Guadalupe-Cruz
Guadalupe-Cruz v. Immigration & Naturalization Service
Opinion
Lead Opinion
Gould, J.
Opinion by Judge RONALD M. GOULD; Dissent by Judge . O’SCANNLAIN.
Maria Guadalupe-Cruz and her daughters Patricia Flores-Cruz and Maria Guadalupe Flores-Cruz (collectively “Petitioners”) appeal their final order of deportation entered by the Board of Immigration Appeals (“BIA”) on June 7, 1999. At a hearing on March 28, 1997, an immigration judge (“IJ”) denied Petitioners’ applications for suspension of deportation, ruling that they had failed to satisfy the new continuous physical presence requirement (the “stop-time rule”) set forth in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). Petitioners contend, in part, that the IJ improperly applied the stop-time rule before IIRIRA took effect. 1 Given the IJ’s misapplication of law, Petitioners argue that the BIA erred by not reversing the IJ’s decision. We agree, and reverse and remand to the BIA.
I
Petitioners are citizens of Mexico who entered the United States without inspection on December 9, 1989. On October 17, 1996, the Immigration and Naturalization Service (“INS”) served Petitioners with Orders to Show Cause (“OSCs”) charging them as aliens deportable under section 241(a)(1)(B) of the…
Dissenting Opinion
Scannlain, J.
dissenting:
Our review in this case is limited to the decision of the Board of Immigration Ap *1213 peals (“BIA”). The BIA did not err in applying the stop-time rule to the petitioners when it dismissed their appeal in 1999, over two years after the stop-time rule took effect. Nonetheless, the majority reverses the BIA premised on the legal error of the immigration judge (“IJ”) who considered the petitioners’ application for suspension of deportation. Because I believe that settled principles of law and our court’s directly controlling precedent preclude us from reversing on this basis, I must respectfully dissent.
I
I agree with the majority that the IJ erred in applying the stop-time rule, IIRI-RA § 309(c)(5)(A), four days before its April 1, 1997, effective date. Astrero v. INS, 104 F.3d 264, 266 (9th Cir.1996). Our review in a case such as this, however, is limited to the BIA’s dismissal of the petitioners’ appeal, not the IJ’s decision. See, e.g., Elnager v. INS, 930 F.2d 784, 787 (9th Cir.1991) (“[Tjhis court’s review is limited to the decision of the BIA.”); Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir.1988) (same). The question properly before us, then, is…