(E)

Ninth Circuit on Retroactivity.  In February, 2006, the Ninth Circuit applied the retroactivity analysis in INS v. St. Cyr[426] to find that the repeal of former suspension of deportation could not be retroactively applied to a noncitizen convicted of a crime of moral turpitude, but who was otherwise eligible for suspension, until AEDPA and IIRAIRA made the conviction into an aggravated felony and replaced suspension of deportation with cancellation of removal.[427]  At a minimum, this case may allow a non-LPR with a pre-April 1, 1997 conviction (or pre-November 29, 1990, in the case of an aggravated felon), to apply for suspension of deportation even though he/she would be ineligible for non-LPR cancellation of removal because of the criminal conviction.[428]  Certain lawful permanent residents otherwise barred from LPR-cancellation of removal and INA § 212(c) relief may also be able to apply for suspension under this decision.[429]

[426] INS v. St. Cyr, 533 U.S. 289 (2001) (repeal of INA § 212(c) impermissibly retroactive to certain noncitizens).

[427] Lopez-Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. Feb. 16, 2006).  See also Anderson v. Gonzales, 497 F.3d 927 (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)

[428] See § 3.5, supra.

[429] See K. Brady, Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws § 11.4 (2007) for in-depth analysis of Lopez-Castellanos.

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.).