In the

United States Court of Appeals

For the Seventh Circuit

No. 99-4254

ARBEN SHERIFI,

Petitioner,

v.

IMMIGRATION & NATURALIZATION SERVICE,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

ARGUED SEPTEMBER 8, 2000--DECIDED August 1, 2001

 Before FLAUM, Chief Judge, POSNER and

ROVNER, Circuit Judges.

 ROVNER, Circuit Judge. We are presented

here with an issue of first impression

regarding the applicability of Section

203 of the Nicaraguan Adjustment and

Central American Relief Act ("NACARA") to

an alien in exclusion proceedings. We

agree with the BIA that Arben Sherifi is

not eligible for suspension of

deportation because, among other reasons,

he was in exclusion proceedings before

the effective date of the law and does

not fit under either of the exceptions to

the general rule that the new rules do

not apply in the case of an alien who is

in exclusion or deportation proceedings

before that date.

I.

 Arben Sherifi is a citizen of Macedonia.

He attempted to enter the United States

on June 28, 1990 at O’Hare International

Airport in Chicago. He told INS officials

at the airport that he wished to apply

for asylum. The INS allowed him to enter

and placed him in exclusion proceedings.

On July 10, 1990, he admitted the charges

of inadmissibility against him at a

hearing before an immigration judge. She

rifi filed an application for asylum

before December 31, 1990, and also

requested withholding of deportation. On

February 4, 1991, the immigration judge

issued an oral ruling finding that
Sherifi was excludable from the United

States based on his own admissions. The

judge denied the application for asylum

and withholding of deportation and

ordered Sherifi excluded and deported.

The Board of Immigration Appeals affirmed

this decision on June 30, 1994. 

 For reasons that do not appear in the

record, the INS failed to enforce its

order against Sherifi. He remained in the

United States, married a U.S. citizen and

fathered a U.S. citizen child. In the

meantime, Congress passed NACARA on

November 19, 1997, which amended the

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 ("IIRIRA").

Sherifi filed a motion to reopen his

exclusion proceedings on August 19, 1998,

hoping to find relief under NACARA’s

provisions. The immigration judge denied

the motion to reopen, finding that NACARA

did not change the statutory or

regulatory bars to suspension of

deportation. Because suspension of

deportation was not available to aliens

in exclusion proceedings before the

passage of NACARA, it was not available

to Sherifi, according to the immigration

judge. The BIA agreed that suspension of

deportation was not available to aliens

placed in exclusion proceedings prior to

April 1, 1997, the effective date of the

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 ("IIRIRA").

Specifically, the BIA held:

[N]one of the transition rules dealing

with suspension of deportation override

the general transition rule that subjects

a person placed into exclusion

proceedings prior to April 1, 1997, to

the rules governing exclusion that were

in place before the Illegal Immigration

Reform and Immigrant Responsibility Act

of 1996 . . . was enacted. Included among

those rules is the long-standing

principle that persons in exclusion

proceedings are ineligible to apply for

suspension of deportation.

Decision of the BIA, In re Sherifi, Dec.

6, 1999, at 2 (internal citations

omitted). Because Sherifi was in

exclusion proceedings before April 1,

1997, he was ineligible to apply for

suspension of deportation, and the BIA

dismissed his appeal. Sherifi appeals

from the BIA’s decision.
II.

 On appeal, Sherifi maintains that NACARA

changed the landscape for aliens in

exclusion proceedings, rendering them

eligible to apply for suspension of

deportation. As evidence that Congress

intended this result, Sherifi points to

Section 203(a)(1) of NACARA which

provides, in relevant part:

(C) Special rule for certain aliens

granted temporary protection from

deportation.--

(i) IN GENERAL.--For purposes of

calculating the period of continuous

physical presence under section 244(a) of

the Immigration and Nationality Act (as

in effect before the title III-A

effective date) or section 240A of such

Act (as in effect after the title III-A

effective date), subparagraph (A) of this

paragraph and paragraphs (1) and (2) of

section 240A(d) of the Immigration and

Nationality Act shall not apply in the

case of an alien, regardless of whether

the alien is in exclusion or deportation

proceedings before the title III-A

effective date, who has not been

convicted at any time of an aggravated

felony (as defined in section 101(a) of

the Immigration and Nationality Act) and-

- . . . . 

(V) is an alien who entered the United

States on or before December 31, 1990,

who filed an application for asylum on or

before December 31, 1991, and who, at the

time of filing such application, was a

national of the Soviet Union, Russia, any

republic of the former Soviet Union,

Latvia, Estonia, Lithuania, Poland,

Czechoslovakia, Romania, Hungary,

Bulgaria, Albania, East Germany,

Yugoslavia, or any state of the former

Yugoslavia. 

