As of March 1, 2003, the INS ceased to exist and its enforce- 1

ment functions were transferred to the Department of Home-

(continued...)

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3479

MING-HUI WU,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A72-217-514

ARGUED APRIL 8, 2009—DECIDED JUNE 8, 2009

Before EASTERBROOK, Chief Judge, and KANNE and

WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. Ming-Hui Wu is a native and

citizen of the People’s Republic of China. In 1992, the

former Immigration and Naturalization Service began 1
2 No. 08-3479

(...continued) 1

land Security (“DHS”). See Homeland Security Act of 2002,

Pub. L. No. 107-296, 116 Stat. 2135 (2002).

The I-122 was entitled a “Notice to Applicant for Admission 2

Detained/Deferred for Hearing Before an Immigration Judge.”

exclusion proceedings against Wu, resulting in an immigration judge ordering Wu excluded from the United

States. Those proceedings were later reopened, and on

March 21, 2007, an IJ determined that Wu was not

eligible for cancellation of removal or suspension of

deportation and ordered him excluded from the United

States. The Board of Immigration Appeals affirmed. Wu

now petitions this court for relief, arguing that the IJ

and BIA erred in holding that he was ineligible for cancellation of removal. We deny his petition.

I. BACKGROUND

On March 27, 1992, the INS detained Wu in New York

upon his entry to the United States. The INS released Wu

but initiated exclusion proceedings against him by filing

a Form I-122. The INS charged that Wu was excludable 2

for willfully misrepresenting a material fact to gain admission to the United States; not possessing a valid,

unexpired immigrant visa; and not possessing a valid,

unexpired travel document.

Wu failed to appear at a hearing before an immigration

judge on June 18, 1992. As a result, the IJ entered an

in abstentia order on June 22, finding Wu excludable
No. 08-3479 3

This provision is now 8 C.F.R. § 1003.23(b)(1)(v). See Aliens

3

and Nationality; Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 9824, 9830 (Feb. 28, 2003).

from the United States. A copy of that order was mailed

to Wu but was returned to the IJ marked “insufficient

address.”

Wu continued to live in the United States for the next

ten years until September 2002, when his attorney was

notified of the IJ’s 1992 in abstentia order in September 2002.

That October, claiming that he never received notice of the

hearing or the IJ’s order, Wu moved to reopen the exclusion proceedings pursuant to 8 U.S.C. § 1229a(b)(5)(C) and

to stay his removal pursuant to 8 C.F.R. § 3.23(b)(1)(v)

(2002). In an order dated November 6, 2002, the IJ 3

found that Wu was properly notified of the exclusion

hearing because the notice was sent to the address he had

provided and never returned. Because Wu was not properly served with a copy of the order or notice of his right

to appeal, however, the IJ “most reluctantly” granted Wu’s

motion to reopen the exclusion proceedings. Wu’s case

was transferred to Chicago in response to an unopposed

motion by the government.

At a hearing on January 3, 2005, the IJ opined that Wu

was not eligible for cancellation of removal or suspension

of deportation. But the IJ continued the proceedings to

allow Wu to seek “repapering” under § 309(c)(3) of the

Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-

546, 3009-626 (1996), which would have provided Wu the
4 No. 08-3479

“Repapering” is the process by which the Attorney General 4

may terminate prior exclusion proceedings and instead

initiate new removal proceedings. See IIRIRA § 309(c)(3). This

process allows aliens previously in exclusion proceedings

to apply for cancellation of removal, which would have otherwise been unavailable prior to the effective date of IIRIRA.

Rodriguez-Munoz v. Gonzales, 419 F.3d 245, 247 n.4 (3d Cir.

2005); Alcaraz v. INS, 384 F.3d 1150, 1152-53 (9th Cir. 2004); RojasReyes v. INS, 235 F.3d 115, 125 (2d Cir. 2000).

opportunity to seek cancellation of removal. The DHS 4

refused to “repaper,” however, and at a hearing on

March 21, 2007, the IJ held that Wu was statutorily ineligible for cancellation of removal or suspension of deportation because he was in exclusion proceedings. The IJ

ordered Wu excluded and deported from the United States.

On August 28, 2008, the Board of Immigration Appeals

affirmed the IJ’s decision. The BIA agreed with the IJ that

Wu was statutorily ineligible for cancellation of removal

or suspension of deportation because he was in exclusion proceedings. The BIA further found that “to the

extent that [Wu] raises substantive due process and equal

protection arguments . . . , we are without authority

to rule on the constitutionality of laws enacted by Congress.”

