Rule 206 ELECTRONIC CITATION: 2003 FED App. 0305P (6th Cir.) File Name: 03a0305p.06… v. Immigration and Naturalization Service

*The Honorable Donald P. Lay, Circuit Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0305P (6th Cir.)
File Name: 03a0305p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
NEMER AHMAD AOUN,
Petitioner,
v.
IMMIGRATION AND
NATURALIZATION SERVICE,
Respondent.
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No. 01-4004
On Appeal from the Immigration Board of Appeals.
No. A26-479-479.
Submitted: January 30, 2003
Decided and Filed: August 26, 2003
Before: MARTIN, Chief Circuit Judge; MERRITT and
LAY, Circuit Judges.*
_________________
COUNSEL
ON BRIEF: Richard G. Lehr, RICHARD G. LEHR &
ASSOCIATES, Centerline, Michigan, for Petitioner. James
2 Aoun v. INS No. 01-4004
A. Hunolt, Papu Sandhu, UNITED STATES DEPARTMENT
OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION,
CIVIL DIVISION, Washington, D.C., for Respondent.
_________________
OPINION
_________________
MERRITT, Circuit Judge. Nemer Ahmad Aoun appeals
the denial of his Motion to Reopen and Remand his
application for Suspension of Deportation. The equities of
the case warrant reversal of the Board of Immigration
Appeals’ denial and a remand for further proceedings. The
Board’s decision in this matter failed to take into
consideration lengthy delays, including continuances and an
“administrative closure” in the proceedings, that delayed a
decision on Aoun’s application for many years and ultimately
prejudiced his ability to have his application for suspension
of deportation decided before more stringent immigration
rules came into effect.
Aoun raises three issues on appeal: (1) whether the denial
of the reopening of his application for suspension of
deportation based on the “stop time rule” was error;
(2) whether the Board erred in failing to allow petitioner to
apply for “repapering” and cancellation of removal and
(3) whether the Board erred in denying petitioner’s
application for asylum.
I.
Aoun entered the country legally from Lebanon in October
of 1978 on a student visa. Aoun is a Shiite Muslim who, as
a Palestinian, describes himself as “stateless.” Aoun
graduated from the University of Detroit in May 1983 with a
degree in electrical engineering. In the winter of 1983-84, he
registered as a full-time student at Eastern Michigan
University with the intention of studying computer science,

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No. 01-4004 Aoun v. INS 3
but dropped out for financial reasons. Aoun therefore became
deportable for failure to comply with the conditions of his
status which required him to be a student if he wished to
remain in this country legally. Immigration and Nationality
Act, 8 U.S.C. § 1251(a)(2) and § 1251 (a)(9). Aoun then
contacted the INS seeking to adjust his status. He did not
wish to return to Lebanon because, among other things, the
country was engaged in war at that time.
Aoun claims that, upon contacting the INS, he was put in
contact with John Owens of the investigations unit of the INS.
Aoun claims that Mr. Owens told him that his status could be
adjusted if he helped the INS gather information about certain
people, mostly fellow Lebanese in the Detroit area. In
exchange for the assistance, the INS extended Aoun’s visa on
a month-to-month basis. Aoun claims that he was also in
contact with the FBI and CIA and that the CIA asked him to
attend local meetings of the Palestine Liberation Organization
and Shiite Muslim groups. He also claims he was asked to
return to Lebanon as an agent for the United States but he
declined. When Aoun lost his car and could no longer attend
the meetings and gather information, the INS stopped the
monthly renewal of his visa. See Transcript of June 10, 1986
hearing. While we have no reason to doubt Aoun’s
testimony, most of the testimony concerning his work for the
United States government is uncorroborated and not
particularly relevant to our decision in this case except to
highlight the role of the United States government in raising
Aoun’s expectations that by helping the government he would
be able to remain in this country permanently.
