Cruz v. INS: 9th Circuit Overturns Premature Application of "Stop-Time Rule"

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

GUADALUPE-CRUZ V. INS: 9TH CIRCUIT OVERTURNS PREMATURE APPLICATION OF "STOP-TIME RULE"
Immigrants' Rights Update, Vol. 15, No. 2, Mar. 29, 2001

An immigration judge who applied the "stop-time rule" contained in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) four days before the rule took effect on Apr. 1, 1997, misapplied the law, the Ninth Circuit Court of Appeals has ruled. In a hearing held on Mar. 28, 1997, the IJ denied the applications for suspension of deportation of a Mexican national and her two daughters, ruling that they had failed to satisfy the IIRIRA's new continuous physical presence requirement (the stop-time rule). The Ninth Circuit held that the since the IJ misapplied the law, the Board of Immigration Appeals erred by not reversing the IJ's decision.

Prior to the IIRIRA, individuals were eligible for suspension of deportation, a form of relief from deportation, if they could show (1) that they had seven years of continuous physical presence in the United States, (2) that they were of good moral character, and (3) that their deportation would result in extreme hardship either to them or to an immediate family member who was a U.S. citizen or lawful permanent resident. The IIRIRA eliminated suspension of deportation and replaced it with a form of relief called cancellation of removal. The eligibility requirements for cancellation of removal are more onerous than those for suspension of deportation.

The IIRIRA's modification of the continuous physical presence requirement-via the stop-time rule-is one way in which it has become harder to qualify for relief from deportation. Prior to the IIRIRA, individuals could accrue time towards the seven-year requirement until they applied for suspension of deportation; commencement of deportation proceedings had no effect on their ability to accrue continuous physical presence. Under the IIRIRA's stop-time rule, however, accrual of continuous physical presence ceases when deportation proceedings begin.

The petitioners in this case, all of whom entered the U.S. without inspection on Dec. 9, 1989, were served with Orders to Show Cause and placed in deportation proceedings on Oct. 17, 1996. They appeared before an immigration judge on Dec. 20, 1996, at which time they declared their intent to file for suspension of deportation. Their hearing was held on Mar. 28, 1997. When the BIA summarily affirmed the IJ's denial of suspension to the petitioners, they appealed to the Ninth Circuit.

On appeal, the government argued that even if the IJ misapplied the stop-time rule, the error was harmless because the INS would have appealed any decision granting suspension to the petitioners and any decision made on appeal would have been subject to the stop-time rule.

The Ninth Circuit held, however, that it was impossible to know whether the INS would have appealed the case, and it dismissed the government's argument as conjecture. Relying on Astrero v. INS, 104 F.3d 264 (9th Cir. 1996), the court held that the stop-time rule could not be applied before its effective date. It also noted that adopting the government's argument would leave the petitioners without a remedy for the IJ's error. Individuals must receive a hearing under the law that applied to them at the time that their original hearings were held, the court said. To do otherwise would be inconsistent with the due process guarantees afforded aliens in deportation proceedings.

Guadalupe-Cruz v. INS, No. 99-70754 (9th Cir. Feb. 27, 2001).