Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-26-2007

Briseno-Flores v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 05-5323




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                                       PRECEDENTIAL

 IN THE UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
              _______________

                 No: 05-5323
               _______________

          JESUS BRISENO-FLORES,

                        Petitioner

                         v.

ATTORNEY GENERAL OF THE UNITED STATES,

                       Respondent
               _______________

      Petition for Review of an Order of the
       United States Department of Justice
          Board of Immigration Appeals
             (BIA No. A74-992-241)
      Immigration Judge Donald V. Ferlise
                _______________

              Argued May 8, 2007

 Before: RENDELL and JORDAN, Circuit Judges
         and VANASKIE*, District Judge

             (Filed: June 26, 2007 )
                      _______________


Roger R. Laguna, Jr. [ARGUED]
Laguna, Reyes & Maloney
1119 North Front Street
Harrisburg, PA 17102
   Counsel for Petitioner

Richard M. Evans
Emily A. Radford
David E. Dauenheimer
Blair T. O’Connor
Gjon Juncaj [ARGUED]
United States Department of Justice
Office of Immigration Litigation
P. O. Box 878
Ben Franklin Station
Washington, DC 20044
                     _______________

                 OPINION OF THE COURT
                     _______________

JORDAN, Circuit Judge.

       Jesus Briseno-Flores (“Briseno”) petitions for review
of the decision of the Board of Immigration Appeals (the

_______________
        * Honorable Thomas I. Vanaskie, District Court Judge
for the Middle District of Pennsylvania, sitting by designation

                               2
designation“BIA”) denying him suspension of deportation
under the statute in effect at the time he applied for that relief,
§ 244(a)(1) of the Immigration and Naturalization Act
(“INA”), 8 U.S.C. § 1254(a)(1). For the following reasons,
we will deny the petition for review.

                                I.

       On November 16, 1996, the Immigration and
Naturalization Service (“INS”) commenced deportation
proceedings against Briseno, a citizen of Mexico who had
entered the United States without inspection on May 15, 1984.
Briseno admitted to the allegations against him and was found
deportable, but pursued an application for suspension of
deportation under the statute then in effect, § 244(a)(1) of the
INA, 8 U.S.C. § 1254(a)(1). The Immigration Judge rendered
an oral decision on July 10, 2000, granting Briseno’s
application for suspension of deportation.

       The INS appealed the Immigration Judge’s decision to
the BIA. The BIA sustained the appeal, finding that Briseno
could not establish the seven years of continuous physical
presence required under the statute for eligibility for
suspension of deportation. The BIA found that Briseno had
committed petty theft on two occasions, in 1985 and 1989,
and that, under § 240A(d) of the INA, 8 U.S.C. § 1229b(d)
(referred to as the “stop-time” provision), continuous physical
presence is deemed to end on the date that a crime is
committed. The BIA further stated that an alien does not have
to be convicted of a crime to be subject to that provision; it is
enough that the alien has committed the crime, regardless of


                                3
conviction.1 The BIA remanded the case to the Immigration
Judge for “consideration of the respondent’s eligibility for any
alternative relief from deportation, including voluntary
departure.”

        On remand, Briseno presented new arguments to the
Immigration Judge about how the stop-time provision of 8
U.S.C. § 1229b(d) should be calculated. Briseno argued that,
rather than counting the seven years from the date he entered
the country until the date he committed the various offenses,
the seven years should be counted backward from November
16, 1996, the day the Order to Show Cause was issued. The
Immigration Judge determined that he could not address those
arguments because the BIA had already rejected them, but
granted Briseno voluntary departure. Briseno again appealed
to the BIA, which affirmed the Immigration Judge’s grant of
voluntary departure, but denied any other relief. Briseno
appeals that decision to this Court.2

