Pinho v. Immigration & Naturalization Service

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

5-9-2001

Pinho v. Immigration & Naturalization Service

Precedential or Non-Precedential:

Docket 99-5844

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Filed May 09, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-5844

FERNANDO PINHO and MARIA PINHO,

Petitioners

v.

IMMIGRATION & NATURALIZATION SER VICE (INS)

Respondents

PETITION FOR REVIEW FROM AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

(D.C. No. 0090-1: A71 643 458)

(D.C. No. 0090-1: A71 643 460)

Argued April 10, 2000

Before: NYGAARD, ALITO, and GIBSON,* Cir cuit Judges.

(Filed: January 31, 2001)

John D. Perez (ARGUED)

Tous & Perez, P.C.

838 Broad Street

Newark, NJ 07102

Attorney for Appellants

_________________________________________________________________

* The Honorable John R. Gibson, United States Court of Appeals for the

Eighth Circuit, sitting by designation.

Heather Philips (ARGUED)

David W. Ogden

Richard M. Evans

Nancy E. Friedman

Office of Immigration Litigation

U.S. Department of Justice

Civil Division

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Attorneys for Respondents

OPINION OF THE COURT

JOHN R. GIBSON, Circuit Judge:

Fernando and Maria Pinho petition for r eview from an

adverse ruling by the Board of Immigration Appeals

(Board). The Board dismissed the Pinhos' appeal from an

immigration judge decision denying suspension of

deportation. The Pinhos contend that they satisfied the

eligibility requirements for suspension of deportation at the

time they filed their application and at the time the judge

heard their case; that due to a long delay in their appeals

process, which was beyond their control, they were unfairly

held to a retroactive application of an amendment to

section 240A(d) of the Immigration and Nationality Act, 8

U.S.C. S 1229b(d) (Supp. IV 1998); and that the current

immigration law confers benefits on certain classes of aliens

in violation of the equal protection component of the Fifth

Amendment's Due Process Clause. We affirm.

I.

In August 1984, the Pinhos came to the United States

from Portugal with their three childr en as non-immigrant

visitors and remained until December 1990. At that time,

they returned to Portugal for not mor e than three weeks,

where they sought unsuccessfully to obtain immigrant

visas. Upon their return to the United States in January

1991, the Immigration and Naturalization Service (INS)

served the Pinhos with orders to show cause why they

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should not be deported for having entered the United States

without inspection, thereby instituting deportation

proceedings against them. At the time the or ders to show

cause were served, the Pinhos did not have seven years of

continuous physical presence in the United States.

However, they had been continuously physically present in

the United States for more than seven years when their

case was heard on January 6, 1992.

Mr. Pinho continues to operate a concr ete business he

established in 1986 and employs others in his community.

The Pinhos have strong ties to their community. Their

children were educated here, and they own real estate in

this country.

On January 6, 1992, the Pinhos appeared befor e the

judge, conceded deportability, and applied for suspension of

deportation under section 244(a)(1) of the Immigration and

Nationality Act, 8 U.S.C. S 1254(a)(1) (1994) (repealed by the

Illegal Immigration Reform and Immigrant Responsibility

Act, Pub. L. No. 104-208, S 309, 110 Stat. 3009-615

(1996)), or, in the alternative, for voluntary departure.

Immigration and Nationality Act S 244(a)(1), as it existed at

the time, authorized the discretionary r elief of suspension

of deportation if the immigrant met three criteria: seven

years continuous physical presence in the United States,

good moral character, and extreme har dship. The

immigration judge denied their application for suspension

of deportation based solely on his finding that deportation

would not cause extreme hardship. The judge specifically

stated that the Pinhos had lived in the United States for

more than seven years, thus satisfying the continuous

physical presence requirement as it then existed. Without

specifically ruling on the issue of good moral character, the

judge found no evidence that the Pinhos failed to meet this

requirement. The judge granted the application for

voluntary departure and ordered that the Pinhos be

deported if they did not voluntarily depart the United States

within the time allowed.

