In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3126

ALMA ANGEL-RAMOS,

Petitioner,

v.

JANET RENO and IMMIGRATION AND
NATURALIZATION SERVICE,

Respondents.



Petition for Review of an Order
of the Board of Immigration Appeals.
No. A73 363 465


Argued April 18, 2000--Decided September 19, 2000



  Before FLAUM, Chief Judge, RIPPLE and WILLIAMS,
Circuit Judges.

  RIPPLE, Circuit Judge. Alma Angel-Ramos entered
the United States without inspection in 1989.
Less than 6 years later, the Immigration and
Naturalization Service ("INS") raided her place
of business and discovered her presence in the
United States as an illegal alien. It thereafter
served her with an order to show cause and with
charges of deportability. Ms. Angel-Ramos then
applied for suspension of deportation, but an
immigration judge ("IJ") denied her application.
She appealed the IJ’s decision to the Board of
Immigration Appeals ("BIA"), which affirmed the
decision of the IJ, although on alternative
grounds. Ms. Angel-Ramos then sought review in
this court. For the reasons set forth in the
following opinion, we affirm the decision of the
BIA.

I
BACKGROUND
A. Facts

  Ms. Angel-Ramos entered the United States from
Mexico without inspection on August 1, 1989, and
she claims that she has resided continuously in
the United States since that date. In 1995, the
INS raided Ms. Angel-Ramos’ place of business,
arrested her and instituted deportation
proceedings against her. On May 10, 1995, the INS
served her with an order to show cause, which
charged her with deportability for entering the
United States without inspection. Ms. Angel-Ramos
then applied for a suspension of deportation.

B. Proceedings Before the Immigration
Judge

  An IJ reviewed Ms. Angel-Ramos’ application for
a suspension of deportation and explained that,
before Ms. Angel-Ramos could be eligible for
suspension of deportation, she needed to
establish that she had been present continuously
in the United States for at least 7 years. In
making its decision on whether Ms. Angel-Ramos
had established the requisite continuous
presence, the IJ relied on the BIA decision of
Matter of N-J-B-, Int. Dec. 3309 (BIA 1997),
vacated by Att’y Gen. Order No. 2093-97 (Jul. 10,
1997). According to Matter of N-J-B-, the IJ
stated, the relevant time frame to establish the
7 years of continuous presence started on the
date Ms. Angel-Ramos entered the United States
and ended on the date that she was served with
her order to show cause. Finding that Ms. Angel-
Ramos could establish less than 6 years of
physical presence in the United States between
those two dates, the IJ denied Ms. Angel-Ramos’
application for suspension of deportation. Ms.
Angel-Ramos thereafter appealed the IJ’s denial
of her application to the BIA.

C. Appeal to the Board of Immigration
Appeals

  The BIA affirmed the IJ’s decision, although on
alternative grounds. After the IJ first issued
its decision on Ms. Angel-Ramos’ application, the
Attorney General vacated the decision relied on
by the IJ. The BIA found, however, that its own
subsequent decision of Matter of Nolasco, Int.
Dec. 3385 (BIA 1999) (en banc), still required
the denial of Ms. Angel-Ramos’ application. In
Matter of Nolasco, the BIA explained, it had
determined again that service of the order to
show cause ended the period of an alien’s
continuous physical presence in the United
States. Because Ms. Angel-Ramos’ order to show
cause was served less than 6 years after her
entry into the United States, the BIA held that
she had not established the requisite 7 years of
continuous physical presence. Therefore, the BIA
denied her application for suspension of
deportation.

II
DISCUSSION
A. Statutory Interpretation
  For an alien such as Ms. Angel-Ramos to be
granted a suspension of deportation, she must
establish first that she has been continuously
present in the United States for 7 years./1 See
Urban v. INS, 123 F.3d 644, 648 (7th Cir. 1997).
At the time Ms. Angel-Ramos applied for
suspension of deportation, sec. 244 of the
Immigration and Nationality Act ("INA") was the
governing provision in deportation proceedings.
In order to determine whether an alien had met
the requisite 7 years of continuous physical
presence, sec. 244 counted from the alien’s date
of entry into the United States until the date
the alien filed her application for suspension of
deportation.

