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RAM V INS
Case Number: Date Filed:
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANANT RAM; SANGEETA RAM; No. 99-70918
NAZRA BIBI RAM,
IMMIGRATION AND NATURALIZATION
SERVICE, ORDER AND
Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 2, 2000--San Francisco, California
Opinion Filed February 8, 2001
Corrected March 15, 2001
Before: Betty B. Fletcher, Diarmuid F. O'Scannlain, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
Nancy A. Fellom, Fellom & Solorio, San Francisco, Califor-
nia, for the petitioners.
Susan K. Houser, United States Department of Justice, Wash-
ington, D.C., for the respondent.
Due to clerical error, this court's opinion, filed February 8,
2001, is corrected as follows:
1. The first sentence of the opinion (on page 1762 of the
Anant Ram, his wife, Nazra Bibi Ram, and their
daughter, Sangeeta Ram (collectively, "Petitioners")
appeal their final order of deportation entered by the
Board of Immigration Appeals ("BIA") on June 29,
The foregoing sentence should be replaced with the follow-
Anant Ram, his wife, Nazra Bibi Ram, and their
daughter, Sangeeta Ram (collectively, "Petitioners")
petition for review of their final order of deportation
entered by the Board of Immigration Appeals
("BIA") on June 29, 1999.
2. The third sentence of the opinion (on page 1763 of the
We affirm the BIA and hold that the stop-time rule
applies to Petitioners.
The foregoing sentence should be replaced with the follow-
We deny the petition and hold that the stop-time rule
applies to Petitioners.
3. The third full sentence in the fifth paragraph of the
opinion (on page 1764 of the slip) reads:
Petitioners now appeal, contending that: (1) the stop-
time rule does not apply to OSCs where an alien
seeks suspension of deportation; (2) the application
of the stop-time rule to Petitioners violates due pro-
cess because it is impermissibly retroactive; (3)
IIRIRA section 309(c)(5) violates equal protection
because it exempts some aliens from the stop-time
rule on the basis of their national origin; and (4) in
calculating Petitioners' period of continuous physi-
cal presence, the BIA should have considered time
accumulated after service of the OSCs.
The foregoing sentence should be replaced with the follow-
Petitioners now petition for review of the BIA final
order, contending that: (1) the stop-time rule does
not apply to OSCs where an alien seeks suspension
of deportation; (2) the application of the stop-time
rule to Petitioners violates due process because it is
impermissibly retroactive; (3) IIRIRA section
309(c)(5) violates equal protection because it
exempts some aliens from the stop-time rule on the
basis of their national origin; and (4) in calculating
Petitioners' period of continuous physical presence,
the BIA should have considered time accumulated
after service of the OSCs.
4. The final line of the opinion (on page 1776 of the slip)
AFFIRMED. This should be changed to read: PETITION
It is so ORDERED.
GOULD, Circuit Judge:
Anant Ram, his wife, Nazra Bibi Ram, and their daughter,
Sangeeta Ram (collectively, "Petitioners") petition for review
of their final order of deportation entered by the Board of
Immigration Appeals ("BIA") on June 29, 1999. Petitioners
contend that they were eligible for suspension of deportation,
and challenge the BIA's decision to apply the "stop-time rule"
-- a new continuous physical presence requirement set forth
in the Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996 ("IIRIRA") -- to their applications for such
relief. We deny the petition and hold that the stop-time rule
applies to Petitioners.
FACTS AND PROCEDURAL HISTORY
Petitioners are ethnic Indian natives and citizens of Fiji.
Fleeing a series of coups in Fiji, Petitioners entered the United
States on August 22, 1987 as non-immigrant visitors. Because
Petitioners remained in this country longer than their visas
permitted, the Immigration and Naturalization Service
("INS") served Petitioners with Orders to Show Cause
("OSCs") on May 17, 1988. The OSCs charged Petitioners as
aliens deportable under section 241(a)(1)(B) of the Immigra-
tion and Nationality Act ("INA"), 8 U.S.C.S 1251(a)(1)(B)
At Petitioners' deportation hearing, the Immigration Judge
("IJ") found them deportable, denied their petitions for asy-
lum and withholding of deportation, and granted voluntary
departure. Petitioners appealed first to the BIA, which
affirmed the IJ, and then to this court. We denied their peti-
tion on January 12, 1995. Ram v. INS, 46 F.3d 1144 (9th Cir.
