United States Court of Appeals
For the First Circuit
No. 05-1667
RUBÉN PERALTA,
Petitioner,
v.
ALBERTO R. GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella and Lynch, Circuit Judges,
and Lasker,* District Judge.
Ilana Greenstein, with whom Harvey Kaplan, Lory Rosenberg,
Maureen O'Sullivan, Jeremiah Friedman, and Kaplan, O'Sullivan &
Friedman, LLP were on brief, for petitioner.
Andrew C. MacLachlan, with whom Peter D. Keisler, Assistant
Attorney General, Civil Division, David V. Bernal, Assistant
Director, and Ernesto H. Molina, Jr., Senior Litigation Counsel,
Office of Immigration Litigation, Civil Division, United States
Department of Justice, were on brief, for respondent.
March 23, 2006
*
Of the Southern District of New York, sitting by designation.
LYNCH, Circuit Judge. This case raises a new issue of
interpretation of a 1997 immigration provision, the Nicaraguan
Adjustment and Central American Relief Act (NACARA) § 203(a), Pub.
L. No. 105-100, 111 Stat. 2160, 2196 (1997). NACARA § 203(a)
amended and clarified a provision of a major immigration statute,
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009, 3009-
546 (codified as amended in scattered sections of 5, 8, 18, 28, 42,
& 48 U.S.C.).
The two provisions concern the concept of an alien's
"continuous residence" and "continuous physical presence" in the
United States. Continuous presence and/or residence for a
specified period of years are basic eligibility requirements for
certain types of discretionary immigration relief, including
suspension of deportation and cancellation of removal. See 8
U.S.C. § 1229b(a), (b)(1), (d). Accrual of the requisite
continuous time, however, can be broken without the alien actually
leaving the country. Under 8 U.S.C. § 1229b(d)(1), an alien's
presence and residence are deemed ended in two circumstances: when
he or she has been served a notice to appear, id. § 1229b(d)(1)(A),
or committed certain criminal offenses, id. § 1229b(d)(1)(B).
These provisions are collectively known as the "stop-time rule."
The question presented concerns the temporal reach of subsection
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(B) of the stop-time rule, the provision relating to criminal
offenses.
The petitioner, Dr. Rubén Peralta, works as a trauma
surgeon at the Massachusetts General Hospital in Boston. More than
a decade ago, he committed a crime, marriage fraud, which an
Immigration Judge (IJ) determined fell within the universe of
offenses listed in subsection (B). The IJ found that subsection
(B), which took effect after Dr. Peralta committed the crime and
after his deportation proceedings had begun, was retroactively
applicable under the transitional rules of IIRIRA. The IJ
therefore found Dr. Peralta ineligible for suspension of
deportation1 and pretermitted his application for that relief.2 The
Board of Immigration Appeals (BIA) affirmed.
On petition for review, Dr. Peralta argues that while
IIRIRA's transitional rules may make subsection (A) retroactively
applicable, they are silent as to subsection (B). He argues that
given the existence of a separate provision that renders
1
Suspension of deportation was abolished in 1997 and replaced by
a new discretionary form of relief, cancellation of removal. See
8 U.S.C. § 1229b. However, aliens placed in deportation
proceedings before April 1, 1997, as Dr. Peralta was, remained
eligible to apply for suspension of deportation. IIRIRA
§ 309(c)(1), 110 Stat. at 3009-625. The statutory scheme is
discussed in more detail below.
2
"An application is pretermitted when disqualified for failure to
meet the threshold eligibility requirement that an alien have
resided in the United States for a sufficient period of time to
obtain the discretionary relief of suspension of deportation."
Afful v. Ashcroft, 380 F.3d 1, 6 (1st Cir. 2004).
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prospective the application of IIRIRA except where Congress
specifies to the contrary, this silence as to subsection (B) should
be read as a clear congressional mandate that subsection (B) be
applied only prospectively. Alternatively, he argues, the silence
constitutes an ambiguity that we should interpret in his favor to
avoid giving the statute impermissible retroactive effect.
