Ricardo Pacheco Suassuna v. Immigration and Naturalization Service

*The Hono rable Herman J. Weber, United States District Judge for
the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0316P (6th Cir.)
File Name: 03a0316p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
RICARDO PACHECO
SUASSUNA,
Petitioner,
v.
IMMIGRATION AND
NATURALIZATION SERVICE,
Respondent.
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No. 02-3084
On Appeal from the Board of Immigration Appeals.
No. A28 495 407.
Argued: August 7, 2003
Decided and Filed: September 4, 2003
Before: KEITH and COLE, Circuit Judges; WEBER,
District Judge.*
2 Suassuna v. INS No. 02-3084
_________________
COUNSEL
ARGUED: Marshal E. Hyman, MARSHAL E. HYMAN &
ASSOCIATES, PC, Troy, Michigan, for Petitioner. Margaret
J. Perry, UNITED STATES DEPARTMENT OF JUSTICE,
OFFICE OF IMMIGRATION LITIGATION, Washington,
D.C., for Respondent. ON BRIEF: Marshal E. Hyman,
MARSHAL E. HYMAN & ASSOCIATES, PC, Troy,
Michigan, for Petitioner. Margaret J. Perry, Mark C. Walters,
UNITED STATES DEPARTMENT OF JUSTICE, OFFICE
OF IMMIGRATION LITIGATION, Washington, D.C., for
Respondent.
_________________
OPINION
_________________
DAMON J. KEITH, Circuit Judge. Petitioner Ricardo
Pacheco Suassuna appeals the denial of his application for
suspension of deportation. For the reasons set forth below,
we AFFIRM the judgment of the Board of Immigration
Appeals.
I. BACKGROUND
Suassuna was born on January 27, 1958, in Brazil. He
entered the United States as a non-immigrant visitor on
December 11, 1986. He was authorized to remain until May
of 1987. On July 1, 1987, Suassuna’s status changed to that
of a non-immigrant student, authorizing him to remain as long
as he was in school. On January 15, 1988, Suassuna married
Carol Kadoura, a United States citizen. Suassuna and
Kadoura have a son named Hamza Suassuna, who was born
in Ypsilanti, Michigan on December 14, 1988. Shortly after
Hamza was born, Ricardo Suassuna stopped going to school
and started working. Suassuna and Kadoura were divorced

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No. 02-3084 Suassuna v. INS 3
on January 2, 1992. Since April 9, 1993, Suassuna has had
sole physical custody and joint legal custody of Hamza.
On July 18, 1991, the United States Immigration and
Naturalization Service (INS) initiated deportation proceedings
against Suassuna by serving him with a notice of hearing and
order to show cause. The INS charged Suassuna with
violating the conditions of his student status. On
February 25, 1992, Suassuna appeared with counsel and
admitted that he was deportable as charged. The immigration
judge (IJ) found Suassuna deportable on the basis of his
admission and ordered him to be deported to Brazil. The IJ
granted Suassuna the privilege of voluntary departure at his
own expense in lieu of forced deportation. Suassuna
remained in the United States.
On August 20, 1996, Suassuna moved to reopen his
deportation proceeding to apply for suspension of deportation
and an extension of his prior grant of voluntary departure.
Under then-existing law, an alien was eligible for suspension
of deportation if he could show (1) that he had been
continually physically present in the United States for seven
years preceding his application for relief, and (2) that his
deportation would cause “extreme hardship” to himself or to
a United States citizen spouse, parent, or child. See former
§ 244(a) of the Immigration and Nationality Act (INA),
8 U.S.C. § 1254(a) (1994). This relief was not available if the
alien had failed to comply with a prior grant of voluntary
departure and was unable to show “exceptional
circumstances” excusing his failure to depart. See former
§ 242B(e)(2)(A) of the INA, 8 U.S.C. § 1252b(e)(2)(A)
(1994).
While Suassuna’s motion to reopen the proceeding was
pending, Congress enacted the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, Pub. L. No. 104-
208, 110 Stat. 3009 (IIRIRA). IIRIRA created a “stop-time
rule” terminating the continuity of an alien’s physical
presence for purposes of relief from deportation upon service
4 Suassuna v. INS No. 02-3084
of the charging document commencing deportation
proceedings. INA § 240A(d), 8 U.S.C. § 1229b(d). On
October 31, 1996, an IJ issued an order reopening Suassuna’s
deportation proceedings to permit him to apply for suspension
of deportation. The INS moved to pretermit Suassuna’s
pending suspension application in light of the stop-time rule.
On February 27, 1998, the IJ granted the INS’s motion and
reinstated Suassuna’s order of deportation.
Suassuna filed for reconsideration, arguing that the IJ
should not have applied the stop-time rule and seeking
reinstatement of the order of voluntary departure based on
ineffective assistance of counsel. The IJ denied
reconsideration. She found that Suassuna was undeserving of
reinstatement of voluntary departure, because he had shown
by his conduct that he was unwilling to leave the country
voluntarily. The IJ was not persuaded by Suassuna’s
ineffective assistance argument.
Suassuna filed a timely appeal with the Board of
Immigration Appeals (BIA). He argued that the IJ erred in
applying the stop-time rule. Suassuna also argued that his
counsel’s ineffectiveness and Suassuna’s desire to remain in
the United States to obtain custody of his son were
“compelling reasons” excusing his failure to depart and
warranted reinstatement of voluntary departure.
On December 26, 2001, the BIA issued a written decision
affirming in part and reversing in part the IJ’s decision. The
BIA applied the stop-time rule to Suassuna’s pending
suspension application and found him ineligible for a
suspension because he lacked seven years of continuous
physical presence prior to service of the order to show cause.
The BIA affirmed that Suassuna was subject to deportation.
However, with respect to Suassuna’s request for reinstatement
of voluntary departure, the BIA reversed the decision of the
IJ finding that Suassuna had demonstrated “compelling
reasons” for voluntary departure. The “compelling reasons”
cited by the BIA focused on various errors made by