1.   IIRIRA Amendments

  In 1996, Congress amended the INA by enacting
the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA"), Pub. L.
No. 104-208, 110 Stat. 3009, 3009-627 (1996).
With this amendment, Congress changed the
applicable terms of art for immigration
proceedings. Before the amendment, Congress had
referred to orders to show cause, deportations,
and suspensions of deportation, but after the
amendment, Congress substituted new language for
the same actions: notices to appear, removals,
and cancellations of removal. Congress also
altered somewhat the substantive requirements
applicable to aliens in immigration proceedings.
When Congress amended the INA, it replaced sec.
244 with sec. 240A. Section 240A, similar to sec.
244, sets forth the requirements for an alien to
avoid removal from the United States,/2 such as
continuous physical presence, but the section
also frames a new rule for determining the length
of an alien’s continuous presence in the United
States. As the statute explains, "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"
or when the alien is convicted of one of several
specified offenses, whichever is earliest.
IIRIRA, Pub. L. No. 104-208, sec. 309(c)(5), 110
Stat. 3009, 3009-627 (1996), INA sec. 240A
(d)(1), 8 U.S.C. sec. 1229b(d). This is referred
to as the "stop time" rule.

2.   IIRIRA Transitional Rules

  Although most of the IIRIRA amendments do not
apply to aliens such as Ms. Angel-Ramos, who were
placed in deportation proceedings before the
effective date of the Act (April 1, 1997), see
Note to 8 U.S.C. sec. 1101; Matter of Nolasco,
the amendments did create special transitional
rules for those aliens in proceedings as of the
Act’s effective date. See Note to 8 U.S.C. sec.
1101; Matter of Nolasco. Among them is IIRIRA
sec. 309(c)(5): "Transitional Rule with Regard to
Suspension of Deportation." This provision states
that the stop time rule for calculating an
alien’s continuous presence shall apply to
notices to appear issued before, on, or after the
effective date of the Act./3 See IIRIRA sec.
309(c)(5). Confusion arose from this provision
because the term "notice to appear" was not in
use before the effective date of the Act. Also,
even though Congress referred to suspension of
deportation in the section’s title, Congress then
used notices to appear in the section’s text
although orders to show cause, and not notices to
appear, applied to suspension of deportation.

  In Matter of N-J-B-, the BIA attempted to
clarify the ambiguity created by this provision
and held that IIRIRA sec. 309(c)(5) applied the
stop time rule to orders to show cause. If the
stop time rule applied to orders to show cause,
the BIA reasoned, then the stop time rule applied
to deportation proceedings. Furthermore, because
deportation proceedings did not exist after the
effective date of IIRIRA, the stop time rule had
to apply to deportation proceedings pending at
the time of IIRIRA’s effective date.

3.   NACARA Clarifications

  Soon after the BIA issued Matter of N-J-B-, the
Attorney General withdrew Matter of N-J-B- as
precedent because sec. 309(c)(5) referred
explicitly to notices to appear rather than to
orders to show cause. Before the Attorney General
could rule on the matter herself, however, the
President signed into law the Nicaraguan
Adjustment and Central American Relief Act
("NACARA"), Pub. L. No. 105-100, sec. 203(a), 111
Stat. 2160, 2196-2198 (1998). Section 203(a)(1)
of NACARA, entitled "Transitional Rules with
Regard to Suspension of Deportation," amended
IIRIRA sec. 309(c)(5). This new amendment
clarifies that the stop time rule for determining
an alien’s continuous presence "shall apply to
orders to show cause . . . issued before, on, or
after the effective date of the enactment of this
Act." NACARA sec. 203(a)(1)./4

