RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Suassuna v. INS No. 02-3084 ELECTRONIC CITATION: 2003 FED App. 0316P (6th Cir.) File Name: 03a0316p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Marshal E. Hyman, MARSHAL E. HYMAN & FOR THE SIXTH CIRCUIT ASSOCIATES, PC, Troy, Michigan, for Petitioner. Margaret _________________ J. Perry, UNITED STATES DEPARTMENT OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION, Washington, RICARDO PACHECO X D.C., for Respondent. ON BRIEF: Marshal E. Hyman, SUASSUNA, - MARSHAL E. HYMAN & ASSOCIATES, PC, Troy, Michigan, for Petitioner. Margaret J. Perry, Mark C. Walters, Petitioner, - UNITED STATES DEPARTMENT OF JUSTICE, OFFICE - No. 02-3084 - OF IMMIGRATION LITIGATION, Washington, D.C., for v. > Respondent. , - _________________ IMMIGRATION AND - NATURALIZATION SERVICE, - OPINION Respondent. - _________________ - N DAMON J. KEITH, Circuit Judge. Petitioner Ricardo On Appeal from the Board of Immigration Appeals. Pacheco Suassuna appeals the denial of his application for No. A28 495 407. suspension of deportation. For the reasons set forth below, we AFFIRM the judgment of the Board of Immigration Argued: August 7, 2003 Appeals.

Decided and Filed: September 4, 2003 I. BACKGROUND Suassuna was born on January 27, 1958, in Brazil. He Before: KEITH and COLE, Circuit Judges; WEBER, entered the United States as a non-immigrant visitor on District Judge.* December 11, 1986. He was authorized to remain until May of 1987. On July 1, 1987, Suassuna’s status changed to that of a non-immigrant student, authorizing him to remain as long as he was in school. On January 15, 1988, Suassuna married Carol Kadoura, a United States citizen. Suassuna and Kadoura have a son named Hamza Suassuna, who was born in Ypsilanti, Michigan on December 14, 1988. Shortly after Hamza was born, Ricardo Suassuna stopped going to school * The Hono rable Herman J. Weber, United States District Judge for and started working. Suassuna and Kadoura were divorced the Southern District of Ohio, sitting by designation.

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on January 2, 1992. Since April 9, 1993, Suassuna has had of the charging document commencing deportation sole physical custody and joint legal custody of Hamza. proceedings. INA § 240A(d), 8 U.S.C. § 1229b(d). On October 31, 1996, an IJ issued an order reopening Suassuna’s On July 18, 1991, the United States Immigration and deportation proceedings to permit him to apply for suspension Naturalization Service (INS) initiated deportation proceedings of deportation. The INS moved to pretermit Suassuna’s against Suassuna by serving him with a notice of hearing and pending suspension application in light of the stop-time rule. order to show cause. The INS charged Suassuna with On February 27, 1998, the IJ granted the INS’s motion and violating the conditions of his student status. On reinstated Suassuna’s order of deportation. February 25, 1992, Suassuna appeared with counsel and admitted that he was deportable as charged. The immigration Suassuna filed for reconsideration, arguing that the IJ judge (IJ) found Suassuna deportable on the basis of his should not have applied the stop-time rule and seeking admission and ordered him to be deported to Brazil. The IJ reinstatement of the order of voluntary departure based on granted Suassuna the privilege of voluntary departure at his ineffective assistance of counsel. The IJ denied own expense in lieu of forced deportation. Suassuna reconsideration. She found that Suassuna was undeserving of remained in the United States. reinstatement of voluntary departure, because he had shown by his conduct that he was unwilling to leave the country On August 20, 1996, Suassuna moved to reopen his voluntarily. The IJ was not persuaded by Suassuna’s deportation proceeding to apply for suspension of deportation ineffective assistance argument. and an extension of his prior grant of voluntary departure. Under then-existing law, an alien was eligible for suspension Suassuna filed a timely appeal with the Board of of deportation if he could show (1) that he had been Immigration Appeals (BIA). He argued that the IJ erred in continually physically present in the United States for seven applying the stop-time rule. Suassuna also argued that his years preceding his application for relief, and (2) that his counsel’s ineffectiveness and Suassuna’s desire to remain in deportation would cause “extreme hardship” to himself or to the United States to obtain custody of his son were a United States citizen spouse, parent, or child. See former “compelling reasons” excusing his failure to depart and § 244(a) of the Immigration and Nationality Act (INA), warranted reinstatement of voluntary departure. 