           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                      2    Suassuna v. INS                            No. 02-3084
        ELECTRONIC CITATION: 2003 FED App. 0316P (6th Cir.)
                    File Name: 03a0316p.06                                                 _________________
                                                                                                COUNSEL
UNITED STATES COURT OF APPEALS
                                                                        ARGUED: Marshal E. Hyman, MARSHAL E. HYMAN &
                  FOR THE SIXTH CIRCUIT                                 ASSOCIATES, PC, Troy, Michigan, for Petitioner. Margaret
                    _________________                                   J. Perry, UNITED STATES DEPARTMENT OF JUSTICE,
                                                                        OFFICE OF IMMIGRATION LITIGATION, Washington,
 RICARDO PACHECO               X                                        D.C., for Respondent. ON BRIEF: Marshal E. Hyman,
 SUASSUNA,                      -                                       MARSHAL E. HYMAN & ASSOCIATES, PC, Troy,
                                                                        Michigan, for Petitioner. Margaret J. Perry, Mark C. Walters,
                  Petitioner, -                                         UNITED STATES DEPARTMENT OF JUSTICE, OFFICE
                                -  No. 02-3084
                                -                                       OF IMMIGRATION LITIGATION, Washington, D.C., for
          v.                     >                                      Respondent.
                                ,
                                -                                                          _________________
 IMMIGRATION AND                -
 NATURALIZATION SERVICE,        -                                                              OPINION
                 Respondent. -                                                             _________________
                                -
                               N                                          DAMON J. KEITH, Circuit Judge. Petitioner Ricardo
   On Appeal from the Board of Immigration Appeals.                     Pacheco Suassuna appeals the denial of his application for
                  No. A28 495 407.                                      suspension of deportation. For the reasons set forth below,
                                                                        we AFFIRM the judgment of the Board of Immigration
                    Argued: August 7, 2003                              Appeals.

            Decided and Filed: September 4, 2003                                           I. BACKGROUND
                                                                          Suassuna was born on January 27, 1958, in Brazil. He
   Before: KEITH and COLE, Circuit Judges; WEBER,                       entered the United States as a non-immigrant visitor on
                   District Judge.*                                     December 11, 1986. He was authorized to remain until May
                                                                        of 1987. On July 1, 1987, Suassuna’s status changed to that
                                                                        of a non-immigrant student, authorizing him to remain as long
                                                                        as he was in school. On January 15, 1988, Suassuna married
                                                                        Carol Kadoura, a United States citizen. Suassuna and
                                                                        Kadoura have a son named Hamza Suassuna, who was born
                                                                        in Ypsilanti, Michigan on December 14, 1988. Shortly after
                                                                        Hamza was born, Ricardo Suassuna stopped going to school
    *
     The Hono rable Herman J. Weber, United States District Judge for   and started working. Suassuna and Kadoura were divorced
the Southern District of Ohio, sitting by designation.

                                 1
No. 02-3084                             Suassuna v. INS      3    4    Suassuna v. INS                            No. 02-3084

