Aguirre v. Holder

United States Court of Appeals
For the First Circuit

No. 12-1063

JESUS ERNESTO AGUIRRE,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.

Robert D. Watt, Jr. on brief for petitioner.
Katharine E. Clark, Trial Attorney, Office of Immigration
Litigation, United States Department of Justice, Civil Division,
Stuart F. Delery, Acting Assistant Attorney General, and Russell
J.E. Verby, Senior Litigation Counsel, on brief for respondent.

August 28, 2013
 LIPEZ, Circuit Judge. Jesus Ernesto Aguirre petitions

for review of an order denying his application for suspension of

deportation, a form of relief that was available to certain

noncitizens before 1996. To be eligible for suspension of

deportation, Aguirre had to show that he had accrued seven years of

continuous physical presence in the United States since his

arrival. In 1996, Congress passed the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No.

104–208, 110 Stat. 3009, 3009–546. This law, among other changes,

enacted a statute known as the "stop-time rule," which provides

that for the purposes of determining eligibility for relief, a

noncitizen's years of physical presence are cut off when he is

served with notice of the commencement of removal proceedings. See

8 U.S.C. § 1229b(d)(1). Because Aguirre arrived in the United

States in 1986, and his proceedings began in 1987, the agency

concluded that, under the stop-time rule, Aguirre had not accrued

the necessary years of physical presence.

Aguirre raises several challenges to the agency's

determination, all of which are either unavailing or unexhausted.

We therefore deny Aguirre's petition for review in part and dismiss

it in part.

I.

Addressing Aguirre's arguments requires us to explain not

only the facts of his specific case, but also the significant

-2-
alterations in the immigration statute that occurred during the

pendency of his removal proceedings. We draw the facts from the

written order of the immigration judge ("IJ"), as well as the

administrative record.

Aguirre, a national of Colombia, entered the United

States without inspection on or about August 10, 1986. On January

9, 1987, he was personally served with an order to show cause

("OSC") that placed him into deportation proceedings.1 A signature

page on the OSC indicates Aguirre's personal receipt of the

document. The OSC was served at the following address: "c/o Juan

B. Gonzalez, 13 Kossuth Street, Pawtucket, R.I. 02860." The OSC

did not state an initial hearing date. Instead, it said that the

hearing's date, time, and location were "to be set" later.

On February 5, 1987, the IJ issued a notice of hearing

for February 23. This notice was sent to "30 Kossuth Street," an

address different from the one on the OSC. The hearing notice was

returned to sender; there is no indication that Aguirre ever

received actual notice of the hearing. The IJ held the scheduled

1
An OSC was the title given to charging documents in
deportation/exclusion proceedings before 1996; OSCs are now termed
"notices to appear," or "NTAs." Peralta v. Gonzales, 441 F.3d 23,
26 n.4 (1st Cir. 2006). Additionally, noncitizens were previously
placed into "deportation" and "exclusion" proceedings, depending on
whether they were already present in the United States or were
seeking admission. IIRIRA replaced those terms with "removal
proceedings," which are generally applicable to noncitizens in both
groups, including those present in the United States without
inspection. See Succar v. Ashcroft, 394 F.3d 8, 12-13 (1st Cir.
2005).

-3-
hearing on February 23, at which Aguirre did not appear. The IJ

ordered the case administratively closed until he could be located.

At the time Aguirre's deportation proceedings commenced,

there existed a form of relief called suspension of deportation.

Among other requirements, an applicant for suspension had to

demonstrate seven years of continuous physical presence before

applying for relief. See 8 U.S.C. § 1254(a)(1) (1996). During the

dormancy of Aguirre's case, Congress passed IIRIRA, which worked an

array of changes in the immigration laws. One of these was the

establishment of the stop-time rule, which "caps an alien's

cumulative period of residence once a 'notice to appear' is

issued." Afful v. Ashcroft, 380 F.3d 1, 6 (1st Cir. 2004); see

also 8 U.S.C. § 1229b(d)(1). Congress also eliminated suspension

of deportation and replaced it with a form of relief called

cancellation of removal, which set different eligibility

requirements. See Peralta v. Gonzales, 441 F.3d 23, 26 (1st Cir.

2006); see also 8 U.S.C. § 1229b.

