IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60349
MANDANA KASHANIAN MCBRIDE,
also known as Mandana Kashanian Milne,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent,
No. 99-60610
MEHRANGIZ EGHBAL PIXLEY,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
- - - - - - - - - -
Petition for Review of an Order of
the Board of Immigration Appeals
- - - - - - - - - -
January 19, 2001
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
WIENER, Circuit Judge:
Petitioners Mandana Kashanian Milne, previously known as Mandana
1
Kashanian McBride (“Milne”), and Mehrangiz Eghbal Pixley are aliens
whose petitions for suspension of deportation were denied and who now
face deportation. They contend that the Board of Immigration Appeals
(“BIA”) erred in denying their respective petitions for suspension of
deportation because they were not continuously present in the United
States for at least seven years before receiving notice of the
commencement of deportation proceedings against them. Although each
petitioner concedes that she had not been present for the required seven
years at the time that she was served with an order to show cause1
(notifying her of the commencement of deportation proceedings), both
argue that, because they have been continuously present in the United
States for more than seven years since receiving the show cause order,
they are eligible to petition for suspension of deportation. They thus
ask us to reverse the interpretation of the BIA that § 240A(d)(1) of the
Immigration and Naturalization Act2 (“the stop-time rule”) not only
terminates the running of the clock for continuous presence accrued up
to the time that the alien is served with notice of deportation
proceedings but also prevents that clock from beginning to run anew
thereafter.
Given the deference that we owe to the BIA’s interpretation of
statutes involving immigration matters and the cogent reasoning that it
has advanced in support of its interpretation of the stop-time rule, we
1
The term “notice to appear” has since replaced the
previously employed term “order to show cause.”
2
8 U.S.C. § 1229b(d)(West 2000)(the “INA”).
2
decline to substitute a different interpretation for the BIA’s, and
therefore affirm the BIA’s denial of the Petitioners’ petitions for the
suspension of deportation.
I. Facts and Proceedings
A. Milne
Milne is a 38-year old female native and citizen of Iran. She was
admitted to the United States on July 24, 1978 on a nonimmigrant student
visa and gained authorization to remain in the U.S. until May 31, 1983
by changing her status to that of a spouse of a nonimmigrant student.
When that time elapsed, the Immigration and Naturalization Service
(“INS”) commenced deportation proceedings against her by serving her
with a notice to appear. Eventually, an immigration judge (IJ) denied
Milne’s request for asylum, ruling, inter alia, that she failed to
demonstrate that she would suffer extreme hardship if deported. The IJ
entered an order allowing 90 days for her to depart voluntarily and,
alternatively, for her to be deported should she fail to do so. Milne
appealed that decision to the BIA.
The BIA affirmed the IJ’s decision in a per curiam opinion in 1992
and reinstated an order allowing 30 days for voluntary departure, again
with an alternate order of deportation. Milne appealed that decision
to us, and we affirmed the BIA’s decision in an unpublished opinion.3
She then filed a motion with the BIA to reopen her appeal, claiming that
facts arising after the initial BIA decision —— specifically, her
3
Mandonna Kashanian McBride v. INS, 995 F.2d 222 (1993).
3
remarriage to a United States citizen by whom she had borne a child in
1993 —— established that she would indeed experience extreme hardship
if deported.4 The BIA denied this motion in 1997 without reaching the
merits, finding that § 309(c)(5) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”),5 rendered Milne
ineligible for reopening as a matter of law because she had not
established seven years of continuous physical presence here. In so
ruling, the BIA relied on its decision in Matter of N-J-B- as
precedent.6 Milne now appeals the BIA’s decision to us.
B. Pixley
Pixley is a 43-year old female native and citizen of Iran who
entered this country on October 21, 1985 as a nonimmigrant visitor for
pleasure and has resided here ever since. An order to show cause was
issued against her on January 9, 1991, alleging that she was deportable
under § 241(a)(9)(B) of the INA because she had gained conditional
resident status through a fraudulent marriage to a United States
citizen. In January of 1993, the INS withdrew that allegation but left
4
Milne was divorced from the nonimmigrant student she married
prior to 1983. She then married a U.S. citizen but we found, in
our above-said unpublished opinion, that she had admitted that it
was a marriage of convenience. After another divorce, she married
her current husband, a marriage that is uncontested as “bona fide.”
Her request for legal permanent resident status based on this
marriage was denied under INA § 204(c) which precludes approval
based on even an admittedly good-faith union if the petitioner had
previously contracted an improper marriage.
5
8 U.S.C. § 1101 note (West 2000).
6
Int. Dec. 3309 (BIA 1997).