II. ANALYSIS

On appeal, Wu argues that, in light of the IIRIRA, the IJ

and BIA erred in holding that he was ineligible for cancellation of removal. Wu claims that the IJ construed
No. 08-3479 5

Wu also claims that the discretionary nature of IIRIRA 5

§ 309(c)(2), which gives the Attorney General the option to

apply new removal proceedings retroactively, creates an

equal protection problem. Wu did not raise this issue until

his reply brief and, therefore, has waived his right to pursue

this argument on appeal. See United States v. Diaz, 533 F.3d

574, 577 (7th Cir. 2008).

his application for cancellation of removal as the “functional equivalent” of an application for suspension of

deportation under the prior version of the Immigration

and Nationality Act (“INA”). Wu also argues that the IJ

erred in holding that he did not accrue no continuous

physical presence for purposes of his eligibility for cancellation of removal. As we discuss below, because 5

the IIRIRA is inapplicable to Wu, he is statutorily

ineligible for cancellation of removal.

We review the interpretation of the IIRIRA de novo, but

we give due deference to the interpretation by the

Attorney General and the BIA. Fieran v. INS, 268 F.3d 340,

344 (6th Cir. 2001); see also Borrego v. Mukasey, 539 F.3d 689,

691 (7th Cir. 2008) (“We review de novo questions of

law regarding the interpretation of the INA, giving deference to the Board’s reasonable interpretation of that

Act.”); Gutnik v. Gonzales, 469 F.3d 683, 690 (7th Cir. 2006)

(noting that we review interpretation of the INA de novo,

but that “ ‘[j]udicial deference to the Executive Branch is

especially appropriate in the immigration context’ ”

(alteration in original) (quoting INS v. Aguirre-Aguirre, 526

U.S. 415, 416 (1999))). Our review of factual findings is

limited to determining whether they are supported by
6 No. 08-3479

“substantial evidence.” Bradvica v. INS, 128 F.3d 1009, 1012

(7th Cir. 1997). Where, as here, the BIA “affirms, adopts,

and supplements the IJ’s decision,” we review the IJ’s

decision as supplemented by the BIA. Borrego, 539 F.3d at

691 (quotations omitted); see also Bakarian v. Mukasey, 541

F.3d 775, 781 (7th Cir. 2008).

Before Congress passed the IIRIRA, the INA distinguished between “deportation” and “exclusion.” See Sale v.

Haitian Ctrs. Council, Inc., 509 U.S. 155, 175 (1993) (explaining the differences between deportable and excludable

aliens); Landon v. Plasencia, 459 U.S. 21, 25-26 (1982).

Deportation hearings were typically used against aliens

already physically present in the United States, while

exclusion hearings were usually held at the port of entry

to prevent admission. Landon, 459 U.S. at 25-26. The

Attorney General could temporarily parole an excludable

alien into the United States pending completion of exclusion proceedings, but such a determination was not

legally considered admission into the country. 8 U.S.C.

§ 1182(d)(5)(A) (1994); see also Leng May Ma v. Barber, 357

U.S. 185, 186 (1958) (holding that an alien’s parole into

the United States “did not alter her status as an excluded alien”).

Although the INA provided that aliens in deportation

proceedings could apply for suspension of deportation, see

8 U.S.C. § 1254 (1994), it is well established that aliens in

exclusion proceedings were ineligible for this type of

relief. See, e.g., Ma, 357 U.S. at 189-90; Simeonov v. Ashcroft,

371 F.3d 532, 536-37 (9th Cir. 2004); Fieran, 268 F.3d at 344

(“Under the old INA, the Attorney General had
No. 08-3479 7

Wu challenges the government’s reliance on Sherifi because 6

that case concerned suspension of deportation under the

Nicaraguan Adjustment and Central American Relief Act

(“NACARA”). However, the central issue in Sherifi was

whether NACARA changed “the well-established rule that

aliens in exclusion proceedings are not entitled to suspension

of deportation.” 260 F.3d at 742. Thus, Sherifi and the other

cases we cite interpreting NACARA provide support for the

long-established proposition that aliens in exclusion proceedings traditionally could not seek suspension of deportation.

the discretion to suspend the deportation of qualified

aliens . . . ; this discretion did not extend to excludable

aliens.”); Sherifi v. INS, 260 F.3d 737, 742 (7th Cir. 2001);6

Patel v. McElroy, 143 F.3d 56, 60 (2d Cir. 1998). This is

because parole is not considered “lawful entry of the alien

into the United States.” Simeonov, 371 F.3d at 536 (quotations omitted).

