An immigration judge formerly had the discretion to “suspend the deportation” of certain noncitizens who have resided illegally in the United States for several years.[415]  The suspension recipient could then adjust to lawful permanent residence.

 

Suspension of deportation was eliminated by the 1996 IIRAIRA, which replaced it with cancellation of removal for non-lawful permanent residents.[416]  Although the courts appear split on the retroactive effect of the repeal,[417] the rules governing suspension of deportation are clearly still relevant in at least two contexts.   First, people whose deportation proceedings began before April 1, 1997 are still eligible for suspension of deportation.  Second, special relief under NACARA legislation permits certain nationals of El Salvador, Guatemala and former Soviet Bloc countries to apply under the old suspension of deportation rules.[418]

[415] INA § 244(a)(1), 8 U.S.C. § 1254(a)(1).

[416] INA § 240A(b), 8 U.S.C. § 1229b(b).

[417] Compare Hernandez v. Gonzales, 437 F.3d 341 (3d Cir. Feb. 14, 2006) (repeal of suspension of deportation under former INA § 244(a), 8 U.S.C. § 1254a(a) does not have an impermissible retroactive effect on noncitizens who pleaded guilty to a deportable offense and who would have been eligible for suspension of deportation relief but for the repeal), with Lopez-Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. Feb. 16, 2006) (suggesting noncitizen may be eligible for suspension of deportation based upon pre-IIRAIRA conviction, even though proceedings commenced prior to IIRAIRA).

[418] See discussion of NACARA in § 2.23, supra, and ILRC § 11.18.

Second Circuit

RELIEF - SUSPENSION OF DEPORTATION - STOP-TIME RULE APPLIED RETROACTIVELY TO CONVICTION PREDATING ENACTMENT OF RULE
Makadji v. Gonzales, 470 F.3d 450 (2d Cir. Dec. 5, 2006) (stop-time rule for suspension of deportation, providing that period of continuous residence ended upon the commission of certain offenses, was triggered by petitioner's criminal conviction, even through that offense occurred prior to enactment of the 1996 amendments to the INA).

RELIEF - SUSPENSION OF DEPORTATION - STOP-TIME RULE APPLIED RETROACTIVELY TO CONVICTION PREDATING ENACTMENT OF RULE
Tabile v. Gonzales, ___ F.3d ___ (2d Cir. Dec. 5, 2006) (stop-time rule for suspension of deportation, providing that period of continuous residence ended upon the commission of certain offenses, was triggered by petitioner's criminal conviction, even through that offense occurred prior to enactment of the 1996 amendments to the INA). http://caselaw.lp.findlaw.com/data2/circs/2nd/052955p.pdf

RELIEF - SUSPENSION OF DEPORTATION
Tanov v. INS, 443 F.3d 195 (2d Cir. Apr. 4, 2006) (former suspension of deportation is unavailable to noncitizens who were paroled into and then ordered excluded from the United States prior to April 1, 1997).
http://caselaw.lp.findlaw.com/data2/circs/2nd/034321p.pdf

Third Circuit

RELIEF - SUSPENSION OF DEPORTATION - CONTINUOUS PRESENCE REQUIREMENT - STOP-TIME RULE - RETROACTIVE APPLICATION DID NOT VIOLATE DUE PROCESS
Arca-Pineda v. Att'y Gen., 527 F.3d 101 (3d Cir. May 28, 2008) (retroactive application of the stop-time rule did not violate due process).

RELIEF - CONTINUOUS PRESENCE REQUIREMENT - STOP-TIME RULE - EQUITABLE ESTOPPEL CLAIM REJECTED
Arca-Pineda v. Att'y Gen., 527 F.3d 101 (3d Cir. May 28, 2008) (respondent cannot re-start clock by failing to appear for removal proceeding and then waiting an additional 10 years).

RELIEF - SUSPENSION OF DEPORTATION - STOP-TIME RULE
Arca-Pineda v. Att'y Gen., 527 F.3d 101 (3d Cir. May 28, 2008) (continuous physical presence clock did not begin to run again after an administrative closure; administrative closure is not a termination proceedings; it only removes the case from the IJs calendar).

Eighth Circuit

RELIEF - SUSPENSION OF DEPORTATION
Geach v. Chartoff, 444 F.3d 940 (8th Cir. Mar. 2, 2006) (advance parole regulation, 8 C.F.R. 245.2(a)(4)(ii) (1991) (amended 1996), denies suspension of deportation to aliens admitted on advance parole, but who otherwise meet the statutory requirements for suspension).

Ninth Circuit

RELIEF - SUSPENSION OF DEPORTATION - RETROACTIVITY - BIA USED IMPERMISSIBLY RETROACTIVE APPLICATION TO DISQUALIFY PETITIONER FROM FORMER SUSPENSION OF DEPORTATION
Anderson v. Gonzales, __ F.3d __, 2007 WL 2264698 (9th Cir. Aug. 9, 2007) (repeal of former suspension of deportation relief impermissibly retroactive when applied to a noncitizen who became eligible for naturalization in 1990, but waited until 1995 before making the application with the intent of becoming eligible for suspension of deportation in the event the INS placed noncitizen in removal proceedings upon making the application for naturalization).

RELIEF - SUSPENSION OF DEPORTATION - RETROACTIVITY OF LEGISLATION REPEALING SUSPENSION
Lopez-Castellanos v Gonzales, 437 F.3d 848 (9th Cir. Feb. 16, 2006) (Congress did not make the elimination of suspension of deportation retroactive with sufficient clarity to disturb settled expectations, just as it did not do so with respect to waivers of deportability under former INA 212(c)), following INS v. St. Cyr, 533 U.S. 289 (2001)).