Mary Osei v. INS ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-1784
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Mary Osei, *
*
Petitioner, *
*
v. *
*
Janet Reno; *
*
Immigration and Naturalization *
Service, *
*
Respondents. *
On Petition for Review from
__________ Immigration and Naturalization
Service.
No. 97-2270
__________ [UNPUBLISHED]
Farshad Khamenei, *
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Petitioner, *
*
v. *
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Janet Reno, Attorney General; *
Immigration and Naturalization *
Service, *
*
Respondents. *
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Submitted: October 17, 2001
Filed: October 24, 2001
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Before McMILLIAN, FAGG, and BEAM, Circuit Judges.
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PER CURIAM.
In these consolidated appeals, Mary Osei, a citizen of Ghana, and Farshad
Khamenei, a citizen of Iran, petition for review of the Board of Immigration Appeals
(BIA) orders denying their motions to reopen their deportation cases. In their
motions, Osei and Khamenei sought to apply for suspension of deportation based on
their physical presence in the United States for a continuous period of at least seven
years under 8 U.S.C. § 1254(a)(1) (1994) (repealed 1996). Osei entered the United
States in 1984, and in 1987, the Immigration and Naturalization Service (INS) issued
an order to show cause charging her with deportability. Khamenei entered the
country in 1982 and was issued a similar order in 1986. Immigration judges denied
their bids for asylum.
After Osei and Khamenei filed their motions to reopen seeking suspension of
deportation, Congress enacted the Illegal Immigration Reform and Immigration
Responsibility Act of 1996 (IIRIRA). In IIRIRA, Congress repealed the suspension
of deportation statute, replaced it with more limited discretionary relief called
cancellation of removal, 8 U.S.C. § 1229b(b)(1) (Supp. III 1997), changed the
terminology for the written notice initiating deportation from an order to show cause
to a notice to appear, 8 U.S.C. § 1252b(a)(1) (1994) (repealed 1996); 8 U.S.C. §
1229(a)(1) (Supp. III 1997), and enacted a “stop-time” rule providing that an alien’s
period of continuous physical presence in the United States is deemed to end when
the alien is served with a notice to appear for removal proceedings, 8 U.S.C. §
1229b(d)(1) (Supp. III 1997). In a “Transitional Rule [Regarding] Suspension of
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Deportation,” Congress said the stop-time rule applies to notices to appear issued
before the enactment of the stop-time rule on September 30, 1996. 8 U.S.C. § 1101note (Supp. III 1997); Afolayan v. I.N.S., 219 F.3d 784, 788 (8th Cir. 2000). In 1997,
Congress amended the transitional rule, changing “notices to appear” to “orders to
show cause,” thus clarifying that the stop-time rule applies to all pending deportation
proceedings regardless of the name of the initiating notice. Escudero-Corona v.
I.N.S., 244 F.3d 608, 613 (8th Cir. 2001). The BIA held the stop-time rule applied to
Osei and Khamenei, and thus Osei and Khamenei did not accrue seven years of
physical presence in the United States before the INS charged them with
deportability.
On review, Osei and Khamenei argue the stop-time rule does not apply to them
because they were already in deportation proceedings when the rule was enacted.
They assert the rule does not apply because they were issued orders to show cause
rather than notices to appear, and they sought suspension of deportation rather than
cancellation of removal. Osei concedes we rejected this argument in Afolayan, 219
F.3d at 788, but urges us to overrule the case. One panel of this court cannot overrule
the decision of another panel, however. United States v. Franklin, 250 F.3d 653, 665
(8th Cir. 2001). Besides, we have consistently followed our decision in Afolayan, see
Escudero-Corona, 244 F.3d at 613-14; Tang v. I.N.S., 223 F.3d 713, 719 (8th Cir.
2000), and our interpretation in Afolayan is consistent with the interpretation of the
BIA and with recent decisions from our sister circuits, see, e.g., Ram v. I.N.S., 243
F.3d 510, 515-16 (9th Cir. 2001); Rojas-Reyes v. I.N.S., 235 F.3d 115, 121 n.1 (2d
Cir. 2000); Ashki v. I.N.S., 233 F.3d 913, 918-19 (6th Cir. 2000); Angel-Ramos v.
Reno, 227 F.3d 942, 947 (7th Cir. 2000); Rivera-Jimenez v. I.N.S., 214 F.3d 1213,
1217 (10th Cir. 2000); Appiah v. I.N.S., 202 F.3d 704, 708 (4th Cir.), cert. denied, 531
U.S. 857 (2000); Tefel v. Reno, 180 F.3d 1286, 1293 (11th Cir. 1999), cert. denied,
530 U.S. 1228 (2000); In re Nolasco-Tofino, Int. Dec. 3385, 1999 WL 218466 (BIA
1999) (en banc). Likewise, we already rejected the due process and equal protection
challenges raised by Osei and Khamenei in Afolayan, see 219 F.3d at 789, and our
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sister circuits agree with that view as well, see Ram, 243 F.3d at 517; Rojas-Reyes,
235 F.3d at 124; Ashki, 233 F.3d at 919-21; Angel-Ramos, 227 F.3d at 948-49;
Gonzalez-Torres v. I.N.S., 213 F.3d 899, 903 (5th Cir. 2000); Appiah, 202 F.3d at
708-10; Tefel, 180 F.3d at 1298-1302.
We thus deny the petitions for review.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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