Santos-Quiroa v. Lynch

United States Court of Appeals
For the First Circuit
No. 15-1685
GILBERTO SANTOS-QUIROA,
Petitioner,
v.
LORETTA LYNCH, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Lipez, and Thompson,
Circuit Judges.
Stephen A. Lagana and Law Offices of Lagana & Associates on
brief for petitioner.
Michael C Heyse, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Benjamin
C. Mizer, Principal Deputy Assistant Attorney General, Civil
Division, and Mary Jane Candaux, Assistant Director, Office of
Immigration Litigation, on brief for respondent.
March 5, 2016
THOMPSON, Circuit Judge. Petitioner Gilberto Santos-
Quiroa seeks review of a decision from the Board of Immigration
Appeals ("BIA") finding that the so-called "stop-time" rule
applies to his application for suspension of deportation and bars
him from receiving relief. For the reasons explained below, we
agree with the BIA that the stop-time rule applies to Santos-
Quiroa. Accordingly, the petition for review will be denied.
BACKGROUND
1. The Legal Landscape
We begin with a primer on the principles of immigration
law at play in this case, including a discussion of some important
changes that took effect on April 1, 1997.
Before April 1, 1997, a noncitizen could be placed into
"deportation" proceedings; under current law, they're called
"removal" proceedings. Compare 8 U.S.C. § 1251(a)(1)(B) (1994)
(describing various classes of "deportable aliens"), with 8 U.S.C.
§ 1229a (describing "removal proceedings"). Per the pre-April 1,
1997 law, a noncitizen "who entered the United States without
inspection or at any time or place other than as designated by the
Attorney General or is in the United States in violation of this
chapter or any other law of the United States is deportable."
8 U.S.C. § 1251(a)(1)(B) (1994).1 Deportation proceedings were
1 Today's recodified version of this statute, effective
December 23, 2008, provides that a noncitizen who is present in
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initiated by serving the noncitizen with a document known as an
Order to Show Cause ("OSC"). An OSC put the noncitizen on notice
of the allegations of deportability the government was making
against him, and it directed him to appear at a hearing on those
charges.2 If a noncitizen failed to appear at his deportation
hearing after having received notice of it, he could be ordered
deported in absentia. See 8 U.S.C. § 1229a(b)(5)(A).3
A noncitizen found to be deportable could apply for
various forms of relief, including what was once called suspension
of deportation. See 8 U.S.C. § 1254(a) (1994). To qualify, a
noncitizen needed to show that he
has 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 prove[] that
during all of such period he was and is a
person of good moral character; and is a
person whose deportation would, in the opinion
of the Attorney General, result in extreme
hardship to the alien or to his spouse,
parent, or child, who is a citizen of the
United States or an alien lawfully admitted
for permanent residence . . . .
the country in violation of any law is deportable. See 8 U.S.C.
§ 1227(a)(1)(B).
2 Although it could do so, an OSC did not have to set forth
the hearing date, notice of which could be sent separately.
3 Section 1229a generally provides the rules applying to
"proceedings for deciding the inadmissibility or deportability of
an alien." 8 U.S.C. § 1229a(a)(1).
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Id. § 1254(a)(1) (1994). The requirement of most import to this
case is the first one: that the noncitizen have been physically
present in the country for at least seven years prior to applying
for suspension of deportation.
In 1996, Congress passed the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No.
104-208, Div. C., 110 Stat. 3009, 3546-724 (1997) (Sep. 30, 1996),
which took effect on April 1, 1997. Concerned that "aliens would
often delay their deportation proceedings until they accrued
sufficient continuous presence in the United States to qualify for
relief" from deportation, Afful v. Ashcroft, 380 F.3d 1, 6 (1st
Cir. 2004) (quoting Suassuna v. I.N.S., 342 F.3d 578, 581 (6th
Cir. 2003)), as part of the IIRIRA Congress altered the suspension
of deportation procedure by enacting what has become known as the
stop-time rule. The stop-time rule provides, in pertinent part,
that "any period of continuous residence or continuous physical
presence in the United States shall be deemed to end . . . when
the alien is served a notice to appear . . . ." 8 U.S.C.
