              IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT



                             No. 97-60349



MANDANA KASHANIAN MCBRIDE,
also known as Mandana Kashanian Milne,

                                                      Petitioner,
versus

IMMIGRATION AND NATURALIZATION SERVICE,

                                                      Respondent,



                             No. 99-60610



MEHRANGIZ EGHBAL PIXLEY,
                                                      Petitioner,

versus

IMMIGRATION AND NATURALIZATION SERVICE,

                                                      Respondent.

                        - - - - - - - - - -
               Petition for Review of an Order of
                 the Board of Immigration Appeals
                        - - - - - - - - - -

                           January 19, 2001

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

WIENER, Circuit Judge:

     Petitioners Mandana Kashanian Milne, previously known as Mandana



                                     1
Kashanian McBride (“Milne”), and Mehrangiz Eghbal Pixley are aliens

whose petitions for suspension of deportation were denied and who now

face deportation.      They contend that the Board of Immigration Appeals

(“BIA”) erred in denying their respective petitions for suspension of

deportation because they were not continuously present in the United

States    for   at   least   seven   years   before   receiving   notice   of    the

commencement of deportation proceedings against them.              Although each

petitioner concedes that she had not been present for the required seven

years at the time that she was served with an order to show cause1

(notifying her of the commencement of deportation proceedings), both

argue that, because they have been continuously present in the United

States for more than seven years since receiving the show cause order,

they are eligible to petition for suspension of deportation.            They thus

ask us to reverse the interpretation of the BIA that § 240A(d)(1) of the

Immigration and Naturalization Act2 (“the stop-time rule”) not only

terminates the running of the clock for continuous presence accrued up

to the time that the alien is served with notice of deportation

proceedings but also prevents that clock from beginning to run anew

thereafter.

     Given the deference that we owe to the BIA’s interpretation of

statutes involving immigration matters and the cogent reasoning that it

has advanced in support of its interpretation of the stop-time rule, we

     1
        The term “notice to appear” has since                replaced      the
previously employed term “order to show cause.”
     2
         8 U.S.C. § 1229b(d)(West 2000)(the “INA”).

                                         2
decline to substitute a different interpretation for the BIA’s, and

therefore affirm the BIA’s denial of the Petitioners’ petitions for the

suspension of deportation.

                        I.   Facts and Proceedings

A.   Milne

     Milne is a 38-year old female native and citizen of Iran.      She was

admitted to the United States on July 24, 1978 on a nonimmigrant student

visa and gained authorization to remain in the U.S. until May 31, 1983

by changing her status to that of a spouse of a nonimmigrant student.

When that time elapsed, the Immigration and Naturalization Service

(“INS”) commenced deportation proceedings against her by serving her

with a notice to appear.     Eventually, an immigration judge (IJ) denied

Milne’s request for asylum, ruling, inter alia, that she failed to

demonstrate that she would suffer extreme hardship if deported. The IJ

entered an order allowing 90 days for her to depart voluntarily and,

alternatively, for her to be deported should she fail to do so.      Milne

appealed that decision to the BIA.

     The BIA affirmed the IJ’s decision in a per curiam opinion in 1992

and reinstated an order allowing 30 days for voluntary departure, again

with an alternate order of deportation.     Milne    appealed that decision

to us, and we affirmed the BIA’s decision in an unpublished opinion.3

She then filed a motion with the BIA to reopen her appeal, claiming that

facts arising after the initial BIA decision —— specifically, her


     3
         Mandonna Kashanian McBride v. INS, 995 F.2d 222 (1993).

                                     3
remarriage to a United States citizen by whom she had borne a child in

1993 —— established that she would indeed experience extreme hardship

if deported.4     The BIA denied this motion in 1997 without reaching the

merits, finding that § 309(c)(5) of the Illegal Immigration Reform and

Immigrant     Responsibility    Act    of       1996   (“IIRIRA”),5     rendered   Milne

ineligible for reopening as a matter of law because she had not

established seven years of continuous physical presence here.                      In so

ruling,    the   BIA   relied   on    its   decision      in   Matter    of   N-J-B-   as

precedent.6      Milne now appeals the BIA’s decision to us.

