Opposition Brief — Tefel v. Reno

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No. 99-1514

In the Supreme Court of

ROBERTO TEFEL, ET AL., PETITIONERS

JANET RENO, ATTORNEY GENERAL, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Acting Assistant Attorney

General

DONALD E. KEENER

DAVID V. BERNAL

LINDA S. WENDTLAND

NELDA C. REYNA

ERNESTO H. MOLINA, JR.

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

In Section 309(c)(5)(A) of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L.

No. 104-208, Div. C, Tit. III, 110 Stat. 3009-627, as amended

by Section 203(a)(1) of the Nicaraguan Adjustment and

Central American Relief Act (NACARA), Pub. L. No. 105-

100, 111 Stat. 2196, Congress provided generally (but subject

to various exceptions) that an alien is not eligible for suspen-

sion of deportation and adjustment of status under former 8

U.S.C. 1254(a) (repealed 1996) unless the alien was

continuously present in the United States for seven years

before being served with the Order to Show Cause com-

mencing the alien’s deportation proceedings. The questions

presented are:

1, Whether ITRIRA § 309(c)(5)(A) deprived petitioners

without due process of law of a constitutionally protected

right to séek relief in the form of suspension of deportation;

and

2. Whether the government should be estopped from

applying IIRIRA § 309(c)(5)(A) in the cases of Nicaraguan

nationals because, before IIRIRA was enacted, the Immi-

gration and Naturalization Service publicly promoted a

program under which Nicaraguan nationals were permitted

to move to reopen their deportation proceedings and apply

for suspension of deportation, upon payment of a fee.

(I)

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdiction — 1

Statement 2

Argument 16

TABLE OF AUTHORITIES

Cases:

American Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40 (1999) 22

Andriasian v. INS, 180 F.3d 1033 (9th Cir.

1999) : 26

Asani v. INS, 154 F.3d 719 (7th Cir. 1998) 26

Atkins v. Parker, 472 U.S. 115 (1985) 21-22

Connecticut Bd. of Pardons v. Dumschat, 452

U.S. 458 (1981) 13, 22

Fiallo v. Bell, 430 U.S. 787 (1977)

Foti v. INS, 375 U.S. 217 (1963)

Furlong v. Shalala, 156 F.3d 384 (2d Cir. 1998) . .

Haitian Refugee Ctr. v. Smith, 676 F. 2d 1023 (5th Cir.

1982) a

Heckler v. Community Health Servs., Inc., 467

U.S. 51 (1984)

INS v. Chadha, 462 U.S. 919 (1988)

INS v. Phinpathya, 464 U.S. 183 (1984)

INS v. Yeuh-Shaio Yang, 519 U.S. 26 (1996) .

Jay v. Boyd, 351 U.S. 345 (1956)

Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984),

aff’d on other grounds, 472 U.S. 846 (1985)

Montana v. Kennedy, 366 U.S. 308 (1961)

N-J-B-, In re:

Int. Dec. No. 3415 (BIA Feb. 20, 1997)

Int. Dec. No. 3415 (AG July 10, 1997)

BX SSS SS N NSS

(11D)

Cases—Continued: Page

N-J-B- v. Reno, No. 97-4000 (11th Cir. July 27,

1999) 8

OPM v. Richmond, 496 U.S. 414 (1990) 27, 28

Olim v. Wakinekona, 461 U.S. 238 (1983) 24

Ponte v. Real, 471 U.S. 491 (1985) 23

Shvartsman v. Apfel, 138 F.3d 1196 (7th Cir. 1998) .. 23, 24

Tefel v. Reno, 972 F. Supp. 608 (S.D. Fla. 1997) .........0.... 10

United States ex rel. Accardi v. Shaughnessy,

347 U.S. 260 (1954) 23

Vargas-Gonzalez v. INS, 647 F.2d 457 (6th Cir.

1981) 3

Constitution, statutes, regulation and rule:

U.S. Const. Amend. V (Due Process Clause) 21, 22

Haitian Refugee Immigration Fairness Act of 1998,

Pub. L. No. 105-277, Div. A, sec. 101(h), Tit. IX,

§ 902(b), 112 Stat. 2681-538 12, 18

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208,

Div. C, Tit. III, 110 Stat. 3009:

§ 308(b)(7), 110 Stat. 3009-615 17

§ 309(c)(5), 110 Stat. 3009-627 passim

§ 309(c)(5)(A), 110 Stat. 3009-627 2,18

§ 309(c\(5)(C), 110 Stat. 3009-627 11

Immigration and Nationality Act, 8 U.S.C. 1101

et 8eq.:

8 U.S.C. 1105a 20

8 U.S.C. 1153(a)(2) 18

8 U.S.C. 1229(a) (Supp. IV 1998) 4

8 U.S.C. 1229b (Supp. IV 1998) 4,17,19

8 U.S.C. 1229b(a) (Supp. IV 1998) 4

8 U.S.C. 1229b(b) (Supp. IV 1998) 4

8 U.S.C. 1229b(b)\(1)(D) (Supp. IV 1998) 19-20

8 U.S.C. 1229b(d)(1) (Supp. IV 1998) 4

8 U.S.C. 1254(a) 2, 3, 4, 11, 17, 19

8 U.S. C. 1254) (I) 3

Statutes, regulation and rule Continued: Page

Niearaguan Adjustment and Central American

Relief Act, Pub. L. No. 105-100, 111 Stat. 2193 — 10

§ 202, 111 Stat. 2193 11, 15, 27, 18

§ 202(b)(1), 111 Stat. 2194 12,17

§ 203, 111 Stat. 2196 11, 16,17

§ 203(a)(1), 111 Stat. 2196 2, 10, 11, 18

20300, 111 Stat. 2200 11

8 C. F. R. 3. Ich 8

Fed. R. Civ. P. 23(a)(2) 14

141 Cong. Rec. (1995):

p. 16,881 5

P. 22,112

142 Cong. Rec. (1996):

p. 6015

pp. 26,091-26,139

pp. 26,11-26,113

p. $11,936 (daily ed. Sept. 30, 1996)

H.R. 1915, 104th Cong., Ist Sess. (1995)

H.R. 2202, 104th Cong., Ist Sess. (1995)

H.R. Conf. Rep. No. 828, 104th Cong., 2d Sess.

(1996)

H.R. Rep. No. 469, 104th Cong., 2d Sess., Pt. 1

(1996)

Memorandum from INS General Counsel Owen Cooper,

on the Administrative Closure of EOIR i

for Non-Lawful Permanent Resident Aliens Eligible

for Repapering (Dec. 7, 1999) 19, 28

Memorandum from INS General Counsel Paul W.

Virtue, on the Administrative Closure of EOIR Pro-

ceedings for Aliens Eligible for Repapering

(Dec. 7, 1998) 19, 28

S. 1664, 104th Cong. , 2d Sess. (1996) 7

S. Rep. No. 249, 104th Cong., 2d Sess. (1996) 7

D 222420

In the Supreme Court of the United States

No. 99-1314

ROBERTO TEFEL, ET AL., PETITIONERS

JANET RENO, ATTORNEY GENERAL, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1-A36) is

reported at 180 F.3d 1286. The decision of the district court

denying the government’s motion to dismiss the complaint

and provisionally certifying the class is reported at 972

F. Supp. 608. The decision of the district court entering the

preliminary injunction (Pet. App. A37-A88) is reported at

972 F. Supp. 623. The decision of the district court denying

the government’s motion to dissolve the preliminary injunc-

tion (Pet. App. A89-A99) is reported at 996 F. Supp. 1.

