(C)  Stop-Time Rule.  Although there was no stop-time rule applicable to suspension of deportation prior to September 30, 1996, IIRAIRA made the stop-time rule of INA § 240(d), as it applies to the service of an OSC or NTA, applicable to all non-NACARA applications for suspension filed after that date.[307]  It may be possible for a noncitizen retroactively barred from suspension of deportation to apply for cancellation of removal through a process called “repapering,”[308] in which the DHS terminates deportation proceedings under former law, and initiates removal proceedings by filing and serving an NTA.

 

[307] IIRAIRA § 309(c)(5).  See also Casillas-Figueroa v. Gonzales, 419 F.3d 447 (6th Cir. Aug. 12, 2005) (stop-time rule applied to noncitizen’s application for suspension of deportation, even though application was initially granted by IJ prior to IIRAIRA); Suassuna v. INS, 342 F.3d 578 (6th Cir. Sept. 4, 2003) (continuous physical presence for suspension of deportation ends upon service of the order to show cause, even if order was issued before enactment of the stop-time rule).  But see Aoun v. INS, 342 F.3d 503 (6th Cir. Aug. 29, 2003) (“stop time” rule inapplicable where, given lengthy government delays, including continuances and administrative closure, noncitizen was prejudiced in his ability to have his suspension application decided under less stringent immigration rules).

[308] See Alcaraz v. INS, 384 F.3d 1150 (9th Cir. Oct. 1, 2004) (review granted to determine whether noncitizen retroactively barred from suspension of deportation by stop-time rule can apply for cancellation of removal through “repapering” process).

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).

Seventh Circuit

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.).

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
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).