Julio Cesar Otarola v. Immigration and Naturalization Service

270 F.3d 1272, 2001 Cal. Daily Op. Serv. 8935, 2001 Daily Journal DAR 11147, 2001 U.S. App. LEXIS 22507, 2001 WL 1242254

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 18, 2001
• Docket: 99-71405
• Status: Published

Opinions

Opinion By Judge HUG; Dissent by Judge GRABER.

HUG, Circuit Judge:

Julio Cesar Otarola appeals a final order of removal entered by the Board of Immigration Appeals (“BIA”) on September 30, 1999. Otarola argues that the BIA erred by applying the “stop-time” rule set forth in section 309(c)(5) of IIRIRA¹ in determining whether he satisfied the seven-year residency requirement for suspension of deportation. The Immigration Judge (“IJ”) correctly ruled that the effective date of IIRIRA was not until April 1,1997; that Otarola’s application for suspension, heard on October 25, 1996, was governed by pre-IIRIRA law; and that the seven-year residency requirement was met. The IJ also found that the other requirements were met and granted Otarola’s application for suspension of deportation.

In the face of clear statutory language and this court’s precedent holding that the stop-time provision of IIRIRA was not effective until April 1, 1997, the Immigration and Naturalization Service (“INS”) prosecuted this appeal on the sole ground that the stop-time rule applied to Otarola on October 25, 1996, and thus he had not met the seven-year residency requirement. The appeal was meritless and yet pursued by the INS. The BIA heard the appeal after April 1, 1997, applied IIRIRA’s stop-time rule, and denied Otarola’s petition for suspension of deportation. Had the INS not pursued a completely meritless appeal of the IJ’s decision, the IJ’s order granting suspension of deportation would have been final. We conclude that the BIA’s reversal of the IJ’s decision applying the correct effective date of IIRIRA would contravene Congressional intent in providing a six-month delay before IIRIRA took effect. Accordingly, we grant the petition for review and remand the case to the BIA with instructions to affirm the IJ’s decision.

I.

Julio Cesar Otarola is a native and citizen of Peru who entered the United States without inspection on or about February 22, 1989. On December 4, 1995, the INS served Otarola with an order to show cause (“OSC”), which charged that he was subject to deportation pursuant to § 241(a)(1)(B) of the Immigration and Nationality Act (“INA”), codified at 8 U.S.C. § 1251(a)(1)(B).

At his initial deportation hearing on April 15, 1996, Otarola admitted the allegations of fact in the OSC, conceded his eligibility for deportation, and requested leave to apply for suspension of deportation. On October 25, 1996, Otarola presented his case for suspension of deportation, and the immigration judge (“IJ”) found that Otarola was entitled to suspension of deportation by satisfying the three pre-IIRIRA statutory requirements.² In her ruling, the IJ rejected the INS’s argument that IIRIRA’s stop-time rule applied to Otarola on October 25, 1996.³ The IJ entered an order granting Otarola’s application for suspension of deportation.

On November 20, 1996, the INS appealed the IJ’s decision on the sole ground that the stop-time rule was applicable on October 25, 1996 and that therefore the IJ lacked “statutory authority to consider [Otarola’s] request” because the stop-time rule rendered Otarola “statutorily [in]eligible for relief from deportation.” Treating the stop-time rule as if it were effective on October 25, 1996, the INS contended that Otarola fell three months shy of seven years of continuous presence and thus could not establish threshold eligibility for suspension of deportation.

On June 16, 1997, the INS filed a short memorandum which reiterated its arguments from the initial brief, stating that it “stands upon its previously filed brief.... Respondent is not statutorily eligible for relief from deportation.... As a result of the Immigration Judge lacking statutory authority to consider Respondent’s request for suspension of deportation, the Service’s appeal should be sustained.” On March 9, 1998, the BIA sent out a “Notice of Additional Briefing Period” in which the parties were granted additional time to file briefs “in view of the recent changes in the law governing suspensions of deportation under section 244(a) of the [INA].” Otarola filed a brief which cited binding circuit precedent, Astrero v. INS, 104 F.3d 264, 266 (9th Cir.1996) (holding that the stop-time rule was not effective until April 1, 1997), and argued that it “directly addressed the issue presented in this case.” The INS did not respond to Otarola’s arguments or to the Notice of Additional Briefing.

