MEMORANDUM 2

Rafael Fuentes (“Petitioner”) petitions for review of the final order of deportation entered by the Board of Immigration Appeals (“BIA”) on November 30, 1999. Petitioner was served with an order to show cause (“OSC”) on June 27, 1994 — approximately six years and three months after he entered the United States. At a hearing on October 28, 1996, the Immigration Judge (“IJ”) denied Petitioner’s application for suspension of deportation because he had failed to meet the continuous physical presence requirement before being served with the OSC and thus was statutorily ineligible for suspension. On appeal, the BIA affirmed.

Petitioner contends that he was eligible for suspension of deportation and challenges the BIA’s decision that the “stop-time rule” — a new continuous physical presence requirement set forth in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”)— *650 bars such relief in his case. Moreover, Petitioner contends that the IJ erroneously applied the stop-time rule to his case on October 28, 1996, five months before IIRIRA’s effective date of April 1, 1997. We agree that the IJ erred in applying the stop-time rule to Petitioner’s case before IIRIRA became effective. Guadalupe-Cruz v. INS, 240 F.3d 1209 (9th Cir.2001).

We therefore grant the petition and remand to the BIA with instructions to remand to the IJ. If Petitioner pursues his suspension application, the IJ, in determining whether Petitioner is eligible for suspension of deportation, shall: (1) apply the law as it existed on October 28, 1996; and (2) consider the current facts and Petitioner’s current circumstances. Id.

We do not consider Petitioner’s eligibility, if any, for relief under the class action pending in the district court in accordance with Barahona-Gomez v. Reno, 167 F.3d 1228 (9th Cir.1999), supplemental opinion, 236 F.3d 1115 (9th Cir.2001). Our resolution of this case does not affect any interim or permanent relief awarded to members of the class certified in Barahonar-Gomez.

PETITION GRANTED; REVERSED and REMANDED.

. 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 9 th Cir. R. 36-3.