Aoun v. INS ( 2003 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Aoun v. INS No. 01-4004
ELECTRONIC CITATION: 2003 FED App. 0305P (6th Cir.)File Name: 03a0305p.06 A. Hunolt, Papu Sandhu, UNITED STATES DEPARTMENT
OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION,
UNITED STATES COURT OF APPEALS CIVIL DIVISION, Washington, D.C., for Respondent.
FOR THE SIXTH CIRCUIT _________________
_________________
OPINION
_________________
NEMER AHMAD AOUN , X
Petitioner, - MERRITT, Circuit Judge. Nemer Ahmad Aoun appeals
- the denial of his Motion to Reopen and Remand his
- No. 01-4004 application for Suspension of Deportation. The equities of
v. -
> the case warrant reversal of the Board of Immigration
, Appeals’ denial and a remand for further proceedings. The
IMMIGRATION AND - Board’s decision in this matter failed to take into
NATURALIZATION SERVICE, - consideration lengthy delays, including continuances and an
Respondent. - “administrative closure” in the proceedings, that delayed a
- decision on Aoun’s application for many years and ultimately
N prejudiced his ability to have his application for suspension
On Appeal from the Immigration Board of Appeals. of deportation decided before more stringent immigration
No. A26-479-479. rules came into effect.
Submitted: January 30, 2003 Aoun raises three issues on appeal: (1) whether the denial
of the reopening of his application for suspension of
Decided and Filed: August 26, 2003 deportation based on the “stop time rule” was error;
(2) whether the Board erred in failing to allow petitioner to
Before: MARTIN, Chief Circuit Judge; MERRITT and apply for “repapering” and cancellation of removal and
LAY, Circuit Judges.* (3) whether the Board erred in denying petitioner’s
application for asylum.
_________________
I.
COUNSEL
Aoun entered the country legally from Lebanon in October
ON BRIEF: Richard G. Lehr, RICHARD G. LEHR & of 1978 on a student visa. Aoun is a Shiite Muslim who, as
ASSOCIATES, Centerline, Michigan, for Petitioner. James a Palestinian, describes himself as “stateless.” Aoun
graduated from the University of Detroit in May 1983 with a
degree in electrical engineering. In the winter of 1983-84, he
registered as a full-time student at Eastern Michigan
*
The Honorable Donald P. Lay, Circuit Judge of the United States University with the intention of studying computer science,
Court of Appeals for the Eighth Circuit, sitting by designation.
1
No. 01-4004 Aoun v. INS 3 4 Aoun v. INS No. 01-4004
but dropped out for financial reasons. Aoun therefore became August 1985, he was served with an Order to Show Cause
deportable for failure to comply with the conditions of his why he was not deportable.
status which required him to be a student if he wished to
remain in this country legally. Immigration and Nationality At his deportation hearing on June 10, 1986, Aoun
Act, 8 U.S.C. § 1251(a)(2) and § 1251 (a)(9). Aoun then withdrew his suspension of deportation application based on
contacted the INS seeking to adjust his status. He did not his attorney’s erroneous assumption that a one day trip by
wish to return to Lebanon because, among other things, the Aoun to an amusement park in Canada in 1981 broke Aoun’s
country was engaged in war at that time. seven years of “continual physical presence” in the United
States, a requirement for demonstrating eligibility for
Aoun claims that, upon contacting the INS, he was put in suspension of deportation.1 Aoun’s asylum application and
contact with John Owens of the investigations unit of the INS. application to withhold deportation were both denied on
Aoun claims that Mr. Owens told him that his status could be June 10, 1986, and Aoun filed timely appeals to the Board of
adjusted if he helped the INS gather information about certain Immigration Appeals. In December 1987, Aoun filed his
people, mostly fellow Lebanese in the Detroit area. In appellate brief concerning the denial of his asylum application
exchange for the assistance, the INS extended Aoun’s visa on and the denial of his application to withhold deportation and,
a month-to-month basis. Aoun claims that he was also in recognizing that the earlier withdrawal of the application for
contact with the FBI and CIA and that the CIA asked him to suspension of deportation had been based on an erroneous
attend local meetings of the Palestine Liberation Organization understanding of the law, moved to remand his case to afford
and Shiite Muslim groups. He also claims he was asked to him the opportunity to reapply for suspension of deportation.