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No. 02-3084 Suassuna v. INS 5
Suassuna’s first lawyer. The BIA’s decision permitted
Suassuna the privilege of leaving voluntarily within thirty
days (or any further extensions granted by the INS), but
required that Suassuna be deported if he failed to leave
voluntarily.
Suassuna filed this timely appeal. The sole issue before
this Court is whether the stop-time rule applies to Suassuna.
II. DISCUSSION
A. Standard of Review
In reviewing the BIA’s construction of immigration
statutes, we proceed deferentially, setting aside the BIA’s
reasonable construction if it defies the plain language of the
statute or is arbitrary or capricious. See INS v. Aguirre-
Aguirre, 526 U.S. 415, 424-25 (1999). Other questions of
law are reviewed de novo. See Bartoszewska-Zajac v. INS,
237 F.3d 710, 712 (6th Cir. 2001); Ashki v. INS, 233 F.3d
913, 917 (6th Cir. 2000).
B. Analysis
The stop-time rule changed the method for calculating an
alien’s period of continuous physical presence in this country
for purposes of qualifying for discretionary relief from a
deportation order. It provides that “any period of . . .
continuous physical presence in the United States shall be
deemed to end when the alien is served a notice to appear
under section 239(a).” INA § 240A(d), 8 U.S.C. § 1229b(d).
Prior to the enactment of the stop-time rule, aliens would
often delay their deportation proceedings until they accrued
sufficient continuous presence in the United States to qualify
for relief. See H.R. Rep. 104-879 (1997); see also
Bartoszewska-Zajac, 237 F.3d at 713. By terminating the
accrual of continuous physical presence upon service of the
charging document, the stop-time provision of IIRIRA
6 Suassuna v. INS No. 02-3084
eliminated an alien’s incentive to delay his deportation
proceedings.
Suassuna was served a notice of hearing and order to show
cause on July 18, 1991. At that time, Suassuna had been in
the United States for less than five years. The parties,
therefore, agree that if the stop-time rule is applied to
Suassuna, he lacks the seven years of continuous physical
presence in the United States required for a suspension of
deportation under the former § 244(a) or the current § 240 of
the INA.
IIRIRA explicitly provided that most of its changes would
not apply to aliens with deportation proceedings already
pending at the time the statute went into effect. See IIRIRA,
§ 309(c)(1). However, one of the changes that does apply
retroactively is the stop-time rule. Section 309(c)(1) states
that § 240A(d) (the stop-time rule) “shall apply to notices to
appear issued before, on, or after the date of enactment of this
Act [September 30, 1996].” See Ashki, 233 F.3d at 918-19.
This clause created some incongruity, because prior to
April 1, 1997, the INS initiated deportation proceedings by
service of an order to show cause, and not a notice to appear.
Congress attempted to clear up this lingering confusion in
1997 when it enacted the Nicaraguan Adjustment and Central
American Relief Act, Pub. L. No. 105-100, 111 Stat. 2160
(1997) (NACARA). Section 203(a)(1) of NACARA provides
that § 240A(d) of the INA “shall apply to orders to show
cause” issued before, on, or after the effective date of
NACARA. Sitting en banc in 1999, the BIA held that the
stop-time rule applies to all pending deportation proceedings
unless the alien satisfies one of several statutory exemptions.
See In re Nolasco-Tofino, 1999 WL 261565 (BIA 1999) (en
banc).
Courts are generally reluctant to apply statutes
retroactively. See Bartoszewska-Zajac, 237 F.3d at 712.
“Because it accords with widely held intuitions about how
statutes ordinarily operate, a presumption against retroactivity

