Julio Cesar Otarola v. Immigration and Naturalization Service

270 F.3d 1272 (9th Cir. 2001) JULIO CESAR OTAROLA, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT. No. 99-71405 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 9, 2001 Filed October 18, 2001 Alexander N. Lopez, Glendale, California, and Maziar Razi, Pasadena, California, for the petitioner. Kurt B. Larson and Brian G. Slocum, United States Department of Justice, Washington, D.C., for the respondent. Petition to Review a Decision of the Board of Immigration Appeals. INS No. Aiq-lna-otk Before: Hug, Graber, and W. Fletcher, Circuit Judges. Opinion By Judge Hug; Dissent by Judge Graber HUG, Circuit Judge: 1 Julio Cesar Otarola appeals a final order of removal entered by the Board of Immigration Appeals ("BIA") on September 30, 1999. Otarola argues that the BIA erred by applying the "stop-time" rule set forth in section 309(c)(5) of IIRIRA 1 in determining whether he satisfied the seven-year residency requirement for suspension of deportation. The Immigration Judge ("IJ") correctly ruled that the effective date of IIRIRA was not until April 1, 1997; that Otarola's application for suspension, heard on October 25, 1996, was governed by…

Opinion By Judge HUG; Dissent by Judge GRABER.

Julio Cesar Otarola appeals a final order of removal entered by the Board of Immigration Appeals (“BIA”) on September 30, 1999. Otarola argues that the BIA erred by applying the “stop-time” rule set forth in section 309(c)(5) of IIRIRA 1 in determining whether he satisfied the seven-year residency requirement for suspension of deportation. The Immigration Judge (“IJ”) correctly ruled that the effective date of IIRIRA was not until April 1,1997; that Otarola’s application for suspension, heard on October 25, 1996, was governed by pre-IIRIRA law; and that the seven-year residency requirement was met. The IJ also found that the other requirements were met and granted Otarola’s application for suspension of deportation.

In the face of clear statutory language and this court’s precedent holding that the stop-time provision of IIRIRA was not effective until April 1, 1997, the Immigration and Naturalization Service (“INS”) prosecuted this appeal on the sole ground that the stop-time rule applied to Otarola on October 25, 1996, and thus he had not met the seven-year residency requirement. The appeal was meritless and yet pursued by the INS.…

dissenting:

' I respectfully dissent. The BIA correctly applied current law, as it was obligated to do. The majority attempts unavailingly to distinguish the controlling case, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001), instead relying heavily on an incomplete reading of Astrero v. INS, 104 F.3d 264, 266 (9th Cir.1996). Moreover, the majority misapplies Guadalupe-Cruz v. INS, 240 F.3d 1209 ,1210 n. 1 (9th Cir.), amended by 250 F.3d 1271 (9th Cir.2001); and Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir. 2000).

A. Setting the Stage: The Chronology

Petitioner’s deportation proceedings coincided with dramatic changes in immigration law. To understand how that law applies to him, it is necessary first to set out the events leading up to this appeal and the effective dates of the relevant statutory changes. The Appendix details this chronology in a chart.

On February 23, 1989, Petitioner entered the United States from Peru. On December 4, 1995, less than seven years later, he was served with an “order to show cause,” the INS’s charging document. On April 15, 1996, an initial deportation hearing was held. Petitioner conceded deportability, but applied for a suspension of…