1995) (unpublished disposition).
On November 16, 1994, while their petition to this court
was pending, Petitioners moved to reopen their deportation
proceedings to apply for suspension of deportation. Petition-
ers argued that suspension was appropriate because, while
they were in deportation proceedings, they attained the seven
years of continuous physical presence necessary to qualify for
such relief. The BIA denied Petitioners' motion. 1 On appeal,
we reversed and remanded to the BIA for further review of
hardship. Ram v. INS, 107 F.3d 17 (9th Cir. 1997) (unpub-
On remand, the BIA summarily denied Petitioners' motion
on the sole ground that they had not satisfied IIRIRA's new
stop-time rule. That rule requires aliens to meet the continu-
ous physical presence requirement before their deportation
proceedings commence. INA S 240A(d)(1), 8 U.S.C.
S 1229b(d)(1) [hereinafter "INA section 240A(d)(1)" or "the
stop-time rule"]. Petitioners now petition for review of the
BIA final order, contending that: (1) the stop-time rule does
not apply to OSCs where an alien seeks suspension of depor-
tation; (2) the application of the stop-time rule to Petitioners
violates due process because it is impermissibly retroactive;
(3) IIRIRA section 309(c)(5) violates equal protection
because it exempts some aliens from the stop-time rule on the
basis of their national origin; and (4) in calculating Petition-
ers' period of continuous physical presence, the BIA should
have considered time accumulated after service of the OSCs.
 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).
Three sets of rules concern us here: (1) the old INA rules,
which governed before IIRIRA's effective date; (2) IIRIRA's
new permanent rules, which took effect April 1, 1997; and (3)
1 Two members of the Ram family, daughters Reena and Reeta Ram,
were allowed to reopen their deportation proceedings for adjustment of
status because they had married United States citizens. They are not par-
ties to the current petition.
IIRIRA's transitional rules, which determine whether an old
rule or a new rule from IIRIRA applies to aliens who were in
the administrative process when IIRIRA took effect
("transitional rule aliens"). Here, we consider these rules as
they apply to suspension of deportation.
 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 continuous period of not less than
seven years immediately preceding the date of [the] applica-
tion" for suspension of deportation; (2) he or she was a "per-
son of good moral character"; and (3) deportation would
result in "extreme hardship" to the alien or to an immediate
family member who was a United States citizen or a lawful
permanent resident. INA S 244(a)(1), 8 U.S.C.S 1254(a)(1)
(1994). Aliens accrued time toward the "continuous physical
presence in the United States" requirement until they applied
for suspension of deportation. In short, the commencement of
deportation proceedings had no effect on this accrual.
 Congress fundamentally altered this system in 1996
when it enacted the stop-time rule set forth in IIRIRA. Moti-
vated by a belief that "[s]uspension of deportation is often
abused by aliens seeking to delay proceedings until 7 years
have accrued . . . even after they have been placed in deporta-
tion proceedings," H.R. Rep. No. 104-469(I), at 390 (1996),
available in 1996 WL 168955, Congress changed the continu-
ous physical presence requirement. Under IIRIRA's new rule,
the period of continuous physical presence ends when depor-
tation proceedings commence:
(1) Termination of continuous period
For purposes of this section, any period of contin-
uous residence or continuous physical presence in
the United States shall be deemed to end when the
alien is served with a notice to appear under section
1229(a) of this title or when the alien has committed
an offense referred to in section 1182(a)(2) of this
title that renders the alien inadmissible to the United
States under section 1882(a)(2) of this title or remov-
able from the United States under section 1227(a)(2)
or 1227(a)(4) of this title, whichever is earliest.
INA S 240A(d)(1).