return to Lebanon as an agent for the United States but he Before the Board ruled on the appeals, the proceedings were
declined. When Aoun lost his car and could no longer attend “continued indefinitely” so that Aoun could pursue
the meetings and gather information, the INS stopped the legalization. Order of Board of Immigration Appeals,
monthly renewal of his visa. See Transcript of June 10, 1986 Apr. 26, 1988. The Order stated that the appeals could be
hearing. While we have no reason to doubt Aoun’s “reinstated” upon written request by either party. On
testimony, most of the testimony concerning his work for the January 20, 1989, the INS requested that the appeal be
United States government is uncorroborated and not recalendared and reinstated because Aoun had not filed for
particularly relevant to our decision in this case except to legalization by May 4, 1988, and, in any event, was ineligible
highlight the role of the United States government in raising because Aoun was not out of status before January 1, 1982, as
Aoun’s expectations that by helping the government he would required by statute. 8 U.S.C. §1255a (a)(2)(B) (1986).
be able to remain in this country permanently.
The next document in the record before us is a “Motion to
In November 1984, Aoun sought asylum in the United Recalendar Appeal” filed by the INS on December 14, 1993.
States. He based his asylum application on the fact that he The Motion states that “the [INS] believes that the appeal was
would be persecuted if returned to Lebanon because he was administratively closed by the Office of the Chief
a “stateless person” as a Palestinian and because people in
Lebanon would know he provided information about fellow
Arabs to the United States government. His asylum 1
application was denied in July 1985 and, one month later, in Generally, brief, casual trips out of the country, such as Aoun’s one-
day trip to Canada to visit an amusement park with friends, do not destroy
an alien’s continuous p hysical presence in the U nited States.
No. 01-4004 Aoun v. INS 5 6 Aoun v. INS No. 01-4004
Immigration Judge because [Aoun] is a native of Lebanon of suspension of deportation was a form of relief from
Palestine descent and because Lebanon was designated by deportation. Before new laws were enacted in 1996, an alien
the Attorney General under the Temporary Protected Status was eligible for suspension of deportation if (1) he or she
program[, which was terminated for Lebanon on April 9, "ha[d] been physically present in the United States for a
1993].” 2 On June 9, 2000, the Board of Immigration continuous period of not less than seven years immediately
Appeals issued an Amended Order3 reinstating the preceding the date of [the] application" for suspension of
proceedings, dismissing Aoun’s appeal and denying his deportation; (2) he or she was a "person of good moral
motions for remand and for oral argument. No explanation character"; and (3) deportation would result in "extreme
was given for the extensive time lapse between the motion to hardship" to the alien or to an immediate family member who
reinstate Aoun’s appeal in April 1993 and the order on June was a U.S. citizen or a lawful permanent resident.
9, 2000. In that order, the Board allowed Aoun 90 days to file Immigration and Nationality Act § 244(a)(1), 8 U.S.C.
a Motion for Reopen his application for suspension of § 1254(a)(1).