We reject Dr. Peralta's reading of the statutory
language. We find that IIRIRA's transitional rules (as amended by
NACARA) clearly render subsection (B) retroactively applicable.
This means his marriage fraud offense stopped his accrual of time,
and so he was not eligible for the relief he sought. The BIA and
IJ were correct. We deny Dr. Peralta's petition for review.
I.
Dr. Peralta, a native and citizen of the Dominican
Republic, entered the United States on April 26, 1986 as a visitor.
On October 25, 1990, he married Patricia Lemonds, a United States
citizen. Based on that marriage, he adjusted his status on January
23, 1991, to that of an alien admitted for conditional permanent
residence. On November 4, 1992, Dr. Peralta and Lemonds jointly
filed an application to remove the conditions on his residency.
Soon after, however, investigators from the Immigration and
Naturalization Service (INS)3 discovered that the marriage was a
3
On March 1, 2003, the INS ceased to exist and its principal
functions were transferred to the Bureau of Immigration and Customs
Enforcement in the Department of Homeland Security. See Homeland
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sham: It had been arranged by a New Jersey attorney, David
Biederman, and a Chicago immigration consultant, Marshall
Schoeneman, for the express purpose of procuring immigration
benefits for Dr. Peralta. Investigators determined that Lemonds
had been promised $1,000 for her cooperation, with $500 due before
the marriage and $500 after the divorce. The investigators also
determined that Lemonds' signature had been forged on the November
4, 1992 application to remove the conditions on Dr. Peralta's
residency. Further, the IJ found, Lemonds was a drug addict and
"was supplied with cocaine in order to secure her participation."
In 1994, the INS notified Dr. Peralta of its intent to
terminate his immigration status; the termination became effective
September 19, 1995. Dr. Peralta also faced criminal prosecution:
He and eleven other aliens were among twenty-seven people charged
in a marriage fraud scheme run by Biederman and Schoeneman. On
October 4, 1995, Dr. Peralta pled guilty to violating former 8
U.S.C. § 1325(b) (1994) (now codified at 8 U.S.C. § 1325(c)), which
forbids knowingly marrying for the purpose of evading immigration
laws. His conviction was entered January 2, 1996. The judgment of
conviction stated that his offense concluded on October 20, 1992.
Security Act of 2002, Pub. L. No. 107-296, § 471, 116 Stat. 2135,
2205 (codified as amended at 6 U.S.C. § 291(a)).
-5-
On March 14, 1997, the INS issued Dr. Peralta an order to
show cause4 charging him with deportability as an alien whose
conditional resident status had been terminated, and as an alien
who fraudulently entered a marital agreement for the purpose of
entering the United States. Those papers were filed with the
immigration court on March 27, 1997. Since proceedings against Dr.
Peralta commenced prior to April 1, 1997, the transitional rules of
IIRIRA apply to his case. See Afful v. Ashcroft, 380 F.3d 1, 6
(1st Cir. 2004).
Dr. Peralta denied that he was deportable. In the
alternative, he sought relief in the form of suspension of
deportation. He submitted his suspension application on May 7,
1999.
Dr. Peralta's hearing before the IJ was delayed
repeatedly, for reasons not relevant here. Finally, on July 31,
2003, an IJ found him deportable as charged. On December 8 of that
year, the IJ pretermitted the application for suspension of
deportation, ruling that Dr. Peralta was ineligible for the relief
because of the stop-time effect of subsection (B) of 8 U.S.C.
§ 1229b(d)(1). The BIA affirmed on April 14, 2005. Dr. Peralta's
sole contention on petition for review is that the agency's
interpretation of subsection (B) was error, that he is eligible for
4
The order to show cause was the pre-IIRIRA predecessor of the
notice to appear.
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consideration for suspension of deportation (now known as
cancellation of removal), and that his application for such
suspension of deportation should be heard on the merits.
II.
