F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 14 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT
ELIAKIM SIBANDA, SIKHATHELE
SIBANDA, NOMAQHAWE
SIBANDA, and MTHABISI
SIBANDA,
Petitioners,
v. No. 97-9512
IMMIGRATION AND
NATURALIZATION SERVICE,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
(BIA File Nos. A27 935 730; A27 935 729; A27 935 728; A27 935 727)
L. Ari Weitzhandler, Denver, Colorado, for Petitioners.
John J. Andre, Attorney (Stuart E. Schiffer, Acting Assistant Attorney General;
Mark C. Walters, Assistant Director; Kristen A. Giuffreda, Senior Litigation
Counsel; Paul D. Kovac, and Loreto S. Geisse, Attorneys, on the briefs) Office of
Immigration Litigation, Civil Division, Department of Justice, Washington, D.C.,
for Respondent.
_________________________
Before SEYMOUR, McKAY, and MURPHY, Circuit Judges.
_________________________
McKAY, Circuit Judge.
Eliakim Sibanda, Sikhathele Sibanda, Nomaqhawe Sibanda, and Mthabisi
Sibanda (Petitioners) appeal the Board of Immigration Appeals’ (Board)
February 26, 2001, ruling denying Petitioners’ request to reopen their deportation
proceedings in order to apply for suspension of deportation relief.
I. Dispute Background
Because an analysis of Petitioners’ claims requires an understanding of
their extensive attempts to remain in the United States, we begin with a brief
summary of the history of Petitioners’ dealings with various immigration
authorities. Petitioners’ supplemental brief serves as the primary source of the
current dispute’s history as detailed below. See Pet. Supp. Brief 1-3.
Petitioners are natives and citizens of Zimbabwe. Eliakim first entered the
United States in 1985 on a nonimmigrant visa. After his nonimmigrant visa
expired, Eliakim left the United States briefly and obtained a student visa.
Eliakim reentered the United States as a student in September 1987. Meanwhile,
Eliakim’s wife, Sikhathele Sibanda, and his two children, Nomaqhawe and
Mthabisi, first entered the United States on April 30, 1986, as nonimmigrant
dependents of a student.
Instead of leaving the United States when required by their visas,
Petitioners applied for asylum with the Immigration and Naturalization Service on
March 10, 1988. The INS denied Petitioners’ request for asylum and granted
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them thirty days voluntary departure in October 1988. On March 2, 1989, the INS
issued an order to show cause and notice of hearing which was served on
Petitioners’ counsel on March 8, 1989. In May 1989, the INS administrative law
judge denied Petitioners’ application for asylum and granted them voluntary
departure through August 12, 1989. Petitioners appealed that decision to the
Board. On October 1, 1993, the Board dismissed Petitioners’ appeal and granted
Petitioners voluntary departure for thirty days. In September 1994, this court
dismissed Petitioners’ petition for review of the Board’s decision. See Sibanda v.
INS, 1994 U.S. App. Lexis 26980 (10th Cir.).
In March 1995, the United States District Court for the District of Colorado
granted Petitioners’ habeas corpus petition and allowed Petitioners an additional
one-year period for voluntary departure. See Sibanda v. District Director, 881 F.
Supp. 1494 (D. Colo. 1995). On March 20, 1996, Petitioners filed a motion to
reopen with the Board for consideration of their applications for Suspension of
Deportation. On March 3, 1997, the Board denied Petitioners’ request holding
that Petitioners did not qualify for Suspension of Deportation proceedings as a
matter of law because they could not establish the requisite seven-year residency
requirement. On March 21, 1997, Petitioners appealed to this court. On
August 4, 1997, we stayed the proceedings pending the Attorney General’s
decision in In re N-J-B-, Int. Dec. 3309 (BIA 1997). Then on March 23, 2000, we
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remanded the record to the Board for a determination whether the stop-time rule
applied to Petitioners’ motion. The Board on February 26, 2001, found
Petitioners ineligible for suspension of deportation relief. Petitioners now seek
review of the Board’s denial of Petitioners’ motion to reopen. We have
jurisdiction to review the Board’s decision pursuant to Section 309(c)(4) of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”).
II. IIRIRA
Prior to IIRIRA’s passage in 1996, § 244(a) of the Immigration and
Nationality Act (INA) controlled suspension of deportation relief. While the
Attorney General possessed discretion to grant suspension of deportation to aliens
under the INA, an alien was first required to satisfy several requirements
including being “physically present in the United States for a continuous period of
not less than seven years immediately preceding the date of such application.” 8
U.S.C. § 1254(a)(1). Under the INA, time spent in deportation proceedings
counted toward the seven-year physical presence requirement.