The majority of IIRIRA's new rules do not apply to transi-
tional rule aliens, like Petitioners. IIRIRA S 309(c)(1). How-
ever, it is undisputed that the transitional rule applicable here
-- the "Transitional Rule[ ] with Regard to Suspension of
Deportation" -- mandates the application of the stop-time
rule to at least some of them.
(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 contin-
uous residence or physical presence) [the stop-time
rule] shall apply to orders to show cause . . . issued
before, on, or after the date of the enactment of this
Act [September 30, 1996].
IIRIRA S 309(c)(5)(A).
 The question we must answer, and the issue about
which the parties disagree, is whether Petitioners fall within
the boundaries of this transitional rule, and thus, the stop-time
Before proceeding with our analysis, it is useful to summa-
rize certain of IIRIRA's changes to the structure and terminol-
ogy of the INA. In IIRIRA, Congress created proceedings --
with different names and slightly different requirements --
that paralleled the pre-IIRIRA deportation scheme. Relevant
here, before IIRIRA, aliens were placed in deportation pro-
ceedings after being served with an OSC, and could seek
relief by applying for, inter alia, suspension of deportation.
After IIRIRA, aliens were placed in removal proceedings after
being served with a Notice to Appear ("NTA"), and could
seek relief by applying for cancellation of removal. With
these changes in mind, we proceed to our analysis.
"We review de novo an agency's interpretation of a stat-
ute." Braun v. INS, 992 F.2d 1016, 1018 (9th Cir. 1993)
(reviewing BIA's interpretation of the INA).
Although IIRIRA section 309(c)(5)(A) begins with the
phrase "In General," Petitioners read this transitional rule nar-
rowly and claim that it does not apply to them. Petitioners
first note that IIRIRA section 309(c)(5)(A) expressly refer-
ences and incorporates the stop-time rule set forth in INA sec-
tion 240A(d)(1). Next, they observe that the stop-time rule
itself references only the new immigration proceedings (e.g.,
"notices to appear," "removal," and "cancellation of remov-
al"). In addition, because INA section 240A(d)(1) begins with
the phrase "for purposes of this section," Petitioners claim
that the application of the stop-time rule is limited to "this
section" (i.e., limited to INA section 240A(d) which is enti-
tled "Cancellation of removal; adjustment of status"). Based
on these observations, Petitioners argue that IIRIRA section
309(c)(5)(A) can only apply in one very limited circumstance:
namely, where a transitional rule alien served with an OSC
under pre-IIRIRA law is ultimately placed in removal pro-
ceedings (after April 1, 1997), from which he or she seeks
cancellation of removal.2 Petitioners -- who were served with
OSCs, but remain in deportation proceedings and seek sus-
pension of deportation -- argue that they fall outside the
scope of IIRIRA section 309(c)(5)(A).
2 Under IIRIRA section 309(c)(2), the Attorney General has authority to
process a transitional rule alien under IIRIRA's permanent provisions so
long the alien had not had an evidentiary hearing as of April 1, 1997.
Petitioners' narrow reading of IIRIRA section 309(c)(5)(A)
is not frivolous and warrants careful consideration. But we
find more reasonable the statutory interpretation urged by the
 First, the explicit title of IIRIRA section 309(c)(5)
("Transitional Rules with Regard to Suspension of Deporta-
tion"),3 the introductory phrase of IIRIRA section
309(c)(5)(A) ("In General"), and the specific reference to
OSCs in IIRIRA section 309(c)(5)(A) suggest that, absent
narrow circumstances not applicable here,4 the stop-time rule
applies to suspension of deportation cases heard by an IJ or
on appeal after IIRIRA took effect.5
Moreover, notwithstanding Petitioners' arguments, there is
good reason for the stop-time rule to refer only to the new
immigration procedures while still generally applying to
applications for suspension of deportation through IIRIRA
section 309(c)(5)(A). Because the stop-time rule is a perma-
nent provision while IIRIRA section 309(c)(5)(A) is a transi-
tional rule, it is logical that the stop-time rule refers to
permanent procedures (such as NTAs, removal and cancella-
tion of removal) while the transitional rule refers to proce-
dures made obsolete by the permanent rules. See 2A Norman
J. Singer, Sutherland Statutory Construction S 20.21 (4th ed.
3 See Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) (a
statute's title and a section's heading may be used to interpret its mean-
ing); see also West Coast Truck Lines, Inc. v. Arcata Cmty. Recycling Ctr.,
846 F.2d 1239, 1243 (9th Cir. 1988) (although titles cannot expand the
meaning of a statute, we may rely on them to interpret ambiguities within
the context of a statute).
