Buzdygan, Janusz v. INS ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3138
Janusz Buzdygan,
Petitioner,
v.
Immigration and Naturalization Service,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A29 421 290
Argued March 28, 2001--Decided August 9, 2001
Before Ripple, Kanne, and Evans, Circuit
Judges.
Kanne, Circuit Judge. Janusz Buzdygan
appeals the decision of the Board of
Immigration Appeals ("BIA") denying his
motion to remand his case to the
Immigration Court to allow him to apply
for relief pursuant to the Nicaraguan
Adjustment and Central American Relief
Act of 1997 ("NACARA"). Buzdygan contends
that he is eligible to have his case
reopened in order to apply for relief
under NACARA. We find that Buzdygan has
not met the requirements necessary to be
eligible to have his case reopened
pursuant to NACARA, and therefore, we
affirm the decision of the Board of
Immigration Appeals denying Buzdygan’s
motion.
I. History
Buzdygan is a citizen and native of
Poland. He first came to the United
States as a visitor in May 1985, and was
permitted to remain in the United States
until November 24, 1988. In October of
1988, Buzdygan filed for asylum. The
Immigration and Naturalization Service
(the "INS") denied this request. In
February of 1997, the INS served Buzdygan
with an Order to Show Cause, charging
that, pursuant to sec. 241(a)(1)(B) of
the Immigration and Nationality Act (the
"INA"), 8 U.S.C. sec. 1101 et seq.,
Buzdygan was deportable as a non-
immigrant who remained in the United
States for a period of time exceeding
that which had been previously
authorized. See 8 U.S.C. sec.
1251(a)(1)(B) (current version at 8
U.S.C. sec. 1227(a)(1)(B)).
Buzdygan submitted an application for
suspension of deportation at a hearing
before an immigration judge in October of
1997. At that time, Buzdygan could have
been granted this form of discretionary
relief under sec. 244(a)(1) of the INA if
he: (1) had been "physically present in
the United States for a continuous period
of not less than seven years immediately
preceding the date of such application;"
(2) displayed that "he was and is a
person of good moral character;" and (3)
demonstrated that deportation would
"result in extreme hardship to [him] or
to his spouse, parent, or child, who is a
citizen of the United States or an alien
lawfully admitted for permanent
residence." 8 U.S.C. sec. 1254(a)
(repealed 1996). It was undisputed that
Buzdygan was continuously present in the
United States for approximately twelve
years and that he was a person of good
moral character. The immigration judge
concluded, however, that Buzdygan had not
established that his being deported to
Poland would subject him to extreme
hardship, and therefore, the immigration
judge denied his application for
suspension of deportation.
Buzdygan appealed the immigration
judge’s ruling to the Board of
Immigration Appeals. While his appeal was
pending before the BIA, Buzdygan filed a
motion to remand his case to the
Immigration Court in order to reopen his
deportation hearing pursuant to sec.
203(c) of NACARA, Pub. L. No. 105-100,
111 Stat. 2160, 2193-2201 (1997), amended
by Pub. L. No. 105-139, 111 Stat. 2644
(1997). The BIA denied this motion,
agreeing with the INS’s contention that
Buzdygan had "already had an opportunity
to apply for suspension of deportation,
and therefore, the [NACARA] amendments in
question have not rendered him eligible
for a form of relief which was previously
available to him." In re Buzdygan (BIA
July 28, 2000). Buzdygan now appeals.
II. Analysis
We review the BIA’s interpretation of
the INA de novo; however, its
interpretation is entitled to deference.
See Bazan-Reyes v. INS, Nos. 99-3861, 99-
3917, 99-3922, 2001 WL 748157, at *3 (7th
Cir. July 5, 2001). In 1996, significant
changes were made to the INA by the
enactment of the Illegal Immigration
Reform and Immigrant Responsibility Act
of 1996 ("IIRIRA"), Pub. L. No. 104-208,
110 Stat. 3009 (1996). After the passage
of IIRIRA, deportation proceedings are
referred to as removal proceedings and
aliens seeking discretionary relief now
apply for cancellation of re-moval
instead of suspension of deportation./1
See 8 U.S.C. sec. 1229b. Additionally,
IIRIRA provided that removal proceedings
against an alien would be initiated by
serving that individual with a Notice to
Appear and that the INS would no longer
initiate proceedings against an alien by
serving that alien with an Order to Show
Cause. See 8 U.S.C. sec. 1229(a)(1).
Furthermore, IIRIRA implemented a new
method for calculating the period of time
an alien has been present in the United
States. The "stop time" rule provides
that the period of time to be counted
towards the determination of whether an
individual has met the continuous
physical presence requirement necessary
to be eligible for relief from
deportation [will end] when the alien is
served with a Notice to Appear. See 8
U.S.C. sec. 1229b(d)(1).