  In the BIA decision of Matter of Nolasco, Int.
Dec. 3385 (BIA 1999) (en banc), the BIA
determined that the language of IIRIRA sec.
309(c)(5), as revised by NACARA sec. 203(a)(1),
was unambiguous. As the BIA discussed, the
section is titled "Transitional Rules with Regard
to Suspension of Deportation" and requires the
stop time rule to apply to orders to show cause.
See id. Because, with IIRIRA, Congress removed
suspension of deportation from the INA, the BIA
assumed that Congress intended the stop time rule
to apply to suspension of deportation
applications pending as of the date IIRIRA took
effect. Also, according to the BIA, in the NACARA
amendment, Congress explicitly stated that the
stop time rule applied to all orders to show
cause issued before, on, or after the effective
date of the Act. As the BIA explained, because
the stop time rule applied to cases in which an
order to show cause had been issued and because
orders to show cause were issued only in
deportation proceedings, then the stop time rule
must apply to deportation proceedings. Moreover,
because NACARA sec. 203(a)(1) stated that the
stop time rule should apply to all orders to show
cause issued before, on, or after the effective
date of the Act, and because orders to show cause
existed only before the effective date of the
Act, then the provision must apply to deportation
proceedings pending on the effective date of the
Act.

  The BIA also found that the legislative history
of NACARA supported its conclusion that the stop
time rule applied to pending deportation
proceedings. As the BIA pointed out, the Senate
Appropriations Committee issued an explanatory
statement to clarify NACARA sec. 203’s
modification of IIRIRA sec. 309(c)(5). The
statement explained that the "’the "stop time"
rule established by [IIRIRA sec. 309(c)(5)] in
section 240A of the INA shall apply generally to
individuals in deportation proceedings before
April 1, 1997, with certain exceptions [for
certain classes of aliens].’" Matter of Nolasco,
Int. Dec. 3385 (quoting 143 Cong. Rec. S12660).
The BIA noted that "[t]his statement reflects an
express intention to apply the stop time rule of
section 240A of the Act to deportation cases, not
just to removal cases, and to apply that rule
generally as of the effective date of the
IIRIRA." Id.

  The BIA also rested its interpretation on an
explanatory memorandum for NACARA that the Senate
Appropriations Committee submitted to the House
of Representatives for consideration before its
vote on the amendment. This memorandum states
that NACARA sec. 203(a)(1) "amends the transition
rule governing eligibility for suspension of
deportation for those who were in exclusion or
deportation proceedings as of April 1, 1997, the
effective date of IIRIRA." Id. (quoting 143 Cong.
Rec. S12265). The memorandum then explains that
"’Section 203(a) [of NACARA] generally codifies
the majority decision in Matter of N-J-B (sic) by
stating explicitly that orders to show cause have
the same "stop time" effect as notices to appear.’"
Id. (quoting 143 Cong. Rec. S12265, S12266). The
BIA therefore concluded that the stop time rule
applied to orders to show cause and applications
for suspension of deportation pending at the time
IIRIRA was enacted, such that an alien’s period
of continuous presence in the United States
stopped on the date that the alien was served
with an order to show cause. We note that we give
deference to the BIA’s interpretation of the
immigration statute. See INS v. Aguirre-Aguirre,
526 U.S. 415, 424-25 (1999).

  We also note that four of our sister circuits
have addressed this exact issue since the BIA
decided Nolasco, and all have interpreted IIRIRA
sec. 309(c)(5) and NACARA sec. 203(a)(1)
consistently with the BIA’s interpretation in
Nolasco. See Afolayan v. INS, ___ F.3d ___, 2000
WL 1010775 (8th Cir. July 24, 2000); Rivera-
Jimenez v. INS, 214 F.3d 1213 (10th Cir. 2000);
Appiah v. INS, 202 F.3d 704 (4th Cir. 2000)
petition for cert. filed (U.S. June 15, 2000)
(No. 99-10039); Tefel v. Reno, 180 F.3d 1286
(11th Cir. 1999), cert. denied, 120 S. Ct. 2657
(2000).

  We agree that the plain language of IIRIRA sec.
309(c)(5), as revised by NACARA sec. 203(a)(1),
requires the application of the stop time rule to
orders to show cause and suspension of
deportation proceedings pending at the time
IIRIRA became effective. Congress stated
explicitly that the stop time rule applies to
orders to show cause. Because orders to show
cause do not survive IIRIRA, NACARA sec.
203(a)(1) clarifies that the stop time rule
applies to pending applications for suspension of
deportation in which orders to show cause had
been issued.