A. The Statutory Framework
Under the Immigration and Nationality Act (INA) as it
existed prior to 1997, aliens ordered removed from the United
States could apply to the Attorney General for suspension of
deportation. This discretionary relief was available to an alien
who could show, inter alia, that he or she had "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 that "during all of such period he was and is a
person of good moral character." 8 U.S.C. § 1254(a) (1994).
In 1996, however, Congress passed IIRIRA, which
eliminated suspension of deportation and replaced it, effective
April 1, 1997, with a procedure called cancellation of removal.
IIRIRA § 304(a)(3), 110 Stat. at 3009-582 (codified at 8 U.S.C.
§ 1229b(b)(1)) (replacing INA § 244 with a new § 240A); see also
Costa v. INS, 233 F.3d 31, 32-33 (1st Cir. 1999). Among its
requirements, the new cancellation of removal framework delineated
a set of circumstances in which an alien's "continuous residence or
physical presence" in the United States would be deemed terminated:
(d) Special rules relating to continuous
residence or physical presence.
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(1) Termination of continuous period. For
purposes of this section, any period of
continuous residence or continuous physical
presence in the United States shall be deemed
to end
(A) . . . when the alien is served a
notice to appear under [8 U.S.C. § 1229(a)],
or
(B) when the alien has committed an
offense referred to in [8 U.S.C. § 1182(a)(2)]
that renders the alien inadmissible to the
United States under [8 U.S.C. § 1182(a)(2)] or
removable from the United States under [8
U.S.C. § 1227(a)(2) or (a)(4)], whichever is
earliest.
(2) Treatment of certain breaks in
presence. An alien shall be considered to
have failed to maintain continuous physical
presence in the United States under
subsections (b)(1) and (b)(2) if the alien has
departed from the United States for any period
in excess of 90 days or for any periods in the
aggregate exceeding 180 days.
. . . .
8 U.S.C. § 1229b(d). The first of these subsections,
§ 1229b(d)(1), is commonly referred to as the "stop-time rule."
The second, § 1229b(d)(2), is known as the "90/180 rule."
In order to comprehend the present dispute, some
understanding of the retroactivity provisions of two pieces of
prior legislation is needed. Under the terms of IIRIRA, suspension
of deportation remained available to aliens who had been placed in
deportation proceedings prior to April 1, 1997. See IIRIRA
§ 309(c)(1), 110 Stat. at 3009-625. However, the suspension remedy
was altered, even as to that class of aliens. Under IIRIRA's
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transitional rules, 8 U.S.C. § 1229b(d) was given retroactive effect:
TRANSITIONAL RULE WITH REGARD TO SUSPENSION OF
DEPORTATION. -- Paragraphs (1) and (2) of
section 240A(d) of the Immigration and
Nationality Act (relating to continuous
residence or physical presence) shall apply to
notices to appear issued before, on, or after
the date of the enactment of this Act.
IIRIRA § 309(c)(5), 110 Stat. at 3009-627.
The wording of these provisions quickly led to problems.
By their terms, they applied to "notices to appear." However,
before enactment of IIRIRA, notices to appear did not exist; aliens
at that time instead were served with "orders to show cause." This
discrepancy left aliens already in proceedings before April 1,
1997, with room to argue that under the terms of IIRIRA
§ 309(c)(5), subsection (A) of the stop-time rule did not apply to
them.
This argument was foreclosed in 1997, when Congress
retroactively amended IIRIRA § 309(c)(5) to address the
discrepancy. In relevant part, the amended provision reads as
follows:
(5) TRANSITIONAL RULES WITH REGARD TO
SUSPENSION OF DEPORTATION. -- (A) IN GENERAL.
-- Subject to subparagraphs (B) and (C),
paragraphs (1) and (2) of section 240A(d) of
the Immigration and Nationality Act (relating
to continuous residence or physical presence)
shall apply to orders to show cause (including
those referred to in section 242B(a)(1) of the
Immigration and Nationality Act, as in effect
before the title III-A effective date), issued
before, on, or after the date of the enactment
of this Act.