The Pinhos appealed the denial to the Board, which took

no action on the appeal and had no communication with

the Pinhos for the next six years. In March 1998, the Board

requested supplemental briefing to addr ess changes in the

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immigration laws that occurred while the Pinhos' appeal

was pending. The Pinhos submitted their supplemental

brief in April 1998.

On September 14, 1999, the Board dismissed their

appeal, applying the new stop-time rule of section 240A(d)

of the Immigration and Nationality Act, 8 U.S.C.S 1229b(d)

(Supp. IV 1998), which was enacted after the judge's

decision. The Board concluded that the newly enacted law

provided the eligibility criteria to be applied to the Pinhos'

application for suspension of deportation. This petition for

review followed.

II.

We review only the decision of the Boar d, and not the

immigration judge's ruling. See Green v. INS, 46 F.3d 313,

320 (3d Cir. 1995). The only question befor e us is whether

the Board properly applied the new continuous physical

presence requirement (the stop-time rule) to the Pinhos'

pending deportation proceedings. We conclude that it did.

Before the enactment of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (often r eferred to

as IIRIRA, but we believe clarity is served by r eferring to it

in this opinion as the Reform and Responsibility Act),

suspension of deportation was a form of discr etionary relief

available to aliens who had been determined to be

deportable and who met certain statutory criteria. See 8

U.S.C. S 1254 (1994) (repealed 1996). The general

requirements were continuous physical presence in the

United States for seven years, good moral character , and

extreme hardship. Id. After the alien had established these

elements, the Attorney General had discr etion to grant or

deny the relief. Id.

The Reform and Responsibility Act, which over hauled the

process of excluding or removing aliens fr om the United

States, abolished suspension of deportation. Pending

deportation proceedings were generally excluded from the

Act's changes, see Reform and Responsibility Act

S 309(c)(1). However, certain pr ovisions were made

applicable to all pending and new cases.1 One of those

_________________________________________________________________

1. Congress set out transitional rules to specify how the Reform and

Responsibility Act was to apply to cases pending on that Act's effective

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provisions is the stop-time rule of section 309(c)(5) (codified

at 8 U.S.C. S 1229b(d) (Supp. IV 1998)), which changed how

the continuous physical presence test was calculated. The

old rule provided that the seven-year period was counted

from the date the alien entered the United States until the

date of application for suspension of deportation. 8 U.S.C.

S 1254(a)(1) (1994) (repealed 1996). The new stop-time rule

stops the counting period on the date the alien is served

with an order to show cause why he or she should not be

deported. Reform and Responsibility Act S 309(c)(5); 8

U.S.C. S 1229b(d)(1) (Supp. IV 1998).

Uncertainty existed in the interpretation of Reform and

Responsibility Act S 309(c)(5) because it stated that the new

stop-time rule applied to "notices to appear issued before,

on, or after" enactment of the Reform and Responsibility Act.2

This language created ambiguity as to whether pending

deportation proceedings were actually covered because all

deportation cases were initiated with an or der to show

cause and not a notice to appear. In Matter of N-J-B-,

Interim Decision 3309 (B.I.A. 1997), the Boar d examined

section 309(c)(5) and held that the stop-time rule applied to

applications for suspension of deportation pending on the

effective date of the Reform and Responsibility Act.3 The

Attorney General vacated that decision and certified the

question to herself for review. The question was settled

when Congress passed the Nicaraguan Adjustment and

Central American Relief Act of 1997 (NACARA), Pub. L. No.

_________________________________________________________________

date. See 8 U.S.C. S 1101 note "Ef fective Date of 1996 Amendments"

(Supp. IV 1998).

2. Pre-Reform and Responsibility Act charging documents that began

deportation proceedings were known as Or ders to Show Cause. As part

of the change in the overall scheme of immigration law, Congress

changed the name of the charging document and the government actions

vis a vis immigrants. The charging documents are now called Notices to

Appear, and deportation is now called r emoval. 8 U.S.C. SS 1229 (Supp.

