The passage of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") in 1996 established a "stop-time" rule that caps an alien's cumulative period of residence once a "notice to appear" is issued. IIRIRA § 309(c)(5); 8 U.S.C. § 1229b (d)(1); see Suassuna v. INS, 342 F.3d 578, 581 (6th Cir. 2003) ("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.") (citing H.R. Rep. 104-879 (1997)). IIRIRA also changed the name of the relief from "suspension of deportation" to "cancellation of removal."
However, as required by the statute, a court of appeals "may review a final order of removal only if," in addition to one other requirement not relevant here, "the alien has exhausted all administrative remedies to the alien as of right." Id. § 1252(d)(1) ; see also Suassuna v. INS , 342 F.3d 578, 583 (6th Cir. 2003) ("The statute governing [the courts of appeals' jurisdiction] to review an order of deportation requires the exhaustion of administrative remedies."). "The purpose of section 1252(d)(1)'s exhaustion requirement is (1) to ensure that the agency responsible for constructing and applying the immigration laws and implementing regulations, has had a full opportunity to consider a petitioner's claims; (2) to avoid premature interference with the agency's processes; and (3) to allow the BIA to compile a record which is adequate for judicial review."
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104–208, Div. C., 110 Stat. 3009, 3546–724 (1997) (Sep. 30, 1996), which took effect on April 1, 1997. Concerned that “aliens would often delay their deportation proceedings until they accrued sufficient continuous presence in the United States to qualify for relief” from deportation, Afful v. Ashcroft, 380 F.3d 1, 6 (1st Cir.2004) (quoting Suassuna v. I.N.S., 342 F.3d 578, 581 (6th Cir.2003)), as part of the IIRIRA Congress altered the suspension of deportation procedure by enacting what has become known as the stop-time rule. The stop-time rule provides, in pertinent part, that “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....” 8 U.S.C. § 1229b(d)(1).
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, Div. C., 110 Stat. 3009, 3546-724 (1997) (Sep. 30, 1996), which took effect on April 1, 1997. Concerned that "aliens would often delay their deportation proceedings until they accrued sufficient continuous presence in the United States to qualify for relief" from deportation, Afful v. Ashcroft, 380 F.3d 1, 6 (1st Cir. 2004) (quoting Suassuna v. I.N.S., 342 F.3d 578, 581 (6th Cir. 2003)), as part of the IIRIRA Congress altered the suspension of deportation procedure by enacting what has become known as the stop-time rule. The stop-time rule provides, in pertinent part, that "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 . . . ." 8 U.S.C. § 1229(b)(d)(1).
And we lack jurisdiction to consider Burgaj's argument as to humanitarian asylum, because he raises it for the first time on appeal. Id.; see also Suassuna v. INS, 342 F.3d 578, 583 (6th Cir. 2003). Finally, Burgaj argues that the Board erred in failing to remand for consideration of new evidence.
As a prerequisite to seeking judicial review of an order of removal, a petitioner must have "exhausted all administrative remedies available to [her] as of right." 8 U.S.C. § 1252(d)(1); see also Suassuna v. INS, 342 F.3d 578, 583 (6th Cir. 2003). If there is a statutory requirement that a plaintiff "exhaust his or her administrative remedies before seeking judicial review, federal courts do not have subject matter jurisdiction to review the plaintiffs claim until the plaintiff has exhausted his or her administrative remedies."
We review their legal determinations decisions de novo. Suassuna v. INS, 342 F.3d 578, 581 (6th Cir. 2003). Before Congress changed the statute in 1997, the time period required for continuous presence was seven years.
A petitioner's failure to raise an issue before the BIA deprives this Court of jurisdiction to consider the issue. 8 U.S.C. § 1252(b)(1); Suassuna v. I.N.S., 342 F.3d 578, 583 (6th Cir. 2003). Further, this Court may consider waived any arguments not presented in an appellant's brief.
Id. at 559 (citations and internal quotations omitted). Thus, in Suassuna v. INS, 342 F.3d 578, 583 (6th Cir. 2003), we concluded that we lacked jurisdiction to review the petitioner's claim of ineffective assistance of counsel because the petitioner failed to exhaust his administrative remedies by raising the claim before the BIA. see also Sswajje v. Ashcroft, 350 F.3d 528, 532 (6th Cir. 2003) (same). We further note that 8 C.F.R. § 1208.4(a)(5)(iii) establishes a procedural mechanism for bringing a claim for ineffective assistance of counsel in an asylum and removal proceeding.
This gave aliens an incentive to delay their deportation proceedings until they could fulfill the requisite seven years. See Suassuna v. INS, 342 F.3d 578, 581 (6th Cir. 2003). Before IIRIRA, the accrual of time towards seven years of continuous residence was not stopped by the commission of a crime.