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NACARA § 203(a)(1) (emphasis added).
In interpreting NACARA, this circuit, and every other
circuit to address the question, concluded "that the stop-time rule
applies retroactively to orders to show cause issued prior to the
enactment of the IIRIRA." Afful, 380 F.3d at 7 (collecting cases).
These holdings came in cases dealing with subsection (A) -- cases,
in other words, where the question was whether the issuance of an
order to show cause prior to IIRIRA's effective date cut off the
accrual of continuous presence or residence. See, e.g., Suassuna
v. INS, 342 F.3d 578 (6th Cir. 2003); Ram v. INS, 243 F.3d 510 (9th
Cir. 2001); Pinho v. INS, 249 F.3d 183 (3d Cir. 2001). The cases
did not address the separate question of whether subsection (B)
applied retroactively to cut off an alien's accrual of time at the
moment, pre-IIRIRA, when that alien "committed an offense referred
to in" 8 U.S.C. § 1182(a)(2). That is the question we address.
B. The Agency Decisions
The IJ did not discuss any possible distinction between
the retroactivity of the separate subsections (A) and (B).
Instead, she asserted as a general matter that "the stop-time rules
do, in fact, apply retroactively," and then applied subsection (B)
to Dr. Peralta's claim.
Specifically, the IJ found that Dr. Peralta's violation
of the marriage fraud statute began on November 19, 1990, when, one
month after his "marriage" to Lemonds, he filed adjustment-of-
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status documents with the INS and swore to the veracity of their
contents. The IJ concluded he lacked good moral character, at
least during the period the fraud was ongoing. The IJ made an
additional finding that Dr. Peralta's crime was one of "moral
turpitude" within the meaning of 8 U.S.C. § 1182(a)(2):
The so-called spouse . . . in this case, a
person who was a drug addict at the time, was
supplied with cocaine in order to secure her
participation. . . . The Court notes, in any
event, that at its minimum, the essential
elements of this crime are that the respondent
intended to fraudulently obtain immigration
benefits. And the Court deems it inescapable
that this is a crime involving moral
turpitude.
The IJ then applied subsection (B). Since that provision
cuts off an alien's accrual of time "when the alien has committed
an offense referred to in" 8 U.S.C. § 1182(a)(2), the IJ found that
Dr. Peralta's presence ended on November 19, 1990. Since Dr.
Peralta had only been in the United States for four years as of
1990, and since the IJ interpreted IIRIRA as barring any re-start
of the continuous presence/residence clock once the stop-time rule
had been triggered,5 the IJ held that Dr. Peralta could not show
that he had "been physically present in the United States for a
continuous period of not less than seven years," as required by the
suspension of deportation statute. See 8 U.S.C. § 1254(a) (1994).
5
This interpretation, implicitly affirmed by the BIA, is not
challenged by Dr. Peralta on petition for review.
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The BIA affirmed, noting that it had previously held (1)
that the stop-time rule "applies to applications for suspension of
deportation" and (2) that the stop-time rule "operates to terminate
the period of continuous physical presence as of the date that an
alien commits an offense that renders him inadmissible under" 8
U.S.C. § 1182(a)(2). Combining these two propositions, the BIA
held that subsection (B) must have retroactive effect. It applied
subsection (B) and found that "because the respondent last entered
[the United States] on April 26, 1986, and the record reflects that
he concluded the offense of marriage fraud on October 20, 1992,
less than 7 years later, the respondent did not have the requisite
continuous physical presence to be eligible for suspension of
deportation."6
III.
Dr. Peralta argues that the BIA's reading of subsection
(B) is forbidden by rules of statutory construction, particularly
retroactivity rules.
6
The BIA also addressed an argument by Dr. Peralta that he had
relied on his potential eligibility for suspension of deportation
when he pled guilty to a crime, and therefore under INS v. St. Cyr,
533 U.S. 289 (2001), the stop-time rule could not be retroactively
applied. The BIA found that at the time he pled guilty, Dr.
