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In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4254

ARBEN SHERIFI,

Petitioner,

v.

IMMIGRATION & NATURALIZATION SERVICE,

Respondent.

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

ARGUED SEPTEMBER 8, 2000--DECIDED August 1, 2001


  Before FLAUM, Chief Judge, POSNER and
ROVNER, Circuit Judges.

  ROVNER, Circuit Judge.  We are presented
here with an issue of first impression
regarding the applicability of Section
203 of the Nicaraguan Adjustment and
Central American Relief Act ("NACARA") to
an alien in exclusion proceedings. We
agree with the BIA that Arben Sherifi is
not eligible for suspension of
deportation because, among other reasons,
he was in exclusion proceedings before
the effective date of the law and does
not fit under either of the exceptions to
the general rule that the new rules do
not apply in the case of an alien who is
in exclusion or deportation proceedings
before that date.

I.

  Arben Sherifi is a citizen of Macedonia.
He attempted to enter the United States
on June 28, 1990 at O'Hare International
Airport in Chicago. He told INS officials
at the airport that he wished to apply
for asylum. The INS allowed him to enter
and placed him in exclusion proceedings.
On July 10, 1990, he admitted the charges
of inadmissibility against him at a
hearing before an immigration judge. She
rifi filed an application for asylum
before December 31, 1990, and also
requested withholding of deportation. On
February 4, 1991, the immigration judge
issued an oral ruling finding that
Sherifi was excludable from the United
States based on his own admissions. The
judge denied the application for asylum
and withholding of deportation and
ordered Sherifi excluded and deported.
The Board of Immigration Appeals affirmed
this decision on June 30, 1994. 

  For reasons that do not appear in the
record, the INS failed to enforce its
order against Sherifi. He remained in the
United States, married a U.S. citizen and
fathered a U.S. citizen child. In the
meantime, Congress passed NACARA on
November 19, 1997, which amended the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA").
Sherifi filed a motion to reopen his
exclusion proceedings on August 19, 1998,
hoping to find relief under NACARA's
provisions. The immigration judge denied
the motion to reopen, finding that NACARA
did not change the statutory or
regulatory bars to suspension of
deportation. Because suspension of
deportation was not available to aliens
in exclusion proceedings before the
passage of NACARA, it was not available
to Sherifi, according to the immigration
judge. The BIA agreed that suspension of
deportation was not available to aliens
placed in exclusion proceedings prior to
April 1, 1997, the effective date of the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA").
Specifically, the BIA held:

[N]one of the transition rules dealing
with suspension of deportation override
the general transition rule that subjects
a person placed into exclusion
proceedings prior to April 1, 1997, to
the rules governing exclusion that were
in place before the Illegal Immigration
Reform and Immigrant Responsibility Act
of 1996 . . . was enacted. Included among
those rules is the long-standing
principle that persons in exclusion
proceedings are ineligible to apply for
suspension of deportation.

Decision of the BIA, In re Sherifi, Dec.
6, 1999, at 2 (internal citations
omitted). Because Sherifi was in
exclusion proceedings before April 1,
1997, he was ineligible to apply for
suspension of deportation, and the BIA
dismissed his appeal. Sherifi appeals
from the BIA's decision.

II.

  On appeal, Sherifi maintains that NACARA
changed the landscape for aliens in
exclusion proceedings, rendering them
eligible to apply for suspension of
deportation. As evidence that Congress
intended this result, Sherifi points to
Section 203(a)(1) of NACARA which
provides, in relevant part:

(C) Special rule for certain aliens
granted temporary protection from
deportation.--

(i)  IN GENERAL.--For purposes of
calculating the period of continuous
physical presence under section 244(a) of
the Immigration and Nationality Act (as
in effect before the title III-A
effective date) or section 240A of such
Act (as in effect after the title III-A
effective date), subparagraph (A) of this
paragraph and paragraphs (1) and (2) of
section 240A(d) of the Immigration and
Nationality Act shall not apply in the
case of an alien, regardless of whether
the alien is in exclusion or deportation
proceedings before the title III-A
effective date, who has not been
convicted at any time of an aggravated
felony (as defined in section 101(a) of
the Immigration and Nationality Act) and-
- . . . . 

(V) is an alien who entered the United
States on or before December 31, 1990,
who filed an application for asylum on or
before December 31, 1991, and who, at the
time of filing such application, was a
national of the Soviet Union, Russia, any
republic of the former Soviet Union,
Latvia, Estonia, Lithuania, Poland,
Czechoslovakia, Romania, Hungary,
Bulgaria, Albania, East Germany,
Yugoslavia, or any state of the former
Yugoslavia. 