Addressing the circumstances of individuals who were

already in proceedings at the time of its passage, IIRIRA's

transitional rules provided that suspension of deportation remained

available to noncitizens who were placed into proceedings before

the law's effective date, which was April 1, 1997. See IIRIRA

§ 309(c)(1). As we held in Afful, however, the IIRIRA transitional

rules, combined with a subsequent amendment to those rules passed

-4-
with the Nicaraguan Adjustment and Central American Relief Act

("NACARA"), Pub. L. No. 105–100, 111 Stat. 2160, 2196 (1997),

applied the stop-time rule retroactively to OSCs issued before

IIRIRA's enactment. 380 F.3d at 6-7; see also Peralta, 441 F.3d at

27-28; In re Nolasco-Tofino, 22 I. & N. Dec. 632, 636 (BIA 1999)

(en banc) ("We read [the transitional rules] as requiring us to

apply the stop time rule of cancellation of removal to all pending

applications for suspension of deportation, unless expressly

exempted from the general rule."). Consequently, noncitizens who

were already in proceedings as of IIRIRA's effective date are

unable to demonstrate the requisite years of continuous physical

presence if they were issued OSCs before meeting the duration

requirement.

Aguirre's proceedings became active again in 2005, when

he was issued a new NTA charging him with removability as a

noncitizen present without being admitted or paroled. On April 11,

2007, Aguirre conceded removability, but applied for asylum and

withholding of removal. (These applications were later withdrawn,

and are not at issue in this petition.) At some point, it was

discovered that Aguirre already had an open immigration case based

on his 1987 OSC, and the proceedings based on his 2005 NTA were

terminated.

Aguirre then moved to reopen and recalendar the

deportation proceedings that had begun in 1987, and applied for

-5-
suspension of deportation. In a written submission and at a

hearing before the IJ, Aguirre argued that the stop-time rule

should not apply retroactively to him in part because the case had

"been hanging around for 20, 25 years" due to delay that was not of

his making. Aguirre contended that the equities of his case

merited an exception to the retroactive application of the stop-

time rule, citing a Sixth Circuit case adopting such an approach.

See Aoun v. INS, 342 F.3d 503, 508-09 (6th Cir. 2003).

In a written order, the IJ found Aguirre statutorily

ineligible for suspension for failure to demonstrate the necessary

years of continuous physical presence. Citing our prior opinion in

Peralta, the IJ noted that "the issuance of an OSC prior to

IIRIRA's effective date cuts off the accrual of continuous presence

or residence." As to Aguirre's equities-based argument, the IJ

distinguished Aoun on its facts, ruling that Aguirre had not

expressly argued that he failed to receive notice of his February

23, 1987, deportation hearing, or that the failure to receive

notice was attributable to the government. Moreover, the IJ

concluded that First Circuit case law was clear that the stop-time

rule applied retroactively. Accordingly, because Aguirre had been

personally served with an OSC five months after entering the United

States, he could not establish the necessary years of physical

presence, thereby rendering him ineligible for suspension.

-6-
 Aguirre filed a notice of appeal to the Board of

Immigration Appeals ("BIA"), challenging the IJ's ruling that "the

Respondent was statutorily in[]eligible to apply for suspension of

deportation." The notice indicated that he would file a brief

offering developed argument later, but the promised brief was never

filed. The BIA affirmed in a summary order, and Aguirre timely

petitioned for our review.

II.

Where, as here, the BIA summarily affirms the IJ's order

without opinion, we review the IJ's order as the final agency

determination. See Castillo-Diaz v. Holder, 562 F.3d 23, 26 (1st

Cir. 2009). Aguirre's petition focuses on pure questions of law,

triggering de novo review. Soeung v. Holder, 677 F.3d 484, 487

(1st Cir. 2012).

A. The Applicability of the Stop-Time Rule

Aguirre raises two arguments challenging the retroactive

application of the stop-time rule to his case. The first is based

on the language of IIRIRA's transitional rules; the second is

founded in the equities of his case.

1. The IIRIRA Transitional Rules

Aguirre first posits that IIRIRA's transitional rules

make the stop-time rule retroactive only as to cases that were "in

existence at the time the stop-time rule provision was enacted by

IIRIRA, or made retroactive by the enactment of [NACARA]." He then

-7-
cites the language of the IJ's 1987 administrative closure order,

which directs "that the case be administratively closed and it is

to be considered no longer pending before the immigration judge."

