Almodiel v. Immigration & Naturalization Service

13 F. App'x 659

Opinion

MEMORANDUM

Footnotes

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Alma Ignacio Almodiel (“Almodiel”) entered the United States on September 30, 1989. She was served with an Order to Show Cause (“OSC”) on December 14, 1995, and conceded deportabihty at a hearing before an Immigration Judge (“IJ”) on May 2, 1996. On October 18, 1996, the IJ denied Almodiel’s application for suspension of deportation because the IJ believed that she was statutorily ineligible for such relief under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), enacted on September 30, 1996. In particular, the IJ ruled that, under IIRIRA’s “stop-time rule,” see INA § 240A(d)(l), 8 U.S.C. § 1229b(d)(l), Almodiel had not accrued seven years of continuous physical presence in the United States before being served with an OSC. Almodiel appealed to the Board of Immigration Appeals (“BIA”), which affirmed the IJ’s decision on June 8,1999.

In Astrero v. INS, 104 F.3d 264 (9th Cir.1996), we held that the stop-time rule was not effective until the general effective date of IIRIRA on April 1, 1997. Therefore, when the IJ in this case applied the stop-time rule to Almodiel on October 18, 1996, he subjected her to the rule before its effective date. Following Guadalupe-Cruz v. INS, 240 F.3d 1209 (9th Cir.2001), we therefore grant the petition for review, reverse the decision of the BIA, and remand with instructions to remand to the IJ. If Almodiel chooses to pursue her ap plication for suspension of deportation before the IJ, the IJ shall, in determining whether she is eligible for suspension of deportation, (1) apply the law as it existed on October 18, 1996, and (2) consider the current facts and Almodiel’s current circumstances.

PETITION GRANTED, REVERSED and REMANDED.

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 Ninth Circuit Rule 36-3.