  1
    That observation is superfluous, since the record reflects
that Briseno pleaded guilty to the crime of petty theft on July
12, 1989 for stealing two bottles of rum from a supermarket in
California. Briseno’s criminal record, offered as evidence by
the INS in the hearings at the administrative level, also
reflects a January 17, 1985 guilty plea by Briseno to the crime
of petty theft.
  2
    Briseno also asks this Court to stay the voluntary
departure period granted to him by the BIA. However, based
on the language of the regulations, which gives authority to
extend the time for voluntary departure only to “the district
director, the Deputy Executive Associate Commission for

                               4
       This Court has jurisdiction to review a final order of
removal under 8 U.S.C. § 1252. The BIA’s factual findings
are reviewed for substantial evidence. 8 U.S.C. §
1252(b)(4)(B). This Court reviews the BIA’s legal
determinations de novo, subject to the principles of deference
articulated in Chevron v. Natural Res. Def. Council, 

, 844 (1984). Wang v. Ashcroft, 

, 349 (3d
Cir. 2004).

                              II.

        At oral argument, Briseno’s attorney seemed to
concede that the arguments made in Briseno’s brief were
moot, and that if the record showed that Briseno had
committed crimes of moral turpitude, he was ineligible for
relief. Briseno’s attorney stated:

       And so, I think, whether or not, if this Court
       decides that there was sufficient evidence that,
       in fact, the acts that the government says are
       crimes of moral turpitude did in fact happen and
       they are classified as such, then I believe the
       rest of the arguments are moot.




Detention and Removal, or the Director of the Office of
Juvenile Affairs[,]” 8 C.F.R. § 1240.26(f), and for the reasons
articulated by this Court in Reynoso-Lopez v. Ashcroft, 

, 280 (3d Cir. 2004), we lack jurisdiction to grant
such a stay.

                               5
Oral Argument at 1:38 - 1:57.3

        It is clear from the record that Briseno pleaded guilty
to the crime of petty theft on July 12, 1989 for stealing two
bottles of rum from a supermarket in California. Briseno’s
criminal record, offered as evidence by the INS in the
hearings at the administrative level, also reflect a January 17,
1985 guilty plea by Briseno to the crime of petty theft. Each
of these petty thefts constituted a crime of moral turpitude.
Quilodran-Brau v. Holland, 

, 184 (3d Cir. 1956)
(“It is well settled as a matter of law that the crime of larceny
is one involving moral turpitude regardless of the value of
that which is stolen.”); Matter of Scarpulla, 15 I. & N. Dec.
139, 140-41 (BIA 1974) (“It is well settled that theft or
larceny, whether grand or petty, has always been held to
involve moral turpitude”). Thus, Briseno stopped accruing a
period of continuous physical presence in 1985, and did not
achieve the required seven years of presence. As a result, he
is not eligible for suspension of deportation under 8 U.S.C. §
1254.


  3
    Later in the argument, on questioning from the Court,
Briseno’s attorney again conceded that point.
       Court: You don’t dispute that if ... those things
       happened, long ago though they may have been,
       the petty thefts, that’s it the way the statute is
       written, the clock stops and the game is up on
       that.
       Briseno: Yes, your Honor, I think the statute is
       very clear as it’s amended.
Oral Argument at 2:55 - 3:19.

                                 6
       Even if Briseno’s attorney did not intend to concede
the stop-time arguments made in his brief,4 however, those
arguments are unpersuasive, as further explained below.

                              III.

       Briseno’s claim focuses on the interpretation of two
provisions of the INA, § 244(a)(1), found at 8 U.S.C. §
1254(a)(1) (repealed Sept. 30, 1996), and §240A(d), found at
8 U.S.C. § 1229b(d).5 Section 1254(a)(1) provides that

       [T]he Attorney General may, in his discretion,
       suspend deportation and adjust the status to that
       of an alien lawfully admitted for permanent
       residence, in the case of an alien ... who applies
       to the Attorney General for suspension of
       deportation and ... has been physically present in
       the United States for a continuous period of not
       less than seven years immediately preceding the
       date of such application, and proves that during
       all of such period he was and is a person of
       good moral character; and is a person whose
       deportation would, in the opinion of the

  4
    Other statements made by Briseno’s attorney during
argument have left ambiguity about whether any concession
was intended, so we deem it best to address the arguments
made in the briefing.
  5
    For ease of reference, we will hereafter refer to these
sections by the section number listed in the United States
Code.

