arrived. This being so, the majority’s position can stand only if the technical amendment, enacted on October 11, 1997, was meant to bring for- ward the section 309(c)(5) effective date from April 1, 1997, to the date of enactment of the IIRIRA, September 30, 1996. The majority has failed to demonstrate such an intent and the legislative history indicates otherwise.
The legislative history of the technical amendment strongly suggests that it was not meant to alter the April 1, 1997, effective date for section 309(c)(5) established in the IIRIRA. In explaining the technical amend- ment, Representative Lamar Smith, Chairman of the Subcommittee on Immigration and Claims of the House Judiciary Committee, noted that the “ as of the effective date” language in IIRIRA section 309(c)(1) conflicted with the reference in section 309(c)(4) to cases in which final orders were rendered “30 days after the date of the enactment,” thus delaying the prohi- bition of judicial review in such cases until after title III’s general effective date. 142 Cong. Rec. H12,293-01 (daily ed. Oct. 4, 1996) (statement of Rep. Smith) (emphasis added).
Representative Smith stressed that it “was the clear intent of the con- ferees that, as a general matter , the full package of changes made by this part of title III [a]ffect those cases filed in court after the enactment of the new law, leaving cases already pending before the courts to continue under existing law.” Id. (emphasis added). After noting that some reforms in title III were to be “accelerate[d],” Representative Smith referred specifically to section 309(c)(4) which “calls for accelerated implementation of some of the reforms made in section 306 regarding judicial review.” Id. There is no mention of section 309(c)(5) or changes to rules for suspension of deportation.
Representative Smith referred to the legislative history in the Joint Explanatory Statement of the Committee of Conference in explaining the impact of the technical amendment. See H.R. Rep. No. 104-828 and 142 Cong. Rec. H10,841-02 (“Joint Explanatory Statement”). The Joint Explanatory Statement instructs that section 309(c) “provides for the tran- sition to new procedures in the case of an alien already in exclusion or deportation proceedings on the effective date. In general, the amendments made by this subtitle shall not apply and the procedures (including judicial review) shall continue to be conducted without regard to such amend- ments.” See Joint Explanatory Statement, supra , § 309 (emphasis added). The technical amendment was needed to correct a specific and irrec- oncilable conflict in the language of subsections (c)(1) and (c)(4) of sec- tion 309. Had Congress intended to go so far as to alter the effective date for the other paragraphs of section 309(c), it could have done so easily and simply by including language making all of the paragraphs of section 309(c) applicable as of the date of enactment of the IIRIRA. Congress did not do so, and in light of the explanation by Representative Smith for the changes made, the technical amendment should not be read to accomplish a sweeping change in the established effective date without clear language calling for such a result. [7]
VII. THE LANDGRAF PRESUMPTION AGAINST RETROACTIVE LEGISLATION The United States Supreme Court in Landgraf v. USI Film Products, supra , addressed the question of retroactive application of new statutes in light of competing canons of statutory construction. The Court noted that “the presumption of retroactive legislation is deeply rooted in our jurispru- dence” and that retroactive effect will not be presumed in the absence of “clear intent” by Congress. Landgraf, supra , at 265, 272-73. As the Court noted, “[C]lear intent assures that Congress itself has affirmatively consid- ered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.” Id . at 272-73. A statute has retroactive effect when “the new provision attaches new legal consequences to events completed before its enactment.” Id. at 270. In such a situation, it is not enough to search for a reasonable construction, or a construction consistent with the perceived restrictive goals of the legis- lation, or with a “natural reading.” The application of the new rules in sec- tion 240A(d) to this case would alter the determination made months before the enactment of the IIRIRA that the respondent in this case had satisfied the eligibility requirement for continuous physical presence for suspension of deportation.