JURISDICTION

The judgment of the court of appeals was entered on July

14, 1999. A petition for rehearing was denied on October 6,

1999. On December 30, 1999, Justice Kennedy extended the

time for filing a petition for a writ of certiorari to and in-

cluding February 3, 2000, and the petition was filed on that

date. The jurisdiction of this Court is invoked under 28

U.S. C. 1254(1).

(1)

STATEMENT

This case presents a challenge to the enforcement of

Section 309(c)(5)(A) of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L.

104-208, Div. C, Tit. III, 110 Stat. 3009-627, as amended by

Section 203(a)(1) of the Nicaraguan Adjustment and Central

American Relief Act (NACARA), Pub. L. No. 105-100, 111

Stat. 2196. IIRIRA § 309(c)(5)(A) provided that an alien

who applied for suspension of deportation under former 8

U.S.C. 1254(a) (repealed 1996) is not eligible for such relief

unless the alien was continuously present in the United

States for seven years before the alien was served with the

Order to Show Cause (OSC) commencing the alien’s deporta-

tion proceedings. That seven-year cutoff at the time

of service of the OSC is known as the “stop-time rule.”

Petitioners contend that the stop-time rule of IIRIRA

§ 309(c)(5)(A) deprives them, without due process of law, of a

constitutionally protected right to apply for suspension of

deportation. They also contend that the government

should be estopped from applying IIRIRA § 309(c)(5)(A) in

the cases of Nicaraguan nationals because, before the enact-

ment of IIRIRA, the Immigration and Naturalization

Service (INS) promoted a program under which certain Ni-

caraguan nationals who were subject to orders of deporta-

tion could move to reopen their deportation proceedings and

apply for suspension of deportation. The district court

entered a preliminary injunction preventing the government

from applying the stop-time rule in administrative deporta-

tion proceedings involving members of the class, but the

court of appeals vacated the injunction, finding that peti-

tioners had not established a likelihood of success on the

merits of either claim.

1. Before the amendments to the Immigration and Na-

tionality Act (INA) enacted by IIRIRA in 1996, an alien who

was subject to deportation could apply for suspension of

deportation and adjustment of status to that of a lawful

permanent resident (LPR). 8 U.S.C. 1254(a). Such relief

was available in the discretion of the Attorney General. To

qualify for consideration for suspension of deportation, the

alien was required to demonstrate, inter alia, that he had

been “physically present in the United States for a con-

tinuous period of not less than seven years immediately

preceding the date of such application [for relief].” 8 U.S.C.

1254(aX(1).' The time that an alien spent in deportation

proceedings before issuance of a final order of deportation

was counted toward the requirement of seven years’

continuous physical presence in the United States. See, e. g.,

Vargas- Gonzalez v. INS, 647 F. 2d 457, 458 (5th Cir. 1981).

2. On June 12, 1995, before the enactment of IIRIRA, the

Attorney General terminated a special program established

in 1987 for review of deportation orders affecting Nicara-

guan nationals.” She also authorized the INS to institute a

transitional program, under which certain Nicaraguans sub-

ject to final orders of deportation with seven years of

continuous physical presence in the United States could file

motions to reopen their deportation proceedings in order to

apply for suspension of deportation and adjustment of

1 The alien was also required to demonstrate that he was of good

moral character and that his deportation would result in “extreme

hardship” to himself or a spouse, parent or child who was a citizen of the

United States or an alien lawfully admitted for permanent residence. 8

U.S.C. 1254(a\1).

2 Under the Nicaraguan Review Program (NRP), the files of

Nicaraguan nationals subject to final orders of deportation were subject to

mandatory review by the INS and the Office of the Deputy Attorney

General. See Complaint Exh. 2. The NRP was established by Attorney

General Meese to provide an additional level of review for Nicaraguans

whose applications for asylum were denied. Complaint Exh. 4. Three

years after the transition to a democratically elected government in

Nicaragua, Attorney General Reno determined that it was no longer

necessary to continue the NRP. Ibid.

status. Complaint Exh. 3. Under that transitional pro-

gram, a Nicaraguan who filed a motion to reopen could

remain in the United States pending the adjudication of the

application for suspension of deportation, and could apply for

work authorization. Complaint Exhs. 2, 8. The INS also

reiterated that Nicaraguans who feared persecution on

account cf political opinion could apply for asylum. Com-

plaint Exhs. 2, 4.

8. On September 30, 1996, Congress enacted IIRIRA.

That statute abolished the old distinction between deporta-

tion and exclusion proceedings, repealed the provision for

suspension of deportation in former 8 U.S.C. 1254(a), insti-

tuted a new form of proceeding known as “removal,” and

established a new form of discretionary relief from removal,

known as “cancellation of removal.” See 8 U.S.C. 1229(a),

1229b (Supp. IV 1998). Under the latter provision, the

Attorney General may in her discretion cancel the removal

of an alien if the alien demonstrates, among other things,

that he has resided in the United States continuously for

seven years (if the alien is an LPR) or has been continuously

present in the United States for ten years (if the alien is not

an LPR). 8 U.S.C. 1229b(a) and (b) (Supp. IV 1998).

For purposes of eligibility for cancellation of removal,

however, the required continuous residence or physical pre-

sence is “deemed to end when the alien is served a notice to

appear,” 8 U.S.C. 1229b(d)(1) (Supp. IV 1998), not when the

alien makes his application for relief. The Notice to Appear

is the document that commences removal proceedings under

IIRIRA, and replaces the old Order to Show Cause, which

commenced deportation proceedings under the INA before

IIRIRA. See 8 U.S.C. 1229(a) (Supp. IV 1998). Thus,

3 Prospective applicants were informed that the fee for a motion to

reopen was $110, and that the fee for an application for suspension of

deportation, to accompany the motion to reopen, was an additional $100.

~ Complaint Exh. 4.

IIRIRA instituted a new “stop-time” rule under which the

service of the Order to Show Cause cuts off the time that is

counted towards establishing an alien’s eligibility for can-

cellation of removal, and the time that an alien spends in

removal proceedings is not counted.

The new cancellation of removal provisions (including the

ten-year eligibility requirement for aliens who are not

LPRs) were generally not made applicable to aliens whose

immigration proceedings were commenced prior to April 1,

1997, the general effective date of IIRIRA. IIRIRA did,

however, contain a special “transitional rule with regard to

suspension of deportation,” which provided that the new

stop-time rule was to apply to “notices to appear” issued be- :

fore, on, or after the date of enactment of IIRIRA, i. e.,

September 30, 1996. Specifically, IIRIRA § 309 (e) (5) pro- |

vided: :

TRANSITIONAL RULE WITH REGARD TO |

SUSPENSION OF DEPORTATION.—Paragraphs (1)

and (2) of section 240A(d) of the Immigration and

Nationality Act [(8 U.S.C. 1229b(d) (Supp. IV 1998))]

(relating to continuous residence or physical presence)

shall apply to notices to appear issued before, on, or after

the date of the enactment of this Act.

110 Stat. 3009-627.

4. A predecessor to the statute that eventually became

IIRIRA was introduced in the House of Representatives as

H.R. 1915 on June 22, 1995. 141 Cong. Rec. 16,881 (1995).