4
in place a charge that Pixley had failed to convert her status from
conditional to permanent within the required two years. Pixley then
filed for suspension of deportation under former § 244(a) of the INA.7
In August of 1993, an IJ denied Pixley’s claim for failure to
establish the required seven years continuous physical presence in the
United States during which the alien must demonstrate good moral
character. Although Pixley had been continuously present for more than
the requisite seven years, she was found not to have demonstrated good
moral character during that time because she had falsely represented
under oath that she was living with her husband at the time she received
conditional residential status. Pixley appealed that decision to the
BIA, claiming that the record did not show that her alleged
misrepresentation had been made orally and under oath as required by
relevant case law defining what constitutes a bar to the showing of good
moral character. She subsequently petitioned for suspension of
deportation on the ground that she had demonstrated a new period of
seven years physical presence and good moral character, all accruing
while her case was pending before the BIA and after the date of her
alleged misrepresentation. Following additional briefing that addressed
the 1998 changes in the law governing suspension of deportation, the BIA
dismissed Pixley’s appeal. It held that her initial period of
continuous physical presence had been terminated by the commencement of
deportation proceedings against her; however, the BIA’s opinion did not
7
8 U.S.C. § 1254(a) (West 2000).
5
address Pixley’s claim that she had accrued seven years of continuous
presence as a person of good moral character following the commencement
of those deportation proceedings.8
II. Analysis
A. Standard of Review
We defer to an agency’s interpretation of a federal statute unless
that interpretation violates “the unambiguously expressed intent of
Congress.”9 We also note that “judicial deference to the Executive
Branch is especially appropriate in the immigration context where
officials ‘exercise especially sensitive political functions that
implicate questions of foreign relations.’”10
B. The Attorney General’s Action
Milne argues that because the BIA decision denying her claim was
based on an earlier BIA decision that was vacated subsequent to the
decision in her case, we should either reverse the BIA’s decision in her
case or remand it to the BIA for reconsideration. In the proceedings
against Milne, the BIA had ruled that she could not petition for
suspension of deportation because she was not continuously present in
the United States for at least seven years before commencement of
8
The government does not contest that each petitioner has
been continuously present in the United States for more than seven
years after being served with an order to show cause and have
demonstrated good moral character during that time.
9
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 843 (1984).
10
INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (quoting
INS. v. Abudu, 485 U.S. 94, 110 (1988)).
6
deportation proceedings against her. In so ruling, the BIA did rely on
its previous decision in N-G-B-, a decision interpreting the stop-time
rule, the construction of which is the crux of the substantive decision
to be made in these two cases.
The Attorney General referred N-G-B- to herself for review and
vacated that decision in July of 1997.11 In November of that year,
Congress enacted the Nicaraguan and Central Relief Act of 1997 (the
“NACARA”),12 which, inter alia, amended and clarified the IIRIRA with
respect to the issue raised in N-G-B-. Thereafter, in Matter of
Nolasco,13 the BIA made clear that in enacting the NACARA Congress had
codified the substance of the BIA’s holding in N-G-B- to the effect that
the stop-time rule did apply to applications for suspension of
deportation. Recently, in In re Mendoza-Sandino,14 the BIA interpreted
§ 240A(d)(1) as providing that once continuous physical presence is
interrupted by service of a notice of deportation proceedings, the
seven-year clock not only stops but never starts to run anew either.
Milne’s claim is unavailing. The basis of the BIA’s decision was
made clear, and, even though the supporting decision it cited was
subsequently vacated, the substance of the vacated decision was
reaffirmed by the BIA when it interpreted the new legislation enacted
11
74 Interpreter Releases 1210 (August 11, 1997).
12
8 U.S.C. 1101 note (West 2000).
13
Int. Dec. 3385 (BIA 1999).
14
In re Mendoza-Sandino, Int. Dec. 3426 (BIA 2000).
7
by Congress in response to the Attorney General’s reversal of the BIA’s
decision in N-G-B-. Moreover, its recent decision in In re Mendoza-
Sandino, interpreting the stop-time rule to bar a fresh start of the
seven-year clock after service of a notice to appear, further clarifies
the BIA’s stance on this issue. Remanding this case to the BIA would
therefore be a fruitless exercise.