deportation and Aoun filed a timely Motion to Reopen and
Remand on June 21, 2000. The Board summarily denied With the 1996 amendment, Congress changed many aspects
Aoun’s Motion on August 21, 2001, noting only that Aoun’s of immigration law, including replacing “deportation
physical presence in the United States began on October 18, proceedings” with “removal proceedings” and,
1978 and ended with an Order to Show Cause on August 15, correspondingly, replacing “suspension of deportation” with
1985, thereby making him ineligible for suspension due to “cancellation of removal.” Cancellation of removal provides
less than seven years’ continuous physical presence. the same general relief as suspension from deportation, but
the eligibility requirements are somewhat stricter. The new
II. law became effective on April 1, 1997. A key change in the
law under the amendment concerned the calculation of time
In 1996, Congress amended the Immigration and of an alien’s “continuous physical presence” in the United
Nationality Act by enacting the Illegal Immigration Reform States. Prior to the 1996 amendment, accrual of “continuous
and Immigrant Responsibility Act of 1996, Pub.L. No. physical presence” could continue while the alien was in
104-208, 110 Stat. 3009, 3009-627 (1996). Prior to 1996, deportation proceedings. After passage of the amendment,
the initiation of deportation proceedings “stopped the clock”
on an alien’s accrual of time to satisfy the “continuous
2
No document administratively closing Aoun’s proceeding was physical presence” requirement. Under the amendment, "any
included in the record before us. We rely on the government’s reference period of continuous residence or continuous physical
to the closure co ntained in the Motion to Recalendar Appea l, filed by the presence in the United States shall be deemed to end when the
INS on December 14, 1993: “The Service believes that the appeal was
adm inistratively closed by the Office of the Chief Immigration Judge alien is served a notice to appear" or when the alien is
because [Aoun] is a native of Lebano n of Palestinian descent and because convicted of one of several specified offenses, whichever is
Lebanon was designated by the Attorney General under the Temporary earliest. Illegal Immigration Reform and Immigrant
Protected Status program.” (Emphasis added.) This statement indicates Responsibility Act of 1996 § 309(c)(5), 110 Stat. 3009,
that the INS is not sure itself why exactly why the proceeding was closed. 3009-627 (1996), Immigration and Nationality Act § 240A
(J.A. at 11)
(d)(1), 8 U.S.C. § 1229b(d). This is referred to as the "stop
3 time" rule.
The June 9 Order amended a May 11, 2000 order where the names
of counsel for Aoun and the IN S were inadvertently substituted .
No. 01-4004 Aoun v. INS 7 8 Aoun v. INS No. 01-4004
Although most of the 1996 amendments do not apply to WL 261565 (BIA 1999) (en banc), the Board determined that
aliens such as Aoun, who were placed in deportation the unambiguous language of the 1998 amendment, as well as
proceedings before the effective date of the 1996 Act (April 1, the legislative history, demonstrated that Congress intended
1997), the amendments did create special transitional rules for for the time stop rule to apply to the suspension of deportation
those aliens, like Aoun, in proceedings as of the Act's proceedings pending as of April 1, 1997, the date the 1996
effective date. Confusion arose from this provision because Act took effect. We have held that Congress intended to
the term "notice to appear" was not in use before April 1997, apply the time stop rule to orders to show cause pending at
the effective date of the 1996 Act. In an effort to clear up the time the 1996 Act became effective. This rule has been
some of the confusion, Congress passed the Nicaraguan given retroactive effect and therefore applies to petitioner here
Adjustment and Central American Relief Act, Pub. L. No. even though he otherwise falls under the old rules.
105-100, § 203(a), 111 Stat. 2160, 2196-2198 (1998). Section Bartoszewska-Zajac v. INS, 237 F.3d 710, 713 (6th Cir. 2001)
203(a)(1) of the amendment, entitled "Transitional Rules with (stop time rule applies to pending applications for suspension
Regard to Suspension of Deportation," amended Section of deportation in which orders to show cause had been
309(c)(5) of 1he 1996 Act.4 This new amendment clarifies issued).
that the stop time rule for determining an alien's continuous
presence "shall apply to orders to show cause . . . issued III.