That bill contained a Section 309(c)(5), the predecessor to

what was ultimately enacted as IIRIRA § 309(c)(5). That

provision contained language to the effect that, for appli-

cations for suspension of deportation pending more than 30

days after enactment, the period of continuous physical pre-

sence would be deemed to have ended when the alien was

served an Order to Show Cause, even if the application for

~ suspension had been filed before the enactment of the

Se a —

legislation. The Justice Department did not endorse that

provision, generally described the curtailing of discretionary

relief in the proposed legislation as “drastic,” and urged that

some form of discretionary relief from removal be retained.

See Resp. Exh. B2, at 3. On August 4, 1995, H.R. 1915 was

withdrawn from consideration, and new H.R. 2202 was

introduced in its stead. 141 Cong. Rec. 22,112 (1995). H.R.

2202 contained a version of Section 309(c)(5) materially

identical to the version in H.R. 1915. See H.R. 2202, 104th

Cong., Ist Sess. § 309(c)(5) (1995). The Justice Department

expressed concern regarding the proposed Section 309(c)(5)

in the new bill, and urged that the then-current rules on

physical presence in the United States remain in effect for

already-pending applications. See Resp. Exh. B38, at 34.

The House Judiciary Committee reported H.R. 2202 with

a significantly changed version of Section 309(c)(5). Con-

sistent with the Justice Department’s position, the Com-

mittee’s version would have applied the cut-off date only to

cases initiated after the enactment of the Act. See H.R. Rep.

No. 469, 104th Cong., 2d Sess. Pt. 1, at 42 (1996). The Justice

Department expressed support for that newly drafted

version of Section 309(c)(5). Resp. Exh. B4, at 38. On March

21, 1996, the House of Representatives passed H.R. 2202

with the amended version of Section 309(c)(5) and sent the 8

bill to the Senate. 142 Cong. Rec. 6015 (1996).

4 That bill would have provided:

In applying section 244(a) of the Immigration and Nationality Act

(as in effect before the date of the enactment of this Act) with respect

to an application for suspension of deportation which is filed before,

on, or after the date of the enactment of this Act and which has not

been adjudicated as of 30 days after the date of the enactment of this

Act, the period of continuous physical presence under such section

shall be deemed to have ended on the date the alien was served an

order to show cause pursuant to section 242A of such Act (as in effect

on such date of enactment).

H.R. 1915, 104th Cong., Ist Sess. § 309(c)(5) (1995).

On April 15, 1996, the Senate began floor consideration of

a separate immigration bill (S. 1664). 142 Cong. Rec. 7295

(1996). That bill did not contain any provisions regarding

suspension of deportation. See S. 1664, 104th Cong., 2d Sess.

(1996); S. Rep. No. 249, 104th Cong., 2d Sess. (1996). On May

2, 1996, the Senate replaced the provisions of H.R. 2202 with

those of S. 1664, and passed the bill, which was then sent to a

Conference Committee. See 142 Cong. Rec. 10,065 (1996).

On September 24, 1996, the Conference Committee sub-

mitted to both Houses a Report containing a new version of

the legislation, which adopted restrictions on suspension of

deportation derived from the House’s version of the legisla-

tion and applied a stop-time rule based on service of the

Notice to Appear on the alien. The Conference Report also

inserted language into Section 309(¢)(5) providing for the

application of the new stop-time rule to applications for sus-

pension of deportation in cases in which a notice to appear

had been issued before the date of enactment of the pro-

posed act. See H.R. Conf. Rep. No. 828, 104th Cong., 2d

Sess. €2 (1996). On September 28, 1996, H.R. 2202 was

withdrawn, and the version of the bill that had been reported

in the Conference Report was introduced in the House as

part of H.R. 3610, an appropriations bill. 142 Cong. Rec.

26,091-26,139 (1996). The House passed H.R. 3610 on

September 28, 1996, see id. at 26,112-26,113, and the Senate

passed it on September 30, 1996, see id. at 811,936. It was

signed by the President on September 30, 1996, and IIRIRA

§ 309(c)(5) was therefore duly enacted.

5. After enactment of IIRIRA, aliens in deportation pro-

ceedings argued that the new stop-time rule of IIRIRA did

not apply to proceedings commenced before the full effective

date of IIRIRA, April 1, 1997. That argument was based on

language in Section 309(c)(5) directing that the new stop-

time rule be applied in cases in which a “notice to appear”

had been issued; under deportation proceedings initiated

before IIRIRA’s effective date, no document known as a

“notice to appear” existed, and proceedings were com-

menced by service of an Order to Show Cause.

On February 20, 1997, the Board of Immigration Appeals

(BIA), in a case involving petitioner Baldizon, rejected that

argument, and held that IIRIRA § 309(c)(5) required that

the new stop-time rule be applied to all pending and

future deportation proceedings, including those commenced

before IIRIRA was enacted. In re N-J-B-, Int. Dec. No.

3415 (B. I. A. Feb. 20, 1997). The BIA concluded that the

term “notice to appear” in IIRIRA § 309(c)(5) referred

generically to a document initiating proceedings, and that,

because Section 309(c)(6) expressly referred to such a

document “issued before, on, or after” IIRIRA’s enactment

date, it necessarily included an Order to Show Cause issued

before that date. Id. at 8-11. The BIA therefore held that,

because of the new stop-time rule, Baldizon, who had

entered the United States on August 5, 1987, who had been

served with an Order to Show Cause on August 27, 1993

(less than seven years later), and whose application for sus-

pension of deportation was still pending after the enactment

of IIRIRA (more than seven years after her entry into the

United States), was not eligible for suspension of deporta-

tion. Id at 2, 13-14.

Baldizon filed a petition for review of the BIA’s decision in

the United States Court of Appeals for the Eleventh Circuit.

N-J-B- v. Reno, No. 97-4400. On July 10, 1997, while that

petition was pending, the Attorney General, exercising her

authority under 8 C.F.R. 3.1(h)(1)(i), vacated the BIA’s

decision in N-J-B- and certified that case to herself for her

review and determination. See In re N- J- B-, Int. Dec. No.

3415, at 39 (A.G. July 10, 1997). The Eleventh Circuit then

dismissed Baldizon’s petition for review for lack of

jurisdiction because the Attorney General’s vacatur of the

BIA’s decision rendered Baldizon’s deportation order non-

final. N-J-B- v. Reno, No. 97-4400 (July 27, 1999).

6. Meanwhile, on March 28, 1997, petitioners, aliens who

had applied for suspension of deportation, filed this case as a

class action in district court. The named plaintiffs were more

than 30 Nicaraguan nationals, one Salvadoran national, one

Haitian, one Malaysian, and one Iranian.’ Count 1 of the

complaint alleged that the BIA’s construction of the stop-

time rule of IIRIRA § 309(c)(5) in N-J-B- as applying to de-

portation proceedings commenced before IIRIRA’s effective

date was arbitrary and capricious and contrary to the INA.

Count 2 alleged that the same application violated con-

stitutional principles of equal protection and due process.

Count 3 alleged that the government was estopped from

enforcing IIRIRA § 309(c)(5) against the members of the

class who are Nicaraguan nationals, because, before IIRIRA

was enacted, the government had allegedly induced them

into applying for suspension of deportation and paying fees

for such applications. As relief, petitioners requested that

5 The proposed class was defined as follows:

All individuals within the states of Georgia, Alabama and Florida who

have been or will be denied suspension of deportation as a result of

the BIA’s decision to apply the transitional rule of § 309(c)(5) of the

Illegal Immigration Reform and Immigrant Responsibility Act

(IIRIRA) retroactively to persons who have sought or are seeking

suspension of deportation.