In November 1984, Aoun sought asylum in the United
States. He based his asylum application on the fact that he
would be persecuted if returned to Lebanon because he was
a “stateless person” as a Palestinian and because people in
Lebanon would know he provided information about fellow
Arabs to the United States government. His asylum
application was denied in July 1985 and, one month later, in
4 Aoun v. INS No. 01-4004
1Generally, brief, casual trips out of the country, such as Aoun’s one-
day trip to Canada to visit an amusement park with friends, do not destroy
an alien’s continuous p hysical presence in the U nited States.
August 1985, he was served with an Order to Show Cause
why he was not deportable.
At his deportation hearing on June 10, 1986, Aoun
withdrew his suspension of deportation application based on
his attorney’s erroneous assumption that a one day trip by
Aoun to an amusement park in Canada in 1981 broke Aoun’s
seven years of “continual physical presence” in the United
States, a requirement for demonstrating eligibility for
suspension of deportation.1 Aoun’s asylum application and
application to withhold deportation were both denied on
June 10, 1986, and Aoun filed timely appeals to the Board of
Immigration Appeals. In December 1987, Aoun filed his
appellate brief concerning the denial of his asylum application
and the denial of his application to withhold deportation and,
recognizing that the earlier withdrawal of the application for
suspension of deportation had been based on an erroneous
understanding of the law, moved to remand his case to afford
him the opportunity to reapply for suspension of deportation.
Before the Board ruled on the appeals, the proceedings were
“continued indefinitely” so that Aoun could pursue
legalization. Order of Board of Immigration Appeals,
Apr. 26, 1988. The Order stated that the appeals could be
“reinstated” upon written request by either party. On
January 20, 1989, the INS requested that the appeal be
recalendared and reinstated because Aoun had not filed for
legalization by May 4, 1988, and, in any event, was ineligible
because Aoun was not out of status before January 1, 1982, as
required by statute. 8 U.S.C. §1255a (a)(2)(B) (1986).
The next document in the record before us is a “Motion to
Recalendar Appeal” filed by the INS on December 14, 1993.
The Motion states that “the [INS] believes that the appeal was
administratively closed by the Office of the Chief

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No. 01-4004 Aoun v. INS 5
2No document administratively closing Aoun’s proceeding was
included in the record before us. We rely on the government’s reference
to the closure co ntained in the Motion to Recalendar Appea l, filed by the
INS on December 14, 1993: “The Service believes that the appeal was
adm inistratively closed by the Office of the Chief Immigration Judge
because [Aoun] is a native of Lebano n of Palestinian descent and because
Lebanon was designated by the Attorney General under the Temporary
Protected Status program.” (Emphasis added.) This statement indicates
that the INS is not sure itself why exactly why the proceeding was closed.
(J.A. at 11)
3The June 9 Order amended a May 11, 2000 order where the names
of counsel for Aoun and the IN S were inadvertently substituted .
Immigration Judge because [Aoun] is a native of Lebanon of
Palestine descent and because Lebanon was designated by
the Attorney General under the Temporary Protected Status
program[, which was terminated for Lebanon on April 9,
1993].” 2 On June 9, 2000, the Board of Immigration
Appeals issued an Amended Order3 reinstating the
proceedings, dismissing Aoun’s appeal and denying his
motions for remand and for oral argument. No explanation
was given for the extensive time lapse between the motion to
reinstate Aoun’s appeal in April 1993 and the order on June
9, 2000. In that order, the Board allowed Aoun 90 days to file
a Motion for Reopen his application for suspension of
deportation and Aoun filed a timely Motion to Reopen and
Remand on June 21, 2000. The Board summarily denied
Aoun’s Motion on August 21, 2001, noting only that Aoun’s
physical presence in the United States began on October 18,
1978 and ended with an Order to Show Cause on August 15,
1985, thereby making him ineligible for suspension due to
less than seven years’ continuous physical presence.
II.
In 1996, Congress amended the Immigration and
Nationality Act by enacting the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, Pub.L. No.
