CRS-4
cases, in which instance IIRIRA, not prior law, applies.) Thus, as a general
proposition, IIRIRA would only affect long-term residents if removal proceedings
were begun against them after March 1997. However, the numerical cap and "time-
stop" rules under IIRIRA were written in a way that could have affected suspension
relief under old deportation cases begun many years ago.
Numerical Limits. IIRIRA imposes three separate limits of 4,000 per fiscal
year on hardship-based relief from removal. A 4,000 per year limit is placed on
adjustments to permanent resident status of aliens granted cancellation of removal.
Another 4,000 per year limit is placed on combined "cancellations and adjustments"
under IIRIRA and "suspensions and adjustments" under cases continued under prior
law. A third 4,000 per year limit is placed on "suspensions and adjustments" under
prior law.
Both the subject of these limitations and their implementation were problematic.
Some argued that the latter two limitations were, like the first, essentially limits on
adjustments only. They interpreted "cancel and adjust" and "suspend and adjust" as
each comprised of two distinct acts and argued that it was permissible to "cancel"
or "suspend" the expulsion of more than 4,000 aliens in one year so long as no more
than 4,000 of them were adjusted in the same year. Such an interpretation bypassed
the apparent arbitrariness of denying relief or delaying consideration to those aliens
with meritorious applications that come before immigration judges after the yearly
cancellation/suspension limit has been reached.
However, such an interpretation also raised issues as to the status of those whose
expulsion had been suspended or canceled but who had not yet been able to adjust.
It also could have been seen as a vehicle for bypassing any meaningful limit on
suspensions or adjustments. If the limit on "suspension and adjustment" meant only
that both acts could not occur in the same year for more than 4,000 aliens, what
would have prevented suspending 20,000 deportations during one year and allowing
those 20,000 to adjust in the subsequent year?
Retroactive Application of Tolling Provisions. IIRIRA changed the practice
of allowing time spent here after the initiation of deportation proceedings to be
counted toward the physical presence requirements. Under IIRIRA, "presence" ends
when an alien (1) commits certain criminal or terrorist acts or (2) is served with a
"Notice to Appear," the document established by IIRIRA for the initiation of removal
proceedings.
Though, as mentioned above, most of the rules changes in IIRIRA apply only
in cases started on or after April 1, 1997, the new "time-stop" rules might be
retroactive. Section 309(c)(5) of IIRIRA, as enacted, stated that the new "time-stop"
rules "shall apply to notices to appear issued before, on, or after" the date of IIRIRA's
enactment (September 30, 1996). The effect of § 309(c)(5) depended on how
"notices to appear issued before, on, or after" September 30, 1996, was interpreted.
More particularly, if the provision were construed to apply to all deportation cases
that were pending when IIRIRA was enacted, tens of thousands of Central Americans
whose cases remained unresolved at that time could have been affected.