4 See IIRIRA section 309(c)(5)(C) (exempting certain transitional rule
aliens from the stop-time rule on the basis of their national origin).
5 Pursuant to our holding in Astrero v. INS, 104 F.3d 264 (9th Cir.
1996), IIRIRA's new stop-time rule could not be applied before its effec-
tive date of April 1, 1997. Id. at 266.
1986) (good legislative drafting dictates that temporary provi-
sions not be placed in the body of permanent law). 6
Finally, when read in context, the "for purposes of this sec-
tion" language in the stop-time rule does not, as Petitioners
suggest, necessarily limit the scope of IIRIRA section
309(c)(5)(A) to removal proceedings. See K Mart Corp. v.
Cartier, Inc., 486 U.S. 281, 291 (1988) (in analyzing the plain
language of a statute, we consider the language at issue as
well as "the language and design of the statute as a whole");
Beno v. Shalala, 30 F.3d 1057, 1068 (9th Cir. 1994) (" `the
meaning of statutory language, plain or not, depends on con-
text' "). Here, the stop-time rule is not being applied "for pur-
poses of [INA section 240A(d)]." Rather, it is being
incorporated by reference in the application of another sec-
tion, namely, IIRIRA section 309(c)(5)(A).
 Although we initially view the government's reading of
IIRIRA section 309(c)(5)(A) as the most reasonable interpre-
tation, we recognize that the statute's plain language is not
free from ambiguity. Thus, we consider the statute's legisla-
tive history. United States v. Hockings, 129 F.3d 1069, 1071
(9th Cir. 1997). In this case, that legislative history resolves
any ambiguity in favor of the government.
As originally enacted, the Transitional Rule with Regard to
Suspension of Deportation referred only to NTAs, and not to
OSCs.7 This caused confusion because NTAs were not used
6 Citing permanent provisions in IIRIRA that refer to both old and new
immigration procedures, Petitioners argue that if Congress intended the
stop-time rule to apply to suspension applications, the rule should refer to
both the old and new regimes. This argument fails. Although it may have
been necessary to include old terminology in certain permanent provi-
sions, there is no reason to mention obsolete procedures in the stop-time
rule because any pre-IIRIRA cases to which the stop-time rule applies are
governed by IIRIRA section 309(c)(5)(A).
7 Specifically, the rule provided:
in deportation proceedings until IIRIRA took effect on April
1, 1997. It made no sense to have a rule addressing NTAs
issued "before" IIRIRA was effective.
The BIA attempted to clarify this ambiguity in In re N-J-B-,8
by interpreting the phrase "notices to appear " to include all
charging documents that initiated deportation or removal pro-
ceedings, including OSCs. After the BIA issued N-J-B-, the
Attorney General vacated the decision and certified it for
review. Before she acted, however, President Clinton signed
into law the Nicaraguan Adjustment and Central American
Relief Act of 1997 ("NACARA"). NACARA section 203(a),
entitled "Modification of Certain Transitional Rules,"
amended IIRIRA section 309(c)(5) by, inter alia, replacing the
reference to "NTAs" with a reference to "OSCs." This change
is effective as if originally included in IIRIRA, and is cur-
rently in effect. NACARA S 203(f).