Peralta lacked sufficient accrued good moral character time to be
eligible for suspension of deportation, and so he could not have
relied on its availability. As we explain in Part III, we do not
reach these issues, which properly arise only in the second step of
the retroactivity inquiry required by Landgraf v. USI Film Prods.,
511 U.S. 244 (1994).
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"Despite the dangers inherent in retroactive legislation,
it is beyond dispute that, within constitutional limits, Congress
has the power to enact laws with retrospective effect." INS v. St.
Cyr, 533 U.S. 289, 316 (2001). However, "[a] statute may not be
applied retroactively . . . absent a clear indication from Congress
that it intended such a result." Id. This is because "[r]equiring
clear intent assures that Congress itself has affirmatively
considered the potential unfairness of retroactive application and
determined that it is an acceptable price to pay for the
countervailing benefits." Landgraf v. USI Film Prods., 511 U.S.
244, 272-73 (1994).
In Landgraf, the Supreme Court laid out a two-part test
for assessing whether a statute should be retroactively applied.
First, the court must "determine whether Congress has expressly
prescribed the statute's proper reach." Id. at 280. If this
inquiry "leads to a firm conviction that Congress intended the
statute to have a specific temporal reach, the retroactivity
analysis ends"; we then apply the statute in accordance with
Congress' command. Lattab v. Ashcroft, 384 F.3d 8, 14 (1st Cir.
2004). The Supreme Court has said that the standard for finding an
express congressional command, and thus ending the inquiry at the
first stage, "is a demanding one." St. Cyr, 533 U.S. at 316.
"Cases where this Court has found truly 'retroactive' effect
adequately authorized by statute have involved statutory language
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that was so clear that it could sustain only one interpretation."
Id. at 316-17 (quoting Lindh v. Murphy, 521 U.S. 320, 328 n.4
(1997)). Nevertheless, "our inquiry is not limited to the
statutory text but may include an examination of standard ensigns
of statutory construction, such as the statute's structure and
legislative history." Lattab, 384 F.3d at 14 (citing Martin v.
Hadix, 527 U.S. 343, 355-57 (1999)).
If we find no express command as to the statute's
temporal reach, we must engage the second step of the Landgraf
test, determining "whether the new statute would have retroactive
effect, i.e., whether it would impair rights a party possessed when
he acted, increase a party's liability for past conduct, or impose
new duties with respect to transactions already completed."
Landgraf, 511 U.S. at 280. "If the statute would operate
retroactively, [the] traditional presumption teaches that it does
not govern absent clear congressional intent favoring such a
result." Id.
A. Dr. Peralta's Arguments
On petition for review, Dr. Peralta argues that the
Landgraf test requires reversal.
His primary argument is that Congress expressly commanded
that subsection (B) should have only prospective effect, and that
we need not reach step two of the Landgraf test in order to deem
the BIA's decision erroneous. He begins with the language of the
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two retroactivity provisions, IIRIRA § 309(c)(5) and NACARA
§ 203(a)(1). Under IIRIRA § 309(c)(5), the stop-time rule "shall
apply" retroactively with respect to "notices to appear." 110
Stat. at 3009-627. Under NACARA § 203(a)(1), the stop-time rule
"shall apply" retroactively with respect to "orders to show cause."
111 Stat. at 2196. Neither of these provisions, Dr. Peralta notes,
says the stop-time rule "shall apply" retroactively to certain
criminal offenses. He argues that by their terms, the provisions
render retroactive only subsection (A), the portion of the stop-
time rule concerned with notices to appear. Further, he says, the
lack of any mention of "offenses" in the retroactivity provisions
constitutes not an ambiguity, but a clear statement by Congress
that subsection (B) applies prospectively. This is because
Congress mandated in IIRIRA that the changes made by that statute
(and those made by NACARA § 203(a), which retroactively amends an
IIRIRA provision) have only prospective effect except where it
specified to the contrary. IIRIRA § 309(c)(1), 110 Stat. at 3009-
625 ("Subject to the succeeding provisions of this subsection, in
the case of an alien who is in exclusion or deportation proceedings
as of the . . . effective date . . . the amendments made by this
subtitle shall not apply."); see also Afful, 380 F.3d at 7.
