Felix-Corona

MEMORANDUM **

Oscar Felix-Corona, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals (“BIA”), affirming the order of an Immigration Judge (“IJ”) denying his application for suspension of deportation. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We grant in part and dismiss in part the petition for review, and remand for further proceedings.

The BIA erred in affirming the IJ’s decision to apply the stop-time rule. 8 U.S.C. § 1229b(d)(l). Felix-Corona’s suspension of deportation hearing and the IJ’s denial occurred in 1985; Felix-Corona timely appealed the denial, but the BIA administratively closed the proceedings without ruling on the merits. The Immigration and Naturalization Service (“INS”) did not petition to reopen the appeal until 1999, two years after the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). See Otarola v. INS, 270 F.3d 1272, 1276-77 (9th Cir.2001) (holding that IIRIRA’s stop-time rule does not apply to an alien who had his merits hearing on his application for suspension of deportation before an IJ prior to IIRIRA’s effective date, even though the BIA…

dissenting in part:

The majority construes Otarola v. INS, 270 F.3d 1272 (9th Cir.2001), to stand for the proposition that “IIRIRA’s stop-time rule does not apply to an alien who had his merits hearing on his application for suspension of deportation before an IJ prior to IIRIRA’s effective date, even though the BIA reviewed his case after IIRIRA went into effect.” Maj. op. at 567; see also Alcaraz v. INS, 384 F.3d 1150 , 1153 n. 1 (9th Cir.2004). Such an interpretation is inconsistent with Otarola itself, in which we stated that “[i]n general, the BIA is bound to apply current law,” and “that the BIA [is] required to apply the law existing at the time of its review, even if different from the law applied by the IJ.” 270 F.3d at 1275 (internal quotation marks omitted) (second alteration in original).

“IIRIRA section 309(c)(5)(A) generally applies the stop-time rule to transitional rule aliens,” like Felix-Corona, “whose deportations were initiated with the service of an [Order to Show Cause] and who seek suspension of deportation.” Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). Otarola created an “exception to the general rule” for the situation in that case, where “the INS…