By passing the IIRIRA in 1996, Congress eliminated the

distinction between “deportation” and “exclusion” proceedings and replaced them with a unified “removal

proceeding.” Sherifi, 260 F.3d at 741; see also Zamora-Mallari

v. Mukasey, 514 F.3d 679, 687 n.2 (7th Cir. 2008); Lara-Ruiz

v. INS, 241 F.3d 934, 944 (7th Cir. 2001). The IIRIRA

also replaced “suspension of deportation” with a new

discretionary form of relief, “cancellation of removal,”

which was more difficult to obtain. See Bronisz v. Ashcroft,

378 F.3d 632, 634 (7th Cir. 2004); Useinovic v. INS, 313

F.3d 1025, 1033 (7th Cir. 2002).

Wu’s arguments on appeal focus on his application for

cancellation of removal. For example, he attacks the IJ’s
8 No. 08-3479

statutory construction, claiming that his decision

ignored the IIRIRA’s abolition of the distinction between

exclusion and deportation. But his opening brief ignores

the critical point—that the IIRIRA’s effective date, which

applies prospectively, was April 1, 1997. See IIRIRA

§ 309(a), (c)(1); Fieran, 268 F.3d at 346.

The plain language of the IIRIRA unambiguously states

that, subject to two narrow exceptions we discuss below,

its provisions do not apply to aliens who are in exclusion

or deportation proceedings as of the effective date of the

Act. IIRIRA § 309(c)(1). The INS initiated exclusion proceedings against Wu on March 27, 1992—over five years

prior to the IIRIRA’s effective date. As these facts make

clear, the IIRIRA’s removal provisions do not apply to Wu.

Cf. Fieran, 268 F.3d at 346 (“Fieran was placed in exclusion

proceedings . . . long before the effective date of the

IIRIRA. The provision upon which he relies therefore

does not apply to his case.”).

In his opening brief, Wu summarily claims that the

IIRIRA’s new removal proceedings apply “to all aliens

whose cases are resolved after April 1, 1997.” Likewise, in

reply to the government, Wu claims that the “IIRIRA’s

effective date isn’t controlling here.” But he provides no

support for these contentions and ignores the statute’s

plain language. As always, we must give full effect to the

intent of Congress where it is clear from the statutory

language. United States v. Ranum, 96 F.3d 1020, 1029 (7th

Cir. 1996); see also Knutsen v. Gonzales, 429 F.3d 733, 736 (7th

Cir. 2005). Wu is therefore statutorily ineligible for cancellation of removal under IIRIRA § 309(c)(1) unless he

can show that one of the listed exceptions applies.
No. 08-3479 9

The IIRIRA provides only two narrow exceptions to its

general rule against retroactive application. Under

§ 309(c)(2), the Attorney General may elect to apply the

removal procedures for any case in which an evidentiary

hearing under the INA has not commenced. To invoke

this provision, the Attorney General must provide notice

to the alien at least thirty days before the commencement of the hearing. Similarly, § 309(c)(3) allows the

Attorney General to terminate a previous proceeding in

which there has not been a final decision and reinitiate

new removal proceedings, a process commonly known

as “repapering.”

It is uncontested that the Attorney General has not

elected to “repaper” in this case, and § 309(c)(3) does not

apply. Wu maintains, however, that the government

elected to apply the removal procedures as allowed by

§ 309(c)(2). He bases this claim on (1) the government’s

failure to object to Wu’s motion to reopen his exclusion

proceedings under the new removal statute, and (2) the

government’s motion to transfer the proceedings to

Chicago after receiving Wu’s motion. But Wu did not

present this argument until his reply brief, nor did he

raise it before the IJ or BIA. Wu’s failure to timely raise

this argument results in waiver. See Ghani v. Holder, 557

F.3d 836, 839 (7th Cir. 2009) (explaining that because

the appellant “failed to raise this argument before the IJ

or the BIA,” it was waived); Diaz, 533 F.3d at 577 (stating

that arguments may not be raised for the first time in

a reply brief or they are waived).

Even if Wu had not waived this argument, however, it

would be unlikely to succeed. Section 309(c)(2) allows
10 No. 08