§ 1229(b)(d)(1).4
That IIRIRA referred to NTAs but not OSCs raised a
question as to whether the stop-time rule applied to OSCs at all.
4
A "notice to appear" ("NTA") is a charging document
introduced by the IIRIRA that initiates "removal proceedings" and
takes the place of the pre-IIRIRA OSCs and deportation proceedings.
See Peralta v. Gonzales, 441 F.3d 23, 26, 26 n.4 (1st Cir. 2006).
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See Afful, 380 F.3d at 7. Congress answered that question in the
affirmative when it passed the Nicaraguan Adjustment and Central
American Relief Act ("NACARA"), Pub. L. No. 105-100, Tit. II,
§ 203(a)(1), 111 Stat. 2160, 2196 (Nov. 19, 1997). See Afful, 380
F.3d at 7. NACARA's Section 203 set forth so-called transitional
rules regarding applications for suspension of deportation. One
of these rules provided that the stop-time rule "shall apply to
orders to show cause . . . issued before, on, or after the date of
the enactment of this Act." NACARA § 203(1)(5)(A); see also Afful,
380 F.3d at 7.
Thus, following passage of NACARA, the stop-time rule
was explicitly applied to OSCs. The effect of the rule is that a
noncitizen ceases accruing time in the United States towards
qualifying for eligibility for suspension of deportation upon the
receipt of the OSC charging him with being deportable. This
represents a sharp break with the previous regime, under which a
noncitizen continued to accrue time towards the seven-year
continuous presence requirement even after having been placed into
deportation proceedings.
Whether and how the stop-time rule applies to Santos-
Quiroa takes center stage in this appeal.
2. Santos-Quiroa's Deportation Proceedings
The facts of this case are generally uncontested. On
July 9, 1994, Gilberto Santos-Quiroa, a native and citizen of
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Guatemala, crossed the U.S.-Mexican border into Arizona. He did
so without having been inspected by an immigration officer, making
his entry in violation of United States law and rendering him
deportable. Santos-Quiroa was apprehended almost immediately, and
deportation proceedings began the following day -- July 10 -- with
in-hand service upon him of an OSC. The OSC charged Santos-Quiroa
as being deportable for having entered the United States without
inspection, and it indicated that a hearing would be scheduled and
notice thereof mailed to an address Santos-Quiroa had provided.
Santos-Quiroa was released on bond a little over a week
later, having told immigration authorities he would be living at
an address (his brother's) in Providence, Rhode Island. Notice of
the deportation hearing was mailed to that Providence address on
August 4 and instructed Santos-Quiroa to appear before an
immigration judge ("IJ") in Phoenix, Arizona, on December 1, 1994.
Although the notice had been sent by certified mail and the signed
receipt was returned to the immigration court, Santos-Quiroa was
a no-show on December 1. Accordingly, the hearing proceeded
without him. The IJ found Santos-Quiroa deportable as alleged in
the OSC and ordered him deported in absentia. A copy of the IJ's
decision was mailed to Santos-Quiroa at the Providence address.
This notice advised Santos-Quiroa that the deportation order was
"final" unless he filed a motion to reopen in accordance with the
then-applicable law.
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Santos-Quiroa's case lay fallow for several years. In
November 1998 -- at least according to Santos-Quiroa's appellate
brief, which does not cite to the administrative record in support
of this fact -- he was detained by Immigration and Customs
Enforcement ("ICE"), notified of the deportation order against
him, and released with an Order of Supervision for the Boston
District. Because the government does not contest this factual
assertion, and it does not affect our analysis, we take Santos-
Quiroa at his word.
Despite the Order of Supervision, Santos-Quiroa's case
went dormant again, this time for more than a decade. Over the
next ten years Santos-Quiroa got married and fathered two American-
citizen children. His immigration proceedings heated up again on
September 23, 2009 when, represented by counsel, Santos-Quiroa
filed a Motion to Reopen his deportation proceedings with the
immigration court in Phoenix. In his motion, Santos-Quiroa
asserted that neither he nor his brother received the written
notice of the December 1, 1994 deportation hearing. Based on the
alleged lack of notice, Santos-Quiroa argued that "his case should
be reopened and a new hearing scheduled . . . ." The Department
of Homeland Security ("DHS") opposed Santos-Quiroa's request.