104-208, 110 Stat. 3009, 3009-627 (1996). Prior to 1996,
6 Aoun v. INS No. 01-4004
suspension of deportation was a form of relief from
deportation. Before new laws were enacted in 1996, 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] application" for suspension of
deportation; (2) he or she was a "person of good moral
character"; and (3) deportation would result in "extreme
hardship" to the alien or to an immediate family member who
was a U.S. citizen or a lawful permanent resident.
Immigration and Nationality Act § 244(a)(1), 8 U.S.C.
§ 1254(a)(1).
With the 1996 amendment, Congress changed many aspects
of immigration law, including replacing “deportation
proceedings” with “removal proceedings” and,
correspondingly, replacing “suspension of deportation” with
“cancellation of removal.” Cancellation of removal provides
the same general relief as suspension from deportation, but
the eligibility requirements are somewhat stricter. The new
law became effective on April 1, 1997. A key change in the
law under the amendment concerned the calculation of time
of an alien’s “continuous physical presence” in the United
States. Prior to the 1996 amendment, accrual of “continuous
physical presence” could continue while the alien was in
deportation proceedings. After passage of the amendment,
the initiation of deportation proceedings “stopped the clock”
on an alien’s accrual of time to satisfy the “continuous
physical presence” requirement. Under the amendment, "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" or when the alien is
convicted of one of several specified offenses, whichever is
earliest. Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 § 309(c)(5), 110 Stat. 3009,
3009-627 (1996), Immigration and Nationality Act § 240A
(d)(1), 8 U.S.C. § 1229b(d). This is referred to as the "stop
time" rule.

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No. 01-4004 Aoun v. INS 7
4(5) TRANSITIONAL RULE WITH REGARD TO SUSPENSION
OF DE PO RT AT ION .-- Paragraphs (1) and (2) of section 240A(d) of the
Immigration and N ationality Act (relating to continuous residence or
physical presence) shall apply to notices to appear issued before, on, or
after the d ate of the enactment o f this Act.
5(1) IN GE NER AL.--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
SUSPEN SIO N O F DEP OR TA TION .--
(A) IN G EN ERA L.--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 24 2B (a)(1) of the Im migration 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.
Nicaraguan Adjustment and Central American Relief Act, Pub.L. No.
Although most of the 1996 amendments do not apply to
aliens such as Aoun, who were placed in deportation
proceedings before the effective date of the 1996 Act (April 1,
1997), the amendments did create special transitional rules for
those aliens, like Aoun, in proceedings as of the Act's
effective date. Confusion arose from this provision because
the term "notice to appear" was not in use before April 1997,
the effective date of the 1996 Act. In an effort to clear up
some of the confusion, Congress passed the Nicaraguan
Adjustment and Central American Relief Act, Pub. L. No.
105-100, § 203(a), 111 Stat. 2160, 2196-2198 (1998). Section
203(a)(1) of the amendment, entitled "Transitional Rules with
Regard to Suspension of Deportation," amended Section
309(c)(5) of 1he 1996 Act.4 This new amendment clarifies
that the stop time rule for determining an alien's continuous
presence "shall apply to orders to show cause . . . issued
before, on, or after the effective date of the enactment of this
Act." Nicaraguan Adjustment and Central American Relief
Act § 203(a)(1).5 In Matter of Nolasco, Int. Dec. 3385, 1999
8 Aoun v. INS No. 01-4004
105-100 , § 203(a), 111 Stat. 2160, 219 6-2198 (19 98).
6As stated above, Aoun first filed an application for suspension of
deportation in 1984, but withdrew his application in 1986 based on
erroneous information from his lawyer concerning the continuous
physical presence requirement.