Here we have clear language setting an effective date on April 1, 1997. Under the ruling in Landgraf , the general effective date in section 309(a) guage contained in section 309(c)(5). See 142 Cong. Rec. S4730-01, § 150, (daily ed. May 6, 1996) (relating to effective date of new “continuous physical presence” requirement in Senate ver- sion of the H.R. 2202 bill); 142 Cong. Rec. H2378-05, § 309 (daily ed. Mar. 19, 1996) (relating to transition rule with regard to suspension of deportation in House version of the H.R. 2202 bill). The legislative history does not offer specific guidance as to the “before, on, or after” lan- can only be drawn forward by a clear and plain expression of congression- al intent to do so. In the absence of clear language advancing the effective date, the general effective date of section 309(a) must be applied.
In addition to the presumption of nonretroactivity, this case involves the
question of deportation, an area in which doubts as to the effective date of
section 309(c)(5) are to be construed in favor of the alien to take effect on
the IIRIRA’s general effective date.
See INS v. Errico
,
VIII. THE FEDERAL CIRCUIT COURT DECISIONS Two federal circuit courts have recently rendered decisions in cases construing the effective date and transition rules of IIRIRA section 309. Both decisions have ruled that broad language altering the section 309(c)(1) rule of nonapplicability of the IIRIRA rules to pending cases did not mod- ify the general effective date provision in section 309(a).
The United States Court of Appeals for the Ninth Circuit has directly
addressed the issue presented in this case and held that under section
309(c)(5), section 240A(d) of the Act has no effect until April 1, 1997.
Astrero v. INS
,
Similarly the United States Court of Appeals for the Seventh Circuit
recently addressed the question whether section 306(c) of the IIRIRA, 110
Stat. at 3009-612, changed the effective date provision in section 309(a) as
well as the general rule of inapplicability in section 309(c)(1).
Lalani v.
Perryman,
Lalani involved an appeal from a district court decision upholding a district director’s denial of a request for voluntary departure. The issue was whether the IIRIRA’s new limit on court review enacted as section 242(g) of the Act (to be codified at 8 U.S.C. § 1252(g)) takes effect on the date of enactment or on the effective date. In regard to applicability of section 242(g), section 306(c)of the IIRIRA provided that the section should apply “without limitation to claims arising from all past, pending, or future exclu- sion, deportation, or removal proceedings under such Act.” (Emphasis added.)
The Immigration and Naturalization Service argued that this language in section 306(c) made section 242(g) immediately applicable from the date of enactment, thus divesting the courts of jurisdiction over certain forms of litigation. The Seventh Circuit rejected the Service reading, and held that section 242(g) takes effect on April 1, 1997, according to the general effec- tive date provision in section 309(a). In so finding, the court reasoned that the reference to subsection (g) in section 306(c) “is meant only to provide an exception to section 309(c)’s general principle of non-retroactivity, so that when IIRIRA comes into effect on April 1, 1997, subsection (g) will apply retroactively, unlike the other subsections.” Lalani v. Perryman, supra, at 336 (emphasis added).
Notably, Lalani uses the same structural approach to interpreting sec- tions 309(a) and (c) as does the Ninth Circuit Court of Appeals in Astrero. The court in Lalani also relied upon the presumption against advancing the general effective date in the absence of clear language when “the new pro- vision attaches new legal consequences to events completed before its enactment.” Landgraf v. USI Film Products, supra , at 270. Unfortunately, the majority decision in this case creates a nationwide split in the treatment of applicants for suspension of deportation in pend- ing deportation cases. In the Ninth Circuit, and likely in the Seventh Circuit, the courts have recognized that section 309(c)(5) cannot be inter- preted to take effect prior to April 1, 1997. Without better reasons than those expressed in the majority decision, this Board should not reach a result which imposes an earlier effective date in other jurisdictions nationwide.
