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--------------------------------------------------------------------------------
Case Name:
GUADALUPE-CRUZ V INS 
Case Number: Date Filed: 
99-70754 03/15/01 
--------------------------------------------------------------------------------
FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA GUADALUPE-CRUZ; PATRICIA                        No. 99-70754
FLORES, a.k.a. Patricia Flores-Cruz;
                                                     INS Nos.
MARIA GUADALUPE-FLORES,
                                                     A72-520-471
Petitioners,
                                                     A72-520-472
v.                                                    A72-520-473

IMMIGRATION AND NATURALIZATION                        ORDER AND
SERVICE,                                              CORRECTED
Respondent.                                           OPINION

Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
November 2, 2000--San Francisco, California

Opinion Filed February 27, 2001
Corrected March 15, 2001

Before: Betty B. Fletcher, Diarmuid F. O'Scannlain, and
Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould;
Dissent by Judge O'Scannlain
_________________________________________________________________
COUNSEL

Andrew Michael Knapp, Law Offices of Andrew Knapp,
Anaheim, California, for the petitioners.

David M. McConnell, Assistant Director, Office of Immigra-
tion Litigation, United States Department of Justice, Wash-
ington, D.C., for the respondent.
_________________________________________________________________
ORDER

Due to clerical error, this court's opinion, filed February
27, 2001, is corrected as follows:

1. The first sentence of the opinion (on page 2485 of the
slip) reads:

      Maria Guadalupe-Cruz and her daughters Patricia
      Flores-Cruz and Maria Guadalupe Flores-Cruz (col-
      lectively "Petitioners") appeal their final order of
      deportation entered by the Board of Immigration
      Appeals ("BIA") on June 7, 1999.

The foregoing sentence should be replaced with the follow-
ing sentence:

      Maria Guadalupe-Cruz and her daughters Patricia
      Flores-Cruz and Maria Guadalupe Flores-Cruz (col-
      lectively "Petitioners") petition for review of their

                               3239
      final order of deportation entered by the Board of
      Immigration Appeals ("BIA") on June 7, 1999.

2. The fifth sentence of the opinion (on page 2486 of the
slip) reads:

      We agree, and reverse and remand to the BIA.

The foregoing sentence should be replaced with the follow-
ing sentence:

We agree, and grant the petition and remand to the BIA.

3. The first sentence in the tenth paragraph of the opinion
(on page 2490 of the slip) reads:

      We reverse and remand to the BIA with instructions
      to remand to the IJ.

The foregoing sentence should be replaced with the follow-
ing sentence:

      We grant the petition and remand to the BIA with
      instructions to remand to the IJ.

4. The final line of the opinion (on page 2490 of the slip)
reads:

REVERSED and REMANDED. This should be changed
to read: PETITION GRANTED, REVERSED and
REMANDED.

It is so ORDERED.
_________________________________________________________________

                               3240
OPINION

GOULD, Circuit Judge:

Maria Guadalupe-Cruz and her daughters Patricia Flores-
Cruz and Maria Guadalupe Flores-Cruz (collectively "Peti-
tioners") petition for review of their final order of deportation
entered by the Board of Immigration Appeals ("BIA") on
June 7, 1999. At a hearing on March 28, 1997, an immigra-
tion judge ("IJ") denied Petitioners' applications for suspen-
sion of deportation, ruling that they had failed to satisfy the
new continuous physical presence requirement (the "stop-time
rule") set forth in the Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996 ("IIRIRA"). Petitioners con-
tend, in part, that the IJ improperly applied the stop-time rule
before IIRIRA took effect.1 Given the IJ's misapplication of
law, Petitioners argue that the BIA erred by not reversing the
IJ's decision. We agree, and grant the petition and remand to
the BIA.

I

Petitioners are citizens of Mexico who entered the United
States without inspection on December 9, 1989. On October
17, 1996, the Immigration and Naturalization Service ("INS")
served Petitioners with Orders to Show Cause ("OSCs")
charging them as aliens deportable under section 241(a)(1)(B)
of the Immigration and Nationality Act ("INA"), 8 U.S.C.
S 1251(a)(1)(B) (1994).
_________________________________________________________________
1 Petitioners also challenge the application of the stop-time rule to their
cases, arguing that: (1) the stop-time rule should not apply to Orders to
Show Cause served before IIRIRA was enacted; (2) the application of the
stop-time rule to Petitioners is impermissibly retroactive; (3) the applica-
tion of the stop-time rule violates procedural due process by depriving
Petitioners of a suspension of deportation hearing; and (4) IIRIRA section
309(c)(5) violates equal protection by exempting some aliens from the
stop-time rule on the basis of national origin. Given our holding, we do
not reach these issues.