  Contrary to this interpretation, Ms. Angel-Ramos
contends that NACARA sec. 203(a)(1) should not be
applied retroactively to pending suspension of
deportation proceedings. She claims that
retroactive application of the amendment would
violate her due process rights and would
contradict the presumption against retroactivity.
The INS asserts that Congress explicitly provided
that NACARA sec. 203(a)(1) was to apply
retroactively and that, once Congress has made
its intent clear, then the presumption against
retroactivity is no longer applicable. The
language of IIRIRA sec. 309(c)(5) states that the
stop time rule shall apply to notices to appear
"issued before, on, or after the date of the
enactment of the Act," and NACARA sec. 203(a)(1)
states that the stop time rule shall apply to
orders to show cause "issued before, on, or after
the date of the enactment of the Act." The
"before" language clearly shows Congress’ intent
to apply these provisions retroactively. See
Landgraf v. USI Film Prods., 511 U.S. 244, 268
(1994) (reaffirming the principle that the
clearly expressed intent of Congress to apply a
statute retroactively overcomes the presumption
against retroactivity). Accordingly, the stop
time rule applies to Ms. Angel-Ramos’ application
for suspension of deportation. Therefore, because
under the stop time rule an alien’s continuous
presence is calculated from her date of entry
into the United States to the date the INS served
her with an order to show cause, and because Ms.
Angel-Ramos has less than 7 years between those
two dates, she is not statutorily eligible for
suspension of deportation.

B.   Constitutional Challenges

  Ms. Angel-Ramos also asserts that, assuming
NACARA sec. 203(a)(1) applies to her, it violates
her rights to due process and to equal protection
of the law. She maintains that the continuances
in her case allowed the IJ to apply new precedent
that was later withdrawn, resulting in a due
process violation. She also argues that NACARA
sec. 203(a)(1) violates the Equal Protection
Clause because it treats certain classes of
aliens differently than others. We address each
of these arguments in turn.

  Although we recognize that due process applies
to deportation proceedings, see Podio v. INS, 153
F.3d 506, 509 (7th Cir. 1998), we do not believe
that Ms. Angel-Ramos has established a violation
of her due process rights. Ms. Angel-Ramos claims
that, if the IJ had resolved her case sooner, the
precedent the IJ applied would have been
different and would have supported a resolution
of her application in her favor. We note first
that, initially, the continuance of Ms. Angel-
Ramos’ case was in response to several motions
she filed. We also recognize that a court or
agency "should ’apply the law in effect at the
time it renders its decision.’" Landgraf, 511
U.S. at 273 (quoting Bradley v. School Bd. of
City of Richmond, 416 U.S. 696, 711 (1974)).
Because the length of time of the continuation of
Ms. Angel-Ramos’ case was not, under the
circumstances here, unreasonable and because the
IJ applied the law in effect at the time it
rendered its decision, we hold that her due
process rights were not violated./5

  We also believe that Ms. Angel-Ramos has not
established a violation of the Equal Protection
Clause. NACARA sec. 203(a)(1) states that the
stop time rule should apply to pending
deportation proceedings, but it then exempts
certain classes of aliens from the application of
that rule./6 Mexicans are not one of the classes
of aliens exempt from the application of the stop
time rule. Ms. Angel-Ramos contends that there is
no reason or justification for making a
distinction between different classes of aliens.
The decision of Congress to designate certain
classes of aliens, however, is "’a fundamental
sovereign attribute exercised by the Government’s
political departments [and is] largely immune
from judicial control.’" Fiallo v. Bell, 430 U.S.
787, 792 (1977) (quoting Shaughnessy v. Mezei,
345 U.S. 206, 210 (1953)). Moreover, Congress has
"exceptionally broad power to determine which
classes of aliens may lawfully enter the
country." Id. at 794. Because Congress had the
facially legitimate reason of easing the burden
of administration for aliens from countries torn
apart by war and oppression, see 143 Cong. Rec.
S12, 261 (daily ed. Nov. 9, 1997) (statement of
Sen. Abraham), we shall not review its
classification of aliens. See Fiallo, 430 U.S. at
792; Appiah, 202 F.3d at 710./7
Conclusion

  For the foregoing reasons, the decision of the
BIA is affirmed.