We explained in Angel-Ramos v. Reno, 227
F.3d 942 (7th Cir. 2000), that
"[a]lthough most of the[se] IIRIRA amend
ments do not apply to aliens [like
Buzdygan], who were placed in deportation
proceedings before the effective date of
the Act (April 1, 1997) . . . the
amendments did create special
transitional rules for those aliens in
proceedings as of the Act’s effective
date." Id. at 945. Among these rules was
sec. 309(c)(5), which explained that the
"stop time" rule would apply to Notices
to Appear issued before, on, or after the
effective date of the Act. See id. As
indicated above, however, the INS did not
use Notices to Appear prior to the
enactment of IIRIRA. While the BIA and
the Attorney General attempted to address
this ambiguity, see Matter of N-J-B,
Int. Dec. 3415, 1999 WL 1390344 (BIA
1997; Atty Gen. 1997, 1999), sec.
203(a)(1) of NACARA clarified the rule by
explaining that the stop time rule for
determining an alien’s continuous
physical presence "shall apply to orders
to show cause issued before, on, or after
the effective date of the enactment of
this Act." Id.; see also Angel-Ramos, 227
F.3d at 947 ("Because orders to show
cause do not survive IIRIRA, NACARA sec.
203(a)(1) clarifies that the stop time
rule applies to pending applications for
suspension of deportation in which orders
to show cause had been issued."). NACARA
also exempted certain groups of aliens
from the stop time rule, including Polish
nationals. See id.
Finally, sec. 203(c) of NACARA amended
sec. 309 of IIRIRA to permit aliens who
became eligible for cancellation of
removal or suspension of deportation as a
result of the enactment of NACARA to file
one motion to reopen removal or
deportation proceedings in order to apply
for cancellation or suspension. See id.
Buzdygan relies on this provision in
challenging the BIA’s denial of his
motion to remand. He contends that,
regardless of his previous application
for suspension of deportation, he is
eligible to have his proceedings reopened
in order to apply for a cancellation of
removal pursuant to sec. 203(c) of
NACARA. We do not agree.
Section 3.43 of Title 8 of the Code of
Federal Regulations explains that an
alien’s motion to reopen proceedings pur
suant to NACARA must establish that the
individual meets four specific
requirements./2 While Buzdygan meets
three of these four requirements, we find
that he cannot establish that he "was or
would be" rendered ineligible to be
granted suspension of deportation because
of the implementation and application of
the stop time rule. 8 C.F.R. sec.
3.43(b)(2). Regardless of the fact that
sec. 203(a)(1) exempts Buzdygan, a Polish
national, from having the stop time rule
applied to his case, it is clear that the
implementation of the stop time rule had
no affect on Buzdygan’s ability to
satisfy the seven-year continuous
presence requirement. It is undisputed
that Buzdygan has been continuously
present in the United States since May of
1985. Thus, it was of no consequence
whether the period of time for which
Buzdygan was continuously present in the
United States was measured from when he
was served with an Order to Show Cause in
February of 1997, pursuant to the stop
time rule, or from when he applied for a
suspension of deportation at his hearing
before the immigration judge in October
of 1997, pursuant to the pre-IIRIRA rule.
Therefore, because Buzdygan was not
rendered ineligible to be granted
suspension of deportation because of the
stop time rule, we agree with the BIA’s
conclusion that sec. 203(c) of NACARA
does not provide him with an additional
avenue for seeking relief.
III. Conclusion
For the aforementioned reasons, we
affirm the BIA’s denial of Buzdygan’s
motion to remand.
FOOTNOTES
/1 To qualify for cancellation of removal an alien
must be placed in proceedings after April 1,
1997. Additionally, such an individual must: (1)
be continuously present for ten years prior to
being served with a Notice to Appear; (2) display
good moral character; and (3) demonstrate that
removal would "result in exceptional and extreme-
ly unusual hardship to the alien’s spouse, par-
ent, or child, who is a citizen of the United
States or an alien lawfully admitted for perma-
nent residence." 8 U.S.C. sec. 1229b(b)(1).
/2 Section 3.43(b) provides that a motion to reopen
pursuant to NACARA must establish that an alien:
(1) Is prima facie eligible for suspension of
deportation pursuant to section 244(a) of the INA
(as in effect prior to April 1, 1997) or the
special rule for cancellation of removal pursuant
to section 309(f) of IIRIRA, as amended by sec-
tion 203(b) of NACARA;
(2) Was or would be ineligible:
(i) For suspension of deportation by operation
of section 309(c)(5) of IIRIRA (as in effect
prior to November 19, 1997); or
(ii) For cancellation of removal pursuant to
section 240A of the INA, but for operation of
section 309(f) of IIRIRA, as amended by section
203(b) of NACARA;
(3) Has not been convicted at any time of an
aggravated felony; and
(4) Is within one of the following six classes:
. . .
(iv) An alien who:
(A) Entered the United States on or before
December 31, 1990;
(B) Applied for asylum on or before December 31,
1991; and
(C) At the time of filing such application for
asylum was a national of . . . Poland . . . .