NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0927n.06
No. 10-3914
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
HAL I T METHASANI , Petitioner,

v. ERI C H. HOL DER, J R., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ) ON PETI TI ON F OR REVI EW FROM THE U

NI TED STATES BO ARD OF I MMI GRATI ON APPEAL S

BEF ORE: KEI TH, B OGGS, and MOO RE, Circuit J udg es.

PER CURI AM. Halit Methasani petitions for revie w of an order of the Boa rd of I mmigration Appea ls (B I A) that aff

irmed an immigration judge ’s (I J ) denial of his motion to reope n his remova l
proce eding s. Methasani ha s moved for le ave to pr ocee d in forma pa uperis. Methasani is a native and citizen of Albania. On Marc h 14, 1991, he was admi t t ed to the United States as a ref

ug ee. I n May 1992, Methasani was convicted of reta il f raud in Mic higa

n. I n October 1992, he beca

me a lawful perma

nent resident, retroa ctive to his admission as a ref ug ee. I n J une 1996, and ag ain in J une 2001, Methasani was convicted of reta il fra ud. On an unspecifie d date, he voluntarily

depar ted the United States. He returne d in August 2001.
I n 2009, the Depa

rtment of Homeland Security commence d remova l proce eding s ag ainst Methasani beca

use he had been convicted o f at l ea st two crimes involving moral turpitude. Following a hear ing, the I J g rante d Methasani’ s reque st for voluntary depar ture. Methasani subsequently moved to reope n his remova l proce eding s, arguing, among other things, that his formerNo. 10-3914

Methasani v. Holde r counsel rende red i n ef

fe ctive assistance by failing to seek canc ellation of remova l. Methasani

asser ted that he was entitled to canc ellation of remova l for tw o re as o n s : (1) the “stop-time” provision set forth i n 8 U.S .C. § 1229b(d)( 1) (ena cted in 1996) did not apply retroa ctively to his 1
crimes committed befor e the eff ective date of the I lleg al I m migr ation Reform and I mmigra nt Responsibili ty Act of 1996 (I I RI RA); and (2) he acc rued the require d period of continuous residenc e betwee n 2001 (either his last convict i o n o r re entry into the country ) and the initiation of remova l
proce eding s in 2009. The I J denied the motion, concluding that the stop-time provision ap p l i ed

retroa ctively , that Methasani’ s ability to establish continuous residen c e c e a s ed at the time of his 1996 commission of reta il f

raud, and that he f

ailed to establish prejudice from counsel’s alleg ed err ors. Methasani moved for rec onsideration, rea sserting that he was elig ible for canc ellation of remova l. The I J denied the motion, and the BIA dismiss ed Methasani’ s appea l, concluding that the I J proper ly deter mined that the stop-time provision applied retroa ctively and that Methasani could not establish the re quired pe riod of continuous re sidence

.

Methasani’ s argument aims at achie ving canc ellation of his remova l from the United States 1 by proving that he has continuously resided in the country for seven y ear s or m ore. The Attorney Gene ral “may canc el remova l in the case of an al i en wh o is inadmissable or deporta ble

. . . if the alien .

. . has resided in the Unit ed S tates continuousl y for seven y ear s afte r having been admit ted in any status.” 8 U.S.C. § 1229b(a) (2). The “stop-time” provision, howeve r, operates to “stop” an ali en’s term of continuous residenc e in the Unit ed S tates i f t he alien commits cer tain acts, even i f the alien c ontinues to phy sically reside in the c ountry . The provision states: [A] ny period of continuous residenc e or continuous phy sical prese nce in the United States shall be deeme d to end (A ) ex cept in the case of an alien who applies for canc ellation of remova l [under the provision perta ining to a battere d spouse or child], when the alien is serve d a notice to appea r under section 1229(a) of this title, or (B ) when the alien has committed an offe nse ref err ed to in section 1182(a) (2) of this title [which includes crimes involving moral turpitude ] th a t r e n d e r s th e a li en inadmissable to the United States under se ction 1182(a) (2) . . . . 8 U.S.C. § 1229b(d)(1). -2-No. 10-3914

Methasani v. Holde r I n his peti t i o n fo r re v iew, Methasani asser ts that the I J and BIA made sever al err ors in adjudicatinghis case: (1) the BIA err ed by concludingthat his presenc e in the United States fr om his 2001 ree ntry to t h e i n i t iation of remova l proce eding s in 2009 was insufficient to establish the period of continuous residenc e require d for canc ellation of remova l; (2) the BIA err ed by applying the stop-time provision of § 1229b(d)( 1) retroa ctively to his crimes committed befor e the eff ective date of the I I RI RA; ( 3) the I J err ed by failing to inform him that he may be elig ible for relief under
8 U.S.C. § 1182(h), as require d by 8 C.F.R. § 1240.11(a) (2); and (4) his counsel rende red ineffe ctive assistance by

