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                                        FILED
                           United States Court of Appeals
                                    Tenth Circuit
  
                                     JUN 2 2000
  
                                   PATRICK FISHER
                                        Clerk                                      PUBLISH
         
                           UNITED STATES COURT OF APPEALS
         
                                   TENTH CIRCUIT
         
         
         
         CLAUDIO RIVERA-JIMENEZ;  FRANCISCA
         CARRERA  DE RIVERA; PEDRO  RIVERA-CARRERA;
         CLAUDIO  RIVERA-CARRERA; EFRAIN  
          RIVERA-CARRERA; ADELINA  RIVERA-CARRERA;
         JOSE  ANTONIO RIVERA-CARRERA;    
          MARIA ISABEL  RIVERA-CARRERA;               No. 97-9513
          RICARDO RIVERA-CARRERA,          
                                          
                                          Petitioners,                     
                                          
         v.                               
                                          
         IMMIGRATION &  NATURALIZATION    
         SERVICE,                         
                                          
                   Respondent.                      
                                          

         
         
                    APPEAL FROM THE BOARD OF IMMIGRATION APPEALS
                                PETITION FOR REVIEW
                   (Nos. A90 615 339, A26 910 553, A72 577 382, 
                A72 577 567, A72 577 568, A72 577 569, A72 577 574, 
                           A72 577 575, and A72 577 577)
         
         


         Submitted on the briefs:
         
         Felix Garcia, Denver, Colorado, and Berkley Rasband, Lakewood, Colorado, for 
         Petitioners.
         
         David M. McConnell, Assistant Director, Lorri Shealy Unumb, Trial Attorney, 
         Office of Immigration Litigation, Civil Division, United States Justice 
         Department, Washington, D.C., for Respondent.
         
         
         
         Before KELLY, McKAY, and HENRY, Circuit Judges.
         
         
         
         PER CURIAM.
         
         
         

              Petitioner Claudio Rivera-Jimenez and his family seek review of a final 

         order of the Board of Immigration Appeals (BIA), denying their applications 

         for suspension of deportation.  This court has jurisdiction pursuant to 8 U.S.C. 

           1105a(a) (1994), as amended by the transitional rules in the Illegal Immigration 

         Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 

         104-208, 110 Stat. 3009 (1996), governing judicial review.(1)  Following careful review 
of the parties' briefs, the administrative record, and the applicable law, 

         we grant the petition for review, vacate the BIA's decision, and remand the case 

         for further proceedings.(2)

         
                                     Background
         
              In May 1993, petitioners were served with orders to show cause as to why 

         they should not be deported as having entered the United States without 

         inspection.  In subsequent administrative deportation proceedings, the 

         immigration judge granted petitioners' applications for suspension of deportation. 

         The INS appealed this decision to the BIA.  While the appeal was pending, 

         Congress enacted the IIRIRA which changed the requirements for suspension of 

         deportation eligibility.  In 1997, the BIA sustained the INS appeal and reversed 

         the immigration judge.  In so doing, the BIA found that petitioners had not been 

         continuously physically present in the United States for the requisite seven years. 

         See 8 U.S.C.   1254(a)(1) (1994).

              Petitioners filed a petition for review in this court.  On motion of the INS, 

         we abated the petition and, in January 1998, we remanded the case to the BIA for 

         the purpose of considering the matter in light of the recent enactment of the
         (1)     The IIRIRA altered the availability, scope, and nature of judicial review 
         inINS cases.  Because petitioners' deportation proceedings commenced before 
         April1, 1997, IIRIRA's permanent "new rules" do not apply to this case. 
         SeeIIRIRA  309(c)(1).  However, because the BIA's order was filed more than 
         thirty days after IIRIRA's September 30, 1996 date of enactment, IIRIRA's 
         "transitional rules" apply.  See id.  309(c)(4); Berehe v. INS, 114 F.3d 159, 161 
         (10th Cir. 1997).  None of the transitional rules bar petitioners from seeking 
         judicial review of the BIA's final order in this case.
         (2)     After examining the briefs and appellate record, this panel has determined 
         unanimously to grant the parties' request for a decision on the briefs without oral 
         argument.  See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G).  The case is therefore 
         ordered submitted without oral argument.
         

         Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub. L. 

         No. 105-100, 111 Stat. 2160 (1997).  On remand, the BIA applied the amending 

         provisions of NACARA and again found petitioners ineligible for suspension of 

         deportation based on their failure to establish seven years' continuous presence 

         in the United States before service of the orders to show cause. 

              In their petition for review, petitioners contend that (1) the BIA erred in 

         finding that their two-week absence from the United States in July 1986, was not 

         brief, innocent, and casual pursuant to 8 U.S.C.   1254(b)(2) and Rosenberg v. 

         Fleuti, 374 U.S. 449 (1963); (2) the BIA erred in finding that the issuance of an 

         order to show cause interrupts seven years of continuous physical presence; and 

         (3) the BIA should be estopped from asserting the IIRIRA to deny petitioners' 

         application for suspension of deportation.

         (3)     Petitioners argue that the BIA should be estopped from applying IIRIRA to 
         their application due to its delay in issuing a decision on the INS appeal of the 
         immigration judge's 1993 decision to grant petitioners' applications for 
         suspension of deportation.  Because this issue was not raised to the BIA, we 
         decline to address it on review.  See Nguyen, 991 F.2d at 623 n.3 (holding failure 
         to raise issue to the BIA constitutes failure to exhaust administrative remedies and 
         deprives this court of jurisdiction to address that issue).
         

                                     Discussion

              This court reviews the BIA's factual findings for substantial evidence in the 

         record.  Nguyen v. INS, 991 F.2d 621, 625 (10th Cir. 1993).(4)  To obtain reversal 

         of such findings, petitioners must show that "the evidence [they] presented was so 

         compelling that no reasonable factfinder" could find as the BIA did.  INS v. 

         Elias-Zacarias, 502 U.S. 478, 483-84 (1992);  Rubio-Rubio v. INS, 23 F.3d 273, 

         277 (10th Cir. 1994).  This court reviews the BIA's legal determinations de novo, 

         see Nguyen, 991 F.2d at 623.  We will, however, accord deference to the BIA's 

         legal determinations unless they are clearly contrary to the statute's language or 

         to congressional intent.  INS v. Cardoza-Fonseca, 480 U.S. 421, 445-48 (1987). 

         Our review is limited to the decision of the BIA, and not that of the immigration 

         judge.  See Luna-Rodriguez v. INS, 104 F.3d 313, 315 (10th Cir. 1997).

              Prior to the IIRIRA,   1254(a)(1) of the Immigration and Naturalization 

         Act (INA) provided that the Attorney General, in her discretion, may suspend 

         deportation of an otherwise deportable alien who (1) "has been physically present in
 the United States for a continuous period of not less than seven years;" (2) "is 

         a person of good moral character;" and (3) "is a person whose deportation would, 

         in the opinion of the Attorney General, result in extreme hardship to the alien" or 

         his lawfully admitted or citizen family.  See 8 U.S.C.   1254(a)(1) (1994).  The 

         IIRIRA repealed this section of the INA and replaced it with a new section setting 

         forth the requirements for "cancellation of removal" for nonpermanent residents, 

         8 U.S.C.   1229b(b) (1996), and special rules relating to the continuous physical 

         presence requirement, 8 U.S.C.   1229b(d).  Section 1229b(b) provides in 

         pertinent part:

              (b) Cancellation of removal and adjustment of status for certain 
              nonpermanent residents
         
                   (1) In general
         
                   The Attorney General may cancel removal of, and adjust to the 
              status of an alien lawfully admitted for permanent residence, an alien 
              who is inadmissible or deportable from the United States if the 
              alien--
         
