Riad Sad v. Immigration and Naturalization Service
Docket: 99-4283
Court: Court of Appeals for the Sixth Circuit; April 17, 2001; Federal Appellate Court
Riad Yacoub Sad, a Jordanian national, appeals the denial of his application for suspension of deportation by the Immigration and Naturalization Service (INS). His argument centers on the transitional provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), asserting that the new 'stop-time rule' should not retroactively apply to his case. Sad entered the U.S. in 1989 as a nonimmigrant visitor and overstayed his visa, leading to deportation proceedings initiated by the INS in 1995. To qualify for suspension of deportation, he needed to demonstrate continuous physical presence in the U.S. for seven years, a requirement he believed he met under the law prior to the IIRIRA. However, the IIRIRA's stop-time rule requires that this continuous presence be established before deportation proceedings begin.
An Immigration Judge (IJ) denied Sad's application based on the IIRIRA's stop-time rule, which was upheld by the Board of Immigration Appeals (BIA), referencing a prior case interpreting the rule. Sad contended that the statute prohibits the retroactive application of the stop-time rule to ongoing cases at the time of the IIRIRA's enactment. The court examined the statutory interpretation of the IIRIRA's transitional rules, applying de novo review while acknowledging the judicial deference owed to agency interpretations under the Chevron doctrine. Ultimately, the court affirmed the BIA's judgment, denying Sad's appeal for suspension of deportation.
Judicial deference is applicable in immigration matters due to the sensitive political functions performed by executive officials that impact foreign relations. The principles of Chevron deference guide the interpretation of the Immigration and Nationality Act (INA), as established in cases such as Aguirre-Aguirre and Hamama. Under Chevron, courts first determine if Congress has clearly addressed the issue in question; if so, the agency and courts must adhere to Congress's intent. If the statute is ambiguous, the court assesses whether the agency's interpretation is permissible, not necessarily the only possible reading. The agency's construction prevails unless it is deemed arbitrary, capricious, or contrary to the statute.
Prior to the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), aliens facing deportation could apply for "suspension of deportation" if they met three conditions, including a requirement of continuous physical presence in the U.S. for seven years. However, eligibility for this relief remained at the discretion of the Attorney General. Under the IIRIRA, the deportation process was changed to "removal," and "suspension of deportation" was replaced with "cancellation of removal," which has stricter eligibility criteria. A significant alteration introduced by the IIRIRA is the "stop-time rule," which halts the accrual of time toward the physical presence requirement once the INS serves a notice to appear. This change took effect on April 1, 1997, ending the previous practice whereby time continued to accrue during administrative proceedings.
IIRIRA establishes transitional rules for cases pending as of its enactment on September 3, 1996. Section 309 addresses these transitional rules, particularly for aliens in exclusion proceedings. The general rule under subsection (c)(1) states that the amendments made by IIRIRA do not apply to ongoing proceedings, which will continue without regard to these amendments. However, subsection (c)(5) specifically introduces a transitional rule regarding the suspension of deportation, indicating that the stop-time rule found in section 240A(d)(1) of the INA applies to notices to appear issued at any time relative to IIRIRA's enactment. The stop-time rule stipulates that an alien's continuous residence or physical presence ends upon being served a notice to appear.
The ambiguity arises because notices to appear did not exist prior to IIRIRA's effective date, leading to questions about whether they include prior orders to show cause or if the reference to notices issued before the effective date was a drafting error. The BIA resolved this ambiguity in In re N-J-B by interpreting 'notices to appear' to include orders to show cause, resulting in aliens who did not meet the physical presence requirement before being served becoming ineligible for suspension of deportation. The Attorney General vacated this decision for review. Before her review, Congress enacted NACARA, which clarified the transitional rule by replacing 'notices to appear' with 'orders to show cause,' thereby retroactively amending the rule to apply to all such orders issued before, on, or after IIRIRA's enactment.