failing to seek c ance llation of removal a nd relief under § 1182( h). “Where the BIA provides its o wn re as oning for denying a motion to reope n rathe r than summarily aff

i rm i ng the I J , we revie w the BIA’s decision as the final ag ency deter mination.” Sanchez v. Holder , 627 F.3d 226, 230 (6th Cir. 2010). Our revie w is conducte d under the abuse- ofdiscretion standard. Id. L eg al deter minations made by the BIA are revie wed de novo. Acquaah v. Holder , 589 F.3d 332, 334 ( 6th Cir. 2009). The BIA did not err when it aff irmed the I J ’s denial of Methasani’ s motion to reope n. This circ uit has alre ady held that the stop-time provision applies retroa ctively with reg ard to show-ca use order s serve d prior to I I RI RA’s enac tment. Bartoszewska-Zajac v. I.N.S. , 237 F.3d 710, 712–13 (6th Cir. 2001). Simi larly , and in keeping with other circ uits, we now hold that the stop-time provision of § 122 9 b (d ) ap plies retroa ctively to criminal conduct that occur red befor e the enac tment of the
I I RI RA. See Contreras-Bocanegra v. Holder , 376 F. App’x 817, 823 (10th Cir. 2010); Martinez v. I.N.S. , 523 F.3d 365, 373 (2d Cir. 2008), cert. denied , Zuluaga-Matrinez v. I.N.S. , 555 U.S. 1170

-3-No. 10-3914

Methasani v. Holde r (2 0 0 9 ); B riseno-Flores v. Attorney Gen. of U.S. , 492 F.3d 226, 230-31 (3d Cir. 2007); Heav en v. Gonzales , 473 F.3d 167, 174- 76 (5th Cir. 2006). 2
There fore , Methasani’ s ability to establish the period of continuous residenc e nece ssary for

canc ellation of remova l en d ed in 1996, when he committed reta il fra ud. See 8 U.S.C. §§ 1227(a) (2)( A)(ii), 1229b(d)( 1)(B ). No new period o f c o nti n u o u s r e s id e n c e c o u ld b e g in th e r eaf ter. Cassil as-Figueroa v. Gonzales , 419 F.3d 447, 450 (6th Cir. 2005). Finally , we lack jurisdiction over Methasani’ s claim that the I J err ed by failing to inf orm him that he may be elig ible for relief under 8 U.S.C. § 1182(h). See A l-Najar v. Mukase y , 515 F.3d 708, 717 ( 6th Cir. 2008).

Methasani arg ues t hat t he S upreme Court’s rec ent decision in Vartelas v. Holder , 1 3 2 S. 2 Ct. 1479 (2012), prohibits the retroa ctive ap p l i ca t i o n of the stop-time provision. We disag ree . Vartelas held that a provision of I I RI RA, 8 U.S.C. § 1101(a) (13)( C)(v), which dealt with the eff ect of international trave l on an alien’s resident status in the U.S., did not apply retroa ctively

. The Court held that to allow this provision to apply retroa ctively “attac hed a new disability (denia l of ree ntry ) in respec t to past events.” Id. at 1484. The Court noted that, prior to I I RI RA, “lawf ul permane nt residents who had committed a crime of moral turpit u d e co u l d

. . . return from brief trips abroa d without apply

ing for admission to the United States.” Id. at 1485. Under § 1 1 0 1 (a )( 1 3)(C)( v), howeve r, the rig ht to trave l w as restric ted beca use such a resident was now “subjec t to admissions proce dures, and, potentially , to remova l” upon ree ntry to the United States, eff ecting a “ban on trave l outside the United States.” Id. at 1487 (“L oss of the ability to trave l abroa d is itself a harsh penalty , made all the more devastating if i t m eans enduring separ ation from close family members living abroa d.”). Our case is distinct from Var t el as . First and most obviously , the two case s deal with differ ent provisions of I I RI RA. Fur ther, and m o re importantly , the I I RI RA stop-time provision, § 1229b(d)( 1), does not, unlike the provision addre ssed in Vartelas, § 1101(a) (13)( C)(v), impose a “new disability ” on Methasani. The stop-time provision imposes no require ment that the alien take any aff irmative actions, such as rea pply ing for admission when returning from trave l. I t mere ly sets a date for which continuous residenc e in the United States is deeme d to end—the date on which the alien commits a crime of moral turpitude. Methasani has been deporta ble since the time he committed the offe nse. This is not a “new disability ” within the meaningof Vartelas

. -4-No. 10-3914

Methasani v. Holde r Acc ording ly , we g rant Methasani’ s motion to proce ed in forma pauper is for the purpose of this revie w only and deny his petition for revie w. We also deny Methasani’ s motion for telephonic oral a rg ument.

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Methasani v. Holde r KA REN NELSO N MOORE, Circuit Judge, concurring in the judgme nt. I concur in the judg ment denying Me thasani’s pe tition for review

.

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