C. Interpretation of the Stop-Time Rule
Currently, under the IIRIRA an alien who has been continuously
present in the United States for ten years prior to the commencement of
deportation proceedings against him and can meet other restrictive
requirements is eligible to petition for suspension of his deportation
order.15 The transitional provisions of the IIRIRA specify that all
such proceedings that had commenced prior to April 1, 1997 —— including
those that were initiated under former INA § 244 (pursuant to which each
of the instant cases were brought) —— are left intact under then-
existing law.16 Former § 244(a) of the INA vested the Attorney General
with discretion to grant suspension of an alien who
is deportable [and]. . .has been physically present in the
United States for a continuous period of not less than seven
years immediately preceding the date of such application, and
proves that during all of such period he was and is a person
of good moral character; and is 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
15
8 U.S.C. § 1229b(b) (West 2000).
16
8 U.S.C. § 1101 note (West 2000).
8
lawfully admitted for permanent residence[.]17
Section 309(c)(5) of the IIRIRA states that § 240A(d)(1) of the
INA, which cuts off accrual of continuous physical presence at the time
deportation proceedings commence, applies regardless of whether the
proceedings in question began on, before, or after the effective date
of the IIRIRA. N-G-B- clarified the constitutionality of this rule,
holding that the IIRIRA applies retroactively to foreclose relief in all
such cases.18 After the Attorney General vacated N-G-B-, Congress
essentially reenacted it with the passage of the NACARA.19
The statutory provision in question here, the stop-time rule of INA
240A(d)(1),20 does not expressly address the instant issue, i.e.,
whether the seven-year clock restarts and the accrual of continuous
physical presence recommences after notice of the commencement of
deportation proceedings against the alien in question is served. When
“Congress has not directly addressed the precise question at issue,” but
an administrative agency has interpreted a statute to answer that
question, we do not “simply impose [our] own construction on the
statute, as would be necessary in the absence of an administrative
17
8 U.S.C. § 1254(a) (1994) (emphasis added).
18
We too have upheld the retroactivity of this rule as
constitutional. Moosa v. INS, 171 F.3d 994, 1007 (5th Cir. 1999).
19
8 U.S.C. § 1101 note (West 2000).
20
This rule states: “For purposes of this section, any period
of continuous residence or continuous physical presence in the
United States shall be deemed to end when the alien is served a
notice to appear. . .” 8 U.S.C. § 1229b(d)(1)(West 2000)(emphasis
added).
9
interpretation. Rather, if the statute is silent or ambiguous with
respect to the specific issue, the question for the court is whether the
agency’s answer is based on a permissible construction of the
statute.”21
The BIA has interpreted the stop-time rule as prohibiting the
seven-year clock from starting to tick again once proceedings against
the alien have commenced.22 The BIA held that “the continuous physical
presence clock does not start anew after the service of an Order to Show
Cause so as to allow an alien to accrue the time required to establish
eligibility for suspension of deportation subsequent to the service of
an Order to Show Cause.”23 The BIA based its interpretation on “the
language of section 240A(d)(1) of the Act and the legislative history
of the IIRIRA.”24
Reading § 240A(d)(1) in the larger context of § 240A(d) as a whole,
the BIA concluded that
[t]he language of section 240A(d) makes it clear
that Congress appreciated the difference between a
“break” in continuous physical presence and the
“end” of continuous physical presence. Congress
has distinguished between certain actions that
“end” continuous physical presence, i.e., service
of a charging document or commission of a specified
crime, and certain departures from the country that
only temporarily “break” that presence. Service of
an Order to Show Cause or a notice to appear is not
21
Chevron, 467 U.S. at 843.
22
In re Mendozo-Sandino, Int. Dec. 3426 (BIA 2000).
23
Id.
24
Id.
10
included as an interruptive event under section
240A(d)(2), which merely breaks continuous physical
presence. Rather, under section 240A(d)(1), such
service is deemed to end an alien's presence
completely. Therefore, a reading of section
240A(d)(1) that would allow an alien to accrue a
new period of continuous physical presence after
the service of a charging document is not supported
by the language of either section 240A(d)(1)
or (2).25
The BIA also focused on the legislative history of § 240A(d)(1),
finding that “[t]he [Conference Report’s] Joint Explanatory Statement
[of the Committee of Conference on the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996] reflects that the legislators
understood that a break in continuous physical presence differs from the
termination of continuous physical presence. The Joint Explanatory
Statement distinguishes between events that merely break continuous
physical presence, such that the clock may be reset for a new period of
continuous physical presence to begin, and events that cause continuous
physical presence to terminate forever.”26 The BIA pointed out that its
reading of § 240A(d)(1) is also “consistent with the House Report in
which the House expressed concern about the ways in which aliens
extended their stays in this country to accrue time to gain immigration
benefits.”27
25
In re Mendozo-Sandino.
26
Id.
27
Id. In reaching this conclusion, the BIA discussed the House
Report on the IIRIRA which stated that:
Each of these forms of relief may be exploited by illegal
aliens to extend their stay in the United States.
