Appiah v. INS

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SAMUEL APPIAH,

Petitioner,

v.

No. 97-1705

U.S. IMMIGRATION & NATURALIZATION

SERVICE,

Respondent.

On Petition for Review of an Order

of the Board of Immigration Appeals.

(A72-783-301)

Argued: December 3, 1999

Decided: January 20, 2000

Before WILKINSON, Chief Judge, KING, Circuit Judge,

and BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the

opinion, in which Judge King and Senior Judge Butzner joined.

_________________________________________________________________

COUNSEL

ARGUED: Randall Lee Johnson, JOHNSON & ASSOCIATES,

Arlington, Virginia, for Petitioner. Ethan B. Kanter, Office of Immi-

gration Litigation, Civil Division, UNITED STATES DEPART-

MENT OF JUSTICE, Washington, D.C., for Respondent. ON

BRIEF: David W. Ogden, Acting Assistant Attorney General,

Michael P. Lindemann, Assistant Director, Office of Immigration Lit-

igation, Civil Division, UNITED STATES DEPARTMENT OF JUS-

TICE, Washington, D.C., for Respondent.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Samuel Appiah, a citizen of Ghana illegally residing in the United

States, seeks to suspend his deportation. In order to be eligible for a

suspension of deportation, an alien must show a continuous physical

presence in the United States for seven years. Suspension then rests

in the discretion of the Attorney General. While Appiah's deportation

proceedings were pending, Congress enacted a new stop-time rule for

calculating the required period of continuous physical presence. Ille-

gal Immigration Reform and Immigrant Responsibility Act of 1996,

Pub. L. No. 104-208, § 309(c)(5), 110 Stat. 3009-546. Appiah argues

that applying this new stop-time rule to his case would have an imper-

missible retroactive effect and would violate his due process and

equal protection rights. The Board of Immigration Appeals dismissed

Appiah's claims because under the new rule he had failed to accrue

the necessary seven years of continuous physical presence. We now

affirm.

I.

Samuel Appiah entered the United States on June 9, 1987, as a

non-immigrant student with authorization to remain for a temporary

period not to exceed the time of full-time enrollment in school.

Appiah violated the terms of his visa by remaining in the United

States beyond the time of full-time enrollment without authorization

from the Immigration and Naturalization Service (INS). In January

1993, Appiah married Felicia Brown, an American citizen. Ms.

Brown filed an immediate relative visa petition on Appiah's behalf,

but then later withdrew the petition.

On December 17, 1993, the INS instituted deportation proceedings

against Appiah by serving him with an order to show cause why he

should not be deported. The order charged Appiah with remaining in

the United States longer than permitted.

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At a December 12, 1994 hearing, Appiah requested suspension of

deportation or voluntary departure. The immigration judge denied

Appiah's application for suspension of deportation and granted him

voluntary departure. The judge found that Appiah had failed to show

the extreme hardship necessary for suspension relief. He found that

Brown's testimony regarding her marriage to Appiah was vague and

unreliable. The judge concluded that Appiah's "relationship with Feli-

cia Brown is sketchy at best," and that his "failure to establish a bona

fide relationship with his wife" diminished the hardship of deporta-

tion.

Appiah appealed the immigration judge's decision to the Board of

Immigration Appeals (BIA). The BIA dismissed the appeal because

Appiah had failed to meet the seven years of continuous physical

presence in the United States and thus could not be considered for a

suspension of deportation. See 8 U.S.C.§ 1229b(a)(2) (Supp. III

1997). The BIA reasoned that because Appiah had entered the United

States on June 9, 1987, and was served with the order to show cause

on December 17, 1993, he fell short of the seven year requirement.

Appiah filed a petition for review in this court.

II.

Appiah challenges the application of the new stop-time rule in the

Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (IIRIRA) to his pending deportation proceedings. A brief review

of the statutory background is in order.

Prior to 1996, under section 244(a) of the INA the Attorney Gen-

eral could grant suspension of deportation to an alien. See 8 U.S.C.