The IJ denied the motion, finding that the written notice
of the 1994 deportation hearing sent by certified mail to the
address Santos-Quiroa had provided constituted sufficient notice
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under the Immigration and Nationality Act ("INA"). Santos-Quiroa
appealed to the BIA, which agreed with the IJ's take and dismissed
his appeal on August 31, 2010.
Nothing else happened on the case until ICE detained
Santos-Quiroa on June 18, 2014. Represented by new counsel,
Santos-Quiroa filed another motion to reopen. In this motion
(which we will call his "Second Motion to Reopen" even though it
did not mention the earlier motion), Santos-Quiroa again said that
his case should be reopened because he never received notice of
the December 1, 1994 deportation hearing.5 See 8 U.S.C.
§ 1229a(b)(5)(C)(ii) (providing that an in absentia order of
deportation may be rescinded if, "upon a motion to reopen filed at
any time . . . the alien demonstrates that the alien did not
receive notice in accordance with . . . this title").
Alternatively, Santos-Quiroa asked the IJ to reopen his
deportation proceedings sua sponte on the grounds that he is
eligible for discretionary relief from deportation, such as
withholding of removal and voluntary departure. DHS again opposed,
arguing the Second Motion to Reopen is number-barred6 and without
merit anyway.
5He also argued that the OSC itself -- which had been
personally served upon him -- should also have been mailed to him,
return receipt requested.
6A noncitizen may generally only file a single motion to
reopen. See 8 U.S.C. § 1229a(c)(7)(A).
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Although Santos-Quiroa filed his Second Motion to Reopen
with the immigration court in Phoenix, it was granted by an IJ in
Puerto Rico. That IJ's written order allowing the motion set forth
a handwritten list of reasons that referenced various immigration
forms, statutes, regulations, and BIA decisions. The IJ did not
explain why any of these things led her to grant Santos-Quiroa's
Second Motion to Reopen. Instead, the order simply states that he
was "eligible" for certain types of relief from deportation.
DHS did not appeal the grant of Santos-Quiroa's Second
Motion to Reopen. On July 22, 2014, a different IJ (in Arizona
this time) granted a motion to change venue to Boston.
Santos-Quiroa filed written pleadings with the
immigration court on September 10, 2014 in which he conceded the
factual allegations against him in the 1994 OSC and admitted that
he is removable. The pleadings indicated that he would be applying
for asylum, withholding of removal, protection under the
Convention Against Torture ("CAT") and voluntary departure.
Santos-Quiroa also applied for suspension of deportation. This
particular form of relief remained available to him despite its
having been superseded by the newer withholding of removal
procedure because it was on the books when deportation proceedings
commenced against him in 1994.
At a December 4, 2014 merits hearing before an IJ in
Boston, Santos-Quiroa withdrew his requests for asylum,
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withholding of removal, and protection under the CAT. This left
for adjudication only his applications for suspension of
deportation and voluntary departure.
In his pre-hearing memorandum, Santos-Quiroa had argued
that he was eligible for suspension of deportation because the law
in effect in 1994 required a noncitizen to be continuously
physically present in the United States for seven years before
applying for suspension of deportation. Santos-Quiroa said that
he easily met this requirement because he entered the United States
on July 9, 1994, and has not left since. DHS argued that the stop-
time rule applies so that Santos-Quiroa's time in the United States
is deemed to have ceased accruing on the day he was served the
OSC. Since the OSC was served on the day after he entered the
country, DHS argues that for the purposes of suspension of
deportation Santos-Quiroa has accrued only one day of physical
presence.7
The IJ agreed with DHS. First, he found that Santos-
Quiroa's successful Second Motion to Reopen prevented the 1994 in
absentia deportation order from becoming a final order of
deportation. Then, citing Aguirre v. Holder, 728 F.3d 48, 51-52,
54 (1st Cir. 2013), the IJ concluded that the stop-time rule
7
The parties also made arguments about Santos-Quiroa's
request for voluntary departure. Since he does not appeal the
IJ's denial of that request, we need not get into those arguments
here.