Voluntary departure is subject to abuse because there is
11
The BIA concluded that “[t]he House and Conference Reports make it clear
that the legislators intended to remove the incentive for aliens to
prolong their cases in the hope of remaining in the United States long
enough to be eligible for relief from deportation.”28
For purposes of review by a federal appellate court, the BIA’s
interpretation of the stop-time rule clearly meets Chevron’s requirement
that the agency’s construction be “based on a permissible construction
of the statute.”29 Although the BIA’s reading of the statute is not the
only one possible or necessarily even the best possible reading, it is
certainly a credible one. That reading accounts for the language
very little assurance that aliens actually leave the
United States, and very little incentive for them to do
so. . . . .Asylum is often claimed by persons who have
not suffered persecution, but who know that delays in
adjudication (particularly in the affirmative asylum
system) will allow them to remain in the United States
indefinitely, meanwhile accruing time so that they will
be eligible for suspension of deportation if they are
ever placed in deportation proceedings.
Suspension of deportation is often abused by aliens
seeking to delay proceedings until 7 years have accrued.
This includes aliens who failed to appear for their
deportation proceedings and were ordered deported in
absentia, and then seek to re-open proceedings once the
requisite time has passed. Such tactics are possible
because some Federal courts permit aliens to continue to
accrue time toward the seven year threshold even after
they have been placed in deportation proceedings. Similar
delay strategies are adopted by aliens in section 212(c)
cases, where persons who have been in the United States
for a number of years, but have only been lawful
permanent residents for a short period of time, seek and
obtain this form of relief. H.R. Rep. No. 104-469.
28
In re Mendozo-Sandino.
29
Chevron, 467 U.S. at 843.
12
employed by Congress and is well supported by the legislative history
of the stop-time rule as well as by the other legislation in this realm
of the immigration law’s structure. We base this conclusion on our
careful review of the BIA’s decision in In re Mendozo-Sandino, other
relevant case law, and the arguments of the parties in their appellate
briefs. Our conclusion is bolstered by additional evidence of the
intent of Congress regarding the stop-time rule as set forth in a
memorandum prepared by the Senate Appropriations Committee to explain
the NACARA amendments. That report notes that:
Under the rules in effect before [the IIRIRA
amendments], [an] otherwise eligible person could
qualify for suspension of deportation if he or she
had been continuously physically present in the
United States for seven years, regardless of
whether or when the Immigration and Naturalization
Service had initiated deportation proceedings
against the person through the issuance of an order
to show cause (“OSC”) to that person. As a result,
people were able to accrue time toward the seven-
year continuous physical presence requirement after
they already had been placed in deportation
proceedings. IIRIRA changed that rule to bar
additional time accruing after receipt of a “notice
to appear,” the new document the Act created to
begin “removal” proceedings.30
In adopting the NACARA, Congress intended to prevent aliens from
accruing additional time needed to reach the requisite seven years of
continuous physical presence that they may have lacked when the
proceedings against them were commenced. We have been cited to nothing
and have found nothing on our own to indicate that Congress meant for
a different rule to apply for the starting of a new seven-year count
30
143 Cong. Rec. S12265-226, available at 1997 WL 69386.
13
after the clock has been stopped and the pre-stop accrual of time has
been obliterated. Congress is well aware that, “[i]n administering this
country’s immigration laws, the Attorney General and the INS confront
an onerous task even without the addition of judicially augmented
incentives to take meritless appeals, engage in repeated violations, and
undertake other conduct solely to drag out the deportation process.”31
Given its professed intention of eliminating the incentive for aliens
to engage in such behavior, Congress is not likely to have meant to
permit aliens to start over and accrue the entirety of their seven years
presence here following termination of the initial period of accrual.
Congress has expressed a desire to reduce the time that an alien can
prolong his stay following issuance of a deportation order, a goal
clearly furthered by the BIA’s interpretation of the stop-time rule.
III. Conclusion
We accord substantial weight to the manner in which federal
agencies interpret the laws that Congress has entrusted to their
administration. Our review of the BIA’s decision and the language and
legislative history of the stop-time rule satisfies us that the BIA’s
31
INS v. Rios-Pineda, 471 U.S. 444, 450-51 (1985). It should
be noted that although we generally agree that policy
considerations support the BIA’s interpretation, those policy
implications may not be as serious as the INS asserts. Although
Petitioners’ interpretation of the stop-time rule does provide
aliens with a somewhat perverse incentive structure, their strong
desire to remain in this country provides them with those same
incentives, namely to prolong their stay in the United States using
any (legal) means available.
14
interpretation —— that an alien does not begin to accrue a new seven-
year period of continuous presence in the United States after receiving
notice that deportation proceedings have commenced —— is a reasonable
one. Given the deference that we must accord to the BIA’s
interpretations of federal immigration law, we are bound to uphold such
interpretations unless they are unreasonable. Discerning nothing
unreasonable in the BIA’s interpretation of the stop-time rule, we
affirm the decisions of the BIA in the captioned cases.
AFFIRMED.
15