B.   Pixley

     Pixley is a 43-year old female native and citizen of Iran who

entered this country on October 21, 1985 as a nonimmigrant visitor for

pleasure and has resided here ever since.                An order to show cause was

issued against her on January 9, 1991, alleging that she was deportable

under § 241(a)(9)(B) of the INA because she had gained conditional

resident status through a fraudulent marriage to a United States

citizen.    In January of 1993, the INS withdrew that allegation but left



     4
       Milne was divorced from the nonimmigrant student she married
prior to 1983. She then married a U.S. citizen but we found, in
our above-said unpublished opinion, that she had admitted that it
was a marriage of convenience. After another divorce, she married
her current husband, a marriage that is uncontested as “bona fide.”
Her request for legal permanent resident status based on this
marriage was denied under INA § 204(c) which precludes approval
based on even an admittedly good-faith union if the petitioner had
previously contracted an improper marriage.
     5
         8 U.S.C. § 1101 note (West 2000).
     6
         Int. Dec. 3309 (BIA 1997).

                                            4
in place a charge that Pixley had failed to convert her status from

conditional to permanent within the required two years.                        Pixley then

filed for suspension of deportation under former § 244(a) of the INA.7

       In August of 1993, an IJ denied Pixley’s claim for failure to

establish the required seven years continuous physical presence in the

United States during which the alien must demonstrate good moral

character.      Although Pixley had been continuously present for more than

the requisite seven years, she was found not to have demonstrated good

moral character during that time because she had falsely represented

under oath that she was living with her husband at the time she received

conditional residential status.               Pixley appealed that decision to the

BIA,       claiming   that    the     record    did    not    show   that    her   alleged

misrepresentation had been made orally and under oath as required by

relevant case law defining what constitutes a bar to the showing of good

moral      character.        She    subsequently      petitioned     for    suspension   of

deportation on the ground that she had demonstrated a new period of

seven years physical presence and good moral character, all accruing

while her case was pending before the BIA and after the date of her

alleged misrepresentation. Following additional briefing that addressed

the 1998 changes in the law governing suspension of deportation, the BIA

dismissed      Pixley’s      appeal.     It    held    that   her    initial    period   of

continuous physical presence had been terminated by the commencement of

deportation proceedings against her; however, the BIA’s opinion did not


       7
           8 U.S.C. § 1254(a) (West 2000).

                                               5
address Pixley’s claim that she had accrued seven years of continuous

presence as a person of good moral character following the commencement

of those deportation proceedings.8

                                II.    Analysis

A.   Standard of Review

     We defer to an agency’s interpretation of a federal statute unless

that interpretation violates “the unambiguously expressed intent of

Congress.”9     We also note that “judicial deference to the Executive

Branch is especially appropriate in the immigration context where

officials     ‘exercise   especially   sensitive   political   functions   that

implicate questions of foreign relations.’”10

B.   The Attorney General’s Action

     Milne argues that because the BIA decision denying her claim was

based on an earlier BIA decision that was vacated subsequent to the

decision in her case, we should either reverse the BIA’s decision in her

case or remand it to the BIA for reconsideration.         In the proceedings

against Milne, the BIA had ruled that she could not petition for

suspension of deportation because she was not continuously present in

the United States for at least seven years before commencement of

     8
       The government does not contest that each petitioner has
been continuously present in the United States for more than seven
years after being served with an order to show cause and have
demonstrated good moral character during that time.
     9
       Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 843 (1984).
     10
       INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (quoting
INS. v. Abudu, 485 U.S. 94, 110 (1988)).

                                        6
deportation proceedings against her.         In so ruling, the BIA did rely on

its previous decision in N-G-B-, a decision interpreting the stop-time

rule, the construction of which is the crux of the substantive decision

to be made in these two cases.

