I. Introduction
On September 30, 1996, the United States Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [ENDNOTE #1] (IIRAIRA). Many changes were made to the form of relief from deportation known as suspension of deportation. IIRAIRA replaced suspension of deportation with what is now called "Cancellation of Removal for Certain Non-Permanent Residents." Immigration and Nationality Act (INA) §240A(b). In order to prove eligibility for cancellation, an applicant must satisfy the following criteria:
- Ten years of continuous physical presence;
- Good moral character during such period of time;
- The alien has not been convicted of an offense under INA §212(a)(2), 237(a)(2) or 237(a)(3); and,
- A showing of exceptional and extremely unusual hardship to a qualifying United States citizen (USC) or lawful permanent resident (LPR) spouse, parent or child.
Section 240A(d)(1) -- the stop-time rule -- was added to the Immigration and Nationality Act by IIRAIRA and provides that any period of continuous physical presence in the United States shall be deemed to end when one of the following occurs:
- When the alien is served a Notice to Appear under INA §239(a); or,
- When the alien has committed an offense referred to in INA §212(a)(2) that renders the alien inadmissible to the United States under §212(a)(2) or removable from the United States under INA §237(a)(2) or §237(a)(4), whichever is earliest.
Prior to the addition of this stop-time rule, the period of continuous physical presence required for suspension of deportation applicants could run until a final administrative order was issued and an application for suspension of deportation was filed.
In summary, the differences between the old suspension of deportation and the new cancellation of removal are as follows:
- Hardship: Under suspension of deportation, an applicant has to prove extreme hardship to himself/herself or other USC or LPR relatives (spouse, child or parent). Under cancellation, the standard is higher. An applicant must prove exceptional and extremely unusual hardship to a qualifying USC or LPR spouse, parent or child. Hardship to the applicant is not relevant.
- Cancellation of Removal is now available to persons formerly in exclusion proceedings. Suspension is only available to persons in deportation proceeding.
- Continuous Physical Presence: The stop-time rule under INA §240(d)(1) may serve to terminate continuous physical presence in suspension of deportation cases. Arguments can and should be made (as further explained below) that the stop-time rule applies only to a limited number of suspension of deportation cases. In cancellation of removal cases, the period of continuous physical presence is deemed to end with certain convictions or commission of certain offenses or service of a Notice to Appear.
- Breaks in Continuance Physical Presence: The "brief, casual and innocent" standard for determining if there has been a break in presence under suspension of deportation has been replaced with a rule that terminates physical presence if a person is outside the United States for 90 days or 180 days in the aggregate during the ten year period under cancellation. INA §240A(d)(2).
- 4,000 Cap on Adjustment of Status based on Cancellation Grants: Under INA §240A(e), the Attorney General may only grant 4,000 adjustment of status applications per year for persons granted cancellation of removal. This restriction does not apply to applicants for adjustment under the Nicaraguan Adjustment and Central American Relief Act [ENDNOTE #2] (NACARA) or aliens in deportation proceedings [ENDNOTE #3] prior to April 1, 1997 who applied for suspension of deportation under INA §244(a)(3) (Violence Against Women Act --VAWA-- cases). INA §240A(e)(3).
This Practice Advisory will focus on issues relating to the stop-time rule and accrual of continuous physical presence for both suspension of deportation (INA §244) and cancellation of removal (INA §240A(b)) applicants. Specifically, the Advisory will discuss the following:
- What are the effective dates of the new provisions and how do they affect suspension applicants?
- What is the stop-time rule and does it apply retroactively?
- Can an applicant for suspension of deportation or cancellation of renewal begin to reaccrue continuance physical presence after service of either the Order to Show Cause or the Notice to Appear?
- What have the federal courts said about reaccrual and the stop-time rule?
This Practice Advisory should not be used as a substitute for original research on these issues. It can and should be used as a guide for practitioners representing clients in suspension of deportation or cancellation of removal proceedings. AILF also urges practitioners to access different articles written on these issues, including articles available on AILF's Brief Bank 2000 posted on AILA's Infonet under the suspension of deportation section.