                               3241
Petitioners appeared before an IJ on December 20, 1996,
and admitted the factual allegations in the OSCs, conceded
deportability, and requested leave to apply for suspension of
deportation.2 At a hearing on March 28, 1997 -- four days
before IIRIRA took effect -- the IJ considered Petitioners'
applications for suspension of deportation. Finding that Peti-
tioners had not satisfied IIRIRA's new stop-time rule, the IJ
denied their suspension applications and found them deport-
able as charged.3

Petitioners appealed to the BIA arguing that the IJ should
not have applied the stop-time rule four days before IIRIRA
took effect. Relying on its decision in In re Nolasco-Tofino,
Int. Dec. 3385, 1999 WL 218466 (BIA 1999) (en banc), 4 the
BIA dismissed the appeal because Petitioners had not met the
continuous physical presence requirement before being served
with their OSCs. The BIA did not otherwise address the mer-
its of Petitioners' claims, such as their challenge to the IJ's
_________________________________________________________________
2 Before IIRIRA, an alien was eligible for suspension of deportation if
(1) he or she "ha[d] been physically present in the United States for a con-
tinuous period of not less than seven years immediately preceding the date
of [the] application" for suspension of deportation; (2) he or she was a
"person of good moral character"; and (3) deportation would result in "ex-
treme hardship" to the alien or to an immediate family member who was
a U.S. citizen or a lawful permanent resident. INAS 244(a)(1), 8 U.S.C.
S 1254(a)(1) (1994).
3 Before IIRIRA, aliens accrued time toward the "continuous physical
presence in the United States" requirement until they applied for suspen-
sion of deportation. Commencement of deportation proceedings had no
effect on this accrual. Congress fundamentally altered this system by
enacting IIRIRA's stop-time rule. The stop-time rule provides that the
period of continuous physical presence in the United States shall be
deemed to end when deportation proceedings commence. INA
S 240A(d)(1), 8 U.S.C. S 1229b(d)(1). Thus, after IIRIRA, aliens must
meet the continuous physical presence requirement before they enter
deportation proceedings.
4 In Nolasco, the BIA held that IIRIRA section 309(c)(5)(A) gives effect
to the stop-time rule in all suspension of deportation cases heard on or
after April 1, 1997.

                               3242
erroneous application of law. Petitioners now ask this court to
review the application of IIRIRA's stop-time rule to their
cases. Because this petition falls under IIRIRA's "transitional
rules," Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997), we
have jurisdiction pursuant to 8 U.S.C. S 1105a(a), as amended
by IIRIRA section 309(c), Avetova-Elisseva v. INS, 213 F.3d
1192, 1195 n.4 (9th Cir. 2000), and reverse.

II

[1] In Astrero v. INS, 104 F.3d 264 (9th Cir. 1996), we held
that IIRIRA's new stop-time rule could not be applied before
its effective date of April 1, 1997. Id. at 266 (new stop-time
rule has "no application" to case decided December 30,
1996). Disregarding our decision in Astrero as "dictum," the
IJ impermissibly applied the stop-time rule to Petitioners' sus-
pension applications, even though the suspension hearing
occurred before April 1, 1997. The IJ's characterization of
Astrero's holding as "dictum" was incorrect.5 Had the IJ
_________________________________________________________________
5 In Astrero we held: (1) that the denial of asylum was supported by sub-
stantial evidence; (2) that IIRIRA's transitional rule with regard to suspen-
sion of deportation was not to be applied until IIRIRA took effect on April
1, 1997; and (3) that the BIA's finding that Petitioner failed to meet the
hardship requirement for suspension of deportation was not an abuse of
discretion. Id. at 266-67. Our holding concerning IIRIRA's effective date
was made with deliberate reasoning and in response to the government's
contention that IIRIRA's transitional rules applied before April 1, 1997.
It is true that we might have affirmed solely on grounds that Petitioner did
not meet the hardship requirement, without reaching the issue of IIRIRA's
effective date. However, we deliberately addressed the effective date
issue. Thus, our reasoned decision cannot properly be characterized as
mere dictum. United States v. King, 122 F.3d 808, 811 (9th Cir. 1997)
("Although it is true that we could have resolved Twine without address-
ing the `specific intent to threaten' issue, the fact is that we squarely
decided to resolve that question. In doing so, we did not engage in an
unnecessary or superfluous exercise."); see also Export Group v. Reef
Indus., Inc., 54 F.3d 1466, 1471 (9th Cir. 1995) (per curiam) (" `[W]here
a decision rests on two or more grounds, none can be relegated to the cate-
gory of obiter dictum.' "(quoting Woods v. Interstate Realty Co., 337 U.S.
535, 537 (1949)).