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applied retroactively to Santos-Quiroa because his deportation
proceedings remained pending on the date the stop-time rule went
into effect. Thus, he found the stop-time rule cut off Santos-
Quiroa's physical presence after one day, rendering him ineligible
for suspension of deportation and resulting in his application
being pretermitted.8 The IJ also went on to deny Santos-Quiroa's
request for voluntary departure as a matter of discretion, and
ordered him removed to Guatemala.
Santos-Quiroa appealed the pretermission of his
application for suspension of deportation to the BIA.9 He argued
that the stop-time rule does not apply retroactively to him
because, in his view, he had already been subject to a final order
of deportation when the stop-time rule first came into effect.
Citing Aguirre, 728 F.3d at 53, Santos-Quiroa argued that a pending
case is one that is either active or temporarily inactive. Then,
relying on the Ninth Circuit's Otarola v. I.N.S. Board of
Immigration Appeals, 270 F.3d 1272 (9th Cir. 2001), he concluded
that his application for suspension of deportation must be governed
by the law in effect prior to the advent of the stop-time rule,
8 "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, 380 F.3d at 6.
9 He did not challenge the finding of deportability.
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under which he had accrued well in excess of the seven years of
physical presence required for him to be eligible for suspension
of deportation. DHS stuck to its guns and maintained that the
stop-time rule cut off his accrual of time towards eligibility for
suspension of deportation at just one day.
The BIA issued a written opinion dismissing Santos-
Quiroa's appeal. Although neither party had raised any issue with
the IJ's allowance of the Second Motion to Reopen, a footnote in
the BIA's decision appears to call that decision into question.
Nevertheless, the BIA indicated that it did not have jurisdiction
to review it because DHS chose not to appeal the reopening of the
proceedings. In any event, the BIA stated that it would "not
presume" that the IJ "granted the motion on legally defective
grounds." It also went on to note that new pleadings were taken
after the Second Motion to Reopen had been granted, and that it
would, therefore, treat the IJ as having rescinded the December 1,
1994 in absentia deportation order.
Despite all that, the BIA proceeded to find that whether
Santos-Quiroa's deportation proceedings were "pending" or "final"
on April 1, 1997 was irrelevant to his eligibility for suspension
of deportation. It began by citing In re Nolasco-Tofino, 22 I. & N.
Dec. 632 (B.I.A. 1999), for the proposition that the stop-time
rule applies to each and every OSC regardless of the date of
service upon the noncitizen. The BIA went on to note that while
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the Ninth Circuit has held that pre-stop-time rule law applies to
noncitizens whose orders of deportation became final before April
1, 1997, the First Circuit had not yet decided the question. The
BIA, disagreeing with the Ninth Circuit, held that whether a
noncitizen's deportation proceedings were final or pending on
April 1, 1997 has no effect on the stop-time rule. In its view,
the plain language of the IIRIRA mandates the rule's application
to all OSCs, regardless of the date of issue and irrespective of
whether deportation proceedings were pending or final on April 1,
1997.
Turning its focus to Santos-Quiroa, the BIA concluded
that "[n]either the entry of the December 1, 1994, final order of
deportation order [sic], nor the July 3, 2014, order reopening the
proceedings and rescinding the 1994 deportation order, has changed
or negated the effect of the Order to Show Cause on [Santos-
Quiroa's] eligibility for suspension of deportation." Because
Santos-Quiroa was served with an OSC on the day after he entered
the United States, the BIA concluded that the stop-time rule made
it so that he accrued only one day of the seven years of physical
presence necessary to become eligible to apply for suspension of
deportation. Accordingly, it dismissed Santos-Quiroa's appeal.
Santos-Quiroa then filed his petition for review with
this Court.
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STANDARD OF REVIEW
The BIA's written decision set forth its own analysis of
the stop-time rule and discussed how it applies to Santos-Quiroa's
case. While it did mention the IJ's findings at the outset, the
BIA conducted its own legal analysis and reached its own
conclusion. Accordingly, we review the BIA's decision, not the
IJ's. See Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004)
("Ordinarily, this court reviews the decision of the BIA.").