IV 1998).

3. The Board came to that conclusion by interpreting the phrase to refer

generally to charging documents initiating pr oceedings in the nature of

deportation or removal, and not exclusively to the documents entitled

"Notice to Appear."

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105-100, 111 Stat. 2160 (1997).4 Following enactment of

NACARA, the Board again was presented with the same

question and upheld its earlier interpretation of section

309(c)(5), concluding that NACARA clarified that the

Board's holding that the stop-time rule applied to orders to

show cause in Matter of N-J-B- was corr ect. In re Nolasco-

Tofino, Interim Decision 3385 (B.I.A. 1999); see also Rivera-

Jimenez v. INS, 214 F.3d 1213, 1217 (10th Cir. 2000).

Both the plain language of NACARA and Board pr ecedent

state that the stop-time rule applies to suspension of

deportation cases. The Pinhos challenge on two bases the

constitutionality of this law as applied to them. First, they

argue that the retroactive application of the stop-time rule

denies them procedural due process in violation of the Fifth

Amendment. Second, they argue that the exceptions for

certain classes of aliens violate the equal pr otection

principles of the Fifth Amendment's Due Process Clause.

A.

The question of whether to accord retr oactive effect to a

statute is determined by the Supreme Court's rule in

Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994).

The multi-part analysis begins with determining whether

Congress has expressly addressed whether the statute is to

apply to pending cases or only to new cases initiated after

the statute is enacted. See id. Since the transitional rule

with regard to suspension of deportation, Reform and

Responsibility Act S 309(c)(5), 8 U.S.C. S 1101 note (Supp.

IV 1998), itself states when it is to take ef fect and what

cases are covered by it, there is no need to resort to the

presumption against retroactivity. Id. Cf. Idahoan Fresh v.

Advantage Produce, Inc., 157 F.3d 197, 202 (3d Cir. 1998)

(clear and unambiguous plain language of a statute

obviates need for further inquiry).

Section 309(c)(5) of the Reform and Responsibility Act, as

modified by section 203(a)(1) of NACARA (T ransitional Rules

_________________________________________________________________

4. Section 203(a)(1) of NACARA amended Refor m and Responsibility Act

S 309(c)(5) by replacing the term"notices to appear" with the term

"orders to show cause." See infra at 8.

6

With Regard To Suspension Of Deportation), states in

relevant part that "section 240A(d) of the Immigration and

Nationality Act (relating to continuous r esidence or physical

presence) [the stop-time rule] shall apply to orders to show

cause . . . issued before, on, or after the date of the

enactment of this Act." The Reform and Responsibility Act

was enacted September 30, 1996 and took effect April 1,

1997. NACARA's amendments to it were ef fective "as if

included in the enactment of [the Reform and

Responsibility Act]." NACARA S 203(f); 8 U.S.C. S 1101 note

(Supp. IV 1998). The plain meaning of these statutes

establishes Congress's intent to apply the stop-time rule to

all cases, including those pending as of September 30,

1996. NACARA S 203(f).

The Pinhos' orders to show cause were issued on

January 7, 1991. Their case was decided by the Boar d

September 14, 1999, well after the transition rules took

effect. Although the Pinhos satisfied the continuous

physical presence test as of the date they applied for

suspension of deportation, the Board held that the law to

be applied was the one in effect at the time of its review

because the Act said it was to apply to pending cases. Since

the Pinhos could not demonstrate physical pr esence of

seven years in the United States from the time of their

entry until the time that the order to show cause was

served on them, they do not meet a threshold r equirement

for suspension of deportation and therefor e are ineligible to

be considered for this discretionary r elief.