                               3243
relied on pre-IIRIRA law as he should have, Petitioners would
have met the pre-IIRIRA continuous physical presence
requirement. The BIA summarily affirmed the IJ without
addressing the premature application of the stop-time rule.

The government asserts that even if the IJ erred, such error
was harmless because (1) the INS would have appealed any
decision to grant Petitioners suspension of deportation, and
(2) Petitioners' final order of deportation would have been
issued by the BIA well after IIRIRA's effective date.

Certainly, if the IJ had followed pre-IIRIRA law and
granted Petitioners' suspension applications, the INS could
have appealed. 8 C.F.R. S 3.1(b)(2). And had it done so,
because the IJ heard Petitioners' suspension applications only
four days before IIRIRA took effect, the BIA surely would
have heard the case after April 1, 1997 and would have been
required to apply IIRIRA's stop-time rule on appeal. Ram v.
INS, No. 99-70918 (9th Cir. filed Feb. 8, 2001). But it is also
possible that the INS would not have appealed a decision to
grant Petitioners' suspension applications,6 and Petitioners
would have prevailed.

We will not speculate about what might have occurred had
the IJ correctly applied the then-current, pre-IIRIRA law. To
adopt the INS's argument would leave Petitioners without a
_________________________________________________________________
Moreover, subsequent Ninth Circuit opinions characterize our conclu-
sion regarding the application of IIRIRA as Astrero's "holding" and "deci-
sion." See, e.g., Barahona-Gomez v. Reno, 167 F.3d 1228, 1233 n.5 (9th
Cir. 1999) ("holding"); United States v. Zarate-Martinez, 133 F.3d 1194,
1199 (9th Cir. 1998) ("decision").
6 "Following the issuance of a written decision by the Immigration Judge
to grant suspension of deportation, District Counsel must decide whether
to appeal the grant or waive the government's right to appeal." Memoran-
dum from INS General Counsel Raymond M. Momboisse to All District
Counsels (Apr. 13, 1989), reproduced in 66 Interpreter Releases 642 (June
6, 1989).

                               3244
remedy for the IJ's error in disregarding Astrero. We will not
deny Petitioners a remedy for serious procedural error based
only on impermissible guesses and conjecture about what
might have been.

Our conclusion is reinforced by Castillo-Perez v. INS, 212
F.2d 518 (9th Cir. 2000). There, Castillo's counsel did not
timely file an application to suspend deportation. The IJ con-
cluded that the application was abandoned. Castillo then
appealed to the BIA. It held that Castillo had shown, prima
facie, ineffective assistance of counsel but denied his petition
because IIRIRA had imposed the stop-time rule after the IJ's
ruling and before the BIA's decision. Id. at 522. The BIA held
that, under the stop-time rule, Castillo no longer was able to
meet the necessary seven-year continuous physical presence
requirement. Id. We held, in turn, that there was nonetheless
ineffective assistance of counsel and we remanded to the BIA,
instructing it to order a hearing before an IJ in which Castillo
would be entitled to apply for suspension of deportation under
pre-IIRIRA law. We reasoned expressly, and as pertinent
here:

      [The stop-time rule] cannot be applied to Castillo,
      because he must receive a hearing under the law that
      applied to him at the time his original hearing
      occurred. Any other remedy would be inconsistent
      with the due process guarantees afforded to aliens in
      deportation proceedings.

Id.