Santos-Quiroa's petition for review focuses on the
applicability and application of the stop-time rule to the
uncontested facts of his case. His petition presents us with "pure
questions of law, triggering de novo review." Aguirre, 728 F.3d
at 52. Even under the de novo standard, however, we have
recognized that because "immigration law frequently implicates
some expertise in matters of foreign policy, BIA interpretations
of the statutes and regulations it administers are accorded
substantial deference." Elien v. Ashcroft, 364 F.3d 392, 396 (1st
Cir. 2004) (citing I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425
(1999)). As such, "[w]hen a statute is silent or ambiguous . . .
we uphold the implementing agency's statutory interpretation,
provided it is reasonable and consistent with the statute." Id.
at 397 (internal quotation marks omitted).
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DISCUSSION
1. The Parties' Positions
Santos-Quiroa presents us with a two-part argument as to
why the BIA erred in finding him ineligible for suspension of
deportation. He begins with the premise that the stop-time rule
applies only to deportation proceedings pending on or brought after
April 1, 1997. He gets this idea from "transitional rules"
implemented as part of the IIRIRA that specify instances in which
certain noncitizens remain subject to pre-IIRIRA, pre-stop-time
rule, law. In Santos-Quiroa's view, noncitizens who were subject
to a final order of deportation on April 1, 1997 are unaffected by
the stop-time rule.
From there, Santos-Quiroa moves on to the second part of
his argument and says that his 1994 in absentia order was a final
order of deportation. He says the BIA erred when it found (in
that footnote mentioned above) that his Second Motion to Reopen
resulted in the deportation order's rescission. This misstep,
Santos-Quiroa urges, caused the BIA to view the deportation
proceedings against him as "pending" on April 1, 1997, and
incorrectly apply the stop-time rule to his request for suspension
of deportation. Instead, Santos-Quiroa says, the BIA should have
found that his Second Motion to Reopen did not rescind the 1994
order, but left it intact as a final order. Had the BIA gotten
this right, it would then have simply allowed him to apply for
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discretionary forms of relief under pre-IIRIRA, pre-stop-time rule
law. Without the stop-time rule cutting off his accrual of
physical presence in the United States after one day, Santos-
Quiroa argues that he accrued more than twenty years of such
presence before he applied for suspension of deportation in 2014.
Accordingly, he asks us to find that he is eligible for suspension
of deportation and remand to the BIA for further proceedings on
his application.
The government, echoing Nolasco-Tofino and the BIA's
reasoning in its dismissal of Santos-Quiroa's appeal, argues that
the stop-time rule applies to all OSCs, regardless of the date of
issue. As the government sees it, the plain language in the
IIRIRA, including its "transitional rules," and the amendments
wrought by NACARA provide no basis to differentiate between
deportation proceedings that were pending and those that had become
final as of April 1, 1997 for purposes of the stop-time rule.
Furthermore, it says that accepting Santos-Quiroa's argument would
violate Congress's intent in enacting the stop-time rule by
rewarding him (and others who have acted similarly) for absconding
from immigration authorities instead of reporting for deportation
as ordered. Thus, DHS's position is that the stop-time rule
applies not only to deportation proceedings that remained pending
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on April 1, 1997, but also to those that had already terminated in
a final order.10
2. IIRIRA's Transitional Rules
As we mentioned earlier, the IIRIRA worked several
important changes to the immigration law of the United States.
Accordingly, Congress enacted special transitional rules governing
how the law would be applied to noncitizens who were already
involved in deportation proceedings as of the date the IIRIRA
became effective. See IIRIRA § 309. "Since proceedings against
[Santos-Quiroa] commenced prior to April 1, 1997, the transitional
rules of IIRIRA apply to his case." Peralta v. Gonzales, 441 F.3d
23, 26 (1st Cir. 2006). Of significance here, the IIRIRA set forth
the following provisions:
(c) TRANSITION FOR ALIENS IN PROCEEDINGS.--
(1) GENERAL RULE THAT NEW RULES DO NOT
APPLY.--Subject to the succeeding provisions
of this subsection, in the case of an alien
who is in exclusion or deportation proceedings
as of the title III-A effective date [i.e.,
April 1, 1997]--
(A) the amendments made by this subtitle
shall not apply, and
(B) the proceedings (including judicial
review thereof) shall continue to be
10Although the government contends in a footnote to its brief
that the BIA did not err in treating the 1994 deportation order as
having been rescinded, it does not argue that this means the case
was "pending" on April 1, 1997. Instead, it maintains that whether
the 1994 deportation order was pending or final on that date is
completely irrelevant.