on January 2, 1992. Since April 9, 1993, Suassuna has had         of the charging document commencing deportation
sole physical custody and joint legal custody of Hamza.           proceedings. INA § 240A(d), 8 U.S.C. § 1229b(d). On
                                                                  October 31, 1996, an IJ issued an order reopening Suassuna’s
  On July 18, 1991, the United States Immigration and             deportation proceedings to permit him to apply for suspension
Naturalization Service (INS) initiated deportation proceedings    of deportation. The INS moved to pretermit Suassuna’s
against Suassuna by serving him with a notice of hearing and      pending suspension application in light of the stop-time rule.
order to show cause. The INS charged Suassuna with                On February 27, 1998, the IJ granted the INS’s motion and
violating the conditions of his student status.            On     reinstated Suassuna’s order of deportation.
February 25, 1992, Suassuna appeared with counsel and
admitted that he was deportable as charged. The immigration         Suassuna filed for reconsideration, arguing that the IJ
judge (IJ) found Suassuna deportable on the basis of his          should not have applied the stop-time rule and seeking
admission and ordered him to be deported to Brazil. The IJ        reinstatement of the order of voluntary departure based on
granted Suassuna the privilege of voluntary departure at his      ineffective assistance of counsel.        The IJ denied
own expense in lieu of forced deportation. Suassuna               reconsideration. She found that Suassuna was undeserving of
remained in the United States.                                    reinstatement of voluntary departure, because he had shown
                                                                  by his conduct that he was unwilling to leave the country
   On August 20, 1996, Suassuna moved to reopen his               voluntarily. The IJ was not persuaded by Suassuna’s
deportation proceeding to apply for suspension of deportation     ineffective assistance argument.
and an extension of his prior grant of voluntary departure.
Under then-existing law, an alien was eligible for suspension       Suassuna filed a timely appeal with the Board of
of deportation if he could show (1) that he had been              Immigration Appeals (BIA). He argued that the IJ erred in
continually physically present in the United States for seven     applying the stop-time rule. Suassuna also argued that his
years preceding his application for relief, and (2) that his      counsel’s ineffectiveness and Suassuna’s desire to remain in
deportation would cause “extreme hardship” to himself or to       the United States to obtain custody of his son were
a United States citizen spouse, parent, or child. See former      “compelling reasons” excusing his failure to depart and
§ 244(a) of the Immigration and Nationality Act (INA),            warranted reinstatement of voluntary departure.
8 U.S.C. § 1254(a) (1994). This relief was not available if the
alien had failed to comply with a prior grant of voluntary           On December 26, 2001, the BIA issued a written decision
departure and was unable to show “exceptional                     affirming in part and reversing in part the IJ’s decision. The
circumstances” excusing his failure to depart. See former         BIA applied the stop-time rule to Suassuna’s pending
§ 242B(e)(2)(A) of the INA, 8 U.S.C. § 1252b(e)(2)(A)             suspension application and found him ineligible for a
(1994).                                                           suspension because he lacked seven years of continuous
                                                                  physical presence prior to service of the order to show cause.
  While Suassuna’s motion to reopen the proceeding was            The BIA affirmed that Suassuna was subject to deportation.
pending, Congress enacted the Illegal Immigration Reform          However, with respect to Suassuna’s request for reinstatement
and Immigrant Responsibility Act of 1996, Pub. L. No. 104-        of voluntary departure, the BIA reversed the decision of the
208, 110 Stat. 3009 (IIRIRA). IIRIRA created a “stop-time         IJ finding that Suassuna had demonstrated “compelling
rule” terminating the continuity of an alien’s physical           reasons” for voluntary departure. The “compelling reasons”
presence for purposes of relief from deportation upon service     cited by the BIA focused on various errors made by
No. 02-3084                            Suassuna v. INS      5    6    Suassuna v. INS                              No. 02-3084

Suassuna’s first lawyer. The BIA’s decision permitted            eliminated an alien’s incentive to delay his deportation
Suassuna the privilege of leaving voluntarily within thirty      proceedings.
days (or any further extensions granted by the INS), but
required that Suassuna be deported if he failed to leave           Suassuna was served a notice of hearing and order to show
voluntarily.                                                     cause on July 18, 1991. At that time, Suassuna had been in
                                                                 the United States for less than five years. The parties,
  Suassuna filed this timely appeal. The sole issue before       therefore, agree that if the stop-time rule is applied to
this Court is whether the stop-time rule applies to Suassuna.    Suassuna, he lacks the seven years of continuous physical
                                                                 presence in the United States required for a suspension of
                     II. DISCUSSION                              deportation under the former § 244(a) or the current § 240 of
                                                                 the INA.
A. Standard of Review
                                                                   IIRIRA explicitly provided that most of its changes would
  In reviewing the BIA’s construction of immigration             not apply to aliens with deportation proceedings already
statutes, we proceed deferentially, setting aside the BIA’s      pending at the time the statute went into effect. See IIRIRA,
reasonable construction if it defies the plain language of the   § 309(c)(1). However, one of the changes that does apply
statute or is arbitrary or capricious. See INS v. Aguirre-       retroactively is the stop-time rule. Section 309(c)(1) states
Aguirre, 526 U.S. 415, 424-25 (1999). Other questions of         that § 240A(d) (the stop-time rule) “shall apply to notices to
law are reviewed de novo. See Bartoszewska-Zajac v. INS,         appear issued before, on, or after the date of enactment of this
237 F.3d 710, 712 (6th Cir. 2001); Ashki v. INS, 233 F.3d        Act [September 30, 1996].” See Ashki, 233 F.3d at 918-19.
913, 917 (6th Cir. 2000).                                        This clause created some incongruity, because prior to
                                                                 April 1, 1997, the INS initiated deportation proceedings by
B. Analysis                                                      service of an order to show cause, and not a notice to appear.
                                                                 Congress attempted to clear up this lingering confusion in
   The stop-time rule changed the method for calculating an      1997 when it enacted the Nicaraguan Adjustment and Central
alien’s period of continuous physical presence in this country   American Relief Act, Pub. L. No. 105-100, 111 Stat. 2160
for purposes of qualifying for discretionary relief from a       (1997) (NACARA). Section 203(a)(1) of NACARA provides
deportation order. It provides that “any period of . . .         that § 240A(d) of the INA “shall apply to orders to show
continuous physical presence in the United States shall be       cause” issued before, on, or after the effective date of
deemed to end when the alien is served a notice to appear        NACARA. Sitting en banc in 1999, the BIA held that the
under section 239(a).” INA § 240A(d), 8 U.S.C. § 1229b(d).       stop-time rule applies to all pending deportation proceedings
Prior to the enactment of the stop-time rule, aliens would       unless the alien satisfies one of several statutory exemptions.
often delay their deportation proceedings until they accrued     See In re Nolasco-Tofino, 1999 WL 261565 (BIA 1999) (en
sufficient continuous presence in the United States to qualify   banc).
for relief. See H.R. Rep. 104-879 (1997); see also
Bartoszewska-Zajac, 237 F.3d at 713. By terminating the             Courts are generally reluctant to apply statutes
accrual of continuous physical presence upon service of the      retroactively. See Bartoszewska-Zajac, 237 F.3d at 712.
charging document, the stop-time provision of IIRIRA             “Because it accords with widely held intuitions about how
                                                                 statutes ordinarily operate, a presumption against retroactivity
No. 02-3084                               Suassuna v. INS        7    8     Suassuna v. INS                              No. 02-3084