We grant the petition and remand to the BIA with instruc-
tions to remand to the IJ. If Petitioners pursue their suspen-
sion applications, the IJ, in determining whether Petitioners
are eligible for suspension of deportation, shall (1) apply the
law as it existed on March 28, 1997, and (2) consider the cur-
rent facts and Petitioners' current circumstances. See
Chookhae v. INS, 756 F.2d 1350, 1352 (9th Cir. 1985) (on

                               3245
remand, BIA must evaluate application for suspension of
deportation in light of "current hardship to the citizen children
of the petitioner").7

PETITION GRANTED, REVERSED and
REMANDED.
_________________________________________________________________
O'SCANNLAIN, Circuit Judge, dissenting:

Our review in this case is limited to the decision of the
Board of Immigration Appeals ("BIA"). The BIA did not err
in applying the stop-time rule to the petitioners when it dis-
missed their appeal in 1999, over two years after the stop-time
rule took effect. Nonetheless, the majority reverses the BIA
premised on the legal error of the immigration judge ("IJ")
who considered the petitioners' application for suspension of
deportation. Because I believe that settled principles of law
and our court's directly controlling precedent preclude us
from reversing on this basis, I must respectfully dissent.
_________________________________________________________________

7 The dissent contends that we depart from the principle that the BIA is
to apply current law in cases that come before it. We do not disagree with
that principle, but hold that the BIA had a duty to remedy the IJ's error.
The dissent urges that we improperly review the IJ's decision. To the con-
trary, we review the BIA's error in not addressing the error of the IJ.

The dissent relies upon Ortiz v. INS, 179 F.3d 1148 (9th Cir. 1999). We
intend no harm to that precedent, but, Ortiz  is not controlling: There, the
IJ misapplied the then-current law regarding the definition of an "aggra-
vated felony." Id. at 1155. On appeal, the law had changed: what had been
error became law. The BIA therefore applied the correct law regarding the
definition of "aggravated felony." Here, in contrast, on appeal the law
regarding Astrero had not changed. Astrero's holding was still binding.
The BIA erred by disregarding the IJ's misapplication of Astrero and a
remedy is warranted.

                               3246
I

I agree with the majority that the IJ erred in applying the
stop-time rule, IIRIRA S 309(c)(5)(A), four days before its
April 1, 1997, effective date. Astrero v. INS , 104 F.3d 264,
266 (9th Cir. 1996). Our review in a case such as this, how-
ever, is limited to the BIA's dismissal of the petitioners'
appeal, not the IJ's decision. See, e.g., Elnager v. INS, 930
F.2d 784, 787 (9th Cir. 1991) ("[T]his court's review is lim-
ited to the decision of the BIA."); Rodriguez-Rivera v. INS,
848 F.2d 998, 1002 (9th Cir. 1988) (same). The question
properly before us, then, is whether the BIA erred in dismiss-
ing the petitioners' appeal on the basis of the IIRIRA stop-
time rule, not whether the IJ erred.

It is well settled that the BIA must decide cases under cur-
rent law. Urbina-Mauricio v. INS, 989 F.2d 1085, 1088 n.4
(9th Cir. 1993) ("When the law is amended before an admin-
istrative agency hands down a decision, the agency must
apply the new law.") (citing Ziffrin, Inc. v. United States, 318
U.S. 73, 78 (1943); Talanoa v. INS, 397 F.2d 196, 200 (9th
Cir. 1968)) (emphasis added). The IJ's deportation order did
not become final until the BIA dismissed the petitioners'
appeal on June 7, 1999, well after the effective date of the
IIRIRA stop-time rule. See 8 C.F.R. S 241.31 (stating that "an
order of deportation . . . shall become final upon dismissal of
an appeal by the Board of Immigration Appeals . . ."). In
Astrero, by contrast, the final order of deportation was issued
prior to April 1, 1997. Astrero, 104 F.3d at 265. Accordingly,
the BIA's dismissal of the petitioners' appeal on the basis of
the stop-time rule was fully consistent with Astrero. In fact,
the BIA was bound to apply the stop-time rule in this case.
Urbina-Mauricio, 989 F.2d at 1088 n.4.

II

The majority correctly notes that the BIA summarily
affirmed the IJ "without addressing the premature application

                               3247
of the stop-time rule." Supra at 3244. The question remains,
however, what the BIA should have-- or even could have--
done about it. By its disposition in this case, the majority
holds that the BIA was required to reverse and to remand with
directions that the IJ determine the petitioners' eligibility for
suspension of deportation under pre-IIRIRA law. In so hold-
ing, I am afraid that the majority has jettisoned the principle
that the BIA must apply current law in the cases that come
before it.