IX. CONCLUSION
For the reasons stated above, the provisions of section 240A(d) of the IIRIRA should not apply to the continuous physical presence determination in this case. This Board should, therefore, review the issue of extreme hardship raised on appeal. [8]
DISSENTING OPINION: Gustavo D. Villageliu, Board Member Rosenberg. I agree with the views expressed in the dissents of Board Members Villageliu and I respectfully dissent. While I fully agree with the dissent of Board Member Guendelsberger, as to the statutory scheme of section 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-625 (“IIRI- RA”) and its effective date, I write separately to emphasize two points on which I disagree with the majority’s conclusions.
One, the interruption of continuous physical presence applies only
when an alien is placed in removal proceedings and seeks cancellation of
such removal under the new procedures. Two, the language “notice to
appear issued before, on, and after enactment” relied upon by the majority
is merely a jurisdictional provision precluding jurisdictional challenges
when an alien is placed under the new removal procedures by either the
notice initiating such removal proceedings under section 239(a) of the
Immigration and Nationality Act (to be codified at 8 U.S.C. § 1229(a), or
the notice that the Attorney General has elected to convert a previously
issued Order to Show Cause into a notice to appear in removal proceedings.
The latter option gives sufficient meaning to the language “before enact-
ment” without adopting an overbroad interpretation inconsistent with the
statutory language and its legislative history. Section 309(c)(2) of the IIRI-
RA,
I. SECTION 240A(d)(1) DOES NOT INTERRUPT CONTINUOUS
PHYSICAL PRESENCE IN ALL PENDING CASES Section 240A(d)(1) of the Act (to be codified at 8 U.S.C. § 1229b(d)(1)) does not mandate that all notices to appear interrupt continuous physical presence. It specifically limits its application to cases where a notice to appear under section 239(a), placing the alien in removal proceedings has been issued. The pertinent language of section 240A(d)(1) of the Act, as enacted by the IIRIRA states: “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 a notice to appear under section 239(a) . . . .” (Emphasis added.) The majority unconvincingly vio- lates the first rule of statutory construction that legislative intent should be ascertained from the plain meaning of the statute, by dismissing these cru- cial last three words, which clearly limit the class of aliens to which it applies. See INS v. Cardoza-Fonseca , 480 U.S. 421, 431 (1987).
In addition, the majority opinion violates the rule of statutory con-
struction that no provision of law should be construed so as to render a word
or clause surplusage.
Kungys v. United States,
Applying the well-settled rules of statutory construction, expressio unius est exclusio alterius and ejusdem generis, to the statutory language, which states that all notices to appear are subject to the rules prescribed in section 240A(d)(1) of the Act, means that only a notice to appear under sec- tion 239(a) automatically interrupts physical presence, and by implication other notices to appear do not, unless the Attorney General chooses to exer- cise the option provided under section 309(c)(2) of the IIRIRA. See Matter of Lazarte , 21 I&N Dec. 3264 (BIA 1996); Matter of Beltran , 20 I&N Dec. 521 (BIA 1992); 2A N. Singer, Sutherland Statutory Construction §§ 47.17, 47.23 (4th ed. 1985). This limited interpretation would be consistent with the language of sections 309(c)(2) and (3) of the IIRIRA, which allow the Attorney General to treat a notice of hearing under sections 235 or 242 as if under section 239 after a 30-day notice to the alien, or to terminate pro- ceedings and proceed instead under the new procedures. Section 309(c)(2) specifically states that “[i]f the Attorney General makes such election, the notice of hearing provided to the alien under section 235 or 242(a) of such Act shall be valid as if provided under section 239.” Note, however, that the option under section 309(c)(2) is limited to cases where an evidentiary hear- ing has not commenced before its effective date. Similarly, the Attorney General’s option to terminate proceedings under section 309(c)(3) and pro- ceed under the new standards is limited to cases in which there has been no final administrative decision. Neither limitation makes sense under the majority’s ruling.