      The Attorney General referred N-G-B- to herself for review and

vacated that decision in July of 1997.11            In November of that year,

Congress enacted the Nicaraguan and Central Relief Act of 1997 (the

“NACARA”),12 which, inter alia, amended and clarified the IIRIRA with

respect to the issue raised in N-G-B-.               Thereafter, in Matter of

Nolasco,13 the BIA made clear that in enacting the NACARA Congress had

codified the substance of the BIA’s holding in N-G-B- to the effect that

the   stop-time    rule   did   apply   to   applications   for     suspension    of

deportation.      Recently, in In re Mendoza-Sandino,14 the BIA interpreted

§ 240A(d)(1) as providing that once continuous physical presence is

interrupted by service of a notice of deportation proceedings, the

seven-year clock not only stops but never starts to run anew either.

      Milne’s claim is unavailing.       The basis of the BIA’s decision was

made clear, and, even though the supporting decision it cited was

subsequently     vacated,   the   substance    of   the   vacated   decision     was

reaffirmed by the BIA when it interpreted the new legislation enacted



      11
           74 Interpreter Releases 1210 (August 11, 1997).
      12
           8 U.S.C. 1101 note (West 2000).
      13
           Int. Dec. 3385 (BIA 1999).
      14
           In re Mendoza-Sandino, Int. Dec. 3426 (BIA 2000).

                                         7
by Congress in response to the Attorney General’s reversal of the BIA’s

decision in N-G-B-.     Moreover, its recent decision in In re Mendoza-

Sandino, interpreting the stop-time rule to bar a fresh start of the

seven-year clock after service of a notice to appear, further clarifies

the BIA’s stance on this issue.     Remanding this case to the BIA would

therefore be a fruitless exercise.

C. Interpretation of the Stop-Time Rule

     Currently, under the IIRIRA an alien who has been continuously

present in the United States for ten years prior to the commencement of

deportation proceedings against him and can meet other restrictive

requirements is eligible to petition for suspension of his deportation

order.15    The transitional provisions of the IIRIRA specify that all

such proceedings that had commenced prior to April 1, 1997 —— including

those that were initiated under former INA § 244 (pursuant to which each

of the instant cases were brought) —— are left intact under then-

existing law.16   Former § 244(a) of the INA vested the Attorney General

with discretion to grant suspension of an alien who

     is deportable [and]. . .has been physically present in the
     United States for a continuous period of not less than seven
     years immediately preceding the date of such application, and
     proves that during all of such period he was and is a person
     of good moral character; and is a person whose deportation
     would, in the opinion of the Attorney General, result in
     extreme hardship to the alien or to his spouse, parent, or
     child, who is a citizen of the United States or an alien




     15
          8 U.S.C. § 1229b(b) (West 2000).
     16
          8 U.S.C. § 1101 note (West 2000).

                                     8
     lawfully admitted for permanent residence[.]17

     Section 309(c)(5) of the IIRIRA states that § 240A(d)(1) of the

INA, which cuts off accrual of continuous physical presence at the time

deportation proceedings commence, applies regardless of whether the

proceedings in question began on, before, or after the effective date

of the IIRIRA.     N-G-B- clarified the constitutionality of this rule,

holding that the IIRIRA applies retroactively to foreclose relief in all

such cases.18     After the Attorney General vacated N-G-B-, Congress

essentially reenacted it with the passage of the NACARA.19

     The statutory provision in question here, the stop-time rule of INA

240A(d)(1),20 does not expressly address the instant issue, i.e.,

whether the seven-year clock restarts and the accrual of continuous

physical presence recommences after notice of the commencement of

deportation proceedings against the alien in question is served.     When

“Congress has not directly addressed the precise question at issue,” but

an administrative agency has interpreted a statute to answer that

question, we do not “simply impose [our] own construction on the

statute, as would be necessary in the absence of an administrative


     17
          8 U.S.C. § 1254(a) (1994) (emphasis added).
     18
        We too have upheld the retroactivity of this rule as
constitutional. Moosa v. INS, 171 F.3d 994, 1007 (5th Cir. 1999).
     19
          8 U.S.C. § 1101 note (West 2000).
     20
       This rule states: “For purposes of this section, 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)(West 2000)(emphasis
added).