Alternatively, Dr. Peralta argues, if we conclude that
the retroactivity provisions are ambiguous, then under Landgraf's
second step, application of the stop-time provision would have an
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impermissible retroactive effect. He asserts that absent the stop-
time rule he would have had sufficient continuous presence to
qualify for suspension of deportation, and while due to his crime
he did not have sufficient "good moral character" time either when
he pled guilty or when his deportation proceedings began, he could
have continued accruing such time throughout the pendency of his
proceedings. Dr. Peralta argues that "[h]e would . . . have known
that he retained the possibility of qualifying for relief." This
potential future eligibility for relief is the right he says he
"possessed when he acted" that would be impaired by application of
the stop-time rule. Landgraf, 511 U.S. at 280.
B. Analysis
Reading the relevant statutory provisions as a whole, we
hold that Congress has expressly mandated that subsection (B) be
applied retroactively. We do not reach the second stage of the
Landgraf test.
The key to our analysis is the fact that the relevant
provisions, IIRIRA § 309(c)(5) and NACARA § 203(a)(1), purport to
render retroactive, to at least some extent, "paragraphs (1) and
(2)" of 8 U.S.C. § 1229b(d) (emphasis added). Paragraph (2), the
90/180 rule, has nothing to do with the issuance of orders to show
cause or notices to appear; it deals instead with breaks in
continuous presence via actual departure from the country.
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This dooms Dr. Peralta's statutory interpretation
argument. His position, boiled down to its essence, is that when
the two provisions say that § 1229b(d)(1) "shall apply"
retroactively to "orders to show cause" and "notices to appear,"
they mean that only the section of § 1229b(d)(1) that actually
mentions such orders and notices -- subsection (A) -- is rendered
retroactive. If that were so for § 1229b(d)(1), however, it would
also necessarily be so for § 1229b(d)(2). That would mean the
references to paragraph (2) in IIRIRA § 309(c)(5) and NACARA
§ 203(a)(1) would be read out of the statutory text; paragraph (2)
would never be retroactive under any circumstances, since it
contains no mention of notices to appear or orders to show cause.
"In construing a statute we are obliged to give effect, if
possible, to every word Congress used." Rutanen v. Baylis (In re
Baylis), 313 F.3d 9, 20 (1st Cir. 2002) (quoting Reiter v. Sonotone
Corp., 442 U.S. 330, 339 (1979)).
In our own analysis, we start with the fact that the two
provisions, IIRIRA § 309(c)(5) and NACARA § 203(a)(1), purport to
have some effect on "paragraphs (1) and (2)" of 8 U.S.C.
§ 1229b(d). These two paragraphs create three fundamentally
different triggering events, each of which cuts off the accrual of
an alien's continuous presence and residence. The first trigger is
issuance of an order to show cause or notice to appear; the second
is commission of a specified crime; the third is actual departure
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from the country. Because of the "paragraph (1) and (2)" language,
IIRIRA § 309(c)(5) and NACARA § 203(a)(1) must be read to render
retroactive at least one of the triggers in each paragraph. Given
that, we see only one feasible conclusion: that the phrases
"notices to appear" and "orders to show cause" function in this
context as a shorthand for "cases." In other words, when IIRIRA
§ 309(c)(5) and NACARA § 203(a)(1) say that the stop-time rule and
the 90/180 rule "shall apply" to notices to appear and orders to
show cause "issued before, on, or after the date of the enactment
of this Act," they mean that the two rules are fully applicable,
regardless of when an alien's proceedings commenced. No other
construction would give any effect to the two provisions'
references to paragraph (2).7
Dr. Peralta argues that this interpretation involves
impermissibly "read[ing] unwritten language in to Congressional
7
A lay person might reasonably wonder why, if Dr. Peralta has
already been found once by the IJ to lack good moral character and
to have committed a crime of moral turpitude, he should be given a
chance to apply for suspension of deportation, wherein he must show
good moral character. Dr. Peralta argues that his moral character
would be evaluated at the time the question would be reached at a
hearing on his suspension of deportation request, not as of the
date in 1997 when he was placed in deportation proceedings, and
that he has worked very hard since he committed a crime to restore
his good moral character -- indeed, that he relied on his ability
to do so and so had a reliance interest. He points out that his
medical expertise has been used for the benefit of the public, and
to the many letters of support for him. Whatever merit there is to
this argument, however, it cannot alter the outcome because Dr.