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conducted without regard to such
amendments.
IIRIRA § 309(c)(1).
The statute goes on to provide a rule specific to
deportation proceedings:
(5) 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).11 This is the language that NACARA amended to
refer to OSCs like the one Santos-Quiroa received. See Afful, 380
F.3d at 7 (quoting NACARA § 203(a)(1)).12 Thus, Section 309(c)(5)
is an exception to the general non-retroactivity transitional rule
and makes it so that "even if an alien had been served with a[n]
[OSC] prior to April 1, 1997, the new stop-time rule would apply."
Id.
11We have described this language as creating an exception
to IIRIRA § 309(c)(1)'s "general rule" that its amendments do not
apply to noncitizens already in exclusion or deportation
proceedings as of April 1, 1997. Afful, 380 F.3d at 7.
12
Though NACARA substituted the phrase "orders to show cause"
for "notices to appear" in the IIRIRA's statutory language, see
NACARA §§ 203(a)(1), (a)(5)(A), this case does not require us to
consider whether IIRIRA § 309(c)(5)'s transitional rule continues
to apply to NTAs as well. So we express no opinion on this subject.
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What we must figure out is whether the BIA erred in its
interpretation and application of the transitional rules to
Santos-Quiroa.
3. Analysis
Today is not the first time we or the BIA have been
called upon to explain the transitional rules' effects on the stop-
time rule. Indeed, following NACARA's enactment, the BIA clarified
that the stop-time rule applies to "all applications for . . .
suspension of deportation." Afful, 380 F.3d at 7 (quoting Nolasco-
Tofino, 22 I. & N. Dec. at 637). In Afful, we recognized that
"every circuit to have addressed the question has found that the
stop-time rule applies retroactively to orders to show cause [i.e.,
OSCs] issued prior to the enactment of the IIRIRA." Id.
(collecting cases).13 Aligning ourselves with the other federal
courts, we concluded that a noncitizen who entered the United
States in October 1989 and was served with an OSC five-and-a-half-
years later was ineligible for suspension of deportation because
his continuous presence was deemed to have come to an end upon
service of the OSC. See id. at 6-8.
We addressed the stop-time rule again in Aguirre v.
Holder, 728 F.3d 48 (1st Cir. 2013). Aguirre involved a Colombian
national who came into the United States in August 1986 and was
13
We cited cases from the Third, Fifth, Sixth, Seventh,
Eighth, Ninth, Tenth, and Eleventh Circuits.
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served with an OSC in January 1987. 728 F.3d at 50. We once again
stated that the IIRIRA's transitional rules dictate that the stop-
time rule is to be "applied . . . retroactively to OSCs issued
before IIRIRA's enactment." Id. at 51. "Consequently, noncitizens
who were already in proceedings as of IIRIRA's effective date are
unable to demonstrate the requisite years of continuous physical
presence if they were issued OSCs before meeting the duration
requirement." Id.
We concluded in Aguirre that the stop-time rule applied
retroactively in that case because deportation proceedings against
the noncitizen had been pending when the IIRIRA went into effect
on April 1, 1997. See id. at 53. Specifically, deportation
proceedings were initiated with the service of an OSC on January
9, 1987, id. at 50-51, but when Aguirre did not show up at the
deportation hearing, an "IJ ordered the case administratively
closed until he could be located," id. at 51. A new case was
opened in 2005 when Aguirre was issued an NTA, but "[a]t some
point, it was discovered that Aguirre already had an open
immigration case based on his 1987 OSC, and the proceedings based
on his 2005 NTA were terminated." Id. at 51-52. Aguirre sought
to reopen the 1987 proceedings and applied for suspension of
deportation. Id. at 52.