IIRIRA changed the accumulation of continuous residence time during
deportation proceedings by enacting a cancellation of removal provision. See 8
U.S.C. § 1229b. Under IIRIRA, “any period of continuous residence or
continuous physical presence in the United States shall be deemed to end . . .
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when the alien is served a notice to appear . . . .” 8 U.S.C. § 1229b(d)(1). After
IIRIRA’s passage, once deportation proceedings commenced, the continuous
presence “clock” stopped and an alien’s ability to continue accruing years of
continuous presence ended. See, e.g., Appiah v. INS, 202 F.3d 704, 707 (4th Cir.
2000).
Congress’ enactment of the Nicaraguan Adjustment and Central American
Relief Act (NACARA) removed any potential confusion over whether the use of
the phrase “notice to appear” applied to aliens like Petitioners who were served
with “orders to show cause” (instead of “notices to appear”). NACARA
contained a clarifying amendment to IIRIRA’s stop-time rule which substituted
the phrase “orders to show cause” for IIRIRA’s original “notice to appear”
language.
Section 309(c)(5) of the NACARA amendments to IIRIRA established
transitional rules applicable to aliens like Petitioners who were placed in
deportation proceedings before April 1, 1997 (IIRIRA’s effective date). While
such aliens would ordinarily not be subject to IIRIRA’s amendments, § 309(c)(5)
indicates that the stop-time rule “shall apply to orders to show cause . . . issued
before, on, or after the date of the enactment of this Act.” IIRIRA §309(c)(5) as
amended by NACARA §203(a)(1). Thus, the stop-time rule unambiguously
applies to orders to show cause issued before, on, or after September 30, 1996.
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As previously indicated, INS issued an order to show cause to Petitioners on
March 2, 1989.
III. Petitioners’ Claims
Petitioners argue that the stop-time provision in the transitional rules
cannot possibly apply to all orders to show cause issued before, on, or after
IIRIRA’s enactment date. Petitioners claim that this would require us to overturn
cases that became final prior to IIRIRA’s enactment date. Since such a result
would be absurd, Petitioners argue that Congress only intended that certain
individuals served with orders to show cause before, on, or after September 30,
1996, be subjected to the stop-time rule. Instead of applying to all individuals,
Petitioners propose that the transitional rules should be inapplicable to aliens who
took “affirmative steps,” such as filing for asylum. Under Petitioners’ view, the
transitional rules would be applicable only to aliens filing “defensive” petitions,
i.e., illegal aliens discovered by INS who respond to INS’ efforts to deport them
by filing applications for suspension of deportation.
The superficial appeal of Petitioners’ proposed application of the stop-time
rule dissipates upon deeper analysis. Petitioners correctly note that the language
Congress employed makes the stop-time measure universally applicable to orders
to show cause issued before, on, or after IIRIRA’s enactment date. It is also true,
as Petitioners state, that including language indicating that the transitional rules
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applied only to pending cases would have made congressional intent crystal clear.
Even though Congress failed to include such language, the end result is not the
ambiguity Petitioners necessarily depend upon to reach their desired result.
In dismissing Petitioners’ argument, we begin with the observation that the
failure to obtain optimum clarity in legislative language cannot create an
ambiguity in construction requiring results contrary to Congress’ manifest intent.
We have never held Congress to this level of scrutiny. It is doubtful that any
legislative body, Congress included, could possibly withstand a requirement that
all legislative language be expressed with optimum clarity.
Due to the longstanding regard in this Country for the concept of finality, a
more logical line to draw would be to apply the transitional rules only to pending
cases. When contemplating the scope of the transitional rule, it is logical to
assume that Congress concerned itself only with cases that were pending or would
arise in the future rather than cases that had already been resolved.
Perhaps more importantly, distinguishing between aliens who take
“affirmative steps” and those who respond defensively to INS proceedings finds
no basis in the record or in legislative history. Petitioners fail to cite a single
source supporting their proposed interpretation. Accordingly, we must reject
Petitioners’ suggested approach.
Regardless of the language of the transitional rules, Petitioners next argue
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that the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001),
mandates a reversal of the Board’s decision. In St. Cyr, the Supreme Court
refused to apply IIRIRA retroactively to prevent discretionary relief for an alien
who pleaded guilty to a crime prior to IIRIRA’s passage. IIRIRA eliminated the
ability of an alien to plead guilty to certain crimes yet retain the right to seek
relief from deportation. Analyzing the retroactive application of this particular
IIRIRA provision as mandated in Landgraf v. USI Film Products, 511 U.S. 244
(1994), the Court first determined that Congress’ intent to make the provision
preventing deportation relief for aliens who pleaded guilty to certain crimes
retroactive was not sufficiently clear. See St. Cyr, 533 U.S. at ___, 121 S. Ct. at
2290.
