Ayoub v. Immigration & Naturalization Service

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________ m 97-60361 _______________ MICHEL YOUSSEF AYOUB, Petitioner, VERSUS IMMIGRATION AND NATURALIZATION SERVICE, Respondent. _________________________ Petition for Review of an Order of the Board of Immigration Appeals _________________________ August 25, 2000 Before SMITH and DENNIS, Circuit by more than ten years while he filed various Judges, and ROETTGER,* District Judge. papers delaying his deportation. He makes one more such attempt, arguing that the Board PER CURIAM: of Immigration Appeals (“BIA”) erred in con- cluding that the issuance of an order to show Michel Ayoub, a citizen of Lebanon, had cause tolled the period for calculating his con- overstayed his visa to live in the United States tinuous physical presence. He contends that, under § 309(c)(5)(A) of the Illegal Immigration Reform and Immigrant Re- * District Judge of the Southern District of sponsibility Act (“IIRIRA”), the tolling Florida, sitting by designation. provision in INA § 240A(d)(1) applies only if the alien is requesting cancellation of removal. challenged by the rather perfunctory appeal Inasmuch as he is seeking suspension of submitted in this instance, persuades us and deportation, Ayoub argues, the issuance of an conclusively answers the only question raised order to show cause did not interrupt his by this petition for review. physical presence in this country. The petition for review is DENIED, and the We have recently explained, in dictum, as order of the BIA is AFFIRMED. follows: Initially, § 304(a)’s use of the term “notice to appear” created potential con- fusion, because it was uncertain whether this stop-time provision also applied to orders to show cause. But the BIA in- terpreted 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, 2196. 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 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, 120 S. Ct. 2657 (2000); In re Nolasco-Tofino, Int. Dec. 3385 (BIA 1999). 2