On appeal to this court after his request for suspension
of deportation had been denied, Aguirre argued that the 1987
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proceedings, having been administratively closed, were not
"pending" at the time the stop-time rule came into effect and,
therefore, the rule cannot be applied to him retroactively. Id.
at 53. We, however, stated that "administrative closure 'is a
procedural convenience . . . , but it does not constitute a final
order.'" Id. (alteration in original) (quoting Lopez-Reyes v.
Gonzales, 496 F.3d 20, 21 (1st Cir. 2007)). Thus, the
administrative closure of his case in 1987 after he failed to
appear for the deportation hearing did "not terminate the
proceedings or result in a final order of removal." Id. To the
contrary, his case "remained on the IJ's docket and his proceedings
reached no definitive end." Id. It followed, we said, that
Aguirre's deportation proceedings remained "pending" when the
stop-time rule came into effect on April 1, 1997 and we therefore
held that the stop-time rule applied to Aguirre, rendering him
ineligible for suspension of deportation given that he stopped
accruing time towards the seven-year threshold when he was served
with an OSC within months of his entry into the United States.
Id.Santos-Quiroa tries to get some mileage out of Aguirre
by telling us the case stands for the proposition that the stop-
time rule does not apply to deportation orders that had become
final prior to April 1, 1997. To support this reading he twice
quotes the Aguirre panel as having written that, "unless there has
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been a final order of removal issued in a case prior to IIRIRA's
effective date of April 1, 1997, IIRIRA's stop-time rules apply,
even retroactively." Petitioner's Br. at 12, 24 (emphasis added).
Based on this language, Santos-Quiroa reasons that because his in
absentia deportation order was "final" in 1994, the stop-time rule
does not apply to his 2014 application for suspension of
deportation.
The problem with Santos-Quiroa's argument, however, is
that we simply never said in Aguirre what he says we did. The
language he misattributes to us is actually found in the IJ's
December 4, 2014 decision and encapsulates the IJ's view of
Aguirre's import. Needless to say, the IJ's statement cannot alter
or change the holding of this court. And the IJ, we think,
overstated Aguirre's breadth.
It is true that in Aguirre we concluded that the stop-
time rule applied to the noncitizen because his deportation
proceedings were still pending as of April 1, 1997. But we simply
did not address or purport to address what the result would have
been had the deportation proceedings reached their final stage.
So, while Aguirre stands for the proposition that the stop-time
rule applies to noncitizens whose deportation proceedings were
pending as of April 1, 1997, it had nothing to say about the stop-
time rule's application to final orders of deportation. Thus, any
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intimation that Aguirre, by itself, precludes the stop-time rule
from applying to a final deportation order is without merit.
Moreover, we agree with the BIA that, according to the
stop-time rule's plain language, whether or not a noncitizen's
deportation proceedings were pending or final on April 1, 1997 is
irrelevant. The applicable transitional rule could hardly be more
clear, stating that the stop-time rule "shall apply to orders to
show cause . . . issued before, on, or after the date of the
enactment of this Act." IIRIRA § 309(c)(5)(A). Nothing in the
text provides any basis to think that whether a noncitizen's
deportation order was final as of April 1, 1997 has any effect on
the stop-time rule. We conclude that the plain statutory language,
as amended by NACARA, demonstrates that Congress intended the stop-
time rule to apply to all OSCs, regardless of whether they were
issued on, before, or after April 1, 1997.
Indeed, we have already explicitly recognized that the
stop-time rule applies retroactively. Afful, 380 F.3d at 7(agreeing with the BIA and "every circuit to have addressed the
question . . . that the stop-time rule applies retroactively");
Peralta, 441 F.3d at 27 (same); see also Nolasco-Tofino, 22 I. & N.
Dec. at 637 (concluding that the stop-time rule was intended "to
apply broadly and immediately" to OSCs "'issued before, on, or
after' the IIRIRA's effective date" (quoting IIRIRA
§ 309(c)(5)(A)). So even though deportation proceedings in both
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Aguirre and Afful happened to have been pending on that April 1
date, we find nothing in those opinions to indicate the outcome
should vary based on the status of a noncitizen's deportation
proceedings on April 1, 1997. Moreover, such an outcome would
require us to depart from the plain text of the stop-time rule.