8 U.S.C. § 1254(a) (1994). This relief was not available if the alien had failed to comply with a prior grant of voluntary On December 26, 2001, the BIA issued a written decision departure and was unable to show “exceptional affirming in part and reversing in part the IJ’s decision. The circumstances” excusing his failure to depart. See former BIA applied the stop-time rule to Suassuna’s pending § 242B(e)(2)(A) of the INA, 8 U.S.C. § 1252b(e)(2)(A) suspension application and found him ineligible for a (1994). suspension because he lacked seven years of continuous physical presence prior to service of the order to show cause. While Suassuna’s motion to reopen the proceeding was The BIA affirmed that Suassuna was subject to deportation. pending, Congress enacted the Illegal Immigration Reform However, with respect to Suassuna’s request for reinstatement and Immigrant Responsibility Act of 1996, Pub. L. No. 104- of voluntary departure, the BIA reversed the decision of the 208, 110 Stat. 3009 (IIRIRA). IIRIRA created a “stop-time IJ finding that Suassuna had demonstrated “compelling rule” terminating the continuity of an alien’s physical reasons” for voluntary departure. The “compelling reasons” presence for purposes of relief from deportation upon service cited by the BIA focused on various errors made by No. 02-3084 Suassuna v. INS 5 6 Suassuna v. INS No. 02-3084

Suassuna’s first lawyer. The BIA’s decision permitted eliminated an alien’s incentive to delay his deportation Suassuna the privilege of leaving voluntarily within thirty proceedings. days (or any further extensions granted by the INS), but required that Suassuna be deported if he failed to leave Suassuna was served a notice of hearing and order to show voluntarily. cause on July 18, 1991. At that time, Suassuna had been in the United States for less than five years. The parties, Suassuna filed this timely appeal. The sole issue before therefore, agree that if the stop-time rule is applied to this Court is whether the stop-time rule applies to Suassuna. Suassuna, he lacks the seven years of continuous physical presence in the United States required for a suspension of II. DISCUSSION deportation under the former § 244(a) or the current § 240 of the INA. A. Standard of Review IIRIRA explicitly provided that most of its changes would In reviewing the BIA’s construction of immigration not apply to aliens with deportation proceedings already statutes, we proceed deferentially, setting aside the BIA’s pending at the time the statute went into effect. See IIRIRA, reasonable construction if it defies the plain language of the § 309(c)(1). However, one of the changes that does apply statute or is arbitrary or capricious. See INS v. Aguirre- retroactively is the stop-time rule. Section 309(c)(1) states Aguirre, 526 U.S. 415, 424-25 (1999). Other questions of that § 240A(d) (the stop-time rule) “shall apply to notices to law are reviewed de novo. See Bartoszewska-Zajac v. INS, appear issued before, on, or after the date of enactment of this 237 F.3d 710, 712 (6th Cir. 2001); Ashki v. INS, 233 F.3d Act [September 30, 1996].” See Ashki, 233 F.3d at 918-19. 913, 917 (6th Cir. 2000). This clause created some incongruity, because prior to April 1, 1997, the INS initiated deportation proceedings by B. Analysis service of an order to show cause, and not a notice to appear. Congress attempted to clear up this lingering confusion in The stop-time rule changed the method for calculating an 1997 when it enacted the Nicaraguan Adjustment and Central alien’s period of continuous physical presence in this country American Relief Act, Pub. L. No. 105-100, 111 Stat. 2160 for purposes of qualifying for discretionary relief from a (1997) (NACARA). Section 203(a)(1) of NACARA provides deportation order. It provides that “any period of . . . that § 240A(d) of the INA “shall apply to orders to show continuous physical presence in the United States shall be cause” issued before, on, or after the effective date of deemed to end when the alien is served a notice to appear NACARA. Sitting en banc in 1999, the BIA held that the under section 239(a).” INA § 240A(d), 8 U.S.C. § 1229b(d). stop-time rule applies to all pending