                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-1924
                                      ___________

                            ALOYSIOUS ALLIE CONTEH,
                                               Petitioner

                                            v.

                ATTORNEY GENERAL OF THE UNITED STATES,
             SECRETARY DEPARTMENT OF HOMELAND SECURITY
                                         Respondents

                      ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A029-850-629)
                    Immigration Judge: Honorable Robert P. Owens
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                November 23, 2011
           Before: SMITH, HARDIMAN and STAPLETON, Circuit Judges

                           (Opinion filed: November 23, 2011)
                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

      Aloysious Allie Conteh petitions for review of an order of the Board of

Immigration Appeals (“BIA”), which dismissed his appeal from an Immigration Judge’s

(“IJ”) final removal order. We will deny the petition for review.
                                             I.

       Because the parties are familiar with the history and facts of the case, we will

recount the events in summary fashion. Conteh, a native and citizen of Sierra Leone, was

admitted to the United States on December 7, 1988, as a non-immigrant visitor with

authorization to remain for six months. Conteh overstayed his visitor’s visa, and in

October 1993 he was served with an Order to Show Cause (“OSC”) and charged as

deportable.

       Conteh conceded deportability, but sought asylum and related relief. In February

1996, the IJ denied Conteh asylum, but granted him voluntary departure. Conteh

appealed to the BIA. Due to an inability to locate or recreate the record of the

Immigration Court proceedings, the BIA administratively closed Conteh’s case in 2002.

In 2004, the BIA remanded the case to the IJ on the Government’s motion for a de novo

hearing on the merits, and in 2006 the IJ granted Conteh asylum. The Government

appealed, and the BIA held Conteh was ineligible for asylum, but remanded the case for

the IJ to consider whether to grant Conteh voluntary departure. The IJ denied voluntary

departure. Conteh appealed, filed a motion to remand, and argued he was eligible for

suspension of deportation.1 In August 2008, the BIA granted Conteh’s motion to remand.

       Before the IJ, Conteh argued that the “stop-time” provision, enacted by the Illegal


1
  Former section 244(a) of the Immigration and Nationality Act (“INA”) provided that a
non-permanent resident could apply for discretionary suspension of deportation if he
could show, among other things, continuous physical presence in the United States for
the seven years preceding his application (or ten years, if he was deportable for certain
                                             2
Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), and codified at 8

U.S.C. § 1229b(d), would be impermissibly retroactive if applied to his request for

suspension of deportation.2 The IJ disagreed, and held Conteh was ineligible for

suspension of deportation because his receipt of the OSC in 1993 stopped the time

accrual of continuous physical presence. Conteh appealed to the BIA, renewing his

argument that the stop-time rule was impermissibly retroactive. The BIA rejected the

retroactivity argument and held that Conteh was ineligible for suspension of deportation

because he could not establish the required seven years of continuous physical presence.

See 8 U.S.C. § 1254(a)(1) (repealed). Conteh filed a timely petition for review.

                                             II.

       Conteh argues in his brief that (1) the BIA’s application of the stop-time rule is

impermissibly retroactive; (2) even if the stop-time provision is applied, he has

established sufficient physical presence to qualify for suspension of deportation; and (3)

his conviction does not render him ineligible for suspension of deportation. Conteh’s



criminal offenses). INA § 244(a) [8 U.S.C. § 1254(a) (repealed 1996)]
2
  The “stop-time” provision terminated the accumulation of continuous physical
presence “when the alien is served a notice to appear.” 8 U.S.C. § 1229b(d); see
generally Pinho v. INS, 249 F.3d 183, 188 (3d Cir. 2001). Section 309(c)(5) of IIRIRA
provided that the stop-time provisions “shall apply to notices to appear issued before, on
or after the date of the enactment of this Act.” However, that section did not specifically
refer to “Orders to Show Cause,” which is the means by which deportation proceedings
were initiated before the enactment of IIRIRA. Pinho, 249 F.3d at 187. The Nicaraguan
Adjustment and Central American Relief Act of 1997 (“NACARA”), Pub. L. No. 105-
100, 111 Stat. 2160 (1997) clarified that the stop-time provisions “shall apply to orders to
show cause . . . issued before, on, or after the date of the enactment of this Act.” 111
Stat. 2160, 2196; Briseno-Flores v. Att’y Gen., 492 F.3d 226, 229-30 (3d Cir. 2007).
                                             3
first argument fails based on our holdings in other cases that imposition of the stop-time

provision is not impermissibly retroactive. We also reject Conteh’s argument that he has

met the physical presence requirement. Because Conteh has not accrued the required

continuous physical presence, we need not reach Conteh’s argument that his conviction

does not prevent him from eligibility for suspension of deportation.