                   (A) has been physically present in the United States for a 
              continuous period of not less than 10 years immediately preceding 
              the date of such application;(5)
         (4)     IIRIRA has amended 8 U.S.C.  1252(b)(4)(B) to provide that "the 
         administrative findings of fact are conclusive unless any reasonable adjudicator 
         would be compelled to conclude to the contrary."  Although this court has cited to 
          1252(b)(4)(B) in a number of unpublished orders and judgment, see, e.g., 
         Fesseha v. INS, No. 98-9537, 1999 WL 672310, **2 (10th Cir. Aug. 30, 1999) 
         (unpublished), to date, no federal court has held that this statutory provision 
         modifies the substantial evidence standard previously applied.
         (5)     The IIRIRA changed the seven years of continuous presence to ten years 
         ofcontinuous presence before filing an application for suspension of deportation. 
         See 8 U.S.C. 1229b(b)(1)(A) (1999).  This provision is not made applicable to 
         petitioners by IIRIRA's transitional rules, and therefore is only applicable to 
         deportation proceedings commenced after IIRIRA's effective date of April 1,1997.  
Petitioners continue to be governed by the seven-year requirement of 
         8U.S.C.  1254(a)(1) (1994).
         

         
         Section 1229b(d)(1) provides in pertinent part:
         
              (d) Special rules relating to continuous residence or physical 
              presence
         
                   (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 when the alien is served a notice to appear under 
              section 1229(a) of this title . . . .
         
              Besides the nomenclature--changing "suspension of deportation" to 

         "cancellation of removal"--this section provides a number of other changes in the 

         law germane to applications for suspension of deportation.  Whereas, under the 

         INA, deportation proceedings were initiated by an "order to show cause," under 

         the IIRIRA, removal proceedings are initiated by a "notice to appear."  See id. 

           1229(a)(1).  Under the INA, the time an alien spent in deportation proceedings 

         counted toward the requirement for continuous physical presence.  Under 

         the IIRIRA, "any period of continuous residence or continuous physical 

         presence shall be deemed to end when the alien is served a notice to appear." 

           1229b(d)(1).  The IIRIRA's "Transitional Rule with Regard to Suspension of 

         Deportation" states that this new stop-time rule "shall apply to notices to appear
         

         issued before, on, or after the date of the enactment of this Act [Sept. 30, 1996]." 

         IIRIRA   309(c)(5).  Petitioners argue that retroactive application of this IIRIRA 

         provision to them is unconstitutional.  In addition, petitioners assert that, because 

         they received an order to show cause instead of a notice to appear, the new 

         provision is not applicable to them.  Neither argument has merit.

              In 1997, the BIA determined that the new stop-time provision applied to 

         aliens who were involved in deportation proceedings prior to the IIRIRA's 

         enactment date initiated by orders to show cause as well as by other documents. 

         See In re N-J-B, Int. Dec. 3309 (BIA 1997).  The Attorney General subsequently 

         vacated the BIA's decision in In re N-J-B, and certified it to herself for review. 

         See In re Nolasco-Tofino, Int. Dec. 3385 (BIA 1999).  While her review was 

         pending, Congress enacted the NACARA.  Section 203(a) of the NACARA 

         amended the IIRIRA, providing in pertinent part:

              (1) IN GENERAL.Section 309(c)(5) of the Illegal Immigration 
              Reform and Immigration Responsibility Act of 1996 (Public Law 
              104-208; division C; 110 Stat. 3009-627) is amended to read 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.
         
              In light of this amendment, the BIA determined that the new stop-time 

         provision applied to all pending deportation proceedings regardless of the nature 

         of the initiating document.  See In re Nolasco-Tofino, Int. Dec. 3385.  Moreover, 

         two federal circuits have recently concurred, holding that NACARA "resolve[d] 

         any potential linguistic ambiguity . . . with respect to the stop-time provision." 

         Tefel v. Reno, 180 F.3d 1286, 1293 (11th Cir. 1999), petition for cert. filed, 

         68 U.S.L.W. 3513 (U.S. Feb. 3, 2000) (No. 99-1314); see also Appiah v. United 

         States Immigration & Naturalization Serv., 202 F.3d 704, 708 (4th Cir. 2000). 

