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Petitioner Lucina-Rojas Reyes ("Rojas") petitions for review of an order of the Board of Immigration Appeals ("BIA") denying her motion to reopen her deportation proceedings. Rojas entered the country illegally in 1987 and has worked and lived in Queens, New York since that time. Respondent Immigration and Naturalization Service ("INS") instituted deportation proceedings against Rojas with the service of an order to show cause on September 20, 1993. During those proceedings, Rojas applied for a form of relief from deportation then known as "suspension of deportation." In a decision rendered on March 4, 1996, an Immigration Judge ("IJ") denied Rojas' request for suspension of deportation, finding that her deportation would not result in extreme hardship either to herself or to a United States citizen family member. Rojas appealed the IJ's decision to the BIA.

In an order dated April 16, 1997, the BIA dismissed Rojas' appeal after determining that Rojas could not satisfy the statutory requirement of seven years' continuous physical presence in the United States. The BIA's decision was based on an earlier decision in which it interpreted section 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("the IIRIRA"), Pub.L. No. 104-208, Div. C, 110 Stat. 3009-546 (1996), as providing that an alien's accrual of residence in the United States for the purpose of determining eligibility for suspension of deportation ends on the date that the alien is served with an order to show cause. Several months after the BIA's dismissal of Rojas' appeal, the Attorney General vacated the BIA's decision that had interpreted the IIRIRA's accrual of residence provisions to apply to suspension of deportation applications pending on the IIRIRA's enactment date. Rojas thereafter moved the BIA to reopen her proceedings and address the merits of her suspension of deportation request. The BIA denied Rojas' motion, finding that she could not establish the required seven years of continuous physical presence in the United States under the methodology for determining time-in-residence established by section 203(a) of the Nicaraguan Adjustment and Central American Relief Act of 1997 ("the NACARA"), Pub.L. No. 105-100, Title II, 111 Stat. 2160, 2193-2201 (Nov. 19, 1997), amended by Pub.L. No. 105-139, 111 Stat. 2644 (Dec. 2, 1997).

For the reasons that follow, we deny the petition for review.


235 F.3d 115 (2000)

Lucina ROJAS-REYES, a/k/a Lucina Mendoza, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Docket No. 99-4131.

United States Court of Appeals, Second Circuit. August Term, 2000.

Argued October 23, 2000.Decided December 15, 2000.New York Law School location: File #2905, Box #142