will generally coincide with legislative and public                   April 1, 1997, the law of the Circuit is that the alien’s period
expectations.” Landgraf v. USI Film Prods., 511 U.S. 244,             of continuous physical presence ends upon service of the
272 (1994). However, this judicial presumption against                order to show cause, even if such order was issued prior to the
retroactivity can be overcome when Congress clearly intends           enactment of the stop-time rule.
that result. Id. at 272-73. “When a case implicates a federal
statute enacted after the events in suit, the court’s first task is     Suassuna, nevertheless, maintains that the stop-time rule
to determine whether Congress has expressly prescribed the            should not apply to him. He makes three points in support of
statute’s proper reach. If Congress has done so, of course,           this claim. First, he argues that because he received
there is no need to resort to judicial default rules.” Id. at 280.    ineffective assistance from his first lawyer, he is entitled to a
If Congress has not expressly prescribed the proper reach of          new suspension of deportation hearing under the law as it
the statute, courts then consider whether retroactive                 existed at the time of the ineffective assistance.
application of the statute “would impair rights a party
possessed when he acted, increase a party’s liability for past          The statute governing our jurisdiction to review an order of
conduct, or impose new duties with respect to transactions            deportation requires the exhaustion of administrative
already completed.” Id.                                               remedies. See former Section 106(c) of the INA, 8 U.S.C.
                                                                      § 1105a(c) (1994) (“An order of deportation . . . shall not be
   Applying these principles from Landgraf, we held in                reviewed by any court if the alien has not exhausted the
Bartoszewska-Zajac that the stop-time statute was                     administrative remedies available to him as of right under the
unambiguous and “Congress plainly intended that the stop-             immigration laws and regulations.”); see also Dokic v. INS,
time section of [IIRIRA] be retroactive, excepting it from            899 F.3d 530 (6th Cir. 1999). Suassuna’s claim that the stop-
otherwise forward-looking provisions.” 237 F.3d at 712; see           time rule should not apply to him because of the ineffective
also Ashki, 233 F.3d at 918 (“Congress clearly indicated that         assistance he received from his first lawyer was not raised
the new ‘stop time’ provision applies retroactively to orders         before the BIA. Therefore, we lack jurisdiction to review this
to show cause.”). After our decisions in Ashki and                    claim.
Bartoszewska-Zajac, in Sad v. INS, 246 F.3d 811, 813 (6th
Cir. 2001), a panel of this Court concluded that the stop-time          Suassuna’s second argument is that the stop-time rule does
rule was ambiguous. This finding contradicts the holdings of          not apply to cases in which a final administrative decision
our prior decisions. However, we are bound by our decisions           was issued before September 30, 1996. Suassuna urges us to
in Ashki and Bartoszewska-Zajac. See Darrah v. City of Oak            hold that §§ 309(c)(1) and (c)(3) of IIRIRA limit
Park, 255 F.3d 301, 310 (6th Cir. 2001) (“[W]hen a later              § 309(c)(5)’s application of the stop-time rule to cases that
decision of this court conflicts with one of our prior published      had not yet culminated in a final administrative decision on
decisions, we are still bound by the holding of the earlier           the date of IIRIRA’s enactment. Contrary to Suassuna’s
case.”). Moreover, we agree, based on our reading of the              contention that this is an issue of first impression, we
IIRIRA stop-time rule and NACARA, with these prior                    confronted a similar situation in Ashki. In that case, we
decisions that Congress clearly intended to apply this                affirmed the BIA’s application of the stop-time rule even
provision retroactively.                                              though a final deportation order had been issued in 1987.
                                                                      Ashki, 233 F.3d at 916.
  We hold today that, for purposes of determining eligibility
for suspension of deportation in cases that were pending as of
No. 02-3084                             Suassuna v. INS       9    10    Suassuna v. INS                              No. 02-3084