NACARA sec. 203(a)(1), 111 Stat. 2160,

2196-98. Sherifi argues that Congress’

intent to permit the relief of suspension

of deportation to an alien in exclusion

proceedings is clear from the phrase

"whether the alien is in exclusion or

deportation proceedings." According to

Sherifi, the reference to exclusion

proceedings would be rendered superfluous

if Congress had not meant for NACARA to

apply to persons in exclusion

proceedings. Sherifi maintains that the
immi-gration judge therefore erred in

denying his motion to reopen.

A.

 In its brief before this Court, the INS

countered that suspension of deportation

is available only to aliens in

deportation proceedings. According to the

INS, excludable aliens were never

eligible for suspension of deportation,

and nothing in NACARA changed that wellestablished rule. At oral argument before

this Court, the INS shifted its argument

slightly and relied primarily on the

inapplicability of NACARA to persons in

exclusion proceedings before April 1,

1997, with certain exceptions that are

not available to Sherifi. The INS asserts

(and Sherifi does not disagree) that the

title III-A effective date referred to in

the statute is April 1, 1997. Under

section 309(c)(1) of IIRIRA as amended by

NACARA, the INS explains that the general

rule is that the new provisions of NACARA

regarding cancellation of removal do not

apply unless the case commenced after

April 1, 1997. The INS posits that there

are two limited exceptions to this

general rule, contained in sections

309(c)(2) and 309(c)(3), which were not

affected by the NACARA amendments.

Congress provided in 309(c)(2) that in

either deportation or exclusion

proceedings, where no evidentiary hearing

had yet been held, the Attorney General

could opt to apply all of the provisions

of IIRIRA retroactively, including

cancellation of removal under the new

section 240A. Section 309(c)(3) allowed a

second exception: the Attorney General

could terminate the original proceedings

and start over with a Notice to Appear at

a removal proceeding if no final

administrative order had been entered.

Because Sherifi had an evidentiary

hearing and because a final

administrative order had been entered in

his case, neither of these exceptions

apply to him, according to the INS, and

he is therefore subject to the general

rule that the new provisions regarding

cancellation of removal do not apply

unless the case commenced after April 1,

1997. Because Sherifi’s case commenced on

June 29, 1990, the new cancellation

ofremoval provisions are not available to

him, and the INS contends that the

immigration judge was thus correct in

denying his motion to reopen.
 Sherifi’s only response to the effective

date limitation posed by the INS is that

section 203 does not merely modify

section 309, but creates a new right for

persons in exclusion proceedings to

benefit from NACARA. Sherifi repeats his

contention that the INS’ interpretation

of the statute gives no meaning to the

words "whether the alien is in exclusion

or deportation proceedings." According to

Sherifi, the only limitations to the

applicability of NACARA are that the

alien must have entered the United States

before December 31, 1990, must have filed

an application for asylum by December 31,

1991, and must be from one of the

designated countries in Eastern Europe

listed in the statute. Because he

fulfilled all of these conditions, he

believes he is entitled to file a

petition to reopen.

B.

 We defer to the BIA’s interpretation of

the immigration laws. Angel-Ramos v.

Reno, 227 F.3d 942, 947 (7th Cir. 2000).

The BIA ruled here that NACARA did not

change the longstanding principle that

persons in exclusion proceedings prior to

April 1, 1997 are ineligible to apply for

suspension of deportation. The statute

supports this conclusion. Section 309 of

IIRIRA, as amended by NACARA, provides in

relevant part:

(c) Transition for certain aliens.--

(1) General rule that new rules do not

apply.-- Subject to the succeeding

provisions of this subsection, in the

case of an alien who is in exclusion or

deportation proceedings before the title

III-A effective date-- 

(A) the amendments made by this subtitle

shall not apply, and

(B) the proceedings (including judicial

review thereof) shall continue to be

conducted without regard to such

amendments.

The "succeeding provisions" referenced in

the general rule provide the two

exceptions we described earlier. First,

if no evidentiary hearing had been held

as of April 1, 1997, the attorney general

could elect to apply the new procedures
after providing notice of this election

to the alien. Second, if there had been

no final administrative decision, the

attorney general could elect to terminate

and reinitiate the proceedings using the

new procedures. Sherifi concedes the

immigration judge conducted an

evidentiary hearing for him, and also

concedes that he was subject to a final

administrative decision. Thus, he is

subject to the general rule that the

IIRIRA procedures, as amended by NACARA,

do not apply to him. We therefore agree

that he is not entitled to the relief he

seeks.