 Two legislative explanatory memoranda accompanying
NACARA unmistakably demonstrate that Congress intended
the stop-time rule to apply generally to transitional rule aliens,
like Petitioners, whose deportations were initiated by OSCs
and who seek suspension of deportation. According to a
bipartisan explanatory statement from the Appropriations
Committee, NACARA's changes to IIRIRA "state that the
`stop time' rule established . . . [in INA section 240A(d)(1)]
shall apply generally to individuals in deportation proceed-
ings before April 1, 1997 . . . ." 143 Cong. Rec. S12658-01,
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 section 309(c)(5) (emphasis added).
8 Int. Dec. 3309, 1997 WL 107593 (BIA 1997), vacated, Att'y Gen.
Order. No. 2093-97 (July 10, 1997) (redesignated as Matter of N-J-B-, Int.
Dec. 3415 (AG 1999)).
at *S12660 (1997), available in 1997 WL 712581
(Cong.Rec.) (emphasis added). Similarly, a memorandum pre-
pared by the Senate Appropriations Committee for presenta-
tion in the House of Representatives, stated that NACARA
"generally codifies the majority decision in Matter of N-J-B
by stating explicitly that orders to show cause have the same
`stop-time' effect as notices to appear." 143 Cong. Rec.
S12265-01, at *S12266 (1997), available in 1997 WL 693186
(Cong.Rec.) (emphasis added). Both of these legislative state-
ments reflect a clear Congressional intent to apply IIRIRA
section 309(c)(5)(A) generally to suspension of deportation
cases heard on or after April 1, 1997.
Our conclusions are reinforced by consistent precedent
from six other circuits and the BIA. Appiah v. INS, 202 F.3d
704, 708 (4th Cir. 2000); Gonzalez-Torres v. INS , 213 F.3d
899, 903 (5th Cir. 2000); Angel-Ramos v. Reno , 227 F.3d 942,
947 (7th Cir. 2000); Afolayan v. INS, 219 F.3d 784, 788 (8th
Cir. 2000); Rivera-Jimenez v. INS, 214 F.3d 1213, 1217 (10th
Cir. 2000); Tefel v. Reno, 180 F.3d 1286, 1293 (11th Cir.
1999), cert. denied, _______ U.S. _______, 120 S. Ct. 2657 (2000); In
re Nolasco-Tofino, Int. Dec. 3385, 1999 WL 218466 (BIA
1999) (en banc).
Because the legislative history of NACARA resolves any
ambiguity in the plain language of IIRIRA section
309(c)(5)(A), we conclude that there is only one reasonable
interpretation of this statute. We hold that IIRIRA section
309(c)(5)(A) generally applies the stop-time rule to transi-
tional rule aliens whose deportations were initiated with the
service of an OSC and who seek suspension of deportation.
Petitioners also raise a due process challenge to the BIA's
decision to apply IIRIRA section 309(c)(5)(A). They contend
that, because they were placed in deportation proceedings and
sought suspension of deportation before IIRIRA took effect,
the application of IIRIRA section 309(c)(5)(A) to them is
impermissibly retroactive. We disagree.
We review constitutional challenges de novo. Yao v. INS,
2 F.3d 317, 318 (9th Cir. 1993). When a case implicates a fed-
eral statute enacted after the events at issue have occurred,
"the court's first task is to determine whether Congress has
expressly prescribed the statute's proper reach. " Landgraf v.
USI Film Prods., 511 U.S. 244, 280 (1994). If Congress has
done so, "there is no need to resort to judicial default rules."
Id. Thus, we must determine whether Congress expressly pre-
scribed the reach of IIRIRA section 309(c)(5)(A). Scott v.
Boos, 215 F.3d 940, 943 (9th Cir. 2000) ("If Congress has
made its intent express, the statute should be applied accord-
 Under IIRIRA section 309(c)(5)(A), the stop-time rule
applies to all "orders to show cause . . . issued before, on, or
after the date of enactment of [IIRIRA]. " (Emphasis added.)