         We agree with these decisions, and conclude that the IIRIRA's new stop-time rule 

         applies to petitioners.  Therefore, petitioners' period of continuous physical 

         presence in the United States ended on May 19, 1993, the date they were served 

         with charging documents.

              This does not, however, resolve all questions raised in this case.  In 

         denying petitioners' applications for suspension of deportation, the BIA found 

         that petitioners had not been in the United States for a continuous seven-year 

         period prior to service of the orders to show cause.  This was based on the factual 

         finding that, in 1986, petitioner Claudio Rivera-Jimenez was apprehended by the 

         INS and on July 19, 1986, accepted voluntary departure for himself and his family
         

         in lieu of deportation proceedings.  After a failed attempt to reenter the United 

         States immediately, petitioners hired a smuggler and reentered the United States 

         two weeks after their voluntary departure.  Therefore, at the time they were 

         served with the orders to show cause, May 19, 1993, they were two months short 

         of seven years of continuous physical presence.  In their petition for review, 

         petitioners argue that this two-week absence from the United States was "brief, 

         casual, and innocent," 8 U.S.C.   1254(b)(2) (1994), and therefore, should not be 

         considered a break in their period of continuous physical presence.(6)

              We agree with the INS that petitioners' two-week return to Mexico in 

         lieu of being placed in deportation proceedings was not brief, casual or innocent. 

         See Hernandez-Luis v. INS, 869 F.2d 496, 498 (9th Cir. 1989) (holding a 

         "voluntary departure under threat of coerced deportation is not a brief, casual, and 

         innocent absence from the United States").  This is irrelevant, however, in light of 

         the IIRIRA's special rules relating to continuous physical presence.  See 8 U.S.C. 

           1229b(d) (1996).  Section 1229b(d)(2) states:

               (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) of this section 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.
         
         This provision is made applicable to petitioners by the IIRIRA's transitional rules 

         regarding suspension of deportation,   309(c)(5)(A).  Section 309(c)(5)(A) states 

         in pertinent part:

              (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 [section 1229b(d) of this title] (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 [section 1252b(a)(1) of the title], as in effect before 
              the title III-A effective date), issued before, on, or after the date of 
              the enactment of this Act [Nov. 19, 1997].
         
         It is obvious that petitioners' two-week return to Mexico in 1986 was not 

         "in excess of 90 days," nor was it "in the aggregate exceeding 180 days."  Id. 

           1229b(d)(2).

              We recognize that "[t]he judiciary is the final authority on issues of 

         statutory construction and must reject administrative constructions which are 

         contrary to clear congressional intent."  Chevron, U.S.A., Inc. v. Natural 
         (6)     Under the INA, an alien was considered not to have failed in establishing 
         seven years of continuous physical presence if any absence from the United States 
         was "brief, casual, and innocent and did not meaningfully interrupt the continuous 
         physical presence."  Id.  1254(b)(2).  This provision is, however, missing from 
         the IIRIRA's cancellation of removal provisions.  See 8 U.S.C. 1229b (1996).
         

         
         Resources Defense Council, Inc., 467 U.S. 837, 843 n.9 (1984).  We also are cognizant, 
however, that the Supreme Court has "long recognized that 

         considerable weight should be accorded to an executive department's construction 

         of a statutory scheme it is entrusted to administer and the principle of deference 

         to administrative interpretations."  Id. at 844 (footnote omitted).  Here, we have 

         no administrative interpretation of   1229b(d)(2), as the BIA's decision was 

         grounded entirely on its conclusion that petitioners had not established the 

         requisite period of continuous physical presence under the old "brief, casual, and 

         innocent" standard of   1254(b)(2).  We therefore remand to the BIA for 

         reconsideration, in the first instance, of petitioners' applications in light of 

           1229b(d)(2).

              Accordingly, the petition for review is GRANTED, the decision of the BIA 

         is VACATED, and the matter is REMANDED for further proceedings in 

         accordance with this opinion.


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