       In Pinho, we applied the familiar analysis of Landgraf v. USI Film Products, 511

U.S. 244 (1994), and held that the plain meaning of IIRIRA and NACARA “establishe[d]

Congress’s intent to apply the stop-time rule to all cases, including those pending”3 as of

IIRIRA’s enactment. 249 F.3d at 188. Under Landgraf, where Congress’s intent to apply

a statute retroactively is clear, the presumption against retroactivity does not apply.

Pinho, 249 F.3d at 188. We further held that retroactive application of the stop-time rule

to applications for suspension of deportation does not violate an applicant’s due process

rights because it does not impair any vested rights. See Pinho, 249 F.3d at 188-89.

Conteh argues that the reasoning of Pinho is no longer valid because it was decided

before INS v. St. Cyr, 533 U.S. 289 (2001). In St. Cyr, however, the Supreme Court

considered whether Congress’s repeal of INA § 212(c) was impermissibly retroactive as

applied to aliens who pleaded guilty to crimes that made them deportable but who

otherwise would have been eligible for a § 212(c) waiver at the time of their plea. Id. at

315-26. The Court held that Congress’s intentions concerning whether the repeal of


3
  Conteh did not apply for suspension of deportation until 2009, well after the passage of
IIRIRA; thus, the provisions of IIRIRA arguably were not applied to him retroactively at
                                              4
§ 212(c) relief was to be applied retroactively was ambiguous, and that the statute

imposed an impermissible retroactive effect on certain aliens. Id. Although the Court in

St. Cyr found certain portions of the IIRIRA ambiguous, the Court made no comment

regarding IIRIRA § 309(c)(5), at issue here. In fact, that section, which provides that the

stop-time provision “shall apply to notices to appear issued before, on, or after the date of

the enactment of this Act,” is remarkably similar to other provisions of IIRIRA that the

Court in St. Cyr found unambiguous. See St. Cyr, 533 U.S. at 319 and n 43 (citing

several sections of IIRIRA that contain “before, on, or after” language). Conteh’s case

has nothing to do with eligibility for a § 212(c) waiver, and St. Cyr does not somehow

overrule Pinho.

       Moreover, this Court’s decisions since St. Cyr make clear that the relevant holding

of Pinho still stands. See Arca-Pineda v. Att’y Gen. of the U.S., 527 F.3d 101, 107 (3d

Cir. 2008) (relying on Pinho to reject a due process challenge to the retroactive

application of the stop-time rule); Briseno-Flores v. Att’y Gen. of the U.S., 492 F.3d 226,

230 (3d Cir. 2007) (relying in part on the validity of Pinho in holding that 8 U.S.C.

§ 1229b(d)(1)(B)—which provides that the commission of certain crimes stops the

clock—applies retroactively in cases where aliens seek suspension of deportation).

Accordingly, Conteh’s argument is meritless.

       Conteh next argues that even if the stop-time rule applies and the clock stops upon

service of the OSC, the clock should start running again if there are delays in immigration


all.
                                              5
proceedings not attributable to the alien. Additionally, he argues that the OSC should not

be considered served until the Immigration Court receives it. In rejecting Conteh’s

argument, the BIA explained that service of the OSC ends the period for accruing

continuous physical presence, and that once that event occurs, the clock cannot be

restarted. The BIA cited In re Mendoza-Sandino, 22 I. & N. Dec. 1236, 1241 (BIA

2000), to support its conclusion. In Briseno-Flores, this Court concluded that the holding

of Mendoza-Sandino—i.e., that once the clock is stopped, it cannot be restarted—is

entitled to Chevron4 deference. Briseno-Flores, 492 F.3d at 231. Conteh was admitted to

the United States on December 7, 1988, and, according to Conteh, the Immigration Court

received the OSC on April 20, 1994. Applying the Mendoza-Sandino rule, even if

Conteh is correct that the clock did not stop until the Immigration Court received the

OSC, he still only accrued a bit over five years of physical presence—well short of the

required seven years. Conteh attempts to add on the time period of February 22, 2002 to

March 9, 2004, the time during which his case was administratively closed because the

record of proceedings was missing. Conteh provides no support for his contention that

the period of “continuous” presence can be restarted due to delays in the administrative

proceedings, and, as noted, we held in Briseno-Flores that once service of the OSC stops

the accrual of physical presence, the “clock” cannot be restarted. 492 F.3d at 231; see

also Pinho, 249 F.3d at 189, n.5 (denying petition for review despite fact that petitioners

would have been eligible for suspension of deportation if not for significant delay that

4
    Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
                                              6
resulted in BIA decision occurring after stop-time rule went into effect).

       For the foregoing reasons, we will deny the petition for review.




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