Criminal Defense of Immigrants
§ 24.24 XIII. Suspension of Deportation
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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. 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. Although the courts appear split on the retroactive effect of the repeal, 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.
 INA § 244(a)(1), 8 U.S.C. § 1254(a)(1).
 INA § 240A(b), 8 U.S.C. § 1229b(b).
 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).
 See discussion of NACARA in § 24.12, supra, and K. Brady, Defending Immigrants in the Ninth Circuit § 11.18 (ILRC 2007).
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).
RELIEF " SUSPENSION OF DEPORTATION
Torres-Rendon v. Holder, 656 F.3d 456 (7th Cir. Aug. 23, 2011) (application for suspension of deportation under former INA 244(a)(2), 8 U.S.C. 1254(a)(2), was properly denied for lack of the necessary period of continuous presence: The period of continuous physical presence ended at the time Torres"Rendon committed his drug crime in 1987, or, in the alternative, when an Order to Show Cause was issued to him in 1988. He cannot restart the clock and accrue time for purposes of establishing his continuous physical presence and thus cannot establish 10 years of continuous physical presence.); following Matter of Nolasco"Tofino, 22 I. & N. Dec. 632, 641 (BIA 1999) (holding that the stop-time rule applies to all suspension of deportation applications generally); see Angel"Ramos v. Reno, 227 F.3d 942 (7th Cir.2000); but see Okeke v. Gonzales, 407 F.3d 585 (3d Cir.2005) (because the alien lawfully re-entered the United States after committing a controlled substance offense, the continuous physical presence period should recommence); but cf. Briseno"Flores v. Atty. Gen. U.S., 492 F.3d 226 (3d Cir.2007) (finding that the alien stopped accruing time of continuous physical presence when he committed his first offense and noting: we conclude that the BIA's interpretation of 1229b(d)(1) in Mendoza is reasonable, even though others may disagree with it. Therefore, under Chevron, that interpretation is entitled to deference.).
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
Pedroza-Padilla v. Gonzales, 486 F.3d 1362 (9th Cir. May 15, 2007) (stop-time rule for suspension of deportation, enacted in IIRAIRA, is not impermissibly retroactive).