In re ALZATE-SUAREZ, Respondent
File 28 753 481
Decided August 10, 1999
U.S. Deparment of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
In a startling but welcome unpublished decision, a panel of the BIA (opinion signed by Board Member Vacca) held that the "stop" rule of INA § 240A(d), as modified by NACARA, does not necessarily foreclose suspension relief for an appliacnt who was served with an OSC and thereafter accrued seven years continuous physical presence.
Alzate-Suarte entered the Unitd States in July, 1987 and was served with OSC the next day, but his deportation proceedings did not begin until 1997. The IJ pretermitted Alzate-Suarez's suspension claim, ruling that under the "stop time" rule, Alzate-Suarez had effectively accrued only one day of continuous physicial presence rather than seven years or more, as required. On appeal, the BIA reversed:
"As the Respondent argues on appeal, while the occurrence of an event specified in section 240(d)(1) of the Act ends 'any period' of cotinuous physical presence preceding the event, the statute does not explicitly preclude the intiation of another period of continous physical presence of for purposes of relief. See Arrozal v. INS, 159 F.3d 429, 4343 n2. (9th Cir. 1998); Matter of Nolasco, supra, at 14-15 (Rosenberg, concurring). Accordingly, we will remand the record to the Immigration Judge for consideration of the Respondent's application for suspension of deportation."
Slip Op. at 2.
Reversed and remanded.
Alzate-Suarez was represented by Howard A. Silverman.