Complaint { 55. Petitioners further described the class as follows:

This case also consists of a subclass of members within the class who

are Nicaraguan nationals who paid substantial fees to reopen their

cases and/or to seek suspension of deportation as a result of the

defendants’ inducements and promises that their applications for

suspension would be considered when in fact the defendants now

refuse to consider such applications.

Ibid.

Count 4 alleged that petitioner Baldizon had been denied the right

to counsel in her proceedings before the BIA. Complaint JJ 75-76. The

lower courts have not addressed that claim in detail, and it will not be

further discussed in this brief. See Pet. App. As n.5.

the government be enjoined from adjudicating the suspen- 4

sion of deportation applications of class members on the

basis of the BIA’s decision in N-J-B-.

On May 20, 1997, the district court provisionally certified a

class. Tefel v. Reno, 972 F. Supp. 608, 617-618 (S.D. Fla.

1997). On June 24, 1997, the district court granted peti-

ioners’ motion for a preliminary injunction, and prohibited

respondents from enforcing N-J-B-, or pretermitting

applications for suspension of deportation based on N-J-B-,

against any class member. Pet. App. A37-A88. In ruling

that petitioners had a substantial likelihood of success on the

merits, the court concluded that the BIA had misinterpreted

IIRIRA § 309(c)(5) in N-J-B- (id. at A56-A58); that the

BIA’s interpretation deprived petitioners of due process

because the INS’s previous actions in encouraging

Nicaraguan nationals to apply for suspension of deportation

had created “a property or liberty interest in the right to a

hearing on their claims for suspension of deportation,” which

claims were now pretermitted by the N-J-B- decision (id. at

A65); and that the government should be estopped from

applying IIRIRA § 309(c)(5) to Nicaraguan class members

because, in 1995 and 1996, it had encouraged those class

members to apply for suspension of deportation even though

it was “well aware * * * that there was a substantial

likelihood that suspension of deportation in one manner or

another would be drastically curtailed” by Congress, but had

not disclosed that fact to class members (id. at A70) (internal

quotation marks omitted).

7. On November 19, 1997, Congress enacted the Nica-

raguan Adjustment and Central American Relief Act

(NACARA), Pub. L. No. 105-100, 111 Stat. 2193. Section

203(a)(1) of NACARA amended IIRIRA § 309(c)(5) to make

clear that the stop-time rule of IIRIRA does apply even to

deportation proceedings opened before April 1, 1997, by

service of an Order to Show Cause (rather than a Notice to

WWW

Appear).’ Section 203(f) of NACARA also made that

amendment effective as if included in the original enactment

of IIRIRA. 111 Stat. 2200.

Section 203(a)(1) of NACARA also created important

exceptions to the new stop-time rule for certain qualifying

aliens from El Salvador, Guatemala, and Eastern Europe.

The exception allowed qualified nationals of those countries

to apply for suspension of deportation or cancellation of re-

moval without having their period of continuous physical

presence stopped at the time an Order to Show Cause or

Notice to Appear was served on them. See NACARA

§ 208(a)(1), 111 Stat. 2196-2198 (adding new IIRIRA

8309 (5 (C).

Although NACARA § 203 did not exempt Nicaraguans

from the stop-time rule for purposes of suspension of

deportation, NACARA § 202 provided them with even

broader relief. While other aliens must meet the continuous

presence requirement with the application of the stop-time

rule (unless they are exempt under NACARA § 203), and

must also demonstrate that they are eligible for suspension

of deportation under prior 8 U.S.C. 1254(a) by establishing

extreme hardship before having their status adjusted to that

of a lawful permanent resident, NACARA § 202 provided

qualified Nicaraguans the opportunity to apply directly for

adjustment of status to that of a lawful permanent resident,

7 NACARA § 203(a)(1) amended IIRIRA § 309(c)(5) to read in part

as follows:

(A) IN GENERAL.— * * * [Plaragraphs (1) and (2) of section

240A(d) of the Immigration and Nationality Act (relating to

continuous residence or physical presence) shall apply to orders to

show cause (including those referred to in section 242B(a)(1) of the

Immigration and Nationality Act, as in effect before the title III-A

effective date), issued before, on, or after the date of the enactment of

this Act.

111 Stat. 2196 (emphasis added).

without the need also to apply for suspension of deportation.

Under this special adjustment provision, any Nicaraguan

who has been physically present in the United States con-

tinuously since at least December 1, 1995, and who is

otherwise admissible in accordance with certain specified

provisions, is eligible to have his status adjusted to that of an

LPR if he has applied before April 1, 2000; the alien need not

establish extreme hardship. See NACARA § 202(b)(1), 111

Stat. 2194. A similar privilege was extended to certain

Haitian nationals in the Haitian Refugee Immigration

Fairness Act of 1998, Pub. L. No. 105-277, Div. A, sec. 101(h),

Tit. IX, § 902(b), 112 Stat. 2681-538.

8. The government moved in the district court for dis-

solution of the injunction, contending that NACARA had

codified the BIA’s interpretation of IIRIRA § 309(c)(5) in N-

J-B-. On February 10, 1998, the district court denied that

motion. Pet. App. A89-A99. Although the district court

agreed that Congress’s “codification [in NACARA] of the

BIA’s interpretation of IIRIRA section 309(c)(5) directly

refutes this Court’s conclusion that Matter of N-J-B- was

likely wrongly decided,” and that petitioners “cannot con-

tinue with that claim in the face of NACARA’s unambiguous

directive,” id. at A95, it nevertheless concluded (id. at A95-

A96) that petitioners’ constitutional challenge to the appli-

cation of IIRIRA § 309(c)(5) to their cases was unaffected by

NACARA. The government appealed from the district

court’s order denying the motion to dissolve the preliminary

injunction.

9. The court of appeals reversed the district court’s

conclusion that petitioners had shown a likelihood of success

on the merits, vacated the preliminary injunction, and re-

manded for further proceedings, including a reexamination

of the certification of the class. Pet. App. Al-A36.

The court of appeals rejected the district court’s con-

clusion that the petitioners’ expectation in having their

suspension-of-deportation applications adjudicated in any

particular manner constituted a constitutionally protected

liberty or property interest, and that subjecting them to new

requirements might constitute a deprivation of due process.

Pet. App. A24-A29. Although the court accepted the pro-

position that the INS had encouraged Nicaraguans to apply

' for suspension of deportation before IIRIRA’s enactment, it

\ held that the “expectation” among Nicaraguan nationals that

' they would be considered for suspension did not amount to a

liberty or property interest. Id. at A25. Relying on this

Court’s decision in Connecticut Board of Pardons v. Dums-

chat, 452 U.S. 458 (1981), the court observed that, where the

executive has “unfettered discretion” to award relief, no

liberty interest in that form of relief arises, even if the

executive “consistently” grants such relief, or grants such

relief in “most” cases. Pet. App. A25-A27. Since the

Attorney General “possesses broad discretion in awarding

suspension of deportation,” id. at A27, and such a grant

amounts to an “act of grace,” id. at A28, the court concluded

that no liberty or property interest in applying for sus-

pension of deportation had been created, ibid.