                               7
      Attorney General, result in extreme hardship to
      the alien or to his spouse, parent, or child, who
      is a citizen of the United States or an alien
      lawfully admitted for permanent residence[.]

The issue here is whether Briseno can satisfy the requirement
of continuous physical presence for at least seven years
immediately preceding the date of his application. That
question requires the interpretation of § 1229b(d)(1)(B),
which provides that,

      For purposes of this section, any period of
      continuous residence or continuous physical
      presence in the United States shall be deemed to
      end ... (B) when the alien has committed an
      offense referred to in section 1182(a)(2) of this
      title that renders the alien inadmissible to the
      United States under section 1182(a)(2) of this
      title or removable from the United States under
      section 1227(a)(2) or 1227(a)(4) of this title,
      whichever is earliest.

       Thus, the commission of, among other things, “a crime
of moral turpitude” effectively stops the time which counts
toward the calculation of an alien’s continuous physical
presence in the United States. 8 U.S.C. § 1182(a)(2).
Whether Briseno’s petty thefts in 1985 and 1989 operate to
bar him from relief requires interpretation of both §
1229b(d)(1)(B) and § 1254(a)(1).

                              A.


                              8
        Briseno first asserts that § 1229b(d)(1)(B) does not
apply at all to this case. When Congress passed the Illegal
Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”), it repealed § 1254, and replaced it with § 1229b.
While § 1229b generally applies only to cases commenced
after April 1, 1997, and thus would not apply to this case,
which was commenced in November 1996, some provisions
of that act were made retroactive by the IIRIRA and the
Nicaraguan Adjustment and Central American Relief Act of
1997 (“NACARA”), Pub.L. No. 105-100, 111 Stat. 2160
(1997). The NACARA specifically provides that “paragraphs
(1) and (2) of section 240A(d) [8 U.S.C. § 1229b(d)] of the
Immigration and Nationality Act (relating to continuous
residence or physical presence) shall apply to orders to show
cause ... issued before, on, or after the date of the enactment
of this Act.” 111 Stat. 2160, 2196.

        In the context of a decision on the retroactivity of §
1229b(d)(1)(A), we held that NACARA makes § 1229b(d)(1)
retroactive. Pinho v. I.N.S., 

, 187 (3d Cir. 2001).
That is as true of subsection (B) as it is of subsection (A) of
that statute. See Peralta v. Gonzales, 

, 30 (1st Cir.
2006) (“[W]e hold that Congress has expressly mandated that
subsection (B) be applied retroactively.”); Tablie v. Gonzales,

, 64 (2d Cir. 2006) (finding § 1229b(d)(1)(B) to
be retroactive and denying relief). We thus hold that §
1229b(d)(1)(B) applies to Briseno’s request for suspension of
deportation under 8 U.S.C. § 1254(a)(1).

                              B.




                               9
        Briseno next asserts that, even if § 1229b(d)(1)(B) is
retroactive, it does not bar the relief he requests. Briseno
asserts that the continuous physical presence requirement of §
1254(a)(1) should be read to require a court to look back from
the date of the petition to the seven years immediately
preceding it, and that only crimes committed within those
seven years would bar relief. In essence, Briseno’s argument
is that the commission of a crime only ends one period of
continuous physical presence, and that a new one begins after
the crime is committed. Put another way, this would require
us to disregard the cessation of continuous presence in 1985,
as if that had not occurred, and look only to the seven years
prior to the notice to appear. By this reasoning, since any
crimes he committed occurred more than seven years before
his petition, the rule of § 1229b(d)(1)(B) would not apply to
him. We disagree.