II. Effective Dates for Cancellation of Removal and Pending Suspension Applications
The effective date for changes made by IIRAIRA to suspension of deportation, replacing it with cancellation of removal, is April 1, 1997. IIRAIRA §309(a), (c). If a person was in deportation proceedings before April 1, 1997, he or she continues in those proceedings and can continue to apply for suspension of deportation under the old standards if he or she qualifies.
However, the following exceptions may affect the effective date provision:
- As a result of amendments made by NACARA, the provision relating to the stop-time rule, INA §240A(d)(1), may apply to Notices to Appear or to Orders to Show Cause issued before, on or after April 1, 1997.3
- If an evidentiary hearing had not begun by April 1, 1997, the Attorney General may elect to proceed in removal proceedings and the person could only apply, if eligible, for cancellation of removal. IIRAIRA §309(c)(2).
- If an evidentiary hearing had begun before April 1, 1997, the Attorney General has the option to terminate proceedings and begin under the new procedures. IIRAIRA §309(c)(3).
III. What is the stop-time rule and does it apply retroactively?
Section 240A(d) of the Immigration and Nationality Act provides for special rules relating to continuous residence or physical presence. Specifically, INA §240A(d)(1) - the stop-time rule-states as follows:
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) 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 the earliest.
Section 203(a)(1) of NACARA as applied to INA §240A(d)(1) provides as follows:
. . . paragraphs (1) and (2) of section 240A(d) of the Immigration and Nationality Act (relating to continuous residence or physical presence) shall apply to orders to show cause (including those referred to in §242B(a)(1) of the Immigration and Nationality Act, as in effect before the title III-A effective date), issued before, on or after the date of the enactment of this Act.
What triggers the stop-time rule: Service of a Notice to Appear or an Order to Show Cause, in some cases, terminates the period of continuous presence. [ENDNOTE #4] Additionally, under INA §240A(d)(1), the commission [ENDNOTE #5] of an offense, which would make an alien inadmissible to the United States or removable from the United States under certain circumstances, may trigger the stop-time rule.
Does the stop-time rule apply retroactively? In Matter of N-J-B-, the BIA, in a deeply divided decision, held that the stop-time rule applied retroactively to suspension of deportation cases. Int. Dec. 3309 (BIA 1997). The Attorney General subsequently vacated that decision on July 11, 1997.
Subsequent to the BIA's decision in Matter of N-J-B- but prior to the passage of NACARA §203(a)(1) (relating to OSCs and the stop-time rule), a class action lawsuit was filed in Miami on behalf of aliens in deportation proceedings prior to IIRAIRA who were found to be ineligible as a result of the Board's decision in N-J-B-. That action was ultimately dismissed by the court in Tefel v. Reno, 180 F. 3d 1286 (11th Cir. 1999). The majority of plaintiffs in the lawsuit was eligible and did receive lawful permanent residency under NACARA and their claims were rendered moot. Of the 39 originally named plaintiffs, two cases remained unresolved after passage of NACARA. Therefore, all claims were not mooted and the court issued a decision. In addressing the issue of retroactivity, the court found that applying the stop-time rule to suspension cases did not violate the general presumption against retroactive statutory provisions recognized in Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994). A similar decision was reached in an unpublished decision issued by the Fourth Circuit in Appiah v. INS, No. 97- 1705 (4th Cir., Jan. 20, 2000).
Practitioners should carefully distinguish the issue addressed by the courts in Tefel and Appiah by recognizing that NACARA §203(a)(1) as applied to the stop-time rule does in fact apply to certain pre-IIRAIRA suspension cases. In making this argument, practitioners should state that the stop-time rule applies only to those limited group of pre-IIRAIRA cases intended by Congress when it passed NACARA -- those cases in proceedings pre-IIRAIRA where the Attorney General terminates and reinitiates with the service of an NTA.