Section 242B of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1252b, outlines the requirements for orders to show cause regarding deportation. The "subject to" clause introduces two exceptions to the retroactive application of the amended transitional rule. Firstly, if the Attorney General terminates deportation proceedings and reinitiates removal proceedings, the stop-time rule does not apply, allowing affected aliens to apply for cancellation of removal. Secondly, the Nicaraguan Adjustment and Central American Relief Act (NACARA) exempts certain aliens from Nicaragua, Guatemala, and Eastern Europe from the stop-time rule in all cases. The NACARA modifies the IIRIRA's transitional rule but does not alter the stop-time rule language in section 240A(d).
In the case of In re Nolasco-Tofino, the Board of Immigration Appeals (BIA) determined that the amended transitional rule unambiguously applies the stop-time rule to all pending deportation proceedings, barring express statutory exemptions. Some BIA members noted ambiguity in the statutory language due to inconsistencies between the stop-time rule and the transitional rule. The Chevron framework requires determining if Congress has clearly addressed the issue; if so, that intent must be honored. Recent court rulings have supported the interpretation that the stop-time rule applies to pending applications for suspension of deportation, with several circuit courts agreeing on the clarity of the amended language.
No court has yet evaluated Sad's interpretation of the transitional rules, which builds on the BIA's observations regarding the imperfect mediation between different statutory frameworks. Sad highlights that the amended transitional rule refers to the stop-time rule, which only ceases the accrual of continuous physical presence when a notice to appear is served.
The NACARA amendment did not extend the stop-time rule to section 240A(d), thus it does not apply to Sad's suspension of deportation application. The transitional rule in section 309(c)(2) of the IIRIRA limits the retroactive application of the stop-time rule and allows the Attorney General to proceed with cases that were pending as of April 1, 1997, under new regulations. Sad argues that, although he is ineligible for suspension of deportation under IIRIRA, he could seek cancellation of removal under section 240A. Section 240A(d)(1) stipulates that an alien's continuous physical presence ceases upon being served with an order to show cause. The INS acknowledges Sad's interpretation but claims the stop-time rule applies beyond just pending cases. Given the multiple interpretations of these provisions, they are deemed ambiguous under Chevron's threshold inquiry. The BIA's interpretation is authoritative, as the Attorney General retains discretionary power regarding deportation applications, which has not changed with IIRIRA. The BIA's interpretation merits deference if it represents a permissible construction of the statute, as it clarifies ambiguous terms through case-by-case adjudication. Sad has not demonstrated that the BIA's interpretation is impermissible or arbitrary. Additionally, Sad asserts that the BIA's application of the statute violates the Fifth Amendment's Due Process Clause by retroactively affecting his vested interests and discriminates against similarly situated aliens in violation of equal protection.
A procedural due process claim asserts that while the Due Process Clause protects all individuals, including undocumented aliens, it does not confer a fundamental right to remain in the U.S. Immigration law grants the Attorney General discretion in granting applications for suspension of deportation, treating such decisions as acts of grace. Sad's expectation of applying for suspension, upon receiving an order to show cause, does not constitute a constitutionally protected interest since the relief is subject to the executive's unfettered discretion. Consequently, due process only guarantees Sad the right to the hearing he received, and the application of the stop-time rule does not violate his rights, nor does it retroactively affect his expectations regarding the procedure. The Supreme Court's framework in Landgraf establishes that without express congressional intent, statutes do not have retroactive effects. Since Sad had no right to suspension of deportation prior to the enactment of the IIRIRA, the stop-time rule cannot apply retroactively, maintaining the presumption against retroactivity. This aligns with the Court's interpretation that statutes do not retroactively affect rights merely by being applied to past actions.