The court also rejected petitioners’ effort to employ

estoppel against the government as a means of avoiding

application of the statutory stop-time rule. Pet. App. A29-

A34. The court first held that, even if estoppel may ever be

applied against the government, the party seeking estoppel

must demonstrate (in addition to the traditional elements

of estoppel) “affirmative misconduct” on the part of the

government. Id. at A32. Although the court of appeals was

uncertain whether the district court had proceeded on the

assumption that affirmative misconduct is a necessary

i element of estoppel against the government (ibid.), it re-

jected petitioners’ theory that the government’s actions in

f encouraging Nicaraguans to apply for suspension of de-

portation under prior law, even while being aware that

Congress might change the law, amounted to affirmative

misconduct (id. at A32-A33). The court observed (ibid.) that

“Congress sometimes appears likely to do things it never

actually does, and the INS was entitled to operate under

existing law until it was changed.”

The court of appeals also directed the district court to

reconsider its provisional certification of the class. Pet. App.

A34-A35. The court observed that the class does not appear

to meet the commonality requirement of Federal Rule of

Civil Procedure 23(a)(2), in that the district court’s decisions

focused almost exclusively on INS actions directed towards

Nicaraguan nationals, and yet its injunction encompassed

non-Nicaraguans as well. Pet App. A34. The court also

noted that NACARA had placed the Nicaraguan petitioners

in a different legal position from that of the non-Nicaraguan

petitioners. Id. at A85. In that egard, the court stated that

passage of NACARA raised serious questions whether the

named plaintiffs, who consist mostly of Nicaraguans, remain

adequate class representatives. Ibid.

10. Since the filing of the complaint, most of the named

Nicaraguan petitioners have become legal permanent re-

sident aliens. The remaining named Nicaraguan petitioners

8 On remand, the government moved for decertification of the class,

summary judgment, and dismissal. Petitioners requested a stay of the

proceedings without a ruling on the government’s motions, in light of their

intention to file a certiorari petition. The government did not oppose that

request, and on January 13, 2000, the district court stayed all proceedings

on remand pending this Court’s disposition of the petition.

9 Our information respecting the status of the named petitioners has

been obtained from the INS and the Executive Office of Immigration

Review (EOIR), the separate component of the Department of Justice

that is responsible for adjudicating deportation and removal proceedings

before immigration judges (IJs) and the BIA.

Two of the named Nicaraguan petitioners (Lucretia Raudes and Carlos

Morales) obtained LPR status before the filing of the lawsuit; they were

granted suspension of deportation by an I, and the INS did not appeal

those rulings to the BIA. See Complaint 1{ 12, 15.

In the cases of five named petitioners (Jaime Enriquez, Martha

Enriquez, Edgar Enriquez, Freddy Quintero, and Ricardo Fonseca), the

have applied for adjustment of status under NACARA § 202

and are awaiting adjudication of their applications.” Peti-

tioner Alexandra Charles, a Haitian national, has applied for

adjustment of status under the Haitian Refugee Immi-

gration Fairness Act. The stop-time rule of IIRIRA

§ 309(c)(5) appears not to apply to petitioner Roberto

Amaya, a Salvadoran national whose deportation proceeding

is currently pending before the BIA, because of the ex-

IJ granted suspension of deportation, and after the filing of this lawsuit,

the INS withdrew its appeals to the BIA.

The following 28 named Nicaraguan petitioners have become LPRs as

a result of their applications for adjustment of status under NACARA §

202: Roberto Tefel, Leonel Martinez, Manuel Mantilla, Roberto

Barberena, Lorena Garcia, Ana Borge, Ignacio Herrera, Nydia Mercado,

Liliam Portillo, Sebastian Murillo, Jesus Chow, Gloria Guerrero, Douglas

Membrano-Murillo, Damarys Contreras, Virginia Rodriguez, Juan

Bermudez, Ricardo Bermudez, Leonte Martinez, Zulema Balladares,

Boanerges Pao, Franklin Siu, Justina Jiron, Armando Largaespada,

Herenia Matute, Enrique Sequeira, Dudley Rocha-Petterson, Ernesto

Torres Sandoval, and German Reyes.

10 The BIA remanded the case of petitioner Juan Gonzaga Baez to an

IJ, who has scheduled a hearing on June 19, 2000, to adjudicate Baez’s

application for adjustment of status under NACARA § 202. Petitioner

Norma J. Baldizon, whose deportation proceeding was certified to the

Attorney General in N-J-B-, filed a motion to remand to apply for

adjustment of status under NACAKA; the Attorney General remanded

her case to the BIA on August 20, 1999. The BIA further re-uanded her

case to an IJ, who on January 7, 2000, terminated the deportation pro-

ceedings so that the INS may consider the merits of Baldizon’s application

for adjustment of status under NACARA. Similarly, the deportation

proceedings of petitioner Carlos Rivas were closed at his request, so that

he might file for adjustment of status under NACARA § 202. Petitioner

Wilbur Baez withdrew as a class member on June 17, 1997. We have been

unable to verify the current immigration status of petitioner Robert

Rivera; no Nicaraguan national with that name has a case currently pend-

ing before the BIA, and Rivera’s alien-registration number has not been

provided to us in the course of this litigation. Based on the allegations in

the complaint, however, Rivera appears to be eligible for adjustment of

status under NACARA § 202.

emption for certain Salvadorans in NACARA § 203. In sum,

it appears that only two named petitioners, Khadijeh

Aidenezhad, an Iranian, and Subalecthumy Vengadasalam, a

Malaysian, currently face the prospect of having the stop-

time rule of IIRIRA § 309(c)(5) applied to their applications

for suspension of deportation, which are currently pending

before the Board of Immigration Appeals.

ARGUMENT

The court of appeals correctly concluded that petitioners

could not establish a likelihood of prevailing on the merits of

either their constitutional or their estoppel challenge to the

application of the stop-time rule of Section 309(c)(5) of

IIRIRA, and therefore are not entitled to a preliminary

injunction. That decision does not conflict with any decision

of this Court or any other court of appeals. In addition, the

issues presented by this case are of little general or con-

tinuing importance, because petitioners’ challenges concern

only eligibility for a form of discretionary relief (suspension

of deportation) that has been prospectively repealed by

IIRIRA; most of the petitioners are or may be eligible for

suspension of deportation or adjustment of status without

regard to IIRIRA § 309(c)(5); and the cases of the remaining

petitioners do not squarely present either the constitutional

or estoppel claim. Further review is therefore not war-

ranted.

1. Petitioners argue that the stop-time rule of IIRIRA

§ 309(c)(5) deprived them, without due process of law, of the

right to apply for suspension of deportation, and that the

government should be estopped from relying on that stop-

time rule in the cases of Nicaraguan nationals because

the government had previously encouraged Nicaraguan

nationals in the plaintiff class to apply for suspension of

deportation. Those claims are of little continuing or general

importance. First, the application of IIRIRA § 309(c)(5)

affects only aliens who have sought to apply for suspension

of deportation, pursuant to former 8 U.S.C. 1254(a), in depor-

tation proceedings commenced under pre-IIRIRA law. For

removal proceedings commenced on or after April 1, 1997,

and thus governed by IIRIRA, however, suspension of

deportation has been repealed (see IIRIRA § 308(b)(7), 110

Stat. 3009-615) and replaced by a new form of relief known

as “cancellation of removal” that is subject to different

substantive terms. See 8 U.S.C. 1229b (Supp. IV 1998).