(emphasis added). Because the IJ's order indicates that his

proceedings were not "pending" as of IIRIRA's effective date, see

Nolasco-Tofino, 22 I. & N. Dec. at 636, Aguirre says that the stop-

time rule cannot apply retroactively to him.

This argument misapprehends the nature of administrative

closure. As we have explained, administrative closure "is a

procedural convenience . . ., but it does not constitute a final

order." Lopez-Reyes v. Gonzales, 496 F.3d 20, 21 (1st Cir. 2007).

The procedure "temporarily remove[s] a case from an Immigration

Judge's active calendar or from the Board's docket" until the

occurrence of "an action or event that is relevant to immigration

proceedings but is outside the control of the parties or the court

and may not occur for a significant or undetermined period of

time." In re Avetisyan, 25 I. & N. Dec. 688, 692 (BIA 2012); see

also id. at 694 ("Administrative closure is a tool used to regulate

proceedings, that is, to[ ]manage an Immigration Judge's calendar

(or the Board's docket).").

Administrative closure does not terminate the proceedings

or result in a final order of removal. Either the noncitizen or

the government may move to recalendar the proceedings at any time,

thus making administrative closure substantively "differ[ent] from

-8-
. . . a conclusion of the proceedings." Id. at 695. While an

administratively closed case may be accurately characterized as

"inactive," Aguirre's case remained on the IJ's docket and his

proceedings reached no definitive end. See also Arca-Pineda v.

Att'y Gen., 527 F.3d 101, 104-05 (3d Cir. 2008) (holding that stop-

time rule applied to petitioner and rejecting contention that

administrative closure "restarted" her accrual of physical presence

because her "immigration proceedings did not end upon

administrative closure, and instead . . . were merely removed from

the IJ's calendar").

Consequently, notwithstanding the IJ's characterization,

the administrative closure of Aguirre's proceedings did not alter

their status as "pending" for the purposes of the IIRIRA

transitional rules. This conclusion follows sensibly from the

language of the transitional rules and the purpose and effect of an

administrative closure order. We thus hold that the stop-time rule

applies retroactively to Aguirre.2

2
Aguirre also relies on the Ninth Circuit's opinion in
Arrozal v. INS, 159 F.3d 429 (9th Cir. 1998), to support the
contention that his proceedings were not "pending" as of IIRIRA's
effective date. Arrozal held that proceedings were not "pending"
for the purposes of the IIRIRA transitional rules when they had
concluded at the agency level and resulted in "a final
administrative decision before April 1, 1997." Id. at 434. Even
assuming Arrozal was correctly decided, Aguirre's proceedings had
not concluded when IIRIRA went into effect, thereby rendering that
case inapposite.

-9-
 2. The Equities of Aguirre's Case

Aguirre alternatively argues that the equities of his

case should exempt him from the retroactive application of the

stop-time rule, relying on Aoun, 342 F.3d at 508-09. There, the

agency placed the petitioner into proceedings in August 1985,

shortly before he accrued the requisite seven years of continuous

physical presence. Id. at 509. After filing an initial

application for suspension of deportation, he withdrew it based on

misadvice of counsel. Id. at 504. He was found removable and

ineligible for relief, after which he appealed to the BIA and

requested a chance to reapply for suspension. Id. Largely through

no fault of Aoun's, the BIA waited thirteen years before finally

issuing an order denying Aoun's request. Id. His proceedings then

concluded in 2000, after the stop-time rule had taken effect. Id.

The Sixth Circuit observed that if Aoun's BIA appeal had

been resolved in a timely fashion and he had been given a chance to

reapply for suspension, his application would have been governed by

the physical presence rules of the pre-'96 regime and he would have

retained his eligibility for suspension. Id. at 508. Charging the

agency with "den[ying Aoun] the benefit of the earlier, more

lenient rules concerning accrual of time towards continual physical

presence in the United States," id. at 507, the court held that it

would be "inequitable for the time stop rule to strip Aoun" of his

eligibility for relief, id. at 509.