AFFIRMED


/1 At the time that Ms. Angel-Ramos applied for a
suspension of deportation, the governing statute
stated that the Attorney General, in her
discretion, could grant suspension of deportation
to an alien who is deportable if the alien (1)
had been physically present in the United States
for a continuous period of 7 years; (2) had been
a person of good moral character during that
time; and (3) had established that removal would
result in extreme hardship to the alien or to her
spouse, parent, or child who was a citizen of the
United States or who was an alien lawfully
admitted for permanent residence. See Immigration
and Nationality Act sec. 244(a), 8 U.S.C. sec.
1254(a) (1994).

/2 Under sec. 240A, the requirements for an alien to
remain in the United States, that is, the
requirements for the cancellation of removal, are
that she has resided continuously in the United
States for 10 years, that she is of good moral
character, that she has not committed any of a
number of specified offenses, and that she or her
spouse, parent or child would suffer "exceptional
and extremely unusual hardship." IIRIRA sec.
304(a), INA sec. 240A(d), 8 U.S.C. sec.
1229b(b)(1).

/3 IIRIRA sec. 309(c)(5) states as follows:

(5) TRANSITIONAL RULE WITH REGARD TO SUSPENSION
OF DEPORTATION.--Paragraphs (1) and (2) of
section 240A(d) of the Immigration and
Nationality Act (relating to continuous residence
or physical presence) shall apply to notices to
appear issued before, on, or after the date of
the enactment of this Act.

IIRIRA, Pub. L. No. 104-208, sec. 309(c)(5), 110
Stat. 3009, 3009-627 (1996).
/4 The full text of the amendment reads as follows:

  (1) IN GENERAL.--Section 309(c)(5) of the
Illegal Immigration Reform and Immigration
Responsibility Act of 1996 (Public Law 104-208;
division C; 110 Stat. 3009-627) is amended to
read as follows:

(5) TRANSITIONAL RULES WITH REGARD TO SUSPENSION
OF DEPORTATION.--

(A) IN GENERAL.--Subject to subparagraphs (B)
and (C), paragraphs (1) and (2) of section
240A(d) of the Immigration and Nationality Act
(relating to continuous residence or physical
presence) shall apply to orders to show cause
(including those referred to in section 242B
(a)(1) of the Immigration and Nationality Act, as
in effect before the title III-A effective date),
issued before, on, or after the date of the
enactment of this Act.

NACARA, Pub. L. No. 105-100, sec. 203(a), 111
Stat. 2160, 2196-2198 (1998).

/5 We also note that, even under INA sec. 244, the
law applicable before the IIRIRA amendments, Ms.
Angel-Ramos would not be eligible for relief. INA
sec. 244 allowed an alien to calculate her
continuous physical presence from the time of her
entry into the United States until the date she
filed her application for suspension of
deportation.

  Ms. Angel-Ramos alleges that she entered the
United States on August 1, 1989. She filed her
application for suspension of deportation on May
13, 1996. Because she has fewer than 7 years of
continuous physical presence between those two
dates, even under the old law of INA sec. 244,
she would not be eligible for suspension of
deportation. Moreover, in Ms. Angel-Ramos’ case,
unlike in Batanic v. INS, 12 F.3d 662 (7th Cir.
1993), "there [is] no evidence that a procedural
defect worked to deprive [Ms. Angel-Ramos] of a
specific statutory right." Tamas-Mercea v. Reno,
No. 99-3155, 2000 WL 1036451 (7th Cir. July 28,
2000). Therefore, her right to due process has
not been denied by the delay.

/6 To show the consideration Congress gave to
determining which classes of aliens to exempt
from the application of the stop time rule, we
set forth the applicable provision in full:
(C) SPECIAL RULE FOR CERTAIN ALIENS GRANTED
TEMPORARY PROTECTION FROM DEPORTATION.--

(i) IN GENERAL.--For purposes of calculating the
period of continuous physical presence[, the stop
time rule] shall not apply in the case of an
alien, regardless of whether the alien is in
exclusion or deportation proceedings before the
title III-A effective date, who has not been
convicted at any time of an aggravated felony (as
defined in section 101(a) of the Immigration and
Nationality Act) and--

(I) was not apprehended after December 19, 1990,
at the time of entry, and is--

(aa) a Salvadoran national who first entered the
United States on or before September 19, 1990,
and who registered for benefits pursuant to the
settlement agreement in American Baptist
Churches, et al. v. Thornburgh (ABC), 760 F.
Supp. 796 (N.D. Cal. 1991) on or before October
31, 1991, or applied for temporary protected
status on or before October 31, 1991; or