The INS takes the position that INA §240(d)(1) applies retroactively to all non-NACARA nationality cases. The Board of Immigration Appeals has held that for purposes of determining eligibility for suspension of deportation, the period of continuous physical presence ends with the service of the OSC and Notice of Hearing on the alien, irrespective of the date that it was issued. Matter of Nolasco-Tofino, Int. Dec. 3385 (BIA 1999).
Practitioners should argue that NACARA §203(a)(1) applies only to the limited group of cases mentioned above -- those pre-IIRAIRA cases where the Attorney General terminates and reiniates with the service of an NTA. Practitioners should also argue that it does not apply to cases where final administrative orders were issued prior to September 30, 1996. In taking this position, practitioners should consider and present the following arguments against the retroactive application of the stop-time rule to their client's case:
- Argue that NACARA §203(a)(1) applies only to those cases in proceedings pre-IIRAIRA where the Attorney General terminates and reinitiates with the service of an NTA: At the time that Congress passed NACARA, it was aware of the BIA's ruling in Matter of N-J-B-. Instead of codifying the decision in that case, and specifically referencing §244 Suspension of Deportation proceedings, it referred only to OSCs issued before, on or after April 1, 1997. A plain reading of that provision leads to the conclusion that Congress intended the stop-time rule to apply only to those pre-April 1, 1997 cases terminated by the Attorney General and repapered under the new statute.
- Argue that the stop-time rule does not apply to final administrative orders issued prior to September 30, 1996: Cases with final administrative decisions issued prior to September 30, 1996 are not subject to the IIRAIRA §309(c)(5) stop-time rule. IIRAIRA § 309(c)(2) permits the Attorney General to apply IIRAIRA to cases before April 1, 1997 only if an evidentiary hearing had not commenced as of April 1, 1997. IIRAIRA § 309(c)(3) permits the Attorney General to apply the new rule to cases began before April 1, 1997, only if no final administrative decision has been made. IIRAIRA § 309(c)(4), the transitional rules governing judicial review, only applies to cases where final administrative decisions have been made more than 30 days after date of enactment (30 days after September 30, 1996). Therefore, argue that the stop-time rule does not apply to cases where final orders were issued prior to September 30, 1996.
IV. Reaccrual of Continuance Physical Presence After Service of the OSC or NTA
Persons who have acquired the requisite period of continuous physical presence before or after service of the OSC or NTA may be eligible to seek relief under Suspension of Deportation (old INA §244) or Cancellation of Removal for Certain Non-Permanent Residents (INA §240A(b)). Section 240A(d)(1) states as follows:
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) 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. (emphasis added)
The statement that "any period of continuous physical presence shall be deemed to end" suggests that there may be more than one period of continuous physical presence to be considered. The reference to ending "any period" of physical presence suggests that another period of physical presence may follow thereafter. Arrozal v. INS, 159 F. 3d 429, 434 n. 2 (9th Cir. 1998) (recognizing that an alien "might satisfy the continuous physical presence requirement by virtue of the fact that she has accrued twelve years of continuous physical presence since the INS issued her an order to show cause.")
The Board of Immigration Appeals has addressed the issue in both published and unpublished decisions. Prior to its precedent decision in Matter of Mendoza- Sandino, Int. Dec. 3426 (BIA 2000), the Board had issued two unpublished decisions holding that an applicant for suspension of deportation could in fact reaccrue the requisite continuous physical presence after service of the OSC. In a divided en banc decision, the Board in Mendoza held that a person could not reaccrue the requisite continuous physical presence after service of the OSC. [ENDNOTE #6] The four dissenters all held that an applicant could in fact accumulate the requisite period of time after service of the OSC.
V. Federal Court Activity on Reaccrual and the Stop-Time Rule
Although there have been no federal court decisions focusing primarily on the issue of whether or not INA §240A(d)(1) precludes a reaccrual of continuance physical presence after service of the OSC or NTA, at least one court has addressed the issue secondarily. As mentioned above, the court in Arrozal v. INS, 159 F. 3d 429, 434 n. 2 (9th Cir. 1998) recognized that a non-citizen "might satisfy the continuous physical presence requirement by virtue of the fact that she has accrued twelve years of continuous physical presence since the INS issued her an order to show cause.".