Sad argues that the denial of a hearing for aliens regarding the sufficiency of process may be unconstitutional and contends that the BIA's interpretation of the stop-time rule violates due process. He points out that many aliens, believing they qualify for suspension of deportation, often admit to service of process and do not challenge its sufficiency. The stop-time rule alters the legal implications of an order to show cause, effectively preventing aliens from applying for suspension and losing their chance to contest the sufficiency of process. However, Sad does not identify any constitutional violations in his own case concerning service of process, as the order he received adequately informed him of the INS's intent to deport him. Furthermore, he has not provided any legal authority to support the requirement of a hearing to challenge process sufficiency before deportation.
Sad also raises two equal protection claims under the Fifth Amendment. First, he argues that the BIA's application of the transitional rule discriminates irrationally against aliens based on the timing of their service of process. He contrasts the treatment of an alien who evades service but remains eligible for cancellation of removal with one who accepts service but becomes ineligible due to the retroactive application of the stop-time rule. This claim is reviewed under the rational-basis standard, which allows for legislative classifications to be upheld if any conceivable rational basis exists, even without explicit justification. The burden lies with Sad to refute any possible rationale for the classification, which is presumed constitutional, especially in immigration cases where Congress has plenary power.
Control over immigration matters is primarily the domain of the executive and legislative branches, with the judiciary's role limited to assessing procedural fairness under the Due Process Clause. Relevant case law, including Landon v. Plasencia and Reno v. Flores, supports this framework. Congress possesses comprehensive legislative power over immigration, as confirmed in Fiallo v. Bell and Oceanic Steam Navigation Co. v. Stranahan. The “stop-time rule,” a provision aimed at discouraging delays in deportation proceedings, is deemed a legitimate policy choice, and its application does not require absolute precision in enforcement.
Sad challenges the selective application of the stop-time rule based on nationality, asserting that such discrimination fails strict scrutiny. However, this argument misinterprets the standard of review, which is more deferential than rational-basis review in immigration cases. Courts recognize Congress's plenary power to favor certain nationalities in immigration law, leading to the dismissal of Sad's challenge regarding the NACARA exemption.
In the factual background, Sad, a Jordanian national, entered the U.S. as a nonimmigrant on March 5, 1989. After overstaying his visa, he faced deportation proceedings initiated by the Immigration and Naturalization Service (INS) in 1995. He applied for suspension of deportation, requiring seven years of continuous physical presence, a requirement altered by the IIRIRA's introduction of the stop-time rule. The Immigration Judge (IJ) ruled that Sad did not meet the required seven years of presence prior to the deportation order, leading to the pretermitting of his application while preserving his challenge for future consideration. The Board of Immigration Appeals affirmed this judgment.
The Board of Immigration Appeals (BIA) affirmed the Immigration Judge's (IJ) denial of Sad's application for suspension of deportation, referencing its interpretation of the stop-time rule established in In re Nolasco-Tofino. Sad's appeal, arguing that the stop-time rule should not apply to petitions pending at the time of the IIRIRA's enactment, was timely filed. The case involves statutory interpretation, which is reviewed de novo by the court, but judicial deference to agency interpretations limits this inquiry. The Supreme Court's decision in INS v. Aguirre-Aguirre endorsed the application of Chevron deference to immigration matters, recognizing the sensitive political functions involved. Principles of Chevron require courts to determine whether Congress has clearly expressed its intent regarding the statute. If the statute is ambiguous, the court assesses whether the agency's interpretation is permissible without needing to find it as the sole or preferred interpretation. The transitional stop-time rule, established by the IIRIRA, changed the previous framework allowing aliens to apply for suspension of deportation based on continuous physical presence for seven years, a requirement that could be satisfied during the pendency of deportation proceedings. The IIRIRA replaced the term "deportation" with "removal," altering the previous legal landscape.
The IIRIRA replaced "suspension of deportation" with "cancellation of removal," introducing stricter eligibility criteria. A key change was the establishment of the "stop-time rule," which halts the accrual of time toward the physical presence requirement once an alien receives a "notice to appear," a new document created by the IIRIRA functioning similarly to an order to show cause under the previous INA framework. This rule means that aliens can no longer accumulate time for continuous physical presence after the initiation of removal proceedings. The transition to a removal system became effective on April 1, 1997, and the IIRIRA included transitional rules for cases pending as of its enactment on September 3, 1996.