II. SECTION 309(c)(5) IS ONLY A JURISDICTIONAL PROVISION
WHICH PRESCRIBES THAT CONTINUOUS PHYSICAL
PRESENCE MAY BE INTERRUPTED
The majority’s reliance on the language of section 309(c)(5) of the
IIRIRA,
Paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act (relating to continuous residence or physical presence) shall apply to notices to appear issued before, on, or after the date of the enactment of this Act.
The key passage to the majority’s opinion is that “in order for the sec- tion 309(c)(5) exception to the transitional rule to have any independent meaning at all, it must apply to aliens served with an Order to Show Cause prior to the date of enactment” and therefore, the retroactive interruption of physical presence applies automatically to all cases. That is simply not true, and assumes that section 309(c)(5) is an exception to the transitional rules. It is also an incomplete syllogism that ignores the fact that the language of sections 240A(d)(1) and (2) of the Act describe a limited class of aliens whose continuous residence or physical presence is deemed to be interrupt- ed. It does not interrupt continuous physical presence in all cases.
No one disputes that the section 240A(d)(1) rules are applicable to Orders to Show Cause issued before enactment of the Act. Our dispute is as to what the “rules” command, and their effective date.
I also do not dispute that the section 240A(d)(1) rules may effect sub- stantive changes regarding eligibility for relief in cases pending before the April 1, 1997, effective date of the IIRIRA. My argument is, instead, that such substantive changes take place when the alien is placed in removal proceedings, and seeks cancellation of such removal. That is what the statute mandates and the legislative history reflects.
Section 309(c)(5) of the IIRIRA, as enacted, does not state that the interruption of continuous physical presence applies to all cases, as it easi- ly could have and once did, as discussed below. Instead, it states that the rules in sections 240A(d)(1) and (2), as to whose physical presence is inter- rupted, applies to all cases. It directs us to section 240A(d)(1) of the Act and thereby precludes jurisdictional challenges by aliens who lose their eli- gibility for suspension of deportation in removal proceedings and challenge its ex post facto application. The Joint Explanatory Statement of the Committee of Conference, H.R. Rep. No. 104-828 (“Joint Explanatory Statement”), on section 309 of the IIRIRA, while discussing the Attorney General’s discretionary election to apply the new proceedings, specifically stated that although the IIRIRA’s amendments did not apply to pending cases, its language was meant to retain jurisdiction over aliens served with notices of hearing and Orders to Show Cause.
If an alien is placed in deportation proceedings pursuant to an Order to
Show Cause before the IIRIRA takes effect, and is subsequently given a
notice under section 309(c)(2) that the Attorney General intends to treat his
Order to Show Cause as a notice to appear under section 239(a) of the Act,
then he is subject to the interruption of continuous physical presence man-
dated by section 240A(d)(1). This limited class of aliens for whom the
Attorney General exercises the section 309(c)(2) option is clearly made up
of “alien(s) served with a notice to appear (treated as if) under section
239(a).” Therefore, it is not true that section 309(c)(5) has no meaning
unless we adopt the overbroad majority ruling in this case. As explained in
Board Member Guendelsberger’s dissent, the exceptions to the April 1,
1997, effective date of the IIRIRA in sections 309(c)(2), et seq., are meant
to address the rules applicable to cases pending on April 1, 1997, not
September 30, 1996, unless another provision of the IIRIRA specifically
directs otherwise. Astrero v. INS, 104 F.3d 264 (9th Cir. 1996);
accord
Lalani v. Perryman
,
A section 239(a) notice to appear initiates removal proceedings and interrupts continuous physical presence pursuant to section 240A(d)(1) for purposes of cancellation of removal. Similarly, a properly exercised notice of election under section 309(c)(2) subjects a deportable alien to removal procedures, which the index to IIRIRA at title III, subsection A, specifies are sections 239, et seq., of the Act. [1] In removal procedures, the formerly deportable alien is subject to the section 240A(d)(1) interruption of contin- uous physical presence because section 309(c)(5) specifies that such rules apply to notices to appear issued before, on, or after enactment of the IIRI- RA. The Order to Show Cause is deemed a notice to appear under section 239(a) because the Attorney General has elected to proceed against him pursuant to section 239, et seq., the language of section 240A(d)(1) limits such an interruption to aliens against whom a notice to appear under section 239(a) has been issued, and section 309(c)(2) specifies that the Order to Show Cause has the same jurisdictional effect as a notice under section 239.