(bb) a Guatemalan national who first entered the
United States on or before October 1, 1990, and
who registered for benefits pursuant to such
settlement agreement on or before December 31,
1991;

(II) is a Guatemalan or Salvadoran national who
filed an application for asylum with the
Immigration and Naturalization Service on or
before April 1, 1990;

(III) is the spouse or child (as defined in
section 101(b)(1) of the Immigration and
Nationality Act) of an individual, at the time a
decision is rendered to suspend the deportation,
or cancel the removal, of such individual, if the
individual has been determined to be described in
this clause (excluding this subclause and
subclause (IV));

(IV) is the unmarried son or daughter of an
alien parent, at the time a decision is rendered
to suspend the deportation, or cancel the
removal, of such alien parent, if--

(aa) the alien parent has been determined to be
described in this clause (excluding this
subclause and subclause (III)); and

(bb) in the case of a son or daughter who is 21
years of age or older at the time such decision
is rendered, the son or daughter entered the
United States on or before October 1, 1990; or

(V) is an alien who entered the United States on
or before December 31, 1990, who filed an
application for asylum on or before December 31,
1991, and who, at the time of filing such
application, was a national of the Soviet Union,
Russia, any republic of the former Soviet Union,
Latvia, Estonia, Lithuania, Poland,
Czechoslovakia, Romania, Hungary, Bulgaria,
Albania, East Germany, Yugoslavia, or any state
of the former Yugoslavia.

(ii) LIMITATION ON JUDICIAL REVIEW.--A
determination by the Attorney General as to
whether an alien satisfies the requirements of
this clause (i) is final and shall not be subject
to review by any court. Nothing in the preceding
sentence shall be construed as limiting the
application of section 242(a)(2)(B) of the
Immigration and Nationality Act (as in effect
after the title III-A effective date) to other
eligibility determinations pertaining to
discretionary relief under this Act.

NACARA sec. 203(a)(1), 111 Stat. 2160, 2196-98.

/7 Ms. Angel-Ramos also claims that this case should
be remanded to the BIA in light of a memorandum
issued by the General Counsel of the INS on
December 7, 1999. This memorandum explains that a
proposed regulation allows the Attorney General
to convert certain deportation proceedings into
removal proceedings.

  The group of individuals covered by the
regulation, according to the memorandum, includes
any alien who (1) is not a lawful permanent
resident; (2) would be statutorily eligible for
suspension of deportation under former INA sec.
244 but for the stop time provision in INA sec.
240A(d), which means that the alien is in
deportation proceedings (that is, not subject to
a final administrative order), is otherwise
statutorily eligible for suspension of
deportation (e.g., continuous physical presence
and good moral character), and has not been
denied suspension of deportation for another
reason; and (3) is statutorily eligible for
cancellation of removal under sec. 240A, which
requires that the alien has at least 10 years of
continuous physical presence in the United
States, has been a person of good moral character
during that time, has not been convicted of any
of several specified offenses, has a qualifying
relative, and is not precluded by the criminal
offense stop time rule in INA sec. 240A(d)(1).

  According to the memorandum, if an alien meets
these requirements, the INS generally should
agree to the administrative closing of an alien’s
proceeding before an IJ. Ms. Angel-Ramos contends
that she falls within that group listed by the
memorandum and that her case therefore should be
remanded to the BIA for administrative closure.
As the INS points out, however, to be eligible
for such relief, Ms. Angel-Ramos may not be
subject to a final administrative order, which
she is. Although a proceeding that is reopened
for an independent reason may be administratively
closed under this memorandum, the memorandum does
not anticipate reopening a proceeding solely for
the purpose of administrative closure. Therefore,
if we were to remand Ms. Angel-Ramos’ case to the
BIA for an independent reason, she could be
eligible for relief. Because we do not do so, we
cannot remand solely for this reason.

  Moreover, we also note that Ms. Angel-Ramos
would not meet the requisite 7 years of
continuous presence under INA sec. 244 because
she allegedly entered the United States on August
1, 1989, which is less than 7 years before she
filed her application for suspension of
deportation on May 13, 1996.