                                    9
interpretation.      Rather, if the statute is silent or ambiguous with

respect to the specific issue, the question for the court is whether the

agency’s    answer   is   based   on   a    permissible   construction   of   the

statute.”21

     The BIA has interpreted the stop-time rule as prohibiting the

seven-year clock from starting to tick again once proceedings against

the alien have commenced.22       The BIA held that “the continuous physical

presence clock does not start anew after the service of an Order to Show

Cause so as to allow an alien to accrue the time required to establish

eligibility for suspension of deportation subsequent to the service of

an Order to Show Cause.”23        The BIA based its interpretation on “the

language of section 240A(d)(1) of the Act and the legislative history

of the IIRIRA.”24

     Reading § 240A(d)(1) in the larger context of § 240A(d) as a whole,

the BIA concluded that

            [t]he language of section 240A(d) makes it clear
            that Congress appreciated the difference between a
            “break” in continuous physical presence and the
            “end” of continuous physical presence. Congress
            has distinguished between certain actions that
            “end” continuous physical presence, i.e., service
            of a charging document or commission of a specified
            crime, and certain departures from the country that
            only temporarily “break” that presence. Service of
            an Order to Show Cause or a notice to appear is not


     21
          Chevron, 467 U.S. at 843.
     22
          In re Mendozo-Sandino, Int. Dec. 3426 (BIA 2000).
     23
          Id.
     24
          Id.

                                           10
            included as an interruptive event under section
            240A(d)(2), which merely breaks continuous physical
            presence. Rather, under section 240A(d)(1), such
            service is deemed to end an alien's presence
            completely.    Therefore, a reading of section
            240A(d)(1) that would allow an alien to accrue a
            new period of continuous physical presence after
            the service of a charging document is not supported
            by the language of either section 240A(d)(1)
            or (2).25

     The BIA also focused on the legislative history of § 240A(d)(1),

finding that “[t]he [Conference Report’s]    Joint Explanatory Statement

[of the Committee of Conference on the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996] reflects that the legislators

understood that a break in continuous physical presence differs from the

termination of continuous physical presence. The Joint Explanatory

Statement distinguishes between events that merely break continuous

physical presence, such that the clock may be reset for a new period of

continuous physical presence to begin, and events that cause continuous

physical presence to terminate forever.”26   The BIA pointed out that its

reading of § 240A(d)(1) is also “consistent with the House Report in

which the House expressed concern about the ways in which aliens

extended their stays in this country to accrue time to gain immigration

benefits.”27

     25
          In re Mendozo-Sandino.
     26
          Id.
     27
       Id. In reaching this conclusion, the BIA discussed the House
Report on the IIRIRA which stated that:
     Each of these forms of relief may be exploited by illegal
     aliens to extend their stay in the United States.
     Voluntary departure is subject to abuse because there is

                                    11
The BIA concluded that “[t]he House and Conference Reports make it clear

that the legislators intended to remove the incentive for aliens to

prolong their cases in the hope of remaining in the United States long

enough to be eligible for relief from deportation.”28

     For purposes of review by a federal appellate court, the BIA’s

interpretation of the stop-time rule clearly meets Chevron’s requirement

that the agency’s construction be “based on a permissible construction

of the statute.”29   Although the BIA’s reading of the statute is not the

only one possible or necessarily even the best possible reading, it is

certainly a credible one.      That reading accounts for the language


     very little assurance that aliens actually leave the
     United States, and very little incentive for them to do
     so. . . . .Asylum is often claimed by persons who have
     not suffered persecution, but who know that delays in
     adjudication (particularly in the affirmative asylum
     system) will allow them to remain in the United States
     indefinitely, meanwhile accruing time so that they will
     be eligible for suspension of deportation if they are
     ever placed in deportation proceedings.