Section 309 of the IIRIRA outlines that new rules generally do not apply to aliens already in exclusion proceedings as of the effective date, allowing those proceedings to continue without regard to the amendments. However, the transitional rule specifically addresses the application of the stop-time rule to pending applications for suspension of deportation, despite the ambiguity regarding the term "notices to appear," which did not exist prior to the IIRIRA. Section 240A(d)(1) clarifies that any continuous residence or physical presence is terminated upon service of a notice to appear. The BIA confronted the interpretative challenges posed by this transitional rule in the case of In re N-J-B.
The interpretation of "notices to appear" in section 309(c)(5) has been broadly construed to include other documents, such as orders to show cause, which initiate deportation or removal proceedings. As a result, aliens who did not meet the physical presence requirement before receiving an order to show cause became ineligible for suspension of deportation. The Attorney General vacated the N-J-B- decision and certified the case for review. Before the review could occur, Congress passed the Nicaraguan Adjustment and Central American Relief Act (NACARA) as a "clarifying amendment" to the IIRIRA, which changed the stop-time rule from "notices to appear" to "orders to show cause," retroactively affecting all relevant proceedings.
The amended transitional rule states that the provisions regarding continuous residence or physical presence apply to orders to show cause, creating two exceptions: first, if the Attorney General terminates and reinstates deportation proceedings, the stop-time rule does not apply, allowing aliens an opportunity to apply for cancellation of removal; second, certain aliens from Nicaragua, Guatemala, and Eastern Europe are exempt from the stop-time rule in all circumstances.
In In re Nolasco-Tofino, the Board of Immigration Appeals (BIA) ruled that the amended transitional rule applies the stop-time rule to pending applications for suspension of deportation, unless an alien meets one of the specified exemptions. Although the majority found the language of the transitional rule unambiguous, three BIA members expressed concern over its clarity due to inconsistencies in terminology between the stop-time rule and the transitional rule.
Under Chevron, the initial step is to determine if Congress has clearly addressed the specific issue. If Congress has, both the agency and courts must adhere to that clear intent. The respondent contends that the amended stop-time rule distinctly applies to pending applications for suspension of deportation, a view supported by recent court rulings, including Bartoszewska-Zajac v. INS and Ashki v. INS, which have interpreted the statutory language as clear. Other circuits have similarly found the amended language unambiguous. However, no court has evaluated Sad’s proposed interpretation of the transitional rules, which the INS acknowledges as plausible. Sad’s argument is based on a BIA concurring opinion suggesting that the transitional rules inadequately bridge two legal frameworks. He notes that while the amended transitional rule in section 309(c)(5) refers to the stop-time rule in section 240A(d), which halts the accrual of continuous physical presence upon receiving a "notice to appear," the amendment did not alter section 240A(d) concerning orders to show cause. Thus, Sad claims that the stop-time rule does not apply to his application for suspension of deportation. Moreover, he asserts that section 309(c)(2) limits the stop-time rule's retroactive application, allowing the Attorney General to process certain pending cases under new laws. Sad argues that under these circumstances, the alien would be ineligible for suspension of deportation but could seek cancellation of removal, with the accrual of continuous physical presence stopping at the service of the order to show cause. The INS finds Sad's interpretation potentially valid but argues that the stop-time rule is not confined to pending cases. Since the provisions can reasonably support multiple interpretations, the transitional rules of the IIRIRA, as amended, cannot be deemed unambiguous under Chevron's initial inquiry, leading to the next step of determining if the agency's interpretation is permissible.