III. LEGISLATIVE HISTORY
The legislative history of the IIRIRA is consistent with the above inter-
pretation and inconsistent with the majority’s interpretation. It reflects that
the interruption of continuous physical presence was initially introduced as
applicable to removal proceedings, through section 240A(d)(1), and to sus-
pension of deportation applications through section 309(c)(5) as part of the
transitional rules for pending cases. Section 309(c)(5) then stated, “In
applying section 244(a) of the Immigration and Nationality Act (as in effect
2A Singer,
cf.
The bill was subsequently reported on March 4, 1996, favorably by the House Judiciary Committee with identical language in section 240A(d)(1), but section 309(c)(5) had been amended to apply the section 240A(d)(1) rules to suspension of deportation applications where the notice to appear was issued after enactment of the Act. The Committee Report, H.R. Rep. No. 104-469(I) (1996) specifically stated that the “continuous physical presence terminates on the date a person is served a notice to appear for a removal proceeding ,” id. § 304 (emphasis added), and also stated that the rules of section 240A(d)(1) applied “as a criterion for eligibility for cancel- lation of removal ” to “any notice to appear (including an Order to Show Cause under current section 242A) issued after the date of enactment of this Act.” Id . § 309 (emphasis added).
On March 7 and 8, 1996, the bill was withdrawn from several commit- tees and reported from several other committees with amendments. The bill was reported to the entire House on March 8, 1996, had identical language in section 240(d)(1), limiting its application to cases where a section 239(a) notice to appear had been issued and section 309(c)(5) retained the lan- guage about the applicability to suspension of deportation applications in its heading, but deleted the operative language that the interruption of contin- uous physical presence upon issuance of an Order to Show Cause applied to section 244(a) applications. It therefore now meant that suspension of deportation applicants were subject to the section 240A(d)(1) rules which, as discussed above, interrupted continuous physical presence only if a notice to appear under section 239(a) placing the alien in removal proceed- ings was issued. This was the bill passed by the House of Representatives on March 21, 1996, after other amendments on the House floor. See HR 2202, available in Congressional Quarterly’s Washington Alert and Westlaw at 1996 CQ US HR 2202 (engrossed Mar. 21, 1996).
The bill was placed in the calendar of the United States Senate on April 15, 1996, after its introduction by Senator Orrin Hatch of Utah as S. 1664 on April 10, 1996. See S. 1664, available in Congressional Quarterly’s Washington Alert and Westlaw at 1996 CQ US S 1664 (reported in Senate Apr. 10, 1996). A critical difference in this bill is that section 244 of the Immigration and Nationality Act of 1952, as amended, would be replaced by section 150(b) of that bill providing a new section 244 entitled “Cancellation of Deportation; Adjustment of Status; Voluntary Departure.” Section § 150(b) of that bill provided that continued physical presence was deemed to end when an Order to Show Cause was issued. Id . § 150(b). However, section 150(d) of the bill, entitled “Effective Dates,” limited its application by stating that the “amendments made by subsection (b) shall take effect on the date of the enactment of this Act, and shall apply to all applications for relief under section 244 of the Immigration and Nationality Act (8 U.S.C. 1254), except that, for purposes of determining the periods of continued residence or continuous physical presence, the amendments made by subsection (b) shall apply to all aliens upon whom an order to show cause is served on or after the date of the enactment of this Act.” Id . at § 150(d).