     Suspension of deportation is often abused by aliens
     seeking to delay proceedings until 7 years have accrued.
     This includes aliens who failed to appear for their
     deportation proceedings and were ordered deported in
     absentia, and then seek to re-open proceedings once the
     requisite time has passed. Such tactics are possible
     because some Federal courts permit aliens to continue to
     accrue time toward the seven year threshold even after
     they have been placed in deportation proceedings. Similar
     delay strategies are adopted by aliens in section 212(c)
     cases, where persons who have been in the United States
     for a number of years, but have only been lawful
     permanent residents for a short period of time, seek and
     obtain this form of relief. H.R. Rep. No. 104-469.
     28
          In re Mendozo-Sandino.
     29
          Chevron, 467 U.S. at 843.

                                      12
employed by Congress and is well supported by the legislative history

of the stop-time rule as well as by the other legislation in this realm

of the immigration law’s structure.         We base this conclusion on our

careful review of the BIA’s decision in In re Mendozo-Sandino, other

relevant case law, and the arguments of the parties in their appellate

briefs.     Our conclusion is bolstered by additional evidence of the

intent of Congress regarding the stop-time rule as set forth in a

memorandum prepared by the Senate Appropriations Committee to explain

the NACARA amendments.     That report notes that:

            Under the rules in effect before [the IIRIRA
            amendments], [an] otherwise eligible person could
            qualify for suspension of deportation if he or she
            had been continuously physically present in the
            United States for seven years, regardless of
            whether or when the Immigration and Naturalization
            Service had initiated deportation proceedings
            against the person through the issuance of an order
            to show cause (“OSC”) to that person. As a result,
            people were able to accrue time toward the seven-
            year continuous physical presence requirement after
            they already had been placed in deportation
            proceedings.    IIRIRA changed that rule to bar
            additional time accruing after receipt of a “notice
            to appear,” the new document the Act created to
            begin “removal” proceedings.30

In adopting the NACARA, Congress intended to prevent aliens from

accruing additional time needed to reach the requisite seven years of

continuous    physical   presence   that   they    may   have   lacked   when   the

proceedings against them were commenced.          We have been cited to nothing

and have found nothing on our own to indicate that Congress meant for

a different rule to apply for the starting of a new seven-year count

     30
          143 Cong. Rec. S12265-226, available at 1997 WL 69386.

                                      13
after the clock has been stopped and the pre-stop accrual of time has

been obliterated. Congress is well aware that, “[i]n administering this

country’s immigration laws, the Attorney General and the INS confront

an onerous task even without the addition of judicially augmented

incentives to take meritless appeals, engage in repeated violations, and

undertake other conduct solely to drag out the deportation process.”31

Given its professed intention of eliminating the incentive for aliens

to engage in such behavior, Congress is not likely to have meant to

permit aliens to start over and accrue the entirety of their seven years

presence here following termination of the initial period of accrual.

Congress has expressed a desire to reduce the time that an alien can

prolong his stay following issuance of a deportation order, a goal

clearly furthered by the BIA’s interpretation of the stop-time rule.



                           III.   Conclusion

     We accord substantial weight to the manner in which federal

agencies interpret the laws that Congress has entrusted to their

administration.   Our review of the BIA’s decision and the language and

legislative history of the stop-time rule satisfies us that the BIA’s


     31
        INS v. Rios-Pineda, 471 U.S. 444, 450-51 (1985). It should
be   noted   that   although  we   generally   agree  that   policy
considerations support the BIA’s interpretation, those policy
implications may not be as serious as the INS asserts. Although
Petitioners’ interpretation of the stop-time rule does provide
aliens with a somewhat perverse incentive structure, their strong
desire to remain in this country provides them with those same
incentives, namely to prolong their stay in the United States using
any (legal) means available.

                                   14
interpretation —— that an alien does not begin to accrue a new seven-

year period of continuous presence in the United States after receiving

notice that deportation proceedings have commenced —— is a reasonable

one.    Given   the   deference   that   we   must   accord   to   the   BIA’s

interpretations of federal immigration law, we are bound to uphold such

interpretations unless they are unreasonable.           Discerning nothing

unreasonable in the BIA’s interpretation of the stop-time rule, we

affirm the decisions of the BIA in the captioned cases.

AFFIRMED.




                                    15
