Ayoub v. Immigration & Naturalization Service

Fifth Circuit

Ayoub v. Immigration & Naturalization Service

222 F.3d 214, 2000 U.S. App. LEXIS 21445, 2000 WL 1133580

CourtCourt of Appeals for the Fifth Circuit

DecidedAugust 25, 2000

Docket97-60361

StatusPublished

Cited by9 cases

This text of 222 F.3d 214 (Ayoub v. Immigration & Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ayoub v. Immigration & Naturalization Service, 222 F.3d 214, 2000 U.S. App. LEXIS 21445, 2000 WL 1133580 (5th Cir. 2000).

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Opinion

PER CURIAM:

Michel Ayoub, a citizen of Lebanon, had overstayed his visa to live in the United States by more than ten years while he filed various papers delaying his deportation. He makes one more such attempt, arguing that the Board of Immigration Appeals (“BIA”) erred in concluding that the issuance of an order to show cause tolled the period for calculating his continuous physical presence. He contends that, under § 309(c)(5)(A) of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), the tolling provision in INA § 240A(d)(l) applies only if the alien is requesting cancellation of removal. Inasmuch as he is seeking suspension of deportation, Ayoub argues, the issuance of

an order to show cause did not interrupt his physical presence in this country.

We have recently explained, in dictum, as follows:

Initially, § 304(a)’s use of the term “notice to appear” created potential confusion, because it was uncertain whether this stop-time provision also applied to orders to show cause. But the BIA interpreted the new phrase to include pre-IIRIRA show-cause orders, and-, in 1997, Congress eliminated any remaining confusion: It enacted the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), which included a clarifying amendment to the IIRIRA’s stop-time rule, replacing “notices to appear” with “orders to show cause.” See NACARA § 203(a), Pub.L. No. 105-100, 111 Stat. 2160, 2096.

Gonzalez-Torres v. INS, 213 F.3d 899, 902 (5th Cir.2000). This statement conforms to the understanding of other circuits and reflects the BIA’s interpretation. 1

Dictum can be persuasive authority. See Society of Separationists, Inc. v. Herman, 939 F.2d 1207, 1211 (5th Cir. 1991). This dictum, bolstered by other circuits and but nominally challenged by the rather perfunctory appeal submitted in this instance, persuades us and conclusively answers the only question raised by this petition for review.

The petition for review is DENIED, and the order of the BIA is AFFIRMED.

1

. See Appiah v. INS, 202 F.3d 704, 708-09 (4th Cir.2000), petition for cert. filed (June 15, 2000) (No. 99-10039); Tefel v. Reno, 180 F.3d 1286, 1293 (11th Cir.1999), cert. denied, - U.S. -, 120 S.Ct. 2657, 147 L.Ed.2d 272 (2000); In re Nolasco-Tofino, Int. Dec. 3385 (BIA 1999).

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PER CURIAM:

Michel Ayoub, a citizen of Lebanon, had overstayed his visa to live in the United States by more than ten years while he filed various papers delaying his deportation. He makes one more such attempt, arguing that the Board of Immigration Appeals (“BIA”) erred in concluding that the issuance of an order to show cause tolled the period for calculating his continuous physical presence. He contends that, under § 309(c)(5)(A) of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), the tolling provision in INA § 240A(d)(l) applies only if the alien is requesting cancellation of removal. Inasmuch as he is seeking suspension of deportation, Ayoub argues, the issuance of

an order to show cause did not interrupt his physical presence in this country.

We have recently explained, in dictum, as follows:

Initially, § 304(a)’s use of the term “notice to appear” created potential confusion, because it was uncertain whether this stop-time provision also applied to orders to show cause. But the BIA interpreted the new phrase to include pre-IIRIRA show-cause orders, and-, in 1997, Congress eliminated any remaining confusion: It enacted the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), which included a clarifying amendment to the IIRIRA’s stop-time rule, replacing “notices to appear” with “orders to show cause.” See NACARA § 203(a), Pub.L. No. 105-100, 111 Stat. 2160, 2096.

Gonzalez-Torres v. INS, 213 F.3d 899, 902 (5th Cir.2000). This statement conforms to the understanding of other circuits and reflects the BIA’s interpretation. 1

Dictum can be persuasive authority. See Society of Separationists, Inc. v. Herman, 939 F.2d 1207, 1211 (5th Cir. 1991). This dictum, bolstered by other circuits and but nominally challenged by the rather perfunctory appeal submitted in this instance, persuades us and conclusively answers the only question raised by this petition for review.

The petition for review is DENIED, and the order of the BIA is AFFIRMED.

1

. See Appiah v. INS, 202 F.3d 704, 708-09 (4th Cir.2000), petition for cert. filed (June 15, 2000) (No. 99-10039); Tefel v. Reno, 180 F.3d 1286, 1293 (11th Cir.1999), cert. denied, - U.S. -, 120 S.Ct. 2657, 147 L.Ed.2d 272 (2000); In re Nolasco-Tofino, Int. Dec. 3385 (BIA 1999).

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222 F.3d 214, 2000 U.S. App. LEXIS 21445, 2000 WL 1133580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ayoub-v-immigration-naturalization-service-ca5-2000.

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