Nabih Yacoub Tablie v. Alberto R. Gonzales, Attorney General of the United States, and U.S. Citizenship & Immigration Services

471 F.3d 60, 2006 U.S. App. LEXIS 29970, 2006 WL 3512954
CourtCourt of Appeals for the Second Circuit
DecidedDecember 6, 2006
DocketDocket 05-2955-AG
StatusPublished
Cited by29 cases

This text of 471 F.3d 60 (Nabih Yacoub Tablie v. Alberto R. Gonzales, Attorney General of the United States, and U.S. Citizenship & Immigration Services) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nabih Yacoub Tablie v. Alberto R. Gonzales, Attorney General of the United States, and U.S. Citizenship & Immigration Services, 471 F.3d 60, 2006 U.S. App. LEXIS 29970, 2006 WL 3512954 (2d Cir. 2006).

Opinion

DENNIS JACOBS, Chief Judge.

An Immigration Judge (“IJ”) held that Nabih Yacoub Tablie was ineligible for suspension of deportation because he failed to establish continuous physical residence in the United States for the requisite number of years. The Board of Immigration Appeals (“BIA”) dismissed Tablie’s appeal, concluding that Tablie’s commission of a crime in 1984 ended his period of continuous residence in the sixth year. Under the law as it stood when the deportation proceedings began in 1989, Tablie’s offense would not have affected the period of residence. 8 U.S.C. § 1254 (repealed 1996). However, in 1996 the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1229b(d)(l), was amended such that an alien’s period of continuous residence ended upon the commission of certain offenses. Because we conclude that the relevant provisions of the INA apply retrospectively to Ta-blie’s 1984 criminal offense, we deny his petition for review.

BACKGROUND

Tablie, a native and citizen of Lebanon, legally entered the United States in 1979 on a student visa to attend college in Buffalo. In 1984, near the completion of his studies, Tablie lied on an application for permanent residence; in 1986, he was convicted of making false material statements to the Immigration and Naturalization Service.

In October 1989, deportation proceedings were commenced by order to show cause. Those proceedings were delayed for various reasons not relevant to the current appeal. In July 2000, the IJ determined that Tablie was ineligible for suspension of deportation. The BIA dismissed Tablie’s appeal in May 2005. Ta-blie filed a timely petition for review in June 2005.

DISCUSSION

Prior to 1996, an alien subject to removal could apply to the Attorney General for suspension of deportation, a form of discretionary relief. To qualify for suspension of deportation, an alien had to prove (1) that he was “physically present in the United States for a continuous period of not less than seven [or ten 1 ] years *62 immediately preceding the date of such application,” (2) “that during all of such period he was and is a person of good moral character,” and (3) that he was “a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1254(a) (repealed 1996).

In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009, altered the suspension of deportation procedure in several ways that bear upon this appeal. First, removal procedures that were commenced by order to show cause are now commenced by the filing of a notice to appear. Second, the relief that was called suspension of deportation is now called “cancellation of removal.” INA § 240A(a), 8 U.S.C. § 1229b(a). Third— and most important for purposes — the accrual of continuous residence now ends when deportation proceedings commence, or when the alien commits certain offenses, or if the alien is absent for a long time:

(1) Termination of continuous period
... [A] ny period of continuous residence or continuous physical presence in the United States shall be deemed to end
(A) ... when the alien is served a notice to appear ..., or
(B) when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible ... or removable ..., whichever is earliest.
(2) Treatment of certain breaks in presence
An alien shall be considered to have failed to maintain continuous physical presence in the United States ... if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.

8 U.S.C. § 1229b(d) (bolded and re-formatted). Under subsection 240A(d)(l), called the “stop-time rule,” the alien’s continuous residency or physical presence ends, for purposes of cancellation of removal, on the date he commits a qualifying offense or on the date a notice to appear is filed. 8 U.S.C. § 1229b(d)(l). Under subsection 240A(d)(2) an alien’s presence is insufficiently “continuous” if he leaves the country for a period of ninety days or for 180 days in the aggregate. 8 U.S.C. § 1229b(d)(2).

Accordingly, under § 240A(d)(l) Tablie’s period of continuous residence ended in 1984 when he lied on his application for permanent residence, after only five years in the country. Tablie would therefore be ineligible for cancellation of removal under the new stop-time rule. The question raised by Tablie’s petition is whether the stop-time rule applies to his eligibility for cancellation of removal. We conclude that it does.

Tablie’s removal proceedings began in 1989, seven years before the enactment of IIRIRA. Generally, IIRIRA provisions do not apply “in the case of an alien who is in exclusion or deportation proceedings as of the [statute’s] effective date.” IIRIRA § 309(c)(1). In such a case, “the proceedings (including judicial review thereof) shall continue to be conducted without regard to” IIRIRA’s amendments to the INA. Id. § 309(c)(1)(B).

However, IIRIRA contains a special “transitional rule with regard to suspen *63 sion of deportation,” which states that “[p]aragraphs (1) and (2) of section 240A(d) of the [INA] (relating to continuous residence or physical presence) shall apply to notices to appear issued before, on, or after the date of the enactment of this Act.” Id. § 309(c)(5). This wording is defective (and was later amended) because, as mentioned above, “notices to appear” did not exist before the enactment of IIRI-RA; so the transitional rule is meaningless insofar as it provides for the application of § 240A(d) to “notices to appear” that were “issued before ... the date of the enactment of this Act.” IIRIRA’s transitional rule was revised in the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), Pub.L. No. 105-100, 111 Stat. 2160, which replaced the phrase “notices to appear” with the phrase “orders to show cause” (the initiating instruments for removal proceedings before the enactment of IIRIRA). NACARA § 203(1).

So amended, the transitional rule states that INA § 240A(d) shall apply to orders to show cause issued before the enactment of IIRIRA. However, Tablie argues that the text of the transitional rule remains ambiguous.

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471 F.3d 60, 2006 U.S. App. LEXIS 29970, 2006 WL 3512954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nabih-yacoub-tablie-v-alberto-r-gonzales-attorney-general-of-the-united-ca2-2006.