By using the phrase "before, on, or after," Congress expressly
delineated this statute's reach. See Aragon-Ayon v. INS, 206
F.3d 847, 852 (9th Cir. 2000) (language that "term applies
regardless of whether the conviction was entered before, on,
or after September 30, 1996" clearly manifests congressional
intent for retroactivity); Magana-Pizano v. INS , 200 F.3d 603,
611 n.10 (9th Cir. 1999) (requirement that amendments
"apply to applications filed before, on or after[AEDPA's
enactment]" provides a clear effective date); Oluwa v. Gomez,
133 F.3d 1237, 1240 (9th Cir. 1998) ("Congress expressly
prescribed [statute's] proper reach" by stating that the "[stat-
ute] shall apply with respect to all prospective relief whether
such relief was originally granted or approved before, on, or
after the date of the enactment of this title."); Feroz v. INS,
22 F.3d 225, 227 (9th Cir. 1994) (language requiring amend-
ment to apply "to convictions entered before, on, or after the
date of enactment of [the INA of 1990]" is a clear directive
for retroactive application).
Other circuits to address the "before, on, or after" language
in IIRIRA section 309(c)(5)(A) have held that it unambigu-
ously demonstrates the intent of Congress to apply this statute
retroactively. Tefel, 180 F.3d at 1302; Afolayan, 219 F.3d at
788; Appiah, 202 F.3d at 707-08.
The presumption against retroactive application arises from
concerns about altering settled expectations, interfering with
repose, and providing fair notice to those affected by a statute.
Landgraf, 511 U.S. at 265-66. However, the United States
Supreme Court has made clear in Landgraf that such consid-
erations do not control when Congress has unequivocally
shown its intent:
Requiring clear intent assures that Congress itself
has affirmatively considered the potential unfairness
of retroactive application and determined that it is an
acceptable price to pay for the countervailing bene-
fits. Such a requirement allocates to Congress
responsibility for fundamental policy judgments con-
cerning the proper temporal reach of statutes, and
has the additional virtue of giving legislators a pre-
dictable background rule against which to legislate.
Id. at 272-73.
 Congress was entitled to change the standards for sus-
pension of deportation. Where this change shows a clear
intent to apply the new stop-time rule to Petitioners, its appli-
cation to bar the prospective relief of suspension of deporta-
tion does not offend due process. See Landgraf , 511 U.S. at
 Under IIRIRA section 309(c)(5)(C), transitional rule
aliens from certain specified countries are exempt from the
stop-time rule.9 Petitioners, who do not originate from an
exempted country, challenge the statute on equal protection
grounds. Their challenge lacks merit.
 We review this constitutional challenge de novo. Yao,
2 F.3d at 318. "Line-drawing" decisions made by Congress or
the President in the context of immigration and naturalization
must be upheld if they are rationally related to a legitimate
government purpose. See Heller v. Doe, 509 U.S. 312, 319-20
(1993). In NACARA, Congress exempted (1) classes of aliens
who had taken unusual risks in escaping from oppressive gov-
ernments, and (2) aliens whose countries had been profoundly
ravaged by war. 143 Cong. Rec. S12258-01, at *S12261-62
(1997), available in 1997 WL 693185 (Cong.Rec.).
 We hold that this decision to favor aliens from specific
war-torn countries must be upheld because it stems from a
rational diplomatic decision to encourage such aliens to
remain in the United States. Other circuits agree. Angel-
Ramos, 227 F.3d at 948-49; Afolayan, 219 F.3d at 789;
Appiah, 202 F.3d at 710; Tefel, 180 F.3d at 1298-99.
Petitioners argue that -- even if the stop-time rule gener-
ally applies to transitional rule aliens -- the BIA erred in
applying the rule to them because they accrued more than
seven years of physical presence in the United States after
their OSCs were served. The title, plain language, and legisla-
tive history of the stop-time rule foreclose this argument.