Six other circuits have addressed the applicability of the

stop-time rule to pending deportation proceedings, and

each has held that the stop-time rule applies to all pending

cases in which a final administrative decision had not been

rendered by the enactment of the Refor m and

Responsibility Act. See Afolayan v. INS, 219 F.3d 784, 788

(8th Cir. 2000); Gonzalez-Torr es v. INS, 213 F.3d 899, 903

(5th Cir. 2000); Rivera-Jimenez v. INS , 214 F.3d 1213, 1217

(10th Cir. 2000); Appiah v. INS, 202 F.3d 704, 708-09 (4th

Cir. 2000); Tefel v. Reno, 180 F.3d 1286, 1288-90 (11th Cir.

1999), cert. denied 120 S.Ct. 2657 (2000); Arrozal v. INS,

159 F.3d 429, 434-35 (9th Cir. 1998). The decision of the

Board constitutes the final administrative decision.

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Therefore, as a matter of statutory law, the Board properly

applied the new stop-time rule to the Pinhos' applications.

The Board's application of the stop-time rule to the

Pinhos' case does not constitute an unconstitutional

retroactive application of law. "A statute does not operate

`retrospectively' merely because it . . . upsets expectations

based in prior law." Landgraf, 511 U.S. at 269. "When the

intervening statute authorizes or affects the propriety of

prospective relief, application of the new provision is not

retroactive." Id. at 273.

Suspension of deportation is prospective r elief because it

does not impair any vested rights. See T efel, 180 F.3d at

1302. Since the relief had not yet been granted and was

discretionary even if the alien met all eligibility criteria, the

change in eligibility criteria did not overtur n a final

administrative decision or impair vested rights. At most, the

Pinhos merely had an expectation of receiving the relief

requested, not a right to it. The Pinhos had no preexisting

legal right to remain in the United States, as they had

already been adjudged deportable. Since no vested rights

were affected in this case, no potential violation of due

process exists. See Gonzalez-Torres, 213 F.3d at 903; Tefel,

180 F.3d at 1302.

The Pinhos argue that the Board's decision deprives them

of more than discretionary relief which has not yet been

granted because it deprives them of "their home, their

family unit, their business and community support and the

ties which they have established over the past fifteen

years." The adjudication of their deportability established

that they had no legal right to remain in this country. It

was that determination, not the failur e to grant

discretionary relief afterward, that cut off their rights to

remain in the United States. Since the Pinhos conceded

deportability, their status as deportable aliens is not before

this Court.

The United States did not officially or systematically

encourage the Pinhos to remain in this country or to

pursue suspension of deportation in lieu of another means

of acquiring lawful residency in the United States. On the

contrary, the Pinhos overstayed their non-immigrant visas,

8

chose to establish residency, and started a business in this

country without obtaining authorization to be in the United

States. They also returned to the United States without

valid authorization after having been refused immigrant

visas. If the Government had induced the Pinhos to waive

their rights to contest deportability or had singled out their

application for delayed review until after the stop-time rule

went into effect, then a different analysis might be

appropriate.5 There is no evidence that anything out of the

ordinary occurred in this case. The Pinhos are deportable

because they entered the United States illegally. At the time

their application for the discretionary r elief of suspension of

deportation was reviewed by the Board, they did not qualify

for any special exception from the generally applicable

immigration laws.

The due process considerations of "fair notice, reasonable

reliance, and settled expectations" ar e not implicated in this

case. See Landgraf, 511 U.S. at 270. The Pinhos were not

deprived of the opportunity to conform their conduct to the

law. See id. at 265. The eligibility criteria for suspension of

deportation review the circumstances in which an alien

facing deportation is found, not any action taken by him.

The Pinhos could not have undertaken any lawful action

that would have changed their circumstances, allowing

them to satisfy the continuous physical presence test.

The application of the stop-time rule to pending cases is

constitutional if it has a rational basis. See Appiah, 202

F.3d at 710. We conclude that it does. Congress enacted

this rule for the purpose of expediting the r emoval of

deportable aliens, limiting discretionary r elief, and removing

incentive to delay immigration proceedings. Gonzalez-

Torres, 213 F.3d at 902; Appiah, 202 F.3d at 710. This was

_________________________________________________________________

5. Circumstances such as these led to the exceptions for certain groups

of aliens set out in NACARA. See also section II. B. of this opinion,

infra.

