Otarola v. INS: 9th Circuit Orders BIA to Adjudicate Suspension Case under Pre-IIRIRA Law...

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

OTAROLA V. INS: 9TH CIRCUIT ORDERS BIA TO ADJUDICATE SUSPENSION CASE UNDER PRE-IIRIRA LAW WHERE IJ PROPERLY GRANTED SUSPENSION AND INS APPEAL WAS MERITLESS
Immigrants' Rights Update, Vol. 15, No. 7, Nov. 16, 2001

The Ninth Circuit Court of Appeals has reversed a ruling of the Board of Immigration Appeals denying suspension of deportation based on the "stop-time" rule. The court based its decision on the fact that the petitioner was properly granted suspension of deportation by an immigration judge before the effective date of the stop-time rule, and the Immigration and Naturalization Service appeal from that decision contending that the stop-time rule did apply was without merit and simply for purposes of delay. The BIA did not rule on the appeal until after the Apr. 1, 1997, effective date of the stop-time rule, when it held that because of the rule the petitioner was no longer eligible for suspension. On petition for review of that decision, the Ninth Circuit concluded that to deny suspension based on a meritless appeal would contravene Congress's intent in enacting the stop-time rule with a six-month delay in its effective date.

The stop-time rule was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The rule prohibits counting time that an immigrant is present in the United States after he or she is served with a Notice to Appear (NTA) commencing removal proceedings towards meeting the "continuous physical presence" requirement of cancellation of removal. In Ram v. INS, 243 F.3d 510 (9th Cir. 2001), the court upheld the BIA's determination that the stop-time rule applies to the calculation of the seven-year continuous physical presence requirement for suspension of deportation and that Orders to Show Cause (OSCs) served prior to the enactment of the IIRIRA stop the accumulation of time towards meeting this requirement for purposes of suspension (see "9th Circuit Decides 'Stop-Time' Rule Applies to Suspension Cases, Bars Accumulating Time after Issuance of OSC," Immigrants' Rights Update, Feb. 28, 2001, p.11).

Although the IIRIRA was enacted on Sept. 30, 1996, Congress delayed implementation of many of its provisions for six months, and the stop-time rule took effect only on Apr. 1, 1997. Astrero v. INS, 104 F.3d 264 (9th Cir. 1996). The Ninth Circuit previously has recognized several circumstances in which cases that reached the BIA on appeal after this date nonetheless should have been adjudicated based on pre-IIRIRA law. In Castillo-Perez v. INS, 212 F.3d 518 (9th Cir. 2000), the court ruled, in the case of a petitioner whose suspension application was not adjudicated before the enactment of the IIRIRA because of ineffective assistance of counsel, that the application must be adjudicated under pre-IIRIRA law. In Guadalupe-Cruz v. INS, 240 F.3d 1209 (9th Cir. 2000), an immigration judge denied suspension prior to Apr. 1, 1997, based on the stop-time rule, despite the Ninth Circuit's ruling that the rule was not yet in effect, and the court ruled that the application must be adjudicated under pre-IIRIRA law. And in Barahona-Gomez v. Reno, 167 F.3d 1228 (9th Cir. 1999) and 236 F.3d 1115 (9th Cir. 2001) (supplemental ruling), the court upheld an injunction prohibiting the deportation of individuals whose suspension applications could have been granted prior to Apr. 1, 1997, but for directives issued by the chief immigration judge and the chair of the BIA that prohibited IJs and the BIA from granting suspension cases during two months prior to Apr. 1, 1997, because these officials believed further grants might exceed a 4,000-per year cap that was enacted as part of the IIRIRA (see "9th Circuit Affirms Preliminary Injunction in Class Action Case for Suspension Applicants," Immigrants' Rights Update, Feb. 28, 2001, p. 10). The most recent decision establishes another circumstance requiring adjudication under pre-IIRIRA law.

Otarola v. INS, __ F.3d __, No. 99-71405 (9th Cir. Oct. 18, 2001).