Therefore, we conclude that the BIA's interpretation of the stop-
time rule was reasonable and consistent with the statutory
language.
Nevertheless, Santos-Quiroa seizes upon the Ninth
Circuit's opinion in Arrozal v. I.N.S., 159 F.3d 429 (9th Cir.
1998), to argue that we should distinguish between deportation
proceedings that were pending and those that were final as of April
1, 1997. In Arrozal, the Ninth Circuit concluded that the stop-
time rule did not apply there because a "final administrative
decision" had been rendered prior to April 1, 1997. 159 F.3d at
434. Importantly, however, the court clarified that the order of
deportation became final upon the BIA's denial of the noncitizen's
motion to reopen the deportation proceedings. Id. at 434 n.3.
And that "final administrative decision[]" was rendered on
December 30, 1996. Id. Thus, the Ninth Circuit's reasoning was
rooted in its conclusion that the deportation order had become
final before the stop-time rule went into effect.
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Even if we assume Arrozal was correctly decided (a
question on which we need not opine)14 and apply its reasoning
here, this would do Santos-Quiroa no good. This is because the
BIA denied Santos-Quiroa's First Motion to Reopen in 2010. Under
Arrozal's reasoning, Santos-Quiroa's 1994 in absentia deportation
order would not be considered final until the denial of his First
Motion to Reopen more than 15 years after the stop-time rule went
into effect. See also Kay v. Ashcroft, 387 F.3d 664, 672 (7th Cir
2004) (discussing that since the only way to "appeal" an in
absentia order of removal is by way of a motion to reopen, an in
absentia deportation order does not become final until the BIA
denies a motion to reopen); In re L-V-K, 22 I. & N. Dec. 976, 978
(B.I.A. 1999) ("[A]n administrative order is final when the Board
renders its decision in a case on appeal or certification or, where
no appeal is taken, when the time allotted for appeal has expired
or the right to appeal is waived." (citing Matter of Lok, 18 I. & N.
Dec. 101, 105 (B.I.A. 1981), aff'd, 681 F.2d 107 (2d Cir. 1982)));
14 In its written decision, the BIA indicated that it
"disagree[d]" with the Ninth Circuit's analysis. We also note
that in the post-Arrozal case of Ram v. I.N.S., 243 F.3d 510 (9th
Cir. 2001), the Ninth Circuit expressed approval of the BIA's
Nolasco-Tofino decision and held "that IIRIRA section 309(c)(5)(A)
generally applies the stop-time rule to transitional rule aliens
whose deportations were initiated with the service of an OSC and
who seek suspension of deportation." Ram, 243 F.3d at 516. Ram
does not cite Arrozal and its reasoning appears to diverge markedly
from Arrozal's, a development that casts doubt on Arrozal's
continued efficacy as persuasive analysis.
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8 C.F.R. § 1003.23(b)(4)(iii)(A)(2) (allowing an alien to file a
motion to reopen an in absentia order of removal at "any time"
provided the alien "demonstrates that he or she did not receive
notice" of the hearing in accordance with the statute).
Accordingly, Arrozal is inapposite to Santos-Quiroa's factual
situation, and we decline to apply its reasoning here to reach a
result that would be contrary to the plain language of the statute.
As mentioned at the outset, the first part of Santos-
Quiroa's two-pronged argument is that the stop-time rule does not
apply to orders of deportation that became final before April 1,
1997. He has not presented any argument (whether rooted in due
process or any other theory) that the stop-time rule cannot or
should not apply to him in particular even if we conclude that it
generally applies retroactively. Accordingly, any such argument
has been waived. Because we conclude the stop-time rule applies
regardless of the date on which a deportation order became final,
we have no need to determine whether the order against Santos-
Quiroa was pending or final on April 1, 1997. And we do not reach
Santos-Quiroa's remaining arguments, all of which are grounded in
the distinction we have just rejected between final and pending
deportation proceedings.
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CONCLUSION
As we are unable to say that the BIA's interpretation of
the stop-time rule was anything other than reasonable, Santos-
Quiroa's petition for review is denied.
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