deportation proceedings Prior to the enactment of the stop-time rule, aliens would unless the alien satisfies one of several statutory exemptions. often delay their deportation proceedings until they accrued See In re Nolasco-Tofino, 1999 WL 261565 (BIA 1999) (en sufficient continuous presence in the United States to qualify banc). for relief. See H.R. Rep. 104-879 (1997); see also Bartoszewska-Zajac, 237 F.3d at 713. By terminating the Courts are generally reluctant to apply statutes accrual of continuous physical presence upon service of the retroactively. See Bartoszewska-Zajac, 237 F.3d at 712. charging document, the stop-time provision of IIRIRA “Because it accords with widely held intuitions about how statutes ordinarily operate, a presumption against retroactivity No. 02-3084 Suassuna v. INS 7 8 Suassuna v. INS No. 02-3084

will generally coincide with legislative and public April 1, 1997, the law of the Circuit is that the alien’s period expectations.” Landgraf v. USI Film Prods., 511 U.S. 244, of continuous physical presence ends upon service of the 272 (1994). However, this judicial presumption against order to show cause, even if such order was issued prior to the retroactivity can be overcome when Congress clearly intends enactment of the stop-time rule. that result. Id. at 272-73. “When a case implicates a federal statute enacted after the events in suit, the court’s first task is Suassuna, nevertheless, maintains that the stop-time rule to determine whether Congress has expressly prescribed the should not apply to him. He makes three points in support of statute’s proper reach. If Congress has done so, of course, this claim. First, he argues that because he received there is no need to resort to judicial default rules.” Id. at 280. ineffective assistance from his first lawyer, he is entitled to a If Congress has not expressly prescribed the proper reach of new suspension of deportation hearing under the law as it the statute, courts then consider whether retroactive existed at the time of the ineffective assistance. application of the statute “would impair rights a party possessed when he acted, increase a party’s liability for past The statute governing our jurisdiction to review an order of conduct, or impose new duties with respect to transactions deportation requires the exhaustion of administrative already completed.” Id. remedies. See former Section 106(c) of the INA, 8 U.S.C. § 1105a(c) (1994) (“An order of deportation . . . shall not be Applying these principles from Landgraf, we held in reviewed by any court if the alien has not exhausted the Bartoszewska-Zajac that the stop-time statute was administrative remedies available to him as of right under the unambiguous and “Congress plainly intended that the stop- immigration laws and regulations.”); see also Dokic v. INS, time section of [IIRIRA] be retroactive, excepting it from 899 F.3d 530 (6th Cir. 1999). Suassuna’s claim that the stop- otherwise forward-looking provisions.” 237 F.3d at 712; see time rule should not apply to him because of the ineffective also Ashki, 233 F.3d at 918 (“Congress clearly indicated that assistance he received from his first lawyer was not raised the new ‘stop time’ provision applies retroactively to orders before the BIA. Therefore, we lack jurisdiction to review this to show cause.”). After our decisions in Ashki and claim. Bartoszewska-Zajac, in Sad v. INS, 246 F.3d 811, 813 (6th Cir. 2001), a panel of this Court concluded that the stop-time Suassuna’s second argument is that the stop-time rule does rule was ambiguous. This finding contradicts the holdings of not apply to cases in which a final administrative decision our prior decisions. However, we are bound by our decisions was issued before September 30, 1996. Suassuna urges us to in Ashki and Bartoszewska-Zajac. See Darrah v. City of Oak hold that §§ 309(c)(1) and (c)(3) of IIRIRA limit Park, 255 F.3d 301, 310 (6th Cir. 2001) (“[W]hen a later § 309(c)(5)’s application of the stop-time rule to cases that decision of this court conflicts with one of our prior published had not yet culminated in a final administrative decision on decisions, we are still bound by the holding of the earlier the date of IIRIRA’s enactment. Contrary to Suassuna’s case.”). Moreover, we agree, based on our reading of the contention that this is an issue of first impression, we IIRIRA stop-time rule and NACARA, with these prior confronted a similar situation in Ashki. In that case, we decisions that Congress clearly intended to apply this affirmed the BIA’s application of the stop-time rule even provision retroactively. though a final deportation order had been issued in 1987. Ashki, 233 F.3d at 916. We hold today that, for purposes of determining eligibility for suspension of deportation in cases that were pending as of No. 02-3084 Suassuna v. INS 9 10 Suassuna v. INS No. 02-3084

