Criminal Defense of Immigrants

(C)  Retroactivity.  In Sinotes-Cruz v. Gonzales,[104] the Ninth Circuit has held that the stop-time rule did not apply to convictions[105] that occurred prior to April 1, 1997.  The court soon limited this holding to persons who were eligible for cancellation of removal but for the stop-time rule on April 1, 1997.[106]  That is to say that, but for the stop-time rule, the noncitizen must have accrued the full seven years physical presence before April 1, 1997.  This limitation likely also requires that the noncitizen met the 5-year LPR requirement by April 1, 1997 as well.

                The Fifth Circuit had also found the stop-time rule to be impermissibly retroactive, but later de-published the decision.[107]  Four district courts had also held that the stop-time rule does not apply to convictions entered before April 1, 1997.[108]  Other courts, including the BIA, disagree.[109]

[104] Sinotes-Cruz v. Gonzales, 468 F.3d 1190 (9th Cir. Nov. 22, 2006).

[105] Not commission.

[106] Valencia-Alvarez v. Gonzales, 469 F.3d 1319 (9th Cir. Dec. 6, 2006).

[107] Gonzalez-Garcia v. Gonzales, 431 F.3d 234 (5th Cir. Nov. 16, 2005) (convictions that pre-date the April 1, 1997 effective date of INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) [cancellation stop-time rule] do not stop the clock for purposes of cancellation of removal), withdrawn from publication.

[108] Mulholland v. Ashcroft, No. 04-CV-0701 (E.D.N.Y. Oct. 25, 2004) (unpublished) (IIRAIRA stop-time rule cannot be applied to bar cancellation of removal based upon pre-IIRAIRA conviction of a crime involving moral turpitude); Generi v. Ashcroft, No. 4:03-CV-15 (W.D.Mi. Feb. 19, 2004) (unpublished) (stop-time provision may not be applied retroactively to guilty pleas entered prior to the passage of IIRAIRA where proceedings were begun post-IIRAIRA); Henry v. Ashcroft, 175 F.Supp.2d 688 (S.D.N.Y. 2001) (same).  One court held this rule does not apply to the offense date.  Worrell v. Ashcroft, 207 F.Supp.2d 61, 67 (W.D.N.Y. 2002) (stop-time rule is not an impermissibly retroactive application to someone who committed the crime before the effective date).

[109] Peralta v. Gonzales, 441 F.3d 23 (1st Cir. Mar. 23, 2006) (stop-time rule for cancellation of removal applies retroactively to convictions prior to IIRAIRA); Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA Sept. 28, 2006) (commission of criminal offense mentioned in INA § 212(a)(2) that constitutes a ground of inadmissibility or deportability stops accrual pursuant to INA § 240A(d)(1)(B), 8 U.S.C. § 1229b(d)(i)B) of period of continuous residence for cancellation of removal even though committed prior to effective date of IIRAIRA), following Matter of Perez, 22 I. & N. Dec. 689 (BIA 1999); Matter of Robles, 24 I. & N. Dec. 22 (BIA 2006) (Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001), does not require different conclusion).