§ 1254(a) (1994). In order to be eligible for suspension of deportation,

an alien had to satisfy several requirements. See id. One such require-

ment was that the alien be "physically present in the United States for

a continuous period of not less than seven years immediately preced-

ing the date of such application [for suspension of deportation]."*

Id. § 1254(a)(1). Pre-IIRIRA, the time an alien spent in deportation

_________________________________________________________________

*The other requirements are not at issue in this case. The statute pro-

vides that in addition to the seven years of continuous physical presence,

an alien must show that "he was and is a person of good moral charac-

ter," and that deportation would "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." 8 U.S.C.

§ 1254(a) (1994).

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proceedings counted toward the physical presence requirement. Satis-

fying the statutory requirements did not entitle an alien to suspension

of deportation, but only to a discretionary decision by the Attorney

General. See id. § 1254(a).

In 1996, Congress enacted IIRIRA, which aimed to expedite the

removal of deportable aliens and to limit discretionary relief. Pub. L.

No. 104-208, 110 Stat. 3009-546. IIRIRA section 304(a) repealed the

suspension of deportation provision in INA section 244, and replaced

it with a new INA section 240A that provides for the"cancellation of

removal." 8 U.S.C. § 1229b (Supp. III 1997). Previously deportation

proceedings were initiated by an "order to show cause," and now by

a "notice to appear." Id. § 1229(a)(1). In addition, IIRIRA section

304(a) enacted a "stop-time" rule for determining an alien's eligibility

for suspension of deportation or cancellation of removal. Id.

§ 1229b(d)(1). Section 304(a) provides that"any period of continuous

residence or continuous physical presence shall be deemed to end

when the alien is served a notice to appear." Id. After IIRIRA's enact-

ment, the initiation of deportation proceedings stops the clock -- an

alien can no longer accrue years of continuous physical presence once

proceedings have begun.

Under the effective date provisions of IIRIRA section 309(c)(1),

most of the IIRIRA amendments to the INA do not apply to aliens

placed in deportation proceedings prior to April 1, 1997. 110 Stat. at

3009-625. Yet IIRIRA section 309(c)(5) provides a special "Transi-

tional Rule with Regard to Suspension of Deportation," which states

that the new stop-time rule "shall apply to notices to appear issued

before, on, or after the date of the enactment of this Act [Sept. 30,

1996]." 110 Stat. at 3009-627.

Shortly after the enactment of IIRIRA, the BIA found that the new

stop-time rule applied to aliens who were in deportation proceedings

prior to IIRIRA's enactment. See In re N-J-B, Int. Dec. 3309 (BIA

1997). The BIA interpreted the new phrase "notices to appear" in

IIRIRA section 309(c)(5) to include other documents initiating depor-

tation or removal proceedings, including the pre-IIRIRA "orders to

show cause." According to In re N-J-B, aliens who failed to accrue

the necessary time for continuous physical presence before their

deportation proceedings were initiated were now ineligible for a sus-

4

pension of deportation. The Attorney General subsequently vacated

the BIA's In re N-J-B opinion, and certified the case to herself for

review. This review never occurred, however, because in 1997 Con-

gress passed the Nicaraguan Adjustment and Central American Relief

Act (NACARA), which enacted a clarifying amendment. Pub. L. No.

105-100, 111 Stat. 2160.

NACARA amended IIRIRA's stop-time rule by replacing"notices

to appear" with "orders to show cause." NACARA § 203(a), 111 Stat.

at 2196. NACARA also exempted certain classes of aliens based on

their national origin from the new continuous presence rules. The new

stop-time rule does not apply to certain groups of nationals from Sal-

vador, Guatemala, the Soviet Union, Russia, any republic of the for-

mer Soviet Union, Latvia, Estonia, Lithuania, Poland, Czechoslova-

kia, Romania, Hungary, Bulgaria, Albania, East Germany, Yugo-

slavia, or any state of the former Yugoslavia. See NACARA § 203(a),

111 Stat. at 2196-97.

In light of NACARA, the BIA decided that the new stop-time rule

applied to all pending deportation proceedings (except for those aliens

qualifying for a statutory exemption). See In re Nolasco-Tofino, Int.

