Chief Immigration Judge Clarifies 309(c)(5) Stance
October 2 Electronic Mail Message:
Continuous Physical Residence/Physical Presence for Suspension in Effect Now
Section 309(c)(5) of the Immigration Reform and Immigration Responsibility Act of 1996, now, effective upon enactment, requires that for suspension of deportation, that “continuous physical residence or physical presence in the United States shall be deemed to end when “the alien is served with the Order to Show Cause. This applies to OSC issued “before, on, or after the date of enactment of the 1996 Act. This provision has a immediate impact on any suspension case they (sic) will be filed, that is filed and that you considering now. You should have a complete copy of the 1996 Act by Friday, along with a summary of the 1996 Act incorporated into the present Act. I will continue to apprise of the changes that has immediate impact as I continue my review of 1996 Act.
Clarification:
Illegal Immigration Reform and Immigration Responsibility Act of 1996
On October 2, 1996, I sent an e-mail to you highlighting section 309(c)(6) of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRAIRA). That section is entitled “Transitional Rule with Regard to Suspension of Deportation,” and relates back to section 304(a) of IIRAIRA, which deals with cancellation of removal, the successor to the former suspension provision.
The exact language of section 309(c)(5) refers to “notices to appear” not “OSCs.” It is clear that section 309(c)(5) refers to “notices to appear issued before, on, or after the date of enactment of the Act.” One argument is that to give effect tot he word “before,” the section must apply to pending suspension cases. Several Judges have offered alternative readings.
The purpose of this e-mail, as with all previous e-mails on recent legislation, is to highlight issues. It is not intended to impose a reading of the statute on you. Each of you will have to read and interpret the statute for yourselves. I will continue to keep you apprised of legislative provisions that have an immediate impact as I continue my review of IIRAIRA.
Michael J. CreppyChief Immigration Judge