The issue of whether or not a person can reaccrue the requisite period of continuous physical presence in order to be eligible to apply for suspension of deportation is currently pending before the Fifth, Eighth and Ninth Circuit Courts of Appeal. AILF has filed an amicus brief in the case pending before the Ninth Circuit.
VI. Practice Tips
In representing a client who may be eligible for either suspension of deportation or cancellation of removal but who may not have the necessary time accrued prior to service of either the OSC or the NTA, make sure to examine and present the following arguments where relevant:
- Reaccrual: Where your client has accrued the necessary period of continuous physical presence after service of the OSC or NTA, make the reaccrual argument suggested above. AILF has an amicus brief on the issue which is available from the Brief Bank 2000 on AILA's Infonet.
- Limited Application of NACARA Stop - Time Rule: Argue that the NACARA stop-time rule only applies to those cases in which old proceedings were terminated by the AG and new proceedings initiated. Therefore, §203(a) of NACARA which states that the stop time rule in INA §240A(d)(1) applies to Orders to Show Cause issued before, on or after IIRAIRA's enactment date is not superfluous.
- The Stop-Time Rule does not apply to cases where final orders were issued prior to September 30, 1996: If your client has a final order of deportation issued prior to September 30, 1996, argue that he or she is not subject to the stop-time rule. AILF has filed an amicus brief on the reaccrual issue in the Ninth Circuit and is prepared to file in other circuits where requested. Please contact Anna Gallagher at (202) 371- 6450, ext. 615 or at agallagher@ailf.org if you are representing clients with similar issues and would like to have an amicus brief filed in your case.
This Practice Advisory was written by Anna Gallagher, Deputy Director of the American Immigration Law Foundation, with editorial assistance from AILF attorneys Nadine Wettstein and Traci Hong.
1. Division C of the Omnibus Appropriations Act of 1996 (H.R. 3610), Pub. L. No. 104-208, 110 Stat. 3009 (hereinafter IIRAIRA).
2. Pub. L. No. 105-100, 111 Stat. 2160, Tit. II, Div. A (Nov. 19, 1997), as amended by Pub. L. No. 105-139, 111 Stat. 2644 (Dec. 2, 1997).
3. The BIA prior to the NACARA amendments had found that this provision applied retroactively to all cases that were not resolved as of September 30, 1996. Matter of N-J-B-, Int. Dec. 3309 (BIA 1997). However, the Attorney General vacated that decision on July 11, 1997. In December 1997, Congress passed NACARA, including §203(a)(1), which provided that the stop-time rule shall apply to OSCs issued before, on or after the date of enactment of NACARA.
4. Termination does not mean that a new period of continuous presence cannot begin after service of the NTA or OSC. See later argument.
5. Practitioners should argue that INA §240A(d)(1) terminates continuous physical presence only for those "convicted" of an enumerated offense under INA §237. Only convictions, not all criminal acts, render noncitizens deportable under section 237. Matter of P, 6 I & N Dec. 788 (BIA 1955); see also Matter of Lozada, 19 I & N Dec. 637 (BIA 1988). Although §240A(d)(1) refers to rendering an alien "removable," §237 still lists classes of "deportable" aliens.
6. Unfortunately, the respondents in the Mendoza case were unrepresented before the Board. Additionally, the Mendoza case is rife with procedural anomalies. The Immigration Judge had granted the Mendoza family suspension of deportation at their merits hearing. As a result of this grant, the Mendoza's presented their passports to the local INS office in Miami and received their permanent residency stamps. They ultimately received their "green cards." Apparently, District Counsel appealed the grant to the BIA. However, local INS was not aware of the appeal at the time of issuance of LPR status to the Mendoza's. Since no briefs were filed in the appeal proceedings (by respondent or the appellant, INS), the Board made its decision without the benefit any briefing on these complicated issues by either side. The unpublished decisions noted above were in fact under reconsideration by the BIA at the time it issued the Mendoza decision, were fully briefed and respondents were represented by counsel throughout the IJ and BIA proceeedings.