On May 2, 1996, the Senate passed S. 1664 as an insert to H.R. 2202 and sent it to the House of Representatives for concurrence. On May 20, 1996, the House refused to concur in the Senate amendments and the bill was referred to the Conference Committee. On September 25, 1996, the House agreed to the Conference Committee Report on the language of the IIRIRA. On September 28, and 30, 1996, the House of Representatives and the Senate, respectively, agreed to the language of the IIRIRA, as finally enacted, and it was signed by the President into law as part of the fiscal year 1997 spending measure for the federal government that same day. In short, the language of the IIRIRA, as finally enacted, retained the “notice to appear under section 239(a)” language of section 240A(d)(1); deleted the operative language applying the interruption of continuous physical presence in section 244(a) applications in the original section H.R. 2202, section 309(c)(5), and S. 1664, section 244(a)(2)(A); rejected the lan- guage in the Senate bill limiting the interruption of continuous physical presence to cases initiated after the enactment of the IIRIRA; and added the “before, on, or after” language to section 309(c)(5). Consequently, it is clear that, pursuant to sections 240A(d)(1) and 309(c)(5), the interruption of continuous physical presence applies to all cancellation of removal appli- cations, regardless of how and when they were initiated, and does not apply to suspension of deportation cases remaining in deportation proceedings. The applicability to suspension of deportation applications was deleted and the section 239(a) limitation was retained.
The interpretation above is further supported by the Joint Explanatory
Statement. It explains that “[s]ection 240A(d) provides that the period of
continuous residence or physical presence ends when an alien is served a
notice to appear under section 239(a) (for the commencement of removal
proceedings under section 240).” Joint Explanatory Statement,
supra,
§
240A(d). The very next paragraph further explains that the section 240A(e)
limitation on the number of grants per fiscal year applies to both cancella-
tion of removal and suspension of deportation.
Id
. § 240A(e). This speci-
ficity indicates that Congress was knowingly referring to both forms of
relief distinctively and refutes the majority’s assertion that an Order to
Show Cause and a notice to appear under section 239(a) were synonymous
terms with no substantive difference. The legislative history states that the
rules under section 240A(d)(1) regarding continuing physical presence
applied as a criterion of eligibility for cancellation of removal.
Id
. § 309. It
also states that the reforms end “the accrual of time-in-residence on the date
an alien is placed into removal proceedings.” H.R. Rep. No. 104-879
(1997),
available in
The majority’s contention that its “natural reading” of the statutory lan- guage is consistent with the legislative intent “to terminate immediately the accrual of time for suspension eligibility” is illogical. Such an immediate termination of accrual time is more consistent with a prospective applica- tion of the interruption of physical presence rule. Similarly, the majority’s argument that the immigration reforms were motivated by a desire to remove the incentive for aliens to prolong their cases by ending the accrual of time for suspension is also more consistent with a prospective applica- tion. How can you dissuade someone from doing something already done?
The majority’s assertion that the reconciliation effected by Conference Committee was between two bills prescribing the interruption of continu- ous physical presence in suspension cases begs the question. Section 309(c)(5) of the House bill, H.R. 2202, as passed on March 8, 1996, had already deleted the operative language interrupting physical in determining eligibility for suspension of deportation, and the interruption was described only as applicable as a criterion for cancellation of removal. The recession by the Senate to the language of section 309 in the House bill thereby elim- inated the last remaining operative language which would apply the inter- ruption of physical presence in suspension of deportation determinations.
Sections 309(c)(1)(A) and (B) of the IIRIRA explicitly state that regarding aliens already in proceedings as of its effective date (April 1, 1997), its provisions do not apply and the proceedings shall continue to be conducted without regard to such amendments, except as to the limited classes of cases described in subsection (c). This language further suggests that as to aliens already in proceedings the provisions should be construed narrowly in accordance with the traditional rules of statutory interpretation. I do not question the power of our government to repeal the rights of aliens whose applications to remain here are pending. However, such a repeal must be clearly expressed in the statute and not discerned from irrelevant implications inconsistent with the statutory language and its legislative his- tory. Matter of Grinberg , 20 I&N Dec. 911, 912-13 (BIA 1994), and cases cited therein; 1A Singer, supra , §§ 23.09, 23.10.