NACARA sec. 203(a)(1), 111 Stat. 2160,
2196-98. Sherifi argues that Congress'
intent to permit the relief of suspension
of deportation to an alien in exclusion
proceedings is clear from the phrase
"whether the alien is in exclusion or
deportation proceedings." According to
Sherifi, the reference to exclusion
proceedings would be rendered superfluous
if Congress had not meant for NACARA to
apply to persons in exclusion
proceedings. Sherifi maintains that the
immi-gration judge therefore erred in
denying his motion to reopen.

A.

  In its brief before this Court, the INS
countered that suspension of deportation
is available only to aliens in
deportation proceedings. According to the
INS, excludable aliens were never
eligible for suspension of deportation,
and nothing in NACARA changed that well-
established rule. At oral argument before
this Court, the INS shifted its argument
slightly and relied primarily on the
inapplicability of NACARA to persons in
exclusion proceedings before April 1,
1997, with certain exceptions that are
not available to Sherifi. The INS asserts
(and Sherifi does not disagree) that the
title III-A effective date referred to in
the statute is April 1, 1997. Under
section 309(c)(1) of IIRIRA as amended by
NACARA, the INS explains that the general
rule is that the new provisions of NACARA
regarding cancellation of removal do not
apply unless the case commenced after
April 1, 1997. The INS posits that there
are two limited exceptions to this
general rule, contained in sections
309(c)(2) and 309(c)(3), which were not
affected by the NACARA amendments.
Congress provided in 309(c)(2) that in
either deportation or exclusion
proceedings, where no evidentiary hearing
had yet been held, the Attorney General
could opt to apply all of the provisions
of IIRIRA retroactively, including
cancellation of removal under the new
section 240A. Section 309(c)(3) allowed a
second exception: the Attorney General
could terminate the original proceedings
and start over with a Notice to Appear at
a removal proceeding if no final
administrative order had been entered.
Because Sherifi had an evidentiary
hearing and because a final
administrative order had been entered in
his case, neither of these exceptions
apply to him, according to the INS, and
he is therefore subject to the general
rule that the new provisions regarding
cancellation of removal do not apply
unless the case commenced after April 1,
1997. Because Sherifi's case commenced on
June 29, 1990, the new cancellation
ofremoval provisions are not available to
him, and the INS contends that the
immigration judge was thus correct in
denying his motion to reopen.

  Sherifi's only response to the effective
date limitation posed by the INS is that
section 203 does not merely modify
section 309, but creates a new right for
persons in exclusion proceedings to
benefit from NACARA. Sherifi repeats his
contention that the INS' interpretation
of the statute gives no meaning to the
words "whether the alien is in exclusion
or deportation proceedings." According to
Sherifi, the only limitations to the
applicability of NACARA are that the
alien must have entered the United States
before December 31, 1990, must have filed
an application for asylum by December 31,
1991, and must be from one of the
designated countries in Eastern Europe
listed in the statute. Because he
fulfilled all of these conditions, he
believes he is entitled to file a
petition to reopen.

B.

  We defer to the BIA's interpretation of
the immigration laws. Angel-Ramos v.
Reno, 227 F.3d 942, 947 (7th Cir. 2000).
The BIA ruled here that NACARA did not
change the longstanding principle that
persons in exclusion proceedings prior to
April 1, 1997 are ineligible to apply for
suspension of deportation. The statute
supports this conclusion. Section 309 of
IIRIRA, as amended by NACARA, provides in
relevant part:

(c)  Transition for certain aliens.--

(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 before the title
III-A effective date-- 

(A) the amendments made by this subtitle
shall not apply, and

(B) the proceedings (including judicial
review thereof) shall continue to be
conducted without regard to such
amendments.

The "succeeding provisions" referenced in
the general rule provide the two
exceptions we described earlier. First,
if no evidentiary hearing had been held
as of April 1, 1997, the attorney general
could elect to apply the new procedures
after providing notice of this election
to the alien. Second, if there had been
no final administrative decision, the
attorney general could elect to terminate
and reinitiate the proceedings using the
new procedures. Sherifi concedes the
immigration judge conducted an
evidentiary hearing for him, and also
concedes that he was subject to a final
administrative decision. Thus, he is
subject to the general rule that the
IIRIRA procedures, as amended by NACARA,
do not apply to him. We therefore agree
that he is not entitled to the relief he
seeks.

