UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 00-60261
___________________________
FEREIDOON GHASEMI-TARI,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
___________________________________________________
Petition for Review of an Order of the Board of Immigration
Appeals
A27 594 880
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December 18, 2000
Before JOLLY, DAVIS, Circuit Judges, and RESTANI*, Judge.
PER CURIAM:**
This is an immigration case in which an alien residing
illegally in the United States seeks reopening of his deportation
proceedings to apply for suspension of deportation. The Board of
Immigration Appeals (“BIA”) denied petitioner’s motion to reopen,
and he now challenges that ruling on appeal.
Ghasemi-Tari is a native and citizen of Iran who entered the
United States as a temporary visitor in 1985 with permission to
*
Judge, U.S. Court of International Trade, sitting by
designation.
**
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
remain for six months. In 1986, the Immigration and Naturalization
Service (“INS”) served him with an order to show cause, requiring
him to appear in deportation proceedings to answer a charge of
deportability. Ghasemi-Tari conceded deportability and applied for
asylum and withholding of deportation. In 1987, an immigration
judge denied that application, and gave him thirty days to leave
the United States voluntarily or be deported to Iran. In 1992, the
BIA dismissed Ghasemi-Tari’s appeal from that decision. Later in
1992, Ghasemi-Tari filed with the BIA a motion to reopen
deportation proceedings, requesting a remand to the immigration
judge for an opportunity to apply for suspension of deportation.
The BIA denied the motion to reopen in 2000 based on intervening
changes in the law.
Prior to the changes in the law in 1996 (with the enactment of
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRAIRA”)), it was within the discretion of the Attorney
General to grant suspension of deportation to any alien physically
present in the United States for seven years preceding the date of
his application for suspension. 8 U.S.C. § 1254(a). However, in
1996, Congress enacted a new “stop-time” rule, which states that
“any period of continuous physical residence or continuous physical
presence in the United States shall be deemed to end when the alien
is served with a notice to appear.” 8 U.S.C. § 1229b(d)(1).
Though these amendments ordinarily would not apply to aliens placed
in deportation proceedings before their effective date, Congress
specifically provided that the new “stop-time” rule would apply to
2
aliens in pending deportation proceedings. If this rule were
applied to Ghasemi-Tari’s case, he would be ineligible for
suspension of deportation, since he lived in the United States only
one year before he was served an order to show cause.1
First, petitioner argues that the “stop-time” rule enacted in
1996 may not be constitutionally applied retroactively to him,
since he was already involved in deportation proceedings at the
time of its enactment. After petitioner completed briefing,
however, this Court decided the issue in Gonzalez-Torres v. INS,
213 F. 3d 899, 902 (5th Cir. 2000), where we held that a retroactive
application of the rule does not violate a petitioner’s due process
rights.
Second, Ghasemi-Tari argues that notwithstanding the potential
application of the “stop-time” rule, nothing in the IIRAIRA
specifically precludes him from becoming eligible for suspension of
deportation by accruing seven years of continuous physical presence
in the United States after service of the order to show cause. He
contends, in essence, that his time should “start over” with the
service of the order to show cause. We agree with the respondent,
however, that we lack jurisdiction to hear this argument because
petitioner failed to exhaust his administrative remedies on this
point. Gonzalez-Torres at 904.
1
On the other hand, under the old law, it would be within the
Attorney General’s discretion to suspend Ghasemi-Tari’s
deportation, since he lived in the United States for more than
seven years after the order to show cause was served, and thus
fulfilled the requirement of seven years of physical presence
immediately before the application for suspension of deportation.
3
For the above reasons, the order of the BIA denying Ghasemi-
Tari’s motion to reopen deportation proceedings to apply for
suspension of deportation is AFFIRMED.
4