Suassuna cites Koliada v. INS, 259 F.3d 482 (6th Cir. for [discretionary relief] at the time of their plea under the law 2001), for the proposition that the transitional rules of IIRIRA then in effect.” St. Cyr, 533 U.S. at 293. Applying Landgraf, apply only if a final order had not been entered before the Court found that Congress did not clearly intend that September 30, 1996. Suassuna’s reliance on Koliada is § 304(b) apply retroactively. Id. at 320. Proceeding to the misplaced. That case construed a transitional rule of judicial second step of the Landgraf analysis, the Court concluded review in § 309(c)(4) of IIRIRA, not the stop-time rule from that applying the statute retroactively would impermissibly § 309(c)(5) that applies here. impair vested rights. Id. at 325. The Court noted that a plea bargain, which involves giving up important constitutional We see nothing in §§ 309(c)(1) and (c)(3) that limits the rights, is likely to be predicated on the assumption that the application of the transitional stop-time rule of § 309(c)(5). alien would be eligible for discretionary relief from There is no language anywhere in § 309 to suggest that deportation. Id. at 322. pending deportation cases are treated differently if a final administrative order was once issued. Congress clearly St. Cyr is distinguishable from the present case. Unlike the intended the transitional stop-time rule to apply to aliens in provision of IIRIRA considered in St. Cyr, the stop-time deportation proceedings pending as of the effective date of provision was clearly intended to apply retroactively. See IIRIRA, regardless of whether a final administrative order Bartoszewska-Zajac, 237 F.3d at 712. Thus, as noted above, was ever issued in the case. St. Cyr does not cast doubt on this finding. We join our sister circuits that have considered whether the stop-time rule is Suassuna’s third and final argument is that recent cases call impermissibly retroactive after St. Cyr in concluding that it is for a re-examination of whether the stop-time rule applies not. See Jimenez-Angeles v. Ashcroft, 2002 WL 1023103, at retroactively. Suassuna claims that INS v. St. Cyr, 533 U.S. *4-*5 (9th Cir. 2002); Sibanda v. INS, 282 F.3d 1330, 1334- 289 (2001), and Bejjani v. INS, 271 F.3d 670 (6th Cir. 2001), 36 (10th Cir. 2002). cast doubt on our earlier decisions in this area of law. As noted above, the reasoning in these cases cast some doubt on We also find Bejjani distinguishable. In that case, we the method of analysis used in Sad, but we do not agree that refused to apply the automatic reinstatement of removal these cases require us to abandon our other prior decisions. provision of § 241(a)(5) of the INA, 8 U.S.C. § 1231(a)(5), to aliens who illegally reentered the United States prior to the The alien in St. Cyr was a lawful permanent resident who effective date of IIRIRA. The court in Bejjani found “clear pled guilty to a felony pursuant to a plea bargain after living congressional intent that § 241(a)(5) should not apply in the United States for more than seven years. See St. Cyr, retroactively to reinstate prior orders of removal of aliens who 533 U.S. at 292-93. Removal proceedings were initiated reentered the country prior to the effective date of against St. Cyr. Under the law in effect at the time of St. § 241(a)(5).” Bejjani, 271 F.3d at 687. Bejjani is Cyr’s plea, he was eligible for discretionary relief from distinguishable from the present case because Congress deportation. However, under the new provisions of IIRIRA, clearly intended that the stop-time rule apply retroactively, he was not eligible for discretionary relief. See IIRIRA whereas, in Bejjani, Congress’s intent regarding retroactivity § 304(b). The Supreme Court held that it was impermissibly was unclear. See Bartoszewska-Zajac, 237 F.3d at 712. “retroactive” to eliminate this relief for aliens “whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible No. 02-3084 Suassuna v. INS 11

III. CONCLUSION For these reasons, the judgment of the Board of Immigration Appeals is AFFIRMED.