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D ock e t 99-5844

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. e du/thir dc ir c uit_2001/101Filed 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 Judge s.

(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 fro m an immigration judge decision denying suspension of deportation. The Pinhos contend that they satisfied the eligibility requirements for suspension of deportat ion at the time they filed their application and at the time t he 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 t o section 240A(d) of the Immigration and Nationality Act, 8 U.S.C. S 1229b(d) (Supp. IV 1998); and that the cur rent immigration law confers benefits on certain classes of aliens in violation of the equal protection component of t he Fifth
Amendment's Due Process Clause. We affirm.

I.

In August 1984, the Pinhos came to the United State s from Portugal with their three childr en as non-imm igrant
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 immigran t visas. Upon their return to the United States in Ja nuary 1991, the Immigration and Naturalization Service (I NS) served the Pinhos with orders to show cause why the y

2should not be deported for having entered the Unite d States

without inspection, thereby instituting deportation proceedings against them. At the time the or ders t o show cause were served, the Pinhos did not have seven ye ars of continuous physical presence in the United States. However, they had been continuously physically pres ent in the United States for more than seven years when th eir 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 commu nity. The Pinhos have strong ties to their community. The ir children were educated here, and they own real esta te in this country.

On January 6, 1992, the Pinhos appeared befor e the judge, conceded deportability, and applied for susp ension of deportation under section 244(a)(1) of the Immigrat ion and Nationality Act, 8 U.S.C. S 1254(a)(1) (1994) (repe aled by the Illegal Immigration Reform and Immigrant Responsibi lity Act, Pub. L. No. 104-208, S 309, 110 Stat. 3009-615 (1996)), or, in the alternative, for voluntary depa rture. Immigration and Nationality Act S 244(a)(1), as it existed at the time, authorized the discretionary r elief of s uspension of deportation if the immigrant met three criteria: seven years continuous physical presence in the United St ates, good moral character, and extreme har dship. The immigration judge denied their application for susp ension of deportation based solely on his finding that dep ortation would not cause extreme hardship. The judge specifi cally
stated that the Pinhos had lived in the United Stat es for more than seven years, thus satisfying the continuo us physical presence requirement as it then existed. W ithout specifically ruling on the issue of good moral char acter, the judge found no evidence that the Pinhos failed to m eet this requirement. The judge granted the application for voluntary departure and ordered that the Pinhos be deported if they did not voluntarily depart the Uni ted States
within the time allowed.

The Pinhos appealed the denial to the Board, which took no action on the appeal and had no communication wi th the Pinhos for the next six years. In March 1998, t he Board requested supplemental briefing to addr ess changes in the

3immigration laws that occurred while the Pinhos' ap peal

was pending. The Pinhos submitted their supplementa l 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 1 229b(d) (Supp. IV 1998), which was enacted after the judge' s decision. The Board concluded that the newly enacte d law provided the eligibility criteria to be applied to the Pinhos' application for suspension of deportation. This pet ition 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 physi cal presence requirement (the stop-time rule) to the Pi nhos' pending deportation proceedings. We conclude that i t did.

Before the enactment of the Illegal Immigration Ref orm and Immigrant Responsibility Act of 1996 (often r e ferred to as IIRIRA, but we believe clarity is served by r ef erring to it in this opinion as the Reform and Responsibility Ac t), suspension of deportation was a form of discr etion ary 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 t he United States for seven years, good moral character , and extreme hardship. Id. After the alien had establish ed these elements, the Attorney General had discr etion to g rant or deny the relief. Id.