  Suassuna cites Koliada v. INS, 259 F.3d 482 (6th Cir.            for [discretionary relief] at the time of their plea under the law
2001), for the proposition that the transitional rules of IIRIRA   then in effect.” St. Cyr, 533 U.S. at 293. Applying Landgraf,
apply only if a final order had not been entered before            the Court found that Congress did not clearly intend that
September 30, 1996. Suassuna’s reliance on Koliada is              § 304(b) apply retroactively. Id. at 320. Proceeding to the
misplaced. That case construed a transitional rule of judicial     second step of the Landgraf analysis, the Court concluded
review in § 309(c)(4) of IIRIRA, not the stop-time rule from       that applying the statute retroactively would impermissibly
§ 309(c)(5) that applies here.                                     impair vested rights. Id. at 325. The Court noted that a plea
                                                                   bargain, which involves giving up important constitutional
  We see nothing in §§ 309(c)(1) and (c)(3) that limits the        rights, is likely to be predicated on the assumption that the
application of the transitional stop-time rule of § 309(c)(5).     alien would be eligible for discretionary relief from
There is no language anywhere in § 309 to suggest that             deportation. Id. at 322.
pending deportation cases are treated differently if a final
administrative order was once issued. Congress clearly               St. Cyr is distinguishable from the present case. Unlike the
intended the transitional stop-time rule to apply to aliens in     provision of IIRIRA considered in St. Cyr, the stop-time
deportation proceedings pending as of the effective date of        provision was clearly intended to apply retroactively. See
IIRIRA, regardless of whether a final administrative order         Bartoszewska-Zajac, 237 F.3d at 712. Thus, as noted above,
was ever issued in the case.                                       St. Cyr does not cast doubt on this finding. We join our sister
                                                                   circuits that have considered whether the stop-time rule is
   Suassuna’s third and final argument is that recent cases call   impermissibly retroactive after St. Cyr in concluding that it is
for a re-examination of whether the stop-time rule applies         not. See Jimenez-Angeles v. Ashcroft, 2002 WL 1023103, at
retroactively. Suassuna claims that INS v. St. Cyr, 533 U.S.       *4-*5 (9th Cir. 2002); Sibanda v. INS, 282 F.3d 1330, 1334-
289 (2001), and Bejjani v. INS, 271 F.3d 670 (6th Cir. 2001),      36 (10th Cir. 2002).
cast doubt on our earlier decisions in this area of law. As
noted above, the reasoning in these cases cast some doubt on          We also find Bejjani distinguishable. In that case, we
the method of analysis used in Sad, but we do not agree that       refused to apply the automatic reinstatement of removal
these cases require us to abandon our other prior decisions.       provision of § 241(a)(5) of the INA, 8 U.S.C. § 1231(a)(5), to
                                                                   aliens who illegally reentered the United States prior to the
  The alien in St. Cyr was a lawful permanent resident who         effective date of IIRIRA. The court in Bejjani found “clear
pled guilty to a felony pursuant to a plea bargain after living    congressional intent that § 241(a)(5) should not apply
in the United States for more than seven years. See St. Cyr,       retroactively to reinstate prior orders of removal of aliens who
533 U.S. at 292-93. Removal proceedings were initiated             reentered the country prior to the effective date of
against St. Cyr. Under the law in effect at the time of St.        § 241(a)(5).” Bejjani, 271 F.3d at 687. Bejjani is
Cyr’s plea, he was eligible for discretionary relief from          distinguishable from the present case because Congress
deportation. However, under the new provisions of IIRIRA,          clearly intended that the stop-time rule apply retroactively,
he was not eligible for discretionary relief. See IIRIRA           whereas, in Bejjani, Congress’s intent regarding retroactivity
§ 304(b). The Supreme Court held that it was impermissibly         was unclear. See Bartoszewska-Zajac, 237 F.3d at 712.
“retroactive” to eliminate this relief for aliens “whose
convictions were obtained through plea agreements and who,
notwithstanding those convictions, would have been eligible
No. 02-3084                    Suassuna v. INS   11

               III. CONCLUSION
  For these reasons, the judgment of the Board of
Immigration Appeals is AFFIRMED.