before, on, or after the effective date of the enactment of this
Act." Nicaraguan Adjustment and Central American Relief The Board denied Aoun’s application because he could not
Act § 203(a)(1).5 In Matter of Nolasco, Int. Dec. 3385, 1999 make a prima facie case for eligibility for suspension of
deportation for failure to meet the seven year requirement for
continuous physical presence. Aoun has been in this country
4
(5) TRANSITIONAL RULE WITH REGARD TO SUSPENSION
continuously for almost 25 years. He filed his current
OF DE PO RT AT ION .-- Paragraphs (1) and (2) of section 240A(d) of the application for suspension of deportation in December 1987.6
Immigration and N ationality Act (relating to continuous residence or Had Aoun’s application not been delayed by an
physical presence) shall apply to notices to appear issued before, on, or “administrative closure” of his application by the INS in the
after the d ate of the enactment o f this Act. late 1980s, he would have had his application ruled on well
5 before the new rules took effect in 1997 and he would have
(1) IN GE NER AL.--Section 309(c)(5) of the Illegal Immigration been subject to the former rule that allowed him to accrue
Reform and Immigration Responsibility Act of 1996 (Public Law
104-208; division C; 110 Stat. 3009-627) is amended to read as follows:
time towards continuous physical presence during the
(5) TRANSITIONAL RULES WITH REGARD TO pendency of the proceedings. Under those rules, he would
SU SPEN SIO N O F DEP OR TA TION .-- have accrued at least 10 years continuous physical presence
(A) IN G EN ERA L.--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 105-100 , § 203(a), 111 Stat. 2160, 219 6-2198 (19 98).
referred to in section 24 2B (a)(1) of the Im migration and 6
Nationality Act, as in effect before the title III-A effective date), As stated abov e, Aoun first filed an application for suspension of
issued before, on, or after the date of the enactment of this Act. deportation in 1984, but withdrew his application in 1986 based on
erroneous information from his lawyer concerning the continuous
Nicaraguan Adjustment and Central American Relief Act, Pub.L. No. physical presence requirement.
No. 01-4004 Aoun v. INS 9 10 Aoun v. INS No. 01-4004
in the United States by 1989, easily meeting the seven-year We do not dispute that the record shows some missed
requirement for continuous physical presence. As a result of opportunities on the part of Aoun in pursuing his rights under
the INS’s “administrative closure” of Aoun’s appeal, he was the immigration statutes. But the record also demonstrates
denied the benefit of the earlier, more lenient rules concerning that these are likely the result of poor lawyering on behalf of
accrual of time towards continual physical presence in the Aoun instead of a lack of diligence. For example, had Aoun’s
United States. Because the “administrative closure” of his initial application not been withdrawn, the regulations then in
proceeding was not the fault of Aoun, he should not suffer the effect would have allowed Aoun to continue accruing time
extremely adverse results that flowed from that decision. toward the seven-year “continual physical presence”
Considering the unfairness that would result from applying requirement after issuance of the Order to Show Cause and he
the stop time rule retroactively in this case, we reverse the would have accrued the seven years time in October 1985,
Board’s decision and remand for further proceedings that well before the new rules took effect in 1996. However, even
allow Aoun’s application for suspension of deportation to be if some of the blame may be placed on Aoun and his counsel,
considered on the merits.7 the INS must bear most of the blame for the delay. This is
not a case where the applicant “sat on his rights” or tried to
The Board’s decision contains no discussion of the myriad evade immigration authorities for a number of years. Aoun
of events and circumstances that occurred between the contacted the INS shortly after he fell out of status in 1983
issuance of the Show Cause Order in 1985 and the final order and he has been known to and in contact with the INS since
sixteen years later. Most important, there is no discussion of that time. This case is not an example of the type of cases
the fact that, but for numerous delays, including some caused Congress was trying to address when it instituted the time
by the INS and its rules, Aoun most likely would have had his stop rule. As we stated in Ashki v. INS, 233 F.3d 913 (6th
application for suspension of deportation, for which he Cir. 2000), Congress intended the time-stop provision to
reapplied in December 1987, acted on well before the law eliminate the incentive to prolong deportation proceedings in
changed in 1996. These delays prejudiced Aoun by subjecting order to become eligible for suspension. Here, Aoun was
him to the new rules, which “stopped the clock” with the only two months shy of the seven year requirement when the
1985 Show Cause Order instead of allowing him to continue Order to Show Cause was issued in 1985, over ten years
to accrue “continuous physical presence” in the United States before Congress passed the 1996 Act. There is simply no
under the pre-1996 law. evidence that Aoun was trying to delay the proceedings in any
way.