The Reform and Responsibility Act, which over haule d the process of excluding or removing aliens fr om the U nited States, abolished suspension of deportation. Pendin g deportation proceedings were generally excluded fro m 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 t hose

___________________________________________________ ______________

1. Congress set out transitional rules to specify h ow the Reform and Responsibility Act was to apply to cases pending on that Act's effective

4provisions is the stop-time rule of section 309(c)( 5) (codified

at 8 U.S.C. S 1229b(d) (Supp. IV 1998)), which chan ged how the continuous physical presence test was calculate d. The old rule provided that the seven-year period was co unted
from the date the alien entered the United States u ntil the date of application for suspension of deportation. 8 U.S.C. S 1254(a)(1) (1994) (repealed 1996). The new stop-t ime rule stops the counting period on the date the alien is served with an order to show cause why he or she should no t 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 th at the new stop-time rule applied to "notices to appear issued before, on, or after" enactment of the Reform and Responsib ility Act.2 This language created ambiguity as to whether pendi ng deportation proceedings were actually covered becau se 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 exa mined 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 certifie d the question to herself for review. The question was se ttled 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 docum ents that began deportation proceedings were known as Or ders to Sh ow Cause. As part of the change in the overall scheme of immigration law, Congress changed the name of the charging document and the g overnment actions vis a vis immigrants. The charging documents are no w 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 interpretin g the phrase to refer generally to charging documents initiating pr oceed ings in the nature of deportation or removal, and not exclusively to the documents entitled "Notice to Appear."

5105-100, 111 Stat. 2160 (1997).4 Following enactmen t of

NACARA, the Board again was presented with the same question and upheld its earlier interpretation of s ection 309(c)(5), concluding that NACARA clarified that th e 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 NolascoTofino, Interim Decision 3385 (B.I.A. 1999); see al so RiveraJimenez v. INS, 214 F.3d 1213, 1217 (10th Cir. 2000 ).

Both the plain language of NACARA and Board pr eced ent state that the stop-time rule applies to suspension of deportation cases. The Pinhos challenge on two base s the constitutionality of this law as applied to them. F irst, 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 f or certain classes of aliens violate the equal pr otec tion principles of the Fifth Amendment's Due Process Cla use.

A.

The question of whether to accord retr oactive effe ct to a statute is determined by the Supreme Court's rule i n Landgraf v. USI Film Products, 511 U.S. 244, 280 (1 994). The multi-part analysis begins with determining whe ther Congress has expressly addressed whether the statut e is to apply to pending cases or only to new cases initiat ed after
the statute is enacted. See id. Since the transitio nal rule with regard to suspension of deportation, Reform an d Responsibility Act S 309(c)(5), 8 U.S.C. S 1101 not e (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 ransitio nal 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.

6With Regard To Suspension Of Deportation), states i n

relevant part that "section 240A(d) of the Immigrat ion and Nationality Act (relating to continuous r esidence or physical presence) [the stop-time rule] shall apply to order s to show cause . . . issued before, on, or after the date of the enactment of this Act." The Reform and Responsibili ty Act was enacted September 30, 1996 and took effect Apri l 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 1 101 note (Supp. IV 1998). The plain meaning of these statute s establishes Congress's intent to apply the stop-tim e 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 continuou s 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 cas es. Since the Pinhos could not demonstrate physical pr esence of seven years in the United States from the time of t heir entry until the time that the order to show cause w as served on them, they do not meet a threshold r equi rement for suspension of deportation and therefor e are in eligible 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 al l 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 7 84, 788 (8th Cir. 2000); Gonzalez-Torr es v. INS, 213 F.3d 899, 903 (5th Cir. 2000); Rivera-Jimenez v. INS , 214 F.3d 1 213, 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

.

7Therefore, as a matter of statutory law, the Board properly

applied the new stop-time rule to the Pinhos' appli cations.

The Board's application of the stop-time rule to th e Pinhos' case does not constitute an unconstitutiona l retroactive application of law. "A statute does not operate `retrospectively' merely because it . . . upsets ex pectations based in prior law." Landgraf, 511 U.S. at 269. "Wh en the intervening statute authorizes or affects the propr iety of prospective relief, application of the new provisio n is not
retroactive." Id. at 273.

Suspension of deportation is prospective r elief be cause 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 r elief requested, not a right to it. The Pinhos had no pre existing legal right to remain in the United States, as they had already been adjudged deportable. Since no vested r ights were affected in this case, no potential violation of due process exists. See Gonzalez-Torres, 213 F.3d at 90 3; 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, th eir family unit, their business and community support a nd the ties which they have established over the past fift een years." The adjudication of their deportability est ablished that they had no legal right to remain in this coun try. 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 conce ded deportability, their status as deportable aliens is not before
this Court.