 We disagree that this interpretation

gives no meaning to the words "whether

the alien is in exclusion or deportation

proceedings" contained in section

309(c)(5)(C)(1). We quoted this provision

above, which relates to the "stop time"

rule created by IIRIRA. Understanding the

purpose of this phrase requires a brief

history of the stop time rule. Prior to

the passage of IIRIRA, the attorney

general could, in her discretion, suspend

deportation for an alien who applied for

that relief so long as the alien met

certain conditions. For example, the

alien was required to demonstrate that he

or she had been continuously present in

the United States for seven years

preceding the date of the application,

was of good moral character, and that the

alien’s deportation would result in

extreme hardship to the alien, the

alien’s U.S. citizen (or permanent

resident) spouse, parent or child. 8

U.S.C. sec. 1254(a)(1) (1994) (repealed

September 30, 1996). IIRIRA repealed that

statute and replaced it with a similar

provision permitting the attorney general

to grant lawful permanent resident status

to certain deportable aliens. IIRIRA

differed from the prior law in several

ways. First, it eliminated the

distinction between exclusion and

deportation proceedings, instead creating

more generic removal proceedings. Second,

it heightened the standard for hardship

that an alien must demonstrate and

narrowed the class of persons for whom

the alien’s deportation would prove a

hardship. Third, it increased the time

required for continuous presence to ten

years and created a "stop time" rule. The

stop time rule provided that the period

of continuous presence in the United

States would be deemed to end when the
alien was served with a notice to appear,

or when the alien committed certain

offenses. Angel-Ramos, 227 F.3d at 945.

Before IIRIRA, deportation proceedings

were commenced with orders to show cause,

and exclusion proceedings were commenced

with a "notice to alien detained for

hearing." "Notice to appear" was a new

term that caused some confusion. NACARA

was passed at least in part to resolve

the confusion regarding whether the stop

time rule was to apply to deportation or

exclusion cases that were pending at the

time IIRIRA became effective. We recently

held that, under NACARA, the stop time

rule applied to orders to show cause and

applications for suspension of

deportation pending at the time IIRIRA

was enacted. Angel-Ramos, 227 F.3d at

947. 

 Congress created some exceptions to that

rule, however, for certain aliens who

were in pending proceedings at the time

IIRIRA went into effect. First, in cases

where the attorney general elected to

terminate and reinitiate proceedings

under section 309(c)(3), the stop time

rule would not apply to an order to show

cause issued before April 1, 1997. See

Section 309(c)(5)(B). Second, the stop

time rule would also not apply in cases

where the alien was in exclusion or

deportation proceedings before April 1,

1997, where the alien had not been

convicted at any time of aggravated

felony, where the alien entered the U.S.

before December 31, 1990 and filed an

application for asylum before December

31, 1991, and where the alien was a

national of certain countries. See

Section 309(c)(5)(C)(i)(V). This is the

provision Sherifi relies on as creating

relief for him under NACARA. 

 Although Sherifi meets the bare

requirements for section

309(c)(5)(C)(i)(V), the section cannot be

read in isolation. It merely suspends

operation of the stop time rule for

certain aliens. Indeed, by its own terms,

it is limited to the purpose of

calculating the period of continuous

physical presence in the United States.

Because Sherifi had already received an

evidentiary hearing and had a final

administrative order issued in his case,

he was not eligible for any relief under

NACARA or IIRIRA. Theoretically, there

are aliens to whom the phrase "whether
the alien is in exclusion or deportation

proceedings" applies. In addition to

fulfilling the same requirements as

Sherifi under section 309(c)(5)(C)

(i)(V), the alien would not have received

an evidentiary hearing, or would not have

a final administrative order entered.

Although not eligible for suspension of

deportation, an alien in exclusion

proceedings who meets all those

conditions might be able to begin asylum

proceedings over again, if the attorney

general elected that option. Another

purpose of the phrase would be for aliens

who were initially improperly placed in

exclusion proceedings, and were later

properly placed in deportation

proceedings. Upon the correction, an

alien otherwise meeting the criteria

would then become eligible for suspension

of deportation and would be able to count

the time spent in exclusion proceedings

(as well as the time spent in deportation

proceedings) in calculating the period of

continuous physical presence in the

United States. Thus, there is a purpose

for the appearance of these words in the

NACARA provisions. The purpose is not to

create a remedy of suspension of

deportation for persons in exclusion

proceedings, but rather to allow certain

aliens to begin their proceedings anew

without being subject to the stop time

rule. 

 Because Sherifi is not entitled to

suspension of deportation, the BIA was

correct to dismiss his appeal. Nothing in

NACARA changed the well-established rule

that aliens in exclusion proceedings are

not entitled to suspension of

deportation. See Matter of Torres, 19 I&N

Dec. 371 (BIA 1986).

AFFIRMED.