In addition, since the deportation proceedings were initiated
7
in 1985, many facts have changed in Aoun’s life. Because the
Our holding finds o nly that the stop time rule does not apply to INS has continually denied petitioner’s request based on a
Aoun in this case. W e make no finding o n the merits of Aoun’s factual finding that he did not meet the 7-year eligibility
application. Further consideration o f Aoun’s request to re main in this
country legally may take the form of a reopening of his application for requirement for suspension of deportation, the INS has never
suspension of deportation without consideration of the time stop rule, addressed the merits of Aoun’s application, including the fact
termination of deportation proceedings and institution of cancellation of that petitioner is now the divorced father of a child who is a
removal proceedings, including “repapering,” or any other proceeding not United States citizen and the impact that deportation would
inconsistent with this hold ing. We also do no t decide whether Aoun have on the child -- a factor recognized as the most important
could accrue the requisite seven years in a period of continuous presence
starting after the recalendaring of his appeal in April 1993. factor in determining hardship. He is educated as an engineer
No. 01-4004 Aoun v. INS 11 12 Aoun v. INS No. 01-4004
and is presumably working (the record does not indicate his IV.
current employment status). He is a native of Lebanon, but, Other Issues
as a Palestinian, considers himself “stateless” and claims that
the Lebanese government will not allow him back into the A. Asylum
country. He has also lived in this country for nearly 25 years
and appears to be a productive member of society. Aoun did not file a timely appeal of the Board of
Immigration Appeals’ denial of Petitioner’s asylum
Given the “indefinite” continuance of the proceedings put application so we are without jurisdiction to review the
in place by the INS in 1988, the acknowledgment in the INS denial. The Board rendered its final decision on Aoun’s
order of December 1993 that the appeal was “administratively asylum application on June 9, 2000. A petition for judicial
closed” for an indefinite period of time and then the review must be filed within 30 days. The fact that Aoun had
unexplained six-and-one-half year delay between 90 days to file a motion to reopen or reconsider the
“recalendaring” in April of 1993 and action on his appeal in suspension of deportation order does not change this
May of 2000,8 we find that it is appropriate to hold the time requirement. The time limits for judicial review are
stop rule inapplicable in this case. Aoun was only two mandatory and jurisdictional. Stone v. INS, 514 U.S. 386,
months short of the seven year requirement at that time the 394, 405 (1995).
Show cause Order was issued and he had a reasonable
expectation that he would easily meet the seven year B. Repapering
requirement. In the next ten years, while his proceedings
were continued and administratively closed, he married and “Repapering” is the discretionary termination of
had a child who is a United States citizen. During this time, deportation proceedings and the reinstitution of removal
his expectation that relief in the form of suspension of proceedings. § 309(c)(3) of the 1996 Act (codified at
deportation would occur could only have increased given the 8 U.S.C. § 1101 note (2000).) Because the Board of
length of time he had been in the country and the birth of his Immigration Appeals did not address this issue in its order,
child. It is unfair and inequitable for the time stop rule to we decline to review it here and Petitioner is free to raise this
strip Aoun of that reasonable expectation. See Henry v. issue again on remand.
Ashcroft, 175 F. Supp. 2d 688, 696 (S.D.N.Y. 2001) (time
stop rule had improper retroactive effect). For the foregoing reasons, we reverse the decision of the
Board of Immigration Appeals and remand for further
proceedings not inconsistent with this opinion.
8
W hile we d o not imply any affirmative misconduct by the INS, we
note the existence of an Order Ap proving a Class Action Settlement
Agreement in California wherein the INS withheld or reserved granting
suspension of deportation based on certa in directives from the Chief
Immigration Judg e and Chairman of the B oard of Imm igration Appeals
for a class of aliens who wou ld otherwise have had suspension of
deportation hearings before the time-stop rule be came effective in April
1997. Barahona -Go mez v. Ash croft, 243 F. Supp. 2d 1029 (N.D . Cal.
2002).