On September 30, 1999, the BIA sustained the appeal of the INS. Despite the fact that the IJ had correctly applied pre IIRIRA law, the BIA applied the stop-time provision, which terminated Otarola’s accrual of time toward the physical presence requirement upon service of the OSC. Because Otarola had not attained seven years of physical presence as of the date the OSC was served, the BIA ruled that Ota-rola “cannot meet the physical presence requirement for suspension of deportation.” Otarola timely petitioned for review.

II.

This petition is governed by IIR-IRA’s transitional rules. Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). We have jurisdiction pursuant to 8 U.S.C. § 1105a(a), as amended by IIRIRA section 309(c). Guadalupe-Cruz v. INS, 240 F.3d 1209, 1211 (9th Cir.2001). The BIA’s determination of purely legal questions are reviewed de novo. Ratnam v. INS, 154 F.3d 990, 994 (9th Cir.1998). We review BIA interpretations of the INA de novo, but with deference to the BIA’s interpretation of the statute. Urbina-Mauricio v. INS, 989 F.2d 1085, 1087 (9th Cir.1993).

III.

One month after the INS filed its appeal arguing that the IJ erred by not applying the stop-time rule on October 25,1996, this court ruled that the stop-time rule was not effective in deportation proceedings until April 1, 1997. Astrero, 104 F.3d at 266. Astrero relied on the “clear statutory language” that the “effective date for the new § 240A is ‘the first day of the first month beginning more than 180 days after the date of the enactment of th[e] Act ... ’ or April 1, 1997.” Id. at 266 (citing IIRIRA § 309(a)). Despite clear statutory language to the contrary and our holding in Astrero, the INS continued with this appeal and argued, as of June 16, 1997, that the IJ lacked “statutory authority” to consider Otarola’s suspension request. When confronted with Otarola’s supplemental brief, which correctly pointed out that As-trero “directly addressed the issue presented in this case,” the INS responded with silence.

In general, the BIA is bound to apply current law. Urbina-Mauricio v. INS, 989 F.2d at 1088 n. 4 (“When the law is amended before an administrative agency hands down a decision, the agency must apply the new law.”). Furthermore, we have stated that “the BIA [is] required to apply the law existing at the time of its review, even if different from the law applied by the IJ.” Ortiz v. INS, 179 F.3d 1148, 1156 (9th Cir.1999).

However, in Guadalupe-Cruz v. INS, 240 F.3d 1209, 1212 (9th Cir.2001), we decided that the BIA erred by applying the then-current IIRIRA. In contrast to Otarola’s case, in which the IJ applied the correct law as of the date of his decision, Guadalupe-Cruz involved an application for suspension of deportation where the IJ incorrectly applied IIRIRA’s stop-time rule before April 1, 1997. Id. at 1210. Although IIRIRA had become effective by the time the BIA issued its decision and rendered the petitioner statutorily ineligible for suspension, we ruled that the BIA erred by not addressing the IJ’s error in applying the stop-time rule before April 1, 1997. Id. at 1212. There, we remanded to the IJ for a determination of the petitioner’s eligibility for suspension under pre-IIRIRA law. Id.

Similarly, in Castillo-Perez v. INS, 212 F.3d 518, 522 (9th Cir.2000), the BIA found that the alien had established a prima facie case of ineffective assistance of counsel; nevertheless, the BIA denied the alien’s request for remand because IIRIRA had imposed the stop-time rule after the IJ’s ruling and before the BIA’s decision. The BIA held that the alien was no longer able to meet the necessary seven-year continuous physical presence requirement. Id. Despite the rule that the BIA should generally apply then-current law, we remanded the case, instructing the BIA to order a hearing before an IJ in which the alien would be entitled to apply for suspension of deportation under pre-IIRIRA law. Id. at 528. Thus, the general rule that the BIA should apply then-current law is not absolute, particularly when it comes to review of non-discretionary, procedural issues.

The issue here is whether this situation qualifies for an exception to the general rule: Can the INS delay proceedings by filing and maintaining meritless appeals in the face of clear statutory language and circuit precedent to the contrary in order to take advantage of a change in the immigration laws that becomes available solely by virtue of the time delay resulting from the meritless appeal? The Supreme Court addressed a similar issue when aliens sought to delay their proceedings until they had accrued seven years of physical presence. In INS v. Rios-Pineda, 471 U.S. 444, 452, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985), the Court concluded that it was within the BIA’s discretion to refuse to reopen a suspension proceeding because the aliens had filed frivolous appeals in order to accrue seven years of residency. The Court reasoned:

No substance was found in any of the points raised on appeal, ... and we agree with the BIA that they were without merit. The purpose of an appeal is to correct legal errors which occurred at the initial determination of deportability; it is not to permit an indefinite stalling of physical departure in the hope of eventually satisfying legal prerequisites.