Thus, the claims in this case concern only deportation pro-

ceedings affected by IIRIRA’s transitional rules, and do not

implicate any removal proceedings under the permanent

provisions of IIRIRA.

Second, legislation enacted after IIKIRA has rendered

moot or irrelevant the constitutional and estoppel claims of

almost all the named petitioners. Petitioners purport to

represent a class of aliens within Georgia, Alabama, and

Florida who have been or will be denied suspension of de-

portation based on the application of IIRIRA 5 309(c)(5) to

their pending applications. In 1997, however, Congress

enacted NACARA, which allowed qualified Nicaraguan and

Cuban nationals to apply for adjustment of status to LPR

without the need also to apply for suspension of deportation,

and therefore without regard to the stop-time rule of

IIRIRA § 309(c)(5). See NACARA § 202(b)(1), 111 Stat.

2194. Virtually all class members who are Nicaraguan

nationals benefit from NACARA § 202, as exemplified by

the named Nicaraguan petitioners in this case, who have

already applied for and (in the vast majority of cages) have

been granted adjustment of status through NACARA § 202.

See pp. 14-15, supra.” Further, Section 203 of NACARA

1 Petitioners observe (Pet. 8) that family members of Nicaraguan

class members who are themselves not nationals of Nicaragua or Cuba are

not eligible for adjustment of status under NACARA. Any such family

members, however, could benefit from specific family-sponsored visa

exempted qualified nationals of El Salvador from the appli-

cation of IIRIRA § 309(c)(5)(A), and the one named peti-

tioner of Salvadoran nationality appears from the complaint

to meet the requirements for that exemption. See

NACARA § 203/a)(1), 111 Stat. 2196; pp. 15-16, supra.

Finally, Section 902(b) of the Haitian Refugee Immigration

Fairness Act of 1998, Pub. L. No. 105-277, 112 Stat. 2681-538,

allowed qualified Haitian nationals to seek adjustment of

status in a manner similar to that provided for Nicaraguans

under NACARA, and the one named petitioner who is a

Haitian national also appears from the complaint to be

eligible for adjustment of status under that Act. See p. 15,

supra.

As the court of appeals observed in ordering the district

court to reconsider the certification of the class (Pet. App.

Al6), post-IIRIRA enactments leave only two named

petitioners affected by post-IIRIRA legislation: Khadijeh

Aidenezhad, an Iranian, and Subalecthumy Vengadasalam,

a Malaysian. But it is not clear that the case of either

Aidenezhad or Vengadasalam actually presents a consti-

tutional or estoppel challenge to IIRIRA § 309(c)(5).”

Petitioners have argued, for example, that a constitutionally

protected property interest in applying for suspension of de-

portation was created by, among other things, the govern-

ment’s alleged “conduct in inducing and misleading appli-

cants to come forward to apply” for suspension. Pet. 12. But

petitioners have not argued that this government conduct of

encouraging applications for suspension of deportation was

provisions once the Nicaraguan class members obtained LPR status under

NACARA § 202. See, e. g., 8 U.S.C. 1153(a)(2).

12 Those two petitioners did raise at the outset the claim that the

BIA’s construction of IIRIRA § 309(c)(5) in N-J-B- was legally erroneous,

but that claim was mooted by the passage of NACARA, which codified the

BIA’s decision in N-J-B- and made it effective as if enacted in IIRIRA.

See pp. 10-11, supra.

directed at any aliens other than Nicaraguan nationals, who

were in an unusual situation because of the Attorney

General’s 1995 termination of the special program for review

of deportation orders affecting Nicaraguans. See pp. 3-4,

supra. Therefore, even under petitioners’ theory, no aliens

other than Nicaraguans had a liberty or property interest in

applying for suspension for deportation. Similarly, because

the government’s encouragement of_applications for sus-

pension of deportation was directed only at Nicaraguans,

only Nicaraguans could even arguably raise an estoppel

claim.”

18° The INS and EOIR have recently implemented a program under

which certain deportation cases that were commenced before the effective

date of IIRIRA and are still pending may be administratively closed

without a final decision on the alien’s deportability. This program is

intended to benefit aliens who would be barred by the stop-time rule of

IIRIRA § 309(c)(5) from receiving suspension of deportation under old 8

U.S.C. 1254fa), but who would not now be barred by the stop-time rule

from receiving cancellation of removal under 8 U.S.C. 1229b (Supp. IV

1998), because the Notice to Appear would have been served on the alien

at a later date. Under this program, the INS and the EOIR will (in the

absence of unusual circumstances) administratively close old deportation

cases that meet three criteria: (1) the alien is not presently an LPR;

(2) the alien would be eligible for suspension of deportation but for the

new stop-time rule; (3) the alien would meet the ten-year physical

presence requirement for cancellation of removal under Section 1229b if

served with a Notice to Appear under the permanent rules of IIRIRA;

and (4) the alien would be statutorily eligible for cancellation of removal

under Section 1229b. It is anticipated that, in the future, the INS will

commence removal proceedings against these aliens, so that the aliens

may apply for cancellation of removal under Section 1229b. See Memoran-

dum from INS General Counsel Owen Cooper (Dec. 7, 1999); Memoran-

dum from INS General Counsel Paul W. Virtue (Dec. 7, 1998) (lodged with

the Clerk). It appears that petitioner Aidenezhad would be eligible for

administrative closure under this program, but that petitioner Ven-

gadasalam would not; cancellation of removal for an alien who is not an

LPR requires the alien to demonstrate that removal would result in

exceptional and extremely unusual hardship to the alien’s spouse, parent,

or child who is a citizen or an LPR, see 8 U.S.C. 1229b(b)(1XD) (Supp. IV

EE —²uM U ͤ¹-Nng 3

2. Petitioners contend (Pet. 10-16) that, by enacting a

stop-time rule that rendered them ineligible for the dis-

eretionary relief of suspension of deportation, Congress

deprived them without due process of law of their consti-

tutionally protected interest in applying for that relief. That

contention is without merit.

As an initial matter, it is our position that, contrary to the

ruling by the court of appeals on the point (see Pet. App.

A17-A22), the district court did not have jurisdiction to

entertain this suit. Petitioners seek to prevent immigration

judges (IJs) and the Board of Immigration Appeals from

applying the new statutory stop-time provision of IIRIRA

and NACARA in deportation cases pending before them in

which members of the petitioner class have applied for sus-

pension of deportation. The proper way for petitioners to

raise that claim, however, was to exhaust their administra-

tive remedies before the IJ and the BIA, and then if relief

were denied and the alien were ordered deported, to petition

for review in the court of appeals pursuant to 8 U.S.C. 1105a.

As this Court has specifically held, on petition for review,

the alien may present any challenge he may have to the

denial of suspension of deportation, see Foti v. INS, 375 U.S.

217 (1963), including a challenge based on constitutional

grounds, see INS v. Chadha, 462 U.S. 919, 937-939 (1983).

An alien may not avoid that exclusive procedure by separat-

ing out one issue that may bear on his deportation pro-

ceedings (including his application for suspension of depor-

tation) and raising that issue in a suit filed in the district

court. The cases on which the court of appeals relied to

reach a contrary result involved alleged patterns of uncon-

stitutional conduct outside the adjudication of deportation

proceedings by IJs and the BIA. Because of this jurisdic-

tional defect, if the Court granted review in this case, it

1998), and Vengadasalam does not have such a close relative who is a

citizen or LPR.

could not, in our view, grant petitioners the relief they now

seek.