  We disagree that this interpretation
gives no meaning to the words "whether
the alien is in exclusion or deportation
proceedings" contained in section
309(c)(5)(C)(1). We quoted this provision
above, which relates to the "stop time"
rule created by IIRIRA. Understanding the
purpose of this phrase requires a brief
history of the stop time rule. Prior to
the passage of IIRIRA, the attorney
general could, in her discretion, suspend
deportation for an alien who applied for
that relief so long as the alien met
certain conditions. For example, the
alien was required to demonstrate that he
or she had been continuously present in
the United States for seven years
preceding the date of the application,
was of good moral character, and that the
alien's deportation would result in
extreme hardship to the alien, the
alien's U.S. citizen (or permanent
resident) spouse, parent or child. 8
U.S.C. sec. 1254(a)(1) (1994) (repealed
September 30, 1996). IIRIRA repealed that
statute and replaced it with a similar
provision permitting the attorney general
to grant lawful permanent resident status
to certain deportable aliens. IIRIRA
differed from the prior law in several
ways. First, it eliminated the
distinction between exclusion and
deportation proceedings, instead creating
more generic removal proceedings. Second,
it heightened the standard for hardship
that an alien must demonstrate and
narrowed the class of persons for whom
the alien's deportation would prove a
hardship. Third, it increased the time
required for continuous presence to ten
years and created a "stop time" rule. The
stop time rule provided that the period
of continuous presence in the United
States would be deemed to end when the
alien was served with a notice to appear,
or when the alien committed certain
offenses. Angel-Ramos, 227 F.3d at 945.
Before IIRIRA, deportation proceedings
were commenced with orders to show cause,
and exclusion proceedings were commenced
with a "notice to alien detained for
hearing." "Notice to appear" was a new
term that caused some confusion. NACARA
was passed at least in part to resolve
the confusion regarding whether the stop
time rule was to apply to deportation or
exclusion cases that were pending at the
time IIRIRA became effective. We recently
held that, under NACARA, the stop time
rule applied to orders to show cause and
applications for suspension of
deportation pending at the time IIRIRA
was enacted. Angel-Ramos, 227 F.3d at
947. 

  Congress created some exceptions to that
rule, however, for certain aliens who
were in pending proceedings at the time
IIRIRA went into effect. First, in cases
where the attorney general elected to
terminate and reinitiate proceedings
under section 309(c)(3), the stop time
rule would not apply to an order to show
cause issued before April 1, 1997. See
Section 309(c)(5)(B). Second, the stop
time rule would also not apply in cases
where the alien was in exclusion or
deportation proceedings before April 1,
1997, where the alien had not been
convicted at any time of aggravated
felony, where the alien entered the U.S.
before December 31, 1990 and filed an
application for asylum before December
31, 1991, and where the alien was a
national of certain countries. See
Section 309(c)(5)(C)(i)(V). This is the
provision Sherifi relies on as creating
relief for him under NACARA. 

  Although Sherifi meets the bare
requirements for section
309(c)(5)(C)(i)(V), the section cannot be
read in isolation. It merely suspends
operation of the stop time rule for
certain aliens. Indeed, by its own terms,
it is limited to the purpose of
calculating the period of continuous
physical presence in the United States.
Because Sherifi had already received an
evidentiary hearing and had a final
administrative order issued in his case,
he was not eligible for any relief under
NACARA or IIRIRA. Theoretically, there
are aliens to whom the phrase "whether
the alien is in exclusion or deportation
proceedings" applies. In addition to
fulfilling the same requirements as
Sherifi under section 309(c)(5)(C)
(i)(V), the alien would not have received
an evidentiary hearing, or would not have
a final administrative order entered.
Although not eligible for suspension of
deportation, an alien in exclusion
proceedings who meets all those
conditions might be able to begin asylum
proceedings over again, if the attorney
general elected that option. Another
purpose of the phrase would be for aliens
who were initially improperly placed in
exclusion proceedings, and were later
properly placed in deportation
proceedings. Upon the correction, an
alien otherwise meeting the criteria
would then become eligible for suspension
of deportation and would be able to count
the time spent in exclusion proceedings
(as well as the time spent in deportation
proceedings) in calculating the period of
continuous physical presence in the
United States. Thus, there is a purpose
for the appearance of these words in the
NACARA provisions. The purpose is not to
create a remedy of suspension of
deportation for persons in exclusion
proceedings, but rather to allow certain
aliens to begin their proceedings anew
without being subject to the stop time
rule. 

  Because Sherifi is not entitled to
suspension of deportation, the BIA was
correct to dismiss his appeal. Nothing in
NACARA changed the well-established rule
that aliens in exclusion proceedings are
not entitled to suspension of
deportation. See Matter of Torres, 19 I&N
Dec. 371 (BIA 1986).

AFFIRMED.


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