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No. 02-3084 Suassuna v. INS 7
will generally coincide with legislative and public
expectations.” Landgraf v. USI Film Prods., 511 U.S. 244,
272 (1994). However, this judicial presumption against
retroactivity can be overcome when Congress clearly intends
that result. Id. at 272-73. “When a case implicates a federal
statute enacted after the events in suit, the court’s first task is
to determine whether Congress has expressly prescribed the
statute’s proper reach. If Congress has done so, of course,
there is no need to resort to judicial default rules.” Id. at 280.
If Congress has not expressly prescribed the proper reach of
the statute, courts then consider whether retroactive
application of the statute “would impair rights a party
possessed when he acted, increase a party’s liability for past
conduct, or impose new duties with respect to transactions
already completed.” Id.
Applying these principles from Landgraf, we held in
Bartoszewska-Zajac that the stop-time statute was
unambiguous and “Congress plainly intended that the stop-
time section of [IIRIRA] be retroactive, excepting it from
otherwise forward-looking provisions.” 237 F.3d at 712; see
also Ashki, 233 F.3d at 918 (“Congress clearly indicated that
the new ‘stop time’ provision applies retroactively to orders
to show cause.”). After our decisions in Ashki and
Bartoszewska-Zajac, in Sad v. INS, 246 F.3d 811, 813 (6th
Cir. 2001), a panel of this Court concluded that the stop-time
rule was ambiguous. This finding contradicts the holdings of
our prior decisions. However, we are bound by our decisions
in Ashki and Bartoszewska-Zajac. See Darrah v. City of Oak
Park, 255 F.3d 301, 310 (6th Cir. 2001) (“[W]hen a later
decision of this court conflicts with one of our prior published
decisions, we are still bound by the holding of the earlier
case.”). Moreover, we agree, based on our reading of the
IIRIRA stop-time rule and NACARA, with these prior
decisions that Congress clearly intended to apply this
provision retroactively.
We hold today that, for purposes of determining eligibility
for suspension of deportation in cases that were pending as of
8 Suassuna v. INS No. 02-3084
April 1, 1997, the law of the Circuit is that the alien’s period
of continuous physical presence ends upon service of the
order to show cause, even if such order was issued prior to the
enactment of the stop-time rule.
Suassuna, nevertheless, maintains that the stop-time rule
should not apply to him. He makes three points in support of
this claim. First, he argues that because he received
ineffective assistance from his first lawyer, he is entitled to a
new suspension of deportation hearing under the law as it
existed at the time of the ineffective assistance.
The statute governing our jurisdiction to review an order of
deportation requires the exhaustion of administrative
remedies. See former Section 106(c) of the INA, 8 U.S.C.
§ 1105a(c) (1994) (“An order of deportation . . . shall not be
reviewed by any court if the alien has not exhausted the
administrative remedies available to him as of right under the
immigration laws and regulations.”); see also Dokic v. INS,
899 F.3d 530 (6th Cir. 1999). Suassuna’s claim that the stop-
time rule should not apply to him because of the ineffective
assistance he received from his first lawyer was not raised
before the BIA. Therefore, we lack jurisdiction to review this
claim.
Suassuna’s second argument is that the stop-time rule does
not apply to cases in which a final administrative decision
was issued before September 30, 1996. Suassuna urges us to
hold that §§ 309(c)(1) and (c)(3) of IIRIRA limit
§ 309(c)(5)’s application of the stop-time rule to cases that
had not yet culminated in a final administrative decision on
the date of IIRIRA’s enactment. Contrary to Suassuna’s
contention that this is an issue of first impression, we
confronted a similar situation in Ashki. In that case, we
affirmed the BIA’s application of the stop-time rule even
though a final deportation order had been issued in 1987.
Ashki, 233 F.3d at 916.