       In In re Mendoza-Sandino, 22 I. & N. Dec. 1236
(2000), the BIA addressed whether, after one of the stop-time
events listed in § 1229b(d)(1) occurred, a new period of
continuous physical presence could begin. In that opinion, the
BIA found that the language of 8 U.S.C. § 1229b(d)(1)
“reflects that service of a notice to appear or an Order to
Show Cause is not simply an interruptive event that resets the
continuous physical presence clock, but is a terminating
event, after which continuous physical presence can no longer
accrue.” Mendoza, 22 I. & N. Dec. at 1241. Specifically,
Mendoza explicitly says that the language of § 240A(d) does
not “suggest . . . that another period of continuous physical
presence can begin after an alien’s presence has been
terminated by the service of a charging document or the
commission of a crime,” 

(emphasis added), and

                             10
that “the clock cannot be reset so that alien accrues
continuous physical presence or continuous residence after
the service of an Order to Show Cause or the commission of a
specified crime,” 

(emphasis added). The BIA
came to that conclusion by analyzing the language of the
statutory section and the legislative history.

        In analyzing the language of the provision, the BIA
found that the reference in § 1229b(d)(1) to “any period”
refers not to multiple periods of continuous physical presence
for an individual alien, but to the different sub-sections of 8
U.S.C. § 1229b, which require different lengths of continuous
physical presence. 

Indeed, § 1229b(a)
requires a seven-year period of continuous physical presence,
while § 1229b(b)(1) requires a ten-year period, and §
1229b(b)(2) requires a three-year period. The BIA also relied
on the phrase “whichever is earliest” at the end of the section,
noting that this language could only mean that the earliest
event under § 1229d(b)(1) would permanently terminate the
period of continuous physical presence. 

        Because the BIA has addressed this question, its
interpretation is entitled to deference under Chevron U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 

(1984).
Under Chevron, courts are required to give deference to
interpretations of statutes by the agencies that administer
them. Where, as here, an agency interprets a statute, and the
interpretation “represents a reasonable accommodation of
conflicting policies that were committed to the agency's care
by the statute, we should not disturb it unless it appears from
the statute or its legislative history that the accommodation is
not one that Congress would have sanctioned.” 

                               11
Therefore, the question before this Court is whether the BIA’s
interpretation of 8 U.S.C. § 1229b(d) is a reasonable one. 

that the BIA’s interpretation of the
language of § 1229b(d)(1) is reasonable. Indeed, there is
persuasive precedent to support it. See Tablie v. Gonzales,

, 62 (2d Cir. 2006) (“[U]nder § 240A(d)(1)
Tablie’s period of continuous residence ended in 1984 when
he lied on his application for permanent residence, after only
five years in the country. Tablie would therefore be ineligible
for cancellation of removal under the new stop-time rule.”);
Peralta v. Gonzales, 

, 25 (1st Cir. 2006) (“We
find that IIRIRA's transitional rules (as amended by
NACARA) clearly render subsection (B) retroactively
applicable. This means his marriage fraud offense stopped his
accrual of time, and so he was not eligible for the relief he
sought.”). Because the BIA’s interpretation of § 1229b(d)(1)
is reasonable, we will not disturb it.6 Briseno stopped


  6
     The reasoning of Mendoza has been questioned. See
Okeke v. Gonzales, 

, 593 (3d Cir. 2005) (Ambro,
J., concurring) (“I ... instead conclude that Mendoza is an
impermissible reading of § 1229b(d)(1), even after according
the BIA the deference called for under Chevron[.]”) The
concurrence in Okeke reasons that the “any period” language
of § 1229b(d)(1) must refer to multiple periods of continuous
physical 

, and that if Congress
had intended to permanently bar relief to aliens who
committed specified offenses, it would have enacted a
statutory provision that said simply that, 

However, for the reasons stated herein, we conclude that the

                              12
accruing time of continuous physical presence when he
committed his first offense in 1985. Thus, he cannot establish
seven years of continuous physical presence under § 1254 and
is not eligible for relief under that section.

                              IV.

       For the foregoing reasons, we will deny Briseno’s
petition for review.




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.

                              13