Id. (emphasis added).

In this case, the shoe is on the other foot. While the aliens in Rios-Pineda filed frivolous appeals in order to accrue the requisite seven years of presence, the INS in the present case maintained an appeal with no legal merit apparently thinking that the BIA would apply the stop-time rule after April 1, 1997. If it is improper for aliens to file frivolous appeals simply to secure the passage of time, then it is improper for the INS to engage in similar tactics. Allowing the INS to appeal a correct IJ decision on a frivolous, non-discretionary procedural ground in order to avail itself of the stop-time rule would undermine clear Congressional intent to enact a 180-day delay period.

Congress was clear when it established the effective date for IIRIRA. By explicitly establishing IIRIRA’s effective date as, “the first day of the first month beginning more than 180 days after the date of the enactment⁴ of this Act,” Congress mandated a six-month delay period in which pre-IIRIRA law was to be followed. See IIRIRA § 309(a). Nevertheless, the INS contended that IIRIRA was effective on October 25, 1996. IIRIRA’s plain text, however, indicated that April 1, 1997 was the effective date. Even after we made this obvious conclusion an explicit holding in Astrero, which was decided December 80, 1996, the INS persisted with a contrary argument in its brief dated June 16, 1997. To allow the INS to gain access to the stricter immigration laws of IIRIRA by filing and maintaining frivolous appeals would render Congress’s six-month delay provision nugatory.

The BIA is to review de novo whether the IJ correctly applied the law. The INS appealed on the sole ground that the IJ erred in applying the stop-time rule. No other matter was properly before the BIA on appeal. Thus, there was no basis for the BIA to reverse the IJ’s decision, because she had applied the correct law.

IV.

The dissent argues that this case is controlled by Ram v. INS, 243 F.3d 510 (9th Cir.2001). That case differs significantly from this case. In Ram the petitioners filed a motion to reopen a completed deportation process. They sought suspension of deportation because the required seven-years residence had been fulfilled after the BIA’s decision in the deportation proceeding. Thus, the motion incorporad ing the petition was made directly in the first instance to the BIA, which ruled that the Rams had not satisfied the new stop-time rule. Thus, the initial ruling on eligibility was after the April 1, 1997 effective date of IIRIRA. This was not an appeal from a correct ruling by an IJ prior to the effective date, as in the case before us. Furthermore, from a policy standpoint the Rams had acquired their seven-year residency requirement during an extended appellate process that they had initiated. This is the very thing that motivated the enactment of the stop-time provision.

Otarola, on the other hand, had completed the seven-year requirement before the IJ ruled and before the effective date of IIRIRA. There was no stalling on his part by means of appeals; the only stalling was by the INS by means of a meritless appeal. In Ram the initial request for suspension was brought before the BIA in a motion to reopen the deportation proceedings; in Otarola the matter was before the BIA on a meritless appeal of a correct initial ruling by the IJ. Had the INS not proceeded with its meritless appeal, the correct ruling of the IJ would have stood and Otarola would have been entitled to suspension of deportation.⁵

V.

Petition GRANTED. Because the BIA denied Otarola’s application for suspension of deportation “solely on the basis of the stop-time rule,” we REMAND with instructions for the BIA to affirm the decision of the IJ.

1 . Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996).

2 . Prior to IIRIRA, an alien was eligible for suspension of deportation if (1) he or she "ha[d] been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of [the] application" for suspension of deportation; (2) he or she was a "person of good moral character”; and (3) deportation would result in "extreme hardship” to the alien or to an immediate family member who was a U.S. citizen or a lawful permanent resident. INA § 244(a)(1), 8 U.S.C. § 1254(a)(1) (1994).

3 . Before the stop-time rule went into effect, an alien accrued time towards the continuous physical presence requirement until applying for suspension of deportation. The issuance of an OSC had no effect on this accrual. Congress altered this system by enacting IIRI-RA’s stop-time rule, which provides that the period of continuous physical presence in the United States shall end when the INS initiates removal proceedings. INA § 240A(d)(l), 8 U.S.C. § 1229b(d)(l). Thus, under the stop-time rule, an alien must meet the continuous physical presence requirement before he or she is served with an OSC.

4 . September 30, 1996.

5 . The dissent states that Astrero warned that after April 1, 1997, the new requirements of IIRIRA may apply retroactively. However, nothing in Astrero indicates that the INS could proceed with a meritless appeal so as to bring the matter before the BIA after April 1, 1997 in order to apply the stop-time rule retroactively.