As noted above, we review the BIA's interpretation of the
9 Such countries are El Salvador, Guatemala, the Soviet Union, any
republic of the former Soviet Union, Russia, Latvia, Estonia, Lithuania,
Poland, Romania, Czechoslovakia, Hungary, Bulgaria, Albania, East Ger-
many, Yugoslavia, and any state of the former Yugoslavia. NACARA
INA de novo. Braun, 992 F.2d at 1018. The title of INA sec-
tion 240A(d)(1) is "Termination of continuous period." This
title clearly manifests an intent to end, or "terminat[e]," the
accrual of continuous physical presence under the circum-
stances set forth in INA section 240A(d)(1) (i.e., upon service
of a charging document). See Almendarez-Torres , 526 U.S. at
234; West Coast Truck Lines, 846 F.2d at 1243. This intent is
particularly evident when we contrast the title of INA section
240A(d)(1) with the title of INA section 240A(d)(2)--
"Treatment of certain breaks in presence." Unlike the title of
INA section 240A(d)(1), which connotes finality, the term
"breaks" suggests that, under certain circumstances set forth
in INA section 240A(d)(2), the clock can stop and then
restart. Thus, when viewed together, these titles unambigu-
ously indicate that Congress did not intend for aliens to cir-
cumvent the stop-time rule by accruing the requisite years of
continuous physical presence in the United States after depor-
tation proceedings commence. See Russello v. United States,
464 U.S. 16, 23 (1983) (Where certain language is included
in one section of a statute, but omitted in another,"it is gener-
ally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion.").
Petitioners' remaining arguments are also unpersuasive.
Observing that the stop-time rule refers to "any period of . . .
continuous physical presence," Petitioners argue that the term
"any" suggests that a second period of continuous physical
presences begins upon service of an OSC. However, when
read in context, this term refers to the fact that INA section
240 provides three types of relief -- all of which require dif-
ferent lengths of continuous physical presence. It does not
authorize post-OSC accumulation of time towards the physi-
cal presence requirement.
Finally, under the stop-time rule, an alien's period of con-
tinuous physical presence ends upon the service of a OSC or
upon the commission of certain offenses, "whichever is earli-
est." INA S 240A(d)(1). Allowing the seven-year clock to
restart post-OSC would render the "whichever is earliest"
clause superfluous. See Moskal v. United States , 498 U.S.
103, 109-10 (1990) ("a court should give effect, if possible,
to every clause and word of a statute" (internal quotation
In short, the title and the plain language appear to demon-
strate that an alien does not begin a new period of continuous
physical presence after being served with an OSC. However,
to the extent that statute is ambiguous, the legislative history
of INA section 240A(d) resolves any ambiguity in favor of
the government. Hockings, 129 F.3d at 1071.
As noted above, Congress enacted the stop-time rule in
response to a belief that aliens sought to delay deportation
proceedings in order to meet the continuous physical presence
requirement. H.R. Rep. No. 104-469(I), at 390 (1996). If, as
Petitioners argue, the clocks restarts upon the issuance of an
OSC, aliens would still have an incentive to delay their depor-
tation proceedings after the OSC has been issued. Allowing
the clock to restart would permit an end-run around Congress'
intent. In resolving ambiguity of the statute by reference to
legislative history, we will not here adopt a construction of
the statute that defeats the obvious and direct intent of the leg-
 We therefore hold that an alien does not begin a new
period of continuous physical presence after being served
with an OSC.10 Our decision on this issue is in accord with the
BIA's decision in In re Mendoza-Sandino, Int. Dec. 3426,
2000 WL 225840 (pub. pages not available) (BIA 2000), and
the Eighth Circuit's decision in Afolayan, 219 F.3d at 789
(deferring to Mendoza-Sandino on the grounds that the BIA's
decision is reasonable and consistent with the statute's lan-
guage and legislative purpose).
10 Because the issue is not before us, we do not and need not address the
situation where an alien served with an OSC prevails at the deportation
proceeding and later is served with a second OSC.
We hold that (1) the stop-time rule applies generally to
transitional rule aliens seeking suspension of deportation; (2)
this application of the stop-time rule is not impermissibly
retroactive and does not violate due process; (3) IIRIRA sec-
tion 309(c)(5)'s exemption of certain aliens from the stop-
time rule based on national origin does not violate equal pro-
tection; and (4) in calculating the continuous physical pres-
ence requirement, time accumulated after service of an OSC
cannot be considered.
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