Dec. 3385 (BIA 1999). The BIA found the language of the new stop-

time rule to be "unambiguous." Id.

With this statutory framework in mind, we proceed to consider

Appiah's claims.

III.

Appiah contends that the new stop-time rule should not affect his

eligibility for a suspension of deportation because this would work an

impermissible retroactive application of the law. He further argues

that applying the law retroactively violates his due process and equal

protection rights under the Fifth Amendment.

A.

We begin with Appiah's statutory challenge. When evaluating a

claim of retroactivity, we must first determine whether "Congress has

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expressly prescribed the statute's proper reach." Landgraf v. USI Film

Products, 511 U.S. 244, 280 (1994). If so, this is the end of the analy-

sis and there is no need "to resort to judicial default rules." Id. If the

statute is not clear, "the court must determine whether the new statute

would have retroactive effect." Id.

In this case, Congress has clearly stated that the stop-time rule

applies to pending deportation proceedings. The stop-time rule "shall

apply to orders to show cause . . . issued before, on, or after the date

of the enactment of this Act." IIRIRA § 309(c)(5)(A), as amended by

NACARA § 203(a), 8 U.S.C. § 1101 note (Supp. III 1997) (Effective

Date of 1996 Amendments). In a similar case, the Eleventh Circuit

noted that NACARA "resolves any potential linguistic ambiguity . . .

with respect to the stop-time provision." Tefel v. Reno, 180 F.3d 1286,

1293 (11th Cir. 1999). That court found that "NACARA clarifies that

the stop-time provision applies to aliens who were facing deportation

and/or had applied for suspension of deportation before IIRIRA's

enactment, because it precludes any argument that the reference to

`notices to appear' suggested that Congress intended the stop-time

rule to apply only to post-IIRIRA removal proceedings, which are ini-

tiated with `notices to appear.'" Id.

Moreover, other courts have found identical language in other

immigration laws to be facially plain. For example, IIRIRA section

322(c) applies to "convictions . . . entered before, on, or after the date

of the enactment of this Act." 110 Stat. at 3009-629. The Fifth Circuit

found that "[t]he plain language of § 322(c) leaves no doubt that Con-

gress intended for the definition in § 322(c) to be applied retroac-

tively. Congress could not have more clearly expressed this intent

than through its statement that § 322(a) was to apply to convictions

entered before the date of IIRIRA's enactment." Moosa v. INS, 171

F.3d 994, 1007 (5th Cir. 1999); accord Feroz v. INS, 22 F.3d 225 (9th

Cir. 1994) (explaining that where Congress uses"before, on, or after"

language, provision applies to pending cases).

Even if the language were somehow ambiguous, the stop-time rule

still has no "retroactive effect" because it does not "impair rights a

party possessed when he acted, increase a party's liability for past

conduct, or impose new duties with respect to transactions already

completed." Landgraf, 511 U.S. at 280. Here, the stop-time provision

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only limits Appiah's eligibility for discretionary relief -- it does not

infringe on a right that he possessed prior to its enactment. A suspen-

sion of deportation is "manifestly not a matter of right under any cir-

cumstances," because it is an entirely discretionary act. Jay v. Boyd,

351 U.S. 345, 354 (1956).

Appiah may have expected to receive a suspension, but the Court

in Landgraf emphasized that a statute does not operate retroactively

merely because it "upsets expectations based in prior law." 511 U.S.

at 269. As the Court noted, "Even uncontroversially prospective stat-

utes may unsettle expectations and impose burdens on past conduct."

Id. at 269 n. 24. The prospect of unsettled expectations, however, is

not a reason for declining to apply a statute to a pending case. Like

a prisoner waiting for the executive pardon, Appiah could hope for

reprieve from deportation, yet hope does not establish a right to relief.

B.

Appiah's due process and equal protection claims also fail because

illegal aliens have no vested right in not being deported, and the chal-

lenged statutory provisions easily withstand rational basis review.

The Fifth Amendment provides that no person shall"be deprived

of life, liberty, or property, without due process of law." U.S. Const.

amend. V. The Supreme Court has found equal protection guarantees

in the Fifth Amendment as well. See Bolling v. Sharpe, 347 U.S. 497,

499 (1954); Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976).