In any event, petitioners’ due process claim is without

merit. Petitioners strive to frame this case as involving a

right to procedural due process in the deportation context,

but they overlook the fact that the stop-time rule does not

regulate the procedure for applying for suspension of relief.

Rather, IIRIRA § 309(c)(5) changed the terms of aliens’

statutory eligibility for that relief. Plainly, Congress has

very broad authority to establish the substantive bases on

which aliens may obtain discretionary relief from deporta-

tion. See INS v. Phinpathya, 464 U.S. 183, 195-196 (1984).

Thus, to establish a due process violation, petitioners must

show that the Constitution itself provided them with an

interest in obtaining suspension of deportation without

regard to the stop-time rule (i e., as long as they had been

present in the United States for seven years before issuance

of the final order of deportation) sufficient to warrant

protection by the Due Process Clause.

This Court’s decisions offer no support for such a pro-

position. To be sure, petitioners have a constitutionally

protected liberty interest in avoiding deportation, and so

their deportation proceedings must be conducted according

to principles of due process. But petitioners have not argued

that the procedures used by the immigration judges and the

BIA to hear any contentions about their deportability, or

even suspension of deportation or any other form of relief

that might have been available to them, were fundamentally

unfair. Rather, they have argued that they have a separate

constitutionally protected interest in applying for suspension

of deportation under the terms that were available to them

before Congress enacted the stop-time rule of IIRIRA. But

this Court has firmly rejected the contention that the Due

Process Clause constrains Congress’s power to make altera-

tions in the terms on which individuals may obtain benefits

from the government. See, e.g., Atkins v. Parker, 472 U.S.

115, 129-130 (1985). Although the Court’s decisions on that

point have generally arisen in the context of public welfare

benefits (see id. at 130 n.32), their reasoning applies with full

force to discretionary relief from deportation, which this

Court has consistently understood to be essentially an “act

of grace” that resides in the “unfettered discretion” of the

Attorney General (bounded, of course, by the terms of

eligibility set by Congress). See INS v. Yeuh-Shaio Yang,

519 U.S. 26, 30 (1996); Jay v. Boyd, 351 U.S. 345, 354 (1956).

Petitioners’ argument, if accepted, would constrain Con-

gress’s ability to alter the grounds on which aliens may be

deported or granted relief from deportation, a matter that

this Court has viewed as part of Congress’s plenary power to

regulate immigration. See Phinpathya, 464 U.S. at 196; cf.

Fiallo v. Bell, 430 U.S. 787, 798 (1977).

To put the matter another way, petitioners’ due process

claims fail because, to establish the existence of their

asserted constitutionally protected interest, they must show

both that they are eligible for the relief sought (suspension

of deportation) and that they would be entitied to receive

such relief. See American Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40, 60-61 (1999). Petitioners can clear neither

hurdle in this case. Congress has declared (subject to

exemptions created by NACARA, discussed at pp. 10-12,

supra) that petitioners are ineligible for suspension of depor-

tation because of the stop-time rule, and the Constitution

itself does not suggest in any way that the stop-time rule is

of questionable validity. Nor can petitioners establish that

they have any entitlement to suspension of deportation suf-

ficient to create a liberty or property interest protected by

the Due Process Clause. Suspension of deportation resides

in the discretion of the Attorney General. Accordingly,

petitioners have no basis for a due process challenge to

Congress’s alteration of the terms on which aliens are

eligible for suspension of deportation. Cf. Connecticut Bd. of

Pardons v. Dumschat, 452 U.S. 458, 464-466 (1981)

(concluding that inmates in Connecticut had no entitlement

to pardons, and therefore no liberty interest protected by

due process in obtaining pardons, because the State had

given its Board of Pardons “unfettered discretion” to

determine whether any particular inmate should be granted

a pardon).

Petitioners attempt to establish a due process claim by

arguing that they are seeking to vindicate a “right to apply”

for discretionary suspension of deportation (Pet. 11-13). But

since petitioners have no liberty or property interest in

suspension of deportation on the substantive terms on which

it was available before Congress enacted IIRIRA, peti-

tioners have no separate constitutionally protected interest

in the process for applying for suspension. As the Seventh

Circuit observed in Shvartsman v. Apfel, 138 F.8d 1196

(1998), when one has no constitutionally protected interest in

receiving a benefit, one also has no constitutionally protected

interest in a particular process for proving entitlement to

1 Petitioners err in arguing (Pet. 11-12) that Ponte v. Real, 471 U.S.

491 (1985), modified the principle underlying the Court’s decision in

Dumschat. Ponte involved prisoners’ constitutionally protected liberty

iuterest in good-time credits, an entitlement_that prisoners received based

on their good behavior in prison. Petitioners, however, do not have and

never had an entitlement to suspension of deportation. Similarly,

petitioners’ reliance (Pet. 11) on United States ex rel. Accardi v. Shaugh-

nessy, 347 U.S. 260 (1954), is wide of the mark. In Accardi, the Court held

that the Attorney General was required to follow his own regulations in

ruling on applications for suspension of deportation, which required that

the BIA exercise its own judgment in adjudicating aliens’ applications for

suspension. Id. at 265-268. Accardi was not expressly decided on a due

process ground and is not framed in modern concepts of liberty and

property interests. Moreover, as we have explained, this case does not

involve procedures, and it certainly does not involve the Attorney

General’s failure to abide by her own regulations, as was the case in

Accardi. The applicable law here is supplied not by regulation but by an

Act of Congress—the stop-time rule of IIRIRA—and the Attorney

General is following that law.

that benefit. [Dlefining access to procedures as a

protectable property interest would eliminate the distinction

between property and the procedures that are

constitutionally required to protect it.“ Id. at 1199. Like-

wise, this Court has explained that Iplrocess is not an end in

itself. Its constitutional purpose is to protect a substantive

interest to which the individual has a legitimate claim of

entitlement.” Olim v. Wakinekona, 461 U.S. 238, 250

(1983).

Nor is a different result compelled because the INS

encouraged the Nicaraguan petitioners to apply for

suspension of deportation, or because petitioners paid a fee

when they did so. The payment of an application fee did not

provide petitioners with a guarantee that their applications

would be adjudicated under the substantive terms that

governed suspension of deportation when those applications

15 Petitioners seek to rely (Pet. 13) on Haitian Refugee Center v.

Smith, 676 F.2d 1023 (5th Cir. 1982) (HRC), to substantiate their claim of a

“right to apply” for suspension of deportation. HRC, however, involved

the rather different context of applications for asylum, and held only that,

having created a procedural mechanism to apply for asylum, the govern-

ment could not then make resort to that mechanism “utterly impossible”

by instituting meaningless procedures. Id. at 1039. HRC was subse-

quently limited in Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984) (en banc),

aff’d on other grounds, 472 U.S. 846 (1985), which held that the govern-

ment had no constitutionally based obligation to advise aliens of the

opportunity to apply for the discretionary grant of asylum and emphasized

(in language directly relevant here) that, “when dispensation of a statu-

tory benefit is clearly at the discretion of an agency, or when a statute

only provides that certain procedural guidelines be followed in arriving at

a decision, then there is no creation of a substantive interest protected by

the Constitution.” 727 F.2d at 981. Moreover, in this case the government

has not made it impossible for petitioners to apply for suspension of

deportation; rather, IIRIRA made them ineligible for that relief. The

appropriate analogy would be if Congress had enacted a statute con-

straining the terms on which aliens might be granted asylum in the

discretion of the Attorney General. HRC did not suggest that such a

statute would be unconstitutional. .

were filed. If, for example, the BIA had altered some aspect

of its decisional law governing suspension of deportation in a

manner adverse to petitioners while those applications were

pending, petitioners surely could not contend that the BIA

was prohibited by principles of due process from applying

that change in decisional law to their cases. The same would

be true if the federal courts had issued a ruling on sus-

pension of deportation that was generally adverse to aliens

and led the BIA to apply a more restrietive approach to that

form of relief. So too, the mere fact that petitioners paid a

fee cannot prevent Congress from enacting changes to the

law, even changes that govern applications for relief that are

already pending at the time the law is changed.