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No. 02-3084 Suassuna v. INS 9
Suassuna cites Koliada v. INS, 259 F.3d 482 (6th Cir.
2001), for the proposition that the transitional rules of IIRIRA
apply only if a final order had not been entered before
September 30, 1996. Suassuna’s reliance on Koliada is
misplaced. That case construed a transitional rule of judicial
review in § 309(c)(4) of IIRIRA, not the stop-time rule from
§ 309(c)(5) that applies here.
We see nothing in §§ 309(c)(1) and (c)(3) that limits the
application of the transitional stop-time rule of § 309(c)(5).
There is no language anywhere in § 309 to suggest that
pending deportation cases are treated differently if a final
administrative order was once issued. Congress clearly
intended the transitional stop-time rule to apply to aliens in
deportation proceedings pending as of the effective date of
IIRIRA, regardless of whether a final administrative order
was ever issued in the case.
Suassuna’s third and final argument is that recent cases call
for a re-examination of whether the stop-time rule applies
retroactively. Suassuna claims that INS v. St. Cyr, 533 U.S.
289 (2001), and Bejjani v. INS, 271 F.3d 670 (6th Cir. 2001),
cast doubt on our earlier decisions in this area of law. As
noted above, the reasoning in these cases cast some doubt on
the method of analysis used in Sad, but we do not agree that
these cases require us to abandon our other prior decisions.
The alien in St. Cyr was a lawful permanent resident who
pled guilty to a felony pursuant to a plea bargain after living
in the United States for more than seven years. See St. Cyr,
533 U.S. at 292-93. Removal proceedings were initiated
against St. Cyr. Under the law in effect at the time of St.
Cyr’s plea, he was eligible for discretionary relief from
deportation. However, under the new provisions of IIRIRA,
he was not eligible for discretionary relief. See IIRIRA
§ 304(b). The Supreme Court held that it was impermissibly
“retroactive” to eliminate this relief for aliens “whose
convictions were obtained through plea agreements and who,
notwithstanding those convictions, would have been eligible
10 Suassuna v. INS No. 02-3084
for [discretionary relief] at the time of their plea under the law
then in effect.” St. Cyr, 533 U.S. at 293. Applying Landgraf,
the Court found that Congress did not clearly intend that
§ 304(b) apply retroactively. Id. at 320. Proceeding to the
second step of the Landgraf analysis, the Court concluded
that applying the statute retroactively would impermissibly
impair vested rights. Id. at 325. The Court noted that a plea
bargain, which involves giving up important constitutional
rights, is likely to be predicated on the assumption that the
alien would be eligible for discretionary relief from
deportation. Id. at 322.
St. Cyr is distinguishable from the present case. Unlike the
provision of IIRIRA considered in St. Cyr, the stop-time
provision was clearly intended to apply retroactively. See
Bartoszewska-Zajac, 237 F.3d at 712. Thus, as noted above,
St. Cyr does not cast doubt on this finding. We join our sister
circuits that have considered whether the stop-time rule is
impermissibly retroactive after St. Cyr in concluding that it is
not. See Jimenez-Angeles v. Ashcroft, 2002 WL 1023103, at
*4-*5 (9th Cir. 2002); Sibanda v. INS, 282 F.3d 1330, 1334-
36 (10th Cir. 2002).
We also find Bejjani distinguishable. In that case, we
refused to apply the automatic reinstatement of removal
provision of § 241(a)(5) of the INA, 8 U.S.C. § 1231(a)(5), to
aliens who illegally reentered the United States prior to the
effective date of IIRIRA. The court in Bejjani found “clear
congressional intent that § 241(a)(5) should not apply
retroactively to reinstate prior orders of removal of aliens who
reentered the country prior to the effective date of
§ 241(a)(5).” Bejjani, 271 F.3d at 687. Bejjani is
distinguishable from the present case because Congress
clearly intended that the stop-time rule apply retroactively,
whereas, in Bejjani, Congress’s intent regarding retroactivity
was unclear. See Bartoszewska-Zajac, 237 F.3d at 712.

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No. 02-3084 Suassuna v. INS 11
III. CONCLUSION
For these reasons, the judgment of the Board of
Immigration Appeals is AFFIRMED.

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