Ram v. INS: 9th Circuit Decides "Stop-Time" Rule Applies to Suspension Cases, Bars Accumulating Time after Issuance of OSC

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

RAM V. INS: 9TH CIRCUIT DECIDES "STOP-TIME" RULE APPLIES TO SUSPENSION CASES, BARS ACCUMULATING TIME AFTER ISSUANCE OF OSC
Immigrants' Rights Update, Vol. 15, No. 1, Feb. 28, 2001

The Ninth Circuit Court of Appeals has ruled that in showing they were continually physically present in the United States for a period of at least seven years, applicants for suspension of deportation cannot count time after they were served with an Order to Show Cause (OSC). The court also concluded that once an individual has been served with an OSC, he or she cannot again accumulate seven years of continuous physical presence in order to qualify for suspension of deportation. The decision comes on review of the Board of Immigration Appeals' denial of suspension to an ethnic Indian family from Fiji.

The petitioners in this case, the Ram family, came to the U.S. as nonimmigrants in 1987. In 1988 they overstayed their visas, and the INS served them with OSCs to initiate deportation proceedings. They sought asylum and withholding of deportation but were denied, and they filed a petition for review with the Ninth Circuit. In 1994, while that case was pending, they moved to reopen their deportation case in order to apply for suspension of deportation. In 1995 the Ninth Circuit denied the petition for review. The BIA denied the motion to reopen, and the petitioners filed a petition for review on that decision. In 1997 the Ninth Circuit reversed the denial of the motion to reopen and remanded the case to the BIA for further review of the hardship claims at issue in the case.

On remand, the BIA summarily denied the motion to reopen on the grounds that the "stop-time" rule precluded the petitioners from establishing seven years' continuous physical presence. The petitioners filed a petition for review of that decision, resulting in this decision.

On appeal, the court determined that section 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), as amended by the Nicaraguan Adjustment and Central American Relief Act (NACARA), causes the stop-time rule to apply to the calculation of the period of continuous physical presence for purposes of suspension eligibility. While finding the statute somewhat ambiguous, the court concluded that the INS's interpretation was more reasonable and was supported by the legislative history of NACARA. The court also noted that six other circuits-the Fourth, Fifth, Seventh, Eighth, Tenth, and Eleventh-have reached the same conclusion.

The court rejected the petitioners' contention that application of the stop-time rule to them violated due process as an unfairly retroactive enactment. The court also rejected the argument that the statute violates equal protection. Finally, again as a matter of statutory interpretation, the court rejected the argument that after an OSC has been served, an immigrant can accumulate seven years' continuous physical presence for purposes of suspension eligibility.

Ram v. INS, __ F.3d __, No. 99-70918 (9th Cir. Feb. 8, 2001).