-10-
 Aguirre contends that he merits a similar equitable

exemption from the stop-time rule's effect. But he fails to

address a more fundamental problem, which is that Aoun is

irreconcilable with our prior holdings in Peralta and Afful. In

those cases, we held that "the stop-time rule applies retroactively

to orders to show cause issued prior to the enactment of the

IIRIRA." Afful, 380 F.3d at 7; see also Peralta, 441 F.3d at

27-28. We see no reason to recognize a categorical exception to

this rule of general applicability. Aoun cites only a single

inapposite district court opinion in support of its outcome, see

342 F.3d at 509 (citing Henry v. Ashcroft, 175 F. Supp. 2d 688, 696

(S.D.N.Y. 2001) (addressing applicability of IIRIRA transitional

rules to case that was not "pending" as of IIRIRA's effective

date)), and does little to distinguish prior Sixth Circuit cases

that had held, like us, that the stop-time rule applies

retroactively to pre-'96 OSCs. See Casillas-Figueroa v. Gonzales,

419 F.3d 447, 449 (6th Cir. 2005) (refusing to follow Aoun and

stating that it "contradicts earlier Sixth Circuit cases

unambiguously establishing the stop-time rule's retroactivity").

Nor does Aoun square with settled principles of retroactivity

jurisprudence, which typically demand fidelity to Congress's clear

intent to make a statute retroactive. See Landgraf v. USI Film

Prods., 511 U.S. 244, 280 (1994) ("When a case implicates a federal

statute enacted after the events in suit, the court's first task is

-11-
to determine whether Congress has expressly prescribed the

statute's proper reach. If Congress has done so . . . there is no

need to resort to judicial default rules.").

In sum, we discern nothing in Aoun that warrants a

departure from our own precedents, which clearly dictate that the

stop-time rule applies retroactively to Aguirre.

B. "Repapering"

Aguirre also argues that he should receive a version of

a procedure called "repapering," through which the government can

restart a deportation/exclusion case pending as of IIRIRA's

effective date by issuing a superseding charging document that

reinitiates the case as a removal proceeding. See IIRIRA,

§ 309(c)(3) (authorizing government to "terminate proceedings in

which there has not been a final administrative decision and to

reinitiate proceedings under [IIRIRA]"). For the purposes of the

stop-time rule, the restart of proceedings stops the clock as of

the date of the superseding charging document, thereby rendering

noncitizens "who would otherwise be ineligible for suspension of

deportation relief by virtue of the stop-time rule, eligible for

cancellation of removal" under the current version of the

Immigration and Nationality Act. Rojas-Reyes v. INS, 235 F.3d 115,

125 (2d Cir. 2000).3

3
Notably, Aguirre does not request the typical form of
repapering. Repapering would mean that his case would be governed
by the post-'96 version of the immigration statute, whereby Aguirre

-12-
 This argument was not exhausted before the agency,

however. The record shows that Aguirre never raised a repapering-

based claim to the IJ, and never articulated one to the BIA. His

failure to do so deprives us of jurisdiction to entertain this

argument, and this part of his petition must be dismissed. See

Telyatitskiy v. Holder, 628 F.3d 628, 631 (1st Cir. 2011);

Lopez-Reyes, 496 F.3d at 22-23.

III.

For the reasons stated, Aguirre's petition for review is

denied in part, and dismissed in part for lack of jurisdiction.4

So ordered.

could apply for cancellation of removal for noncitizens without
lawful permanent resident ("LPR") status. See 8 U.S.C.
§ 1229b(b)(1). But this version of cancellation requires the
applicant to demonstrate, inter alia, hardship to a U.S. citizen or
LPR relative of the applicant. Id. § 1229b(b)(1)(D). Aguirre has
no familial ties that would suffice for this purpose.
Aguirre therefore wishes to retain his eligibility for
suspension of deportation under the pre-'96 regime, which does not
ask for a showing of hardship to a qualifying relative, but reset
the clock on the commencement of his proceedings to 2005. This is
not the version of repapering provided for in the IIRIRA
transitional rules, and Aguirre offers no authority indicating that
his requested relief is available under any version of the
immigration statute.
4
As a last resort, Aguirre requests that we ask the
government whether it wishes to exercise prosecutorial discretion
in his favor. We decline to do so.

-13-