Ayoub v. Immigration & Naturalization Service

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
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m 97-60361
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MICHEL YOUSSEF AYOUB,

Petitioner,

VERSUS

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

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Petition for Review of an Order of
the Board of Immigration Appeals
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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).