Garcia-Maciel v. Immigration & Naturalization Service

U.S. Court of Appeals for the Ninth Circuit March 19, 2002

Garcia-Maciel v. Immigration & Naturalization Service, 32 F. App'x 363 (9th Cir. 2002)

Opinion of the Court

MEMORANDUM **

Ramiro Garcia-Maciel, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his request for remand to allow him to apply for suspension of deportation. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a),1 and we grant the petition.

We review for abuse of discretion the BIA’s denial of a motion to remand. See Popova v. INS, 273 F.3d 1251, 1257 (9th Cir. 2001). The BIA properly determined that the stop-time rule applies to GarciaMaciel’s case. See Ram v. INS, 243 F.3d 510, 516 (9th Cir. 2001). The BIA nevertheless abused its discretion by failing to consider evidence that Garcia-Maciel entered the United States in March 1986, more than seven years before the INS issued its Order to Show Cause. See Tukhowinich v. INS, 64 F.3d 460, 463 (9th Cir. 1995).

We remand for the BIA to consider Garcia-Maciel’s motion to remand in light of this evidence.

Garcia-Maciel’s contentions that the stop-time rule is unconstitutional and should not apply in this case lack merit. See Ram v. INS, 243 F.3d 510, 516 (9th Cir. 2001).

*364PETITION FOR REVIEW GRANTED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), replaced this section with a new judicial review provision codified at 8 U.S.C. § 1252. Under IIRIRA’s transitional rules, however, this new provision does not apply to proceedings initiated prior to April 1, 1997 that result in a final order entered after October 30, 1996. We therefore continue to exercise jurisdiction over Garcia-Maciel’s action under 8 U.S.C. § 1105a(a). IIRIRA § 309(c)(1); see Kalaw v. INS, 133 F.3d 1147, 1150-51 (9th Cir. 1997).

Reference

Full Case Name: Ramiro GARCIA-MACIEL v. IMMIGRATION AND NATURALIZATION SERVICE
Status: Published