While we are troubled by the significant delay in the Board's action on

the Pinhos' appeal, we cannot conclude that it amounts to inducement

by the Government for the Pinhos to remain in this country or to forego

any alternative course of action. We can only speculate as to whether a

different result may have been achieved if the Board acted promptly and

decided this case prior to the enactment of the Reform and

Responsibility Act.

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done as an integral part of an overall streamlining of the

immigration process in order to impr ove efficiency in that

process. See Gonzalez-Torres , 213 F.3d at 902.

B.

The Pinhos also challenge NACARA's system for pr oviding

more lenient requirements for certain groups of aliens with

respect to the continuous physical presence rules. Aliens

from Nicaragua, Cuba, and certain other Central American

and eastern European countries ar e not subject to the

stop-time rule under the transitional rules. See NACARA

SS 202(b)(1), 203(a)(1); 8 U.S.C. S 1101 note (Supp. IV

1998).

It is well settled that the power to regulate the admission

or removal of aliens is a "fundamental sover eign attribute

exercised by the Government's political departments largely

immune from judicial control." Fiallo v. Bell, 430 U.S. 787,

792 (1977) (quoting Shaughnessy v. Mezei, 345 U.S. 206,

210 (1953)). Congress's differing tr eatment of certain

classes of aliens is an aspect of that political power and

involves the United States' relations with for eign powers.

Mathews v. Diaz, 426 U.S. 67, 81 (1976). Accor dingly, we

must afford such legislation great deference, applying a

"narrow standard of review" and upholding the law if it has

a rational basis. Id. at 82.

NACARA's exceptions from the general stop-time rule for

certain alien groups easily withstand this rational basis

review. Since the application of the stop-time rule to

pending cases itself does not violate due pr ocess, any

exceptions to this rule that are carved out by Congress

would be invalid only if the challenger "advanc[es]

principled reasoning that will at once invalidate that

[classification] and yet tolerate a dif ferent [classification]

separating some aliens from others." 426 U.S. at 82.

The United States specifically encouraged aliens who are

members of the groups described in NACARA to seek

asylum and to remain in the United States. These aliens

were given work authorization, granted various special

statuses to avoid deportation until their cases could be fully

reviewed, and specifically encouraged to apply for

10

suspension of deportation, as that remedy existed. See 143

Cong. Rec. S10,185, at 10197 (daily ed. Sept. 30, 1997)

(statement of Sen. Mack). The special exemptions fr om "the

1996 retroactive immigration bill" for members of these

"extremely identifiable groups," 143 Cong. Rec. S10185, at

S10197 (daily ed. Sept. 30, 1997) (statement of Sen.

Graham), bears at least a rational relationship to the

legitimate government interests of for eign relations,

national security policy, and compliance with on-going

government programs.

The Pinhos are treated differ ently from groups of aliens

who are granted special exceptions from the general

immigration rules because they are not similarly situated to

members of those groups. NACARA's exceptions ar e not

arbitrary, but rather respond to particular government

action directed specifically toward members of the groups

who are granted the exceptions. Pursuant to its power to

control immigration and respond to for eign relations and

defense policy objectives, Congress passed the Reform and

Responsibility Act, among other things, to limit

discretionary relief from the generally applicable

immigration laws. It further amended the immigration laws

to provide for an exception for a readily identifiable, limited

group of aliens who were subjects of on-going judicial and

other government proceedings, including informal

immigration proceedings. The exception was cr eated to

prevent interference with settled expectations arising out of

those proceedings. Therefore, we conclude that Congress

acted well within its authority in enacting NACARA.

Accordingly, we affirm the decision of the Board of

Immigration Appeals.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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