The BIA's interpretation of immigration statutes is authoritative and subject to Chevron deference if it represents a permissible construction of the law. Prior to the IIRIRA, the Attorney General had the discretion to determine applications for suspension of deportation, a framework that remained unchanged. The BIA has been delegated authority from the Attorney General to cancel removal for certain inadmissible or deportable aliens. The BIA's interpretation of the stop-time rule, as seen in In re Nolasco-Tofino, deserves deference, especially as Sad has not demonstrated that this interpretation is impermissible or arbitrary. Sad's arguments focus on his belief that the BIA's interpretation contradicts the statute's plain meaning, but the differing interpretations accepted by the BIA and various circuits indicate the statute's ambiguity.
Sad also raises constitutional concerns, alleging that the BIA's interpretation violates the Fifth Amendment's Due Process Clause by retroactively affecting his vested interests and discriminating against similarly situated aliens. While the Due Process Clause applies to illegal aliens, they do not possess a fundamental right to remain in the U.S. However, deportation proceedings must adhere to constitutional standards, requiring a "full and fair hearing." Sad received such a hearing and appealed to the BIA but challenges only the pretermission of his suspension application. Under prior immigration law, the Attorney General had sole discretion to grant suspension of deportation applications, which is viewed as an "act of grace."
An alien may qualify for relief, but the Attorney General has discretion to grant or deny applications, as established in Babai v. INS and INS v. Rios-Pineda. Sad's expectation of applying for suspension of deportation does not constitute a constitutionally protected interest because such relief is at the executive's unfettered discretion. Due process only guarantees Sad the right to a hearing during the deportation process, and he lacks a liberty or property interest in suspension of deportation, meaning the application of the stop-time rule does not violate his rights. The transitional stop-time rule does not retroactively affect Sad's expectations regarding the proceedings. The Supreme Court's decision in Landgraf outlines a two-step inquiry for determining a federal statute's reach and retroactive effect. Since Congress has not clearly defined the temporal scope of the statute, and the discretionary nature of suspension of deportation precludes retroactive rights impairment, the stop-time rule cannot have retroactive effect. Sad held no right to suspension of deportation prior to the enactment of the IIRIRA, and thus the presumption against retroactivity does not apply. Sad also argues that denying aliens a hearing regarding process sufficiency violates due process. He contends that aliens often admit service of process under the belief they can apply for suspension of deportation, but the stop-time rule alters the significance of the order to show cause, preventing consideration of their eligibility for suspension and hindering their ability to challenge the sufficiency of process.
Sad has not identified any significant defect in the service of process that constitutes a constitutional violation, as the order to show cause provided adequate notice of the INS’s intent to deport him. There is no constitutional requirement for a hearing to challenge the service of process prior to deportation. Sad raises two equal protection claims under the Fifth Amendment’s Due Process Clause. First, he argues that the BIA's application of the transitional rule discriminates against aliens based on when they received their orders to show cause. He asserts this results in inconsistent outcomes, exemplified by comparing an alien who evaded service for seven years with another who accepted service but became ineligible due to the stop-time rule’s retroactive application.
The review of this claim follows the rational-basis standard, which allows legislative classifications to be upheld if a rational basis can be conceived, regardless of whether that rationale is articulated or supported by evidence. Courts are required to accept legislative generalizations, even if the classification leads to some inequality. In immigration matters, this standard is even more lenient due to Congress’s broad authority in this area. The judiciary’s role is limited to ensuring that procedures comply with fairness standards under the Due Process Clause. Thus, legislative power regarding immigration is nearly absolute, with the courts having minimal oversight.
The stop-time rule is a legitimate policy choice aimed at discouraging delays in deportation or removal proceedings. The fact that some aliens may evade service does not undermine this rationale, as Congress is not required to create perfectly precise distinctions in the statute. Sad's challenge to the selective application of the stop-time rule based on national origin is rejected, as the applicable standard of review for immigration classifications is more deferential than rational-basis review. Congress has the authority to favor certain nationalities in immigration laws, leading to the conclusion that Sad's objections regarding the NACARA's treatment of different aliens do not succeed. Ultimately, the stop-time rule is determined to apply to Sad's case, and the judgment of the Board of Immigration Appeals is affirmed.
