2001 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Pinho v. Immigration & Naturalization Service" (2001). 2001 Decisions. Paper 101.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/101
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." 

 5 
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 NolascoTofino, Interim Decision 3385 (B.I.A. 1999); see also RiveraJimenez 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. GonzalezTorres, 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. 

 9 
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 

 11