Because Congress’ retroactive intent was not clearly expressed, the Court
then examined Landgraf’s second factor, “whether the new provision attaches new
legal consequences to events completed before its enactment.” St. Cyr, 533 U.S.
at ___, 121 S. Ct. at 2290 (quoting Landgraf, 511 U.S. at 270) (citation omitted).
The Court noted that plea agreements involve a quid pro quo between criminal
defendants and the government. See id. at 2291. By entering a guilty plea, St.
Cyr waived several of his constitutional rights, including the right to a trial. As a
result of that decision, the government also received “numerous ‘tangible
benefits, such as promptly imposed punishment without the expenditure of
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prosecutorial resources.’” Id. (citation omitted). Additionally, the Court noted
that aliens like St. Cyr considered immigration implications when entering into
plea agreements. See id. Because Congress’ retroactive intent was not clear and
the retroactive application attached a new legal consequence to St. Cyr, the Court
refused to retroactively apply IIRIRA’s provision making aliens who plead guilty
to certain crimes ineligible as a matter of law for deportation relief.
St. Cyr does not support Petitioners’ position. This court has upheld the
notion that Congress intended to retroactively apply the stop-time provision as
announced by the Board in In re Nolasco-Tofino, Int. Dec. 3385 (BIA 1999). See
Rivera-Jimenez v. INS, 214 F.3d 1213, 1217 (10th Cir. 2000). Our sister circuits
agree that Congress intended the stop-time provision to apply retroactively. See,
e.g., Pinho v. INS, 249 F.3d 183, 187 (3d Cir. 2001); Ram v. INS, 243 F.3d 510,
515-16 (9th Cir. 2001); Rojas-Reyes v. INS, 235 F.3d 115,121 (2d Cir. 2000);
Ashki v. INS, 233 F.3d 913, 918 (6th Cir. 2000); Afolayan v. INS, 219 F.3d 784,
787-88 (8th Cir. 2000). Furthermore, during oral argument Petitioners conceded
that they could not distinguish their case from our prior decision in Rivera
regarding the retroactive effect of the stop-time rule.
Even if we could accept Petitioners’ view of IIRIRA’s ambiguity, the right
Petitioners allege they gave up in dependence on pre-IIRIRA provisions does not
rise to the level Landgraf requires as interpreted by St. Cyr. Petitioners assert
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that they gave up the right to depart voluntarily from the United States in return
for the opportunity to apply for suspension of deportation proceedings. Because
IIRIRA’s changes made Petitioners ineligible for suspension of deportation as a
matter of law, Petitioners argue that the retroactive application of the stop-time
rule costs them not only the opportunity to apply for discretionary review but also
causes them to forfeit many of the advantages of voluntary departure. Those
advantages include the right to depart to a country of the aliens’ choice and the
right to apply to reenter the United States legally.
Assuming, without deciding, that the right to apply for a discretionary grant
of suspension of deportation rises to the level of a constitutional right
commensurate with the right to a jury trial, Petitioners’ argument suffers from a
greater flaw. Unlike the petitioner in St. Cyr, Petitioners fail to show what the
government gained from Petitioners’ decision to forego the voluntary departure
“right” granted to them. In fact, Petitioners’ failure to voluntarily depart as
promised has put the government to greater expense. Additionally, on at least
four occasions Petitioners have been granted the opportunity to voluntarily depart
from the United States. Yet, Petitioners have failed to take advantage of this
opportunity on any occasion. We simply cannot agree with Petitioners that St.
Cyr mandates departure from IIRIRA’s unambiguous provisions.
Petitioners originally entered the United States with the authorization to
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remain until November 1988. Through a variety of legal maneuvers and a
combination of unusual circumstances, Petitioners remain in the United States
more than thirteen years later. We recognize that the record is devoid of any
evidence that Petitioners’ conduct while in the United States has been anything
less than commendable. However, the immigration laws must apply to all aliens,
not just to those who disqualify themselves through boorish behavior or criminal
misconduct.
The passage of the stop-time rule was Congress’ solution to the very
problem this court addresses today. Congress intended to prevent aliens from
continuing to accumulate time toward the continuous residency requirement after
INS had issued an order to show cause to an alien. We hold as a matter of law
that Petitioners are ineligible to apply for suspension of deportation proceedings
because they failed to accumulate the requisite seven years of continuous
residence. Accordingly, we affirm the Board’s denial of Petitioners’ motion to
reopen.
AFFIRMED.
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