There is also no basis for petitioners’ argument that the

INS induced them to abandon their applications for asylum -

and thereby created a constitutionally protected interest in

having their applications for suspension of deportation ad-

judicating according to particular terms. In the first place,

the record shows that public announcements made by the

INS in connection with the termination of the special review

program for Nicaraguans made clear that Nicaraguans

fearing persecution had the continuing right to pursue

asylum applications as well as motions to reopen to pursue

suspension of deportation. See _— Exhs. 2, 4. And

16 Although petitioners rely on Furlong v. Shalala, 156 F.3d 384 (2d

Cir. 1998), to support their claim, that case is plainly distinguishable.

Furlong involved a suit by doctors who had declined assignment for

Medicare payments, challenging as a violation of due process the Secre-

tary of Health and Human Services’ failure to provide them with any

mechanism for administrative appeal of a fiscal intermediary’s decision to

set reimbursement for procedures at a particular rate. The court of

appeals held that the doctors had a property interest in receiving payment

for services rendered at the proper rate. Id. at 392-396. This case,

however, does not involve the payment of money for work done. Rather,

it involves only the authority of Congress to prescribe the eligibility

requirements for discretionary relief from deportation.

even if Nicaraguan members of the class mistakenly aban-

doned their asylum applications to pursue suspension of

deportation, that fact could not have created a consti-

tutionally protected interest in obtaining suspension of

deportation on the terms governing that form of relief at

that time. The INS is simply not empowered to bind Con-

gress or the BIA to authorizing suspension of deportation on

particular terms. There is no basis for concluding that the

INS made a guarantee to Nicaraguans that their suspension

of deportation applications would be reviewed favorably by

the BIA, or that it could have legally done so.

3. Petitioners also argue (Pet. 16-20) that the INS should

be estopped from applying the stop-time rule of IIRIRA

§ 309(c)(5) because it previously encouraged Nicaraguans to

apply for suspension of deportation and accepted their

application fees, even though it knew that Congress might

enact the stop-time rule that subsequently rendered them

ineligible for suspension. Petitioners also urge the Court to

decide whether a party seeking to invoke estoppel against

the government must show affirmative misconduct on the

part of the government, and if so (or even if not), whether

the government’s alleged actions in encouraging Nicara-

17 Petitioners suggest (Pet. 14) that the INS was under a

constitutional obligation to advise Nicaraguans either that they should

continue to pursue their asylum applications, or that Congress might later

alter the terms on which suspension would be unavailable. There is no

support for that contention, and a similar one was rejected by the

Eleventh Circuit in Jean, supra, 727 F.2d at 981. Asani v. INS, 154 F.3d

719, 726-728 (7th Cir. 1998), held only that IJs must follow the Attorney

General’s regulations requiring them to advise potentially eligible aliens at

their deportation hearings of the opportunity to apply for suspension of

deportation. Andriasian v. INS, 180 F.3d 1033, 1041 (9th Cir. 1999),

stated that an alien may not be surprised at his asylum hearing with an

issue of which he had no previous notice. Neither case suggests that the

INS must affirmatively advise large classes of aliens of their right to apply

for asylum or that the terms governing suspension of deportation may be

altered by Congress.

guans’ suspension applications warrant estoppel.. This case,

however, is not an appropriate vehicle for resolution of any

broad questions about the availability of estoppel against the

government, for it is clear that under any standard there is

no basis for estoppel in this case.

Although the Court has noted that it is questionable

whether estoppel may ever lie against the government, see

OPM v. Richmond, 496 U.S. 414, 423 (1990), it has made

clear that, “however heavy the burden might be when an

estoppel is asserted against the Government, the private

party surely cannot prevail without at least demonstrating

that the traditional elements of an estoppel are present.“

Heckler v. Community Health Servs., 467 U.S. 51, 61 (1984).

Thus, the party claiming estoppel against the government

must show at a minimum that the government misrepre-

sented the law, that the party relied to its detriment on the

misrepresentation, and that such reliance was reasonable.

Ibid. In this case, there was no misrepresentation; the INS

never suggested to petitioners or other Nicaraguan nationals

that Congress would not change the law governing sus-

pension of deportation. Nor is there any basis for peti-

tioners’ charge (Pet. 14) that the government was en-

couraging Nicaraguans to apply even while it was lobbying

Congress for the changes to the INA that rendered peti-

tioners ineligible for suspension. As we have explained (pp.

5-7, supra), the Department of Justice did not support the

application of the stop-time rule to already-pending cases,

and it pointed out to Congress that such application to

pending cases would make ineligible aliens who had already

applied for relief. Thus, while the Department did generally

support the new stop-time rule enacted in IIRIRA, insofar

as it was to be applied to future proceedings, it did not

request that Congress direct that the rule be applied to

pending cases, including petitioners’ applications.

There is also no basis for estoppel in petitioners’ con-

_ tention (Pet. 18) that the INS was aware that changes in the

law were looming but failed to inform petitioners of that

potentiality. In the first place, as the court of appeals

observed (Pet. App. A33), “Congress sometimes appears

likely to do things it never actually does,” and the INS

cannot predict with certainty whether or when changes to

the immigration laws will be enacted. Moreover, the Court

has already concluded that misinformation provided by

federal employees to private persons about the current state

of the law will not form the basis for estoppel. See OPM v.

Richmond, 496 U.S. at 423; Montana v. Kennedy, 366 U.S.

308, 314-315 (1961). It follows a fortiori that the INS’s

failure to inform petitioners about a potential future change

in the law that might be enacted by Congress and that might

affect their eligibility for relief from deportation could not

form a basis for estopping the government from applying

that change in the law once Congress enacted it and

expressly directed that it be applied to pending cases.”

18 For the convenience of the Court, we have lodged with the Clerk

the following materials referred to in this brief: Complaint, with Exhibits

1-4; Resp. Exh. B2 (letter from Assistant Attorney General Andrew Fois

to Rep. Lamar S. Smith (July 12, 1995)); Resp. Exh. B3 (letter from

Deputy Attorney General Jamie S. Gorelick to Rep. Henry J. Hyde (Sep.

15, 1995)); Resp. Exh. B4 (letter from Deputy Attorney General Jamie S.

Gorelick to Rep. Richard A. Gephardt (Mar. 13, 1996)); Memorandum from

INS General Counsel Paul W. Virtue, on the Administrative Closure of

EOIR Proceedings for Aliens Eligible for Repapering (Dec. 7, 1998);

Memorandum from INS General Counsel Owen Cooper, on the Adminis-

trative Closure of EOIR Proceedings for Non-Lawful Permanent Resi-

dent Aliens Eligible for Repapering (Dec. 7, 1999).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.