Appiah has given us no reason to apply to his claims anything other

than the most deferential standard of review. As an illegal alien he has

no right to continue to reside in the United States. Moreover, eligibil-

ity for suspension is not a right protected by the Constitution. Suspen-

sion of deportation is rather an "act of grace" that rests in the

"unfettered discretion" of the Attorney General. INS v. Yueh-Shaio

Yang, 519 U.S. 26, 30 (1996) (internal quotation marks omitted).

Because suspension of deportation is discretionary, it does not create

a protectible liberty or property interest. Indeed,"a constitutionally

protected interest cannot arise from relief that the executive exercises

unfettered discretion to award." Tefel, 180 F.3d at 1300. This is true

7

even where the state "frequently" has granted the relief sought. See

Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981).

Moreover, judicial review over federal immigration legislation has

always been limited. See Fiallo v. Bell, 430 U.S. 787, 792 (1977). The

Supreme Court has "long recognized the power to expel or exclude

aliens as a fundamental sovereign attribute exercised by the Govern-

ment's political departments largely immune from judicial control."

Shaughnessy v. Mezei, 345 U.S. 206, 210 (1953)."The reasons that

preclude judicial review of political questions also dictate a narrow

standard of review of decisions made by the Congress or the President

in the area of immigration and naturalization." Mathews v. Diaz, 426

U.S. 67, 81-82 (1976). In fact, the "constraints of rationality imposed

by the constitutional requirement of substantive due process and of

nondiscrimination exacted by the equal protection component of the

due process clause do not limit the federal government's power to

regulate either immigration or naturalization." In re Longstaff, 716

F.2d 1439, 1442-43 (7th Cir. 1983).

The stop-time rule is rationally grounded. Congress enacted the

rule to remove an alien's incentive for prolonging deportation pro-

ceedings in order to become eligible for suspension. See H.R. Rep.

No. 104-469(I) (1996) ("Suspension of deportation is often abused by

aliens seeking to delay proceedings until 7 years have accrued.").

Removing the incentive for delay in the deportation process is a valid

government objective, and applying the stop-time rule to aliens such

as Appiah who are already in deportation proceedings rationally fur-

thers this purpose.

We finally reject Appiah's contention that NACARA impermiss-

ibly created special classes of suspension applicants for whom the old

rules still apply. Under IIRIRA section 309(c)(5)(C), as amended by

NACARA, aliens from certain countries can still accrue time towards

continuous physical residence after being served an order to show

cause. Although these provisions differentiate among aliens based on

national origin, strict scrutiny does not apply here because Congress

can favor some nationalities over others in immigration law. See

Mathews, 426 U.S. at 78-80 & n. 13; In re Longstaff, 716 F.2d at

1442 ("Congress can bar aliens from entering the United States for

discriminatory and arbitrary reasons . . . .").

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NACARA easily withstands constitutional challenge. Due to diplo-

matic circumstances, the United States had encouraged Nicaraguans

and Cubans to remain in this country, and also had given special pro-

tection to other Central American and Eastern European groups. See

143 Cong. Rec. S12,261 (daily ed. Nov. 9, 1997) (statement of Sen.

Abraham). NACARA was intended to correct a provision in the

IIRIRA that would have had the effect of "changing the rules in the

middle of the game for thousands of Central Americans and others

who came to the United States because their lives and families had

been torn apart by war and oppression." Id. Since IIRIRA changed the

rules for suspension of deportation and the INS and the BIA main-

tained that the change was intended to apply to pending cases, there

was concern that the United States should not violate earlier under-

standings with these particular groups of aliens. Id. Congress thus

drew the line at certain nationalities. We refuse to rework this legisla-

tive compromise.

IV.

The new stop-time rule clearly and constitutionally applies to

Appiah's pending deportation proceedings. He was served an order to

show cause before seven years had elapsed, making him ineligible for

a suspension of deportation. For the foregoing reasons, the petition for

review is denied and the decision of the Board of Immigration

Appeals is

AFFIRMED.

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