In fact, the notion the BIA erred by failing to address the
petitioners' appeal under pre-IIRIRA law directly contradicts
our decision in Ortiz v. INS, 179 F.3d 1148 (9th Cir. 1999).
In Ortiz, the IJ had determined that the petitioner was an alien
convicted of an aggravated felony--and hence ineligible for
political asylum pursuant to 8 U.S.C. S 1101(a)(43)--on
account of a 1986 Guatemalan drug trafficking conviction.
We recognized that the IJ erred as a matter of law in applying
S 1101(a)(43) to the petitioner, stating that such conviction
"could not constitute an aggravated felony as defined by the
1990 version of the definition" in effect at the time of the
1995 deportation hearing. Id. at 1155. Without addressing the
IJ's legal error, the BIA dismissed the petitioner's appeal in
1997, again on the ground that he was ineligible for asylum
as one convicted of an aggravated felony. Id.  at 1151. Never-
theless, we affirmed the BIA's decision, because Congress
amended the definition of "aggravated felony" in 1996 while
the petitioner's appeal before the BIA was still pending. Not-
withstanding the IJ's "serious procedural error, " supra at
3245, we held that the BIA properly dismissed the petitioner's
appeal based on the subsequent 1996 IIRIRA agravated fel-
ony amendments. Id. at 1156. We explained:

      . . . an alien pursuing an appeal with the BIA `is still
      the subject of administrative adjudication and has
      thus not established any right to the benefit he is
      seeking to obtain by his application.' Matter of
      U-M-, 20 I & N Dec. 327, 333, 1991 WL 353519

                               3248
      (BIA 1991), aff'd 989 F.2d 1085 (9th Cir. 1993).
      Thus, the BIA was required to apply the law existing
      at the time of its review, even if different from the
      law applied by the IJ.

Id.

Ortiz directly addresses the majority's concerns with the
IJ's erroneous application of the stop-time rule. Under our
precedent, aliens in deportation proceedings have the right to
have their cases decided under the law as it exists at the time
of a final administrative order, but no more. As long as their
appeal to the BIA is still pending, they simply have not "es-
tablished any right" to have their cases decided according to
the law as it existed at the time of their hearing before the IJ
--even where, as in both Ortiz and the present case, the IJ
relied on an erroneous interpretation of the law in denying
their applications for discretionary relief.1

Because the petitioners did not have any established right
to have their applications for suspension of deportation
decided under pre-IIRIRA law, their case contrasts sharply
with Castillo-Perez v. INS, 212 F.3d 518 (9th Cir. 2000),
upon which the majority relies. In Castillo-Perez, the petition-
ers' right to effective assistance of counsel in deportation pro-
ceedings was violated. We remanded with instructions that
_________________________________________________________________
1 Of course, in Ortiz, the IJ erroneously interpreted the substantive
import of a prior version of 8 U.S.C. S 1101(a)(43), whereas here the IJ
erroneously interpreted the effective date of the IIRIRA stop-time rule
itself, applying the rule to petitioners prematurely. I do not believe, how-
ever, that this difference provides a principled basis on which to distin-
guish Ortiz. In both cases, the IJ's denial of discretionary relief was based
on an error of law. In both cases, a change in law went into effect while
the petitioners' appeals to the BIA were pending--here, the stop-time rule
went into effect four days after the hearing before the IJ. In both cases, the
petitioners were ineligible for discretionary relief under the terms of the
new law. In Ortiz, we upheld the BIA's dismissal of the petitioner's appeal
notwithstanding the IJ's error. The same result should have been reached
here.

                               3249
the petitioners' applications for suspension of deportation be
decided, nunc pro tunc, under pre-IIRIRA law because this
was the only way to remedy the constitutional violation. Id.
at 522. Here, in contrast, remanding with instructions to apply
pre-IIRIRA law to the petitioners' applications is not neces-
sary to remedy a violation of their constitutional rights
because no such rights were violated in the first instance. The
petitioners simply had the right to have the BIA's final order
decided consistently with currently-existing law. Ortiz, 179
F.3d at 1156. This is exactly what the BIA did.

III

I note, finally, that the majority does not appear to dispute
the fact that the BIA must apply the IIRIRA stop-time rule to
the petitioners should their case again come before it follow-
ing remand to the IJ. The reason that this is so, however, is
the very reason why the BIA was correct to begin with: it
must decide cases based on the law as it currently exists. The
majority fails to heed this principle, and, in my view, expands
our review beyond its proper limits. Accordingly, I respect-
fully dissent.

                               3250
					
					
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