WL 261565 (BIA 1999) (en banc), the Board determined that
the unambiguous language of the 1998 amendment, as well as
the legislative history, demonstrated that Congress intended
for the time stop rule to apply to the suspension of deportation
proceedings pending as of April 1, 1997, the date the 1996
Act took effect. We have held that Congress intended to
apply the time stop rule to orders to show cause pending at
the time the 1996 Act became effective. This rule has been
given retroactive effect and therefore applies to petitioner here
even though he otherwise falls under the old rules.
Bartoszewska-Zajac v. INS, 237 F.3d 710, 713 (6th Cir. 2001)
(stop time rule applies to pending applications for suspension
of deportation in which orders to show cause had been
issued).
III.
The Board denied Aoun’s application because he could not
make a prima facie case for eligibility for suspension of
deportation for failure to meet the seven year requirement for
continuous physical presence. Aoun has been in this country
continuously for almost 25 years. He filed his current
application for suspension of deportation in December 1987.6
Had Aoun’s application not been delayed by an
“administrative closure” of his application by the INS in the
late 1980s, he would have had his application ruled on well
before the new rules took effect in 1997 and he would have
been subject to the former rule that allowed him to accrue
time towards continuous physical presence during the
pendency of the proceedings. Under those rules, he would
have accrued at least 10 years continuous physical presence

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No. 01-4004 Aoun v. INS 9
7Our holding finds o nly that the stop time rule does not apply to
Aoun in this case. W e make no finding o n the merits of Aoun’s
application. Further consideration o f Aoun’s request to remain in this
country legally may take the form of a reopening of his application for
suspension of deportation without consideration of the time stop rule,
termination of deportation proceedings and institution of cancellation of
removal proceedings, including “repapering,” or any other proceeding not
inconsistent with this hold ing. We also do no t decide whether Aoun
could accrue the requisite seven years in a period of continuous presence
starting after the recalendaring of his appeal in April 1993.
in the United States by 1989, easily meeting the seven-year
requirement for continuous physical presence. As a result of
the INS’s “administrative closure” of Aoun’s appeal, he was
denied the benefit of the earlier, more lenient rules concerning
accrual of time towards continual physical presence in the
United States. Because the “administrative closure” of his
proceeding was not the fault of Aoun, he should not suffer the
extremely adverse results that flowed from that decision.
Considering the unfairness that would result from applying
the stop time rule retroactively in this case, we reverse the
Board’s decision and remand for further proceedings that
allow Aoun’s application for suspension of deportation to be
considered on the merits.7
The Board’s decision contains no discussion of the myriad
of events and circumstances that occurred between the
issuance of the Show Cause Order in 1985 and the final order
sixteen years later. Most important, there is no discussion of
the fact that, but for numerous delays, including some caused
by the INS and its rules, Aoun most likely would have had his
application for suspension of deportation, for which he
reapplied in December 1987, acted on well before the law
changed in 1996. These delays prejudiced Aoun by subjecting
him to the new rules, which “stopped the clock” with the
1985 Show Cause Order instead of allowing him to continue
to accrue “continuous physical presence” in the United States
under the pre-1996 law.
10 Aoun v. INS No. 01-4004
We do not dispute that the record shows some missed
opportunities on the part of Aoun in pursuing his rights under
the immigration statutes. But the record also demonstrates
that these are likely the result of poor lawyering on behalf of
Aoun instead of a lack of diligence. For example, had Aoun’s
initial application not been withdrawn, the regulations then in
effect would have allowed Aoun to continue accruing time
toward the seven-year “continual physical presence”
requirement after issuance of the Order to Show Cause and he
would have accrued the seven years time in October 1985,
well before the new rules took effect in 1996. However, even
if some of the blame may be placed on Aoun and his counsel,
the INS must bear most of the blame for the delay. This is
not a case where the applicant “sat on his rights” or tried to
evade immigration authorities for a number of years. Aoun
contacted the INS shortly after he fell out of status in 1983
and he has been known to and in contact with the INS since
that time. This case is not an example of the type of cases
Congress was trying to address when it instituted the time
stop rule. As we stated in Ashki v. INS, 233 F.3d 913 (6th
Cir. 2000), Congress intended the time-stop provision to
eliminate the incentive to prolong deportation proceedings in
order to become eligible for suspension. Here, Aoun was
only two months shy of the seven year requirement when the
Order to Show Cause was issued in 1985, over ten years
before Congress passed the 1996 Act. There is simply no
evidence that Aoun was trying to delay the proceedings in any
way.