Peralta is statutorily ineligible for suspension of deportation
based on his lack of continuous presence. We rest on this
logically prior ground.
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text." But our reading does no such thing. At least one circuit
has taken the same approach as we do, applying subsection (B)
retroactively, though without extended discussion. See Okeke v.
Gonzales, 407 F.3d 585, 588 (3d Cir. 2005) (finding that
petitioner's "commission of a controlled substance offense in 1983
. . . triggered the 'stop-time' provision," but remanding to the
BIA on other grounds). Several more circuits have reached the same
conclusion in the context of the 90/180 rule. See Mendiola-Sanchez
v. Ashcroft, 381 F.3d 937, 939-41 (9th Cir. 2004) (concluding that
the IIRIRA and NACARA provisions render the 90/180 rule
retroactive); Rivera-Jimenez v. INS, 214 F.3d 1213, 1218 (10th Cir.
2000) (per curiam) (same); see also Tapia v. Ashcroft, 351 F.3d
795, 798-99 (7th Cir. 2003) (applying 90/180 rule retroactively).
We have found no cases holding to the contrary.8 And while our
holding rests on the statutory text, it is entirely consistent with
the legislative history.9
8
Dr. Peralta argued in his reply brief that a Fifth Circuit case
adopted his reading of the statutory language. However, that
opinion has since been withdrawn, see Gonzalez-Garcia v. Gonzales,
2005 WL 3047411 (5th Cir. Nov. 15, 2005), and the unpublished
decision that replaced it includes no discussion of the stop-time
rule's retroactivity, see Gonzales-Garcia v. Gonzales, 2006 WL
346298 (5th Cir. Feb. 14, 2006).
9
In addition to his textual arguments, Dr. Peralta posits that
the legislative history supports his position. First, he notes
that a House report on the bill that eventually became IIRIRA
offers a rationale for making subsection (A) retroactive -- to
prevent aliens from delaying their proceedings to accrue more
continuous presence -- and no rationale that would go to the
retroactivity of subsection (B). See H.R. Rep. No. 104-469, pt.
-19-
IV.
Dr. Peralta has raised no other challenges to the BIA
decision, and so we go no further. The petition for review is
denied.
1, at 122 (1996). But this is to be expected, because at the time
of the report, the future § 1229d(1) contained only the notice-to-
appear stop-time rule; the criminal-offense portion had not yet
been added. Id. at 24. Dr. Peralta also quotes a Senate committee
memorandum that explained NACARA § 203(a)(1) and made no reference
to criminal offenses. See 143 Cong. Rec. S12266 (daily ed. Nov. 9,
1997). But as we have said, Congress enacted NACARA § 203(a)(1)
specifically to foreclose the argument that IIRIRA § 309(c)(5)'s
use of the term "notice to appear" meant subsection (A) had only
prospective effect. Afful, 380 F.3d at 7. It is hardly surprising
that the memorandum would not mention subsection (B) in explaining
such an amendment.
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Peralta v. Gonzales
Court: Court of Appeals for the First Circuit
Date filed: 2006-03-23
Citations: 441 F.3d 23
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