The United States did not officially or systematica lly encourage the Pinhos to remain in this country or t o 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,

8chose to establish residency, and started a busines s in this

country without obtaining authorization to be in th e United States. They also returned to the United States wit hout valid authorization after having been refused immig rant
visas. If the Government had induced the Pinhos to waive their rights to contest deportability or had single d out their application for delayed review until after the stop -time rule went into effect, then a different analysis might b e appropriate.5 There is no evidence that anything ou t of the ordinary occurred in this case. The Pinhos are depo rtable because they entered the United States illegally. A t 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 applic able immigration laws.

The due process considerations of "fair notice, rea sonable reliance, and settled expectations" ar e not implic ated in this case. See Landgraf, 511 U.S. at 270. The Pinhos wer e not deprived of the opportunity to conform their conduc t to the law. See id. at 265. The eligibility criteria for s uspension of deportation review the circumstances in which an al ien facing deportation is found, not any action taken b y him. The Pinhos could not have undertaken any lawful act ion that would have changed their circumstances, allowi ng them to satisfy the continuous physical presence te st.

The application of the stop-time rule to pending ca ses is constitutional if it has a rational basis. See Appi ah, 202 F.3d at 710. We conclude that it does. Congress ena cted this rule for the purpose of expediting the r emova l of deportable aliens, limiting discretionary r elief, and removing incentive to delay immigration proceedings. Gonzale zTorres, 213 F.3d at 902; Appiah, 202 F.3d at 710. T his was

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5. Circumstances such as these led to the exception s 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 t he Board's action on the Pinhos' appeal, we cannot conclude that it amou nts to inducement by the Government for the Pinhos to remain in this country or to forego any alternative course of action. We can only specu late as to whether a different result may have been achieved if the Boar d acted promptly and decided this case prior to the enactment of the Ref orm and Responsibility Act.

9done 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 ov iding more lenient requirements for certain groups of ali ens with respect to the continuous physical presence rules. Aliens from Nicaragua, Cuba, and certain other Central Ame rican and eastern European countries ar e not subject to the stop-time rule under the transitional rules. See N ACARA 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 a dmission or removal of aliens is a "fundamental sover eign a ttribute 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 cer tain classes of aliens is an aspect of that political po wer and involves the United States' relations with for eign powers. Mathews v. Diaz, 426 U.S. 67, 81 (1976). Accor ding ly, we must afford such legislation great deference, apply ing a "narrow standard of review" and upholding the law i f 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 Cong ress would be invalid only if the challenger "advanc[es] principled reasoning that will at once invalidate t hat [classification] and yet tolerate a dif ferent [cla ssification] separating some aliens from others." 426 U.S. at 82

.

The United States specifically encouraged aliens wh o are members of the groups described in NACARA to seek asylum and to remain in the United States. These al iens were given work authorization, granted various spec ial statuses to avoid deportation until their cases cou ld be fully reviewed, and specifically encouraged to apply for

10suspension of deportation, as that remedy existed. See 143

Cong. Rec. S10,185, at 10197 (daily ed. Sept. 30, 1 997) (statement of Sen. Mack). The special exemptions fr om "the 1996 retroactive immigration bill" for members of t hese "extremely identifiable groups," 143 Cong. Rec. S10 185, 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 relatio ns, national security policy, and compliance with on-go ing
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 si tuated to members of those groups. NACARA's exceptions ar e n ot arbitrary, but rather respond to particular governm ent action directed specifically toward members of the groups who are granted the exceptions. Pursuant to its pow er to control immigration and respond to for eign relatio ns and defense policy objectives, Congress passed the Refo rm and Responsibility Act, among other things, to limit discretionary relief from the generally applicable immigration laws. It further amended the immigratio n laws to provide for an exception for a readily identifia ble, limited group of aliens who were subjects of on-going judic ial and other government proceedings, including informal immigration proceedings. The exception was cr eated to prevent interference with settled expectations aris ing out of those proceedings. Therefore, we conclude that Cong ress 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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