If the words “under section 239(a)” were mistaken surplusage they could have easily been deleted when Congress corrected section 309(c)(1) in the Extension of Stay in the United States for Nurses Act, Pub. L. No. 104-302, 110 Stat. 3656 (1996) [2] . Congress did not, and we should not by administrative fiat effectively deprive eligible aliens of their rights to be heard on their suspension applications by imposing the inapplicable inter- ruption rule. The majority takes the curious position that it need not rely on the language of the statute nor its legislative history, and that it cannot accept the reasoning of all the courts that have interpreted the IIRIRA since it was enacted. [3] I dissent from such an unduly expansive view of our authority under 8 C.F.R. § 3.1(d) (1996).
DISSENTING OPINION: Lory D. Rosenberg, Board Member I respectfully dissent.
I join the well-reasoned dissents of my colleagues John Guendelsberger and Gustavo Villageliu, each of whom thoughtfully and correctly interprets the statutory language and legislative history to favor treating section 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-627 (“IIRIRA”), as a prospective rule of transi- tion, applicable only after April 1, 1997, in appropriate cases. As their opinions articulate, principles of statutory interpretation and controlling law warrant our reaching a conclusion other than the one adopted by the majority in this closely split decision.
Although the majority may seek to cloak its argument within the prem-
ise that the language interpreted here is plain, obviously it is not.
Theoretically, when the language is plain, we are to give effect to the intent
of Congress by giving the words used their ordinary meaning.
Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc.
,
In either case, reliance on legislative history does not mean that an agency can properly rely on statements that may have been made by indi- vidual legislators to the media or even offered as individual points of view on the floor of Congress. What may have been intended by one supporter of an enactment may not at all be the reason which prompted the vote of another supporter. Certainly, consideration of legislative intent does not mean giving weight to what an individual adjudicator may perceive as being Congress’ intent.
Furthermore, we conduct our interpretation of statutory language mind-
ful of the canons of construction. To my knowledge, Congress has not yet
overridden the holdings of many venerable Justices of the Supreme Court
who have noted that deportation is a harsh result, similar to exile.
Bridges
v. Wixon
,
Given these harsh consequences, when faced with a choice between
two readings of a deportation-related provision, the courts and, until now,
this Board have relied upon the sound principle that we resolve doubts in
statutory construction in favor of the alien.
INS v. Cardoza-Fonseca, supra;
Barber v. Gonzales
,
Congress has not legislated away the long-accepted canon of construc- tion that ambiguities in deportation statutes are to be construed in favor of the alien. And this is not an invitation to do so, as any such attempt would be likely to clash with the due process clause of the Fifth Amendment of the United States Constitution. This critical canon also is known as the “rule of lenity.” As a practical matter, it means that in deportation matters, when the law is less than clear, the benefit of the doubt goes to the noncitizen.
My colleagues in the majority, whom I am certain are well aware of this canon, nonetheless have chosen to overlook it in favor of acceding to what they apparently view as the harsh, anti-alien legislative intent of the statute, mandating and supporting their conclusion. I do not suggest that they har- bor any ill will towards noncitizens. I simply am forced to conclude that in their opinion today, they communicate the message that, after the IIRIRA, the benefit of the doubt has been turned on its head. Like Alice in Through the Looking Glass , what was the benefit of the doubt, now has become, the doubt that any alien should receive a benefit.
I dissent from such an interpretation. DISSENTING OPINION: Fred W. Vacca, Board Member I respectfully join the dissents of Board Members John W.
Guendelsberger, Lory D. Rosenberg, and Gustavo D. Villageliu