Opinion
The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Alien's application for suspension of deportation was denied by immigration judge, and she appealed. The Board of Immigration Appeals affirmed, and alien appealed. The Court of Appeals held that provision of Immigrant Responsibility Act (IIRIRA), under which alien had insufficient period of physical presence in United States, could not be applied when alien was served with order to show cause prior to effective date of IIRIRA.
Reversed and remanded.
On Petition for Review of an Order of the Board of Immigration Appeals.
Before HUG, GRABER, and W. FLETCHER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
Miriam Estrada ("Estrada") entered the United States on January 12, 1990. She was served with an Order to Show Cause ("OSC") on November 11, 1995, and conceded deportability at a hearing before an Immigration Judge ("IJ") on April 22, 1996. On March 11, 1997, the IJ denied Estrada's application for suspension of deportation because the IJ believed that she was statutorily ineligible for such relief under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), enacted on September 30, 1996. In particular, the IJ ruled that, under IIRIRA's "stop-time rule," see INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1), Estrada
Page 661.
had not accrued seven years of continuous physical presence in the United States before being served with an OSC. Estrada appealed to the Board of Immigration Appeals ("BIA"), which affirmed the IJ's decision on June 17, 1999.
In Astrero v. INS, 104 F.3d 264 (9th Cir.1996), we held that the stop-time rule was not effective until the general effective date of IIRIRA on April 1, 1997. Therefore, when the IJ in this case applied the stop-time rule to Estrada on March 11, 1997, he subjected her to the rule before its effective date. Following Guadalupe-Cruz v. INS, 240 F.3d 1209 (9th Cir.2001), we therefore grant the petition for review, reverse the decision of the BIA, and remand with instructions to remand to the IJ. If Estrada chooses to pursue her application for suspension of deportation before the IJ, the IJ shall, in determining whether she is eligible for suspension of deportation, (1) apply the law as it existed on March 11, 1997, and (2) consider the current facts and Estrada's current circumstances.
PETITION GRANTED, REVERSED and REMANDED.