In addition, since the deportation proceedings were initiated
in 1985, many facts have changed in Aoun’s life. Because the
INS has continually denied petitioner’s request based on a
factual finding that he did not meet the 7-year eligibility
requirement for suspension of deportation, the INS has never
addressed the merits of Aoun’s application, including the fact
that petitioner is now the divorced father of a child who is a
United States citizen and the impact that deportation would
have on the child -- a factor recognized as the most important
factor in determining hardship. He is educated as an engineer

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No. 01-4004 Aoun v. INS 11
8W hile we d o not imply any affirmative misconduct by the INS, we
note the existence of an Order Ap proving a Class Action Settlement
Agreement in California wherein the INS withheld or reserved granting
suspension of deportation based on certa in directives from the Chief
Immigration Judge and Chairman of the B oard of Imm igration Appeals
for a class of aliens who wou ld otherwise have had suspension of
deportation hearings before the time-stop rule became effective in April
1997. Barahona -Go mez v. Ash croft, 243 F. Supp. 2d 1029 (N.D . Cal.
2002).
and is presumably working (the record does not indicate his
current employment status). He is a native of Lebanon, but,
as a Palestinian, considers himself “stateless” and claims that
the Lebanese government will not allow him back into the
country. He has also lived in this country for nearly 25 years
and appears to be a productive member of society.
Given the “indefinite” continuance of the proceedings put
in place by the INS in 1988, the acknowledgment in the INS
order of December 1993 that the appeal was “administratively
closed” for an indefinite period of time and then the
unexplained six-and-one-half year delay between
“recalendaring” in April of 1993 and action on his appeal in
May of 2000,8 we find that it is appropriate to hold the time
stop rule inapplicable in this case. Aoun was only two
months short of the seven year requirement at that time the
Show cause Order was issued and he had a reasonable
expectation that he would easily meet the seven year
requirement. In the next ten years, while his proceedings
were continued and administratively closed, he married and
had a child who is a United States citizen. During this time,
his expectation that relief in the form of suspension of
deportation would occur could only have increased given the
length of time he had been in the country and the birth of his
child. It is unfair and inequitable for the time stop rule to
strip Aoun of that reasonable expectation. See Henry v.
Ashcroft, 175 F. Supp. 2d 688, 696 (S.D.N.Y. 2001) (time
stop rule had improper retroactive effect).
12 Aoun v. INS No. 01-4004
IV.
Other Issues
A. Asylum
Aoun did not file a timely appeal of the Board of
Immigration Appeals’ denial of Petitioner’s asylum
application so we are without jurisdiction to review the
denial. The Board rendered its final decision on Aoun’s
asylum application on June 9, 2000. A petition for judicial
review must be filed within 30 days. The fact that Aoun had
90 days to file a motion to reopen or reconsider the
suspension of deportation order does not change this
requirement. The time limits for judicial review are
mandatory and jurisdictional. Stone v. INS, 514 U.S. 386,
394, 405 (1995).
B. Repapering
“Repapering” is the discretionary termination of
deportation proceedings and the reinstitution of removal
proceedings. § 309(c)(3) of the 1996 Act (codified at
8 U.S.C. § 1101 note (2000).) Because the Board of
Immigration Appeals did not address this issue in its order,
we decline to review it here and Petitioner is free to raise this
issue again on remand.
For the foregoing reasons, we reverse the decision of the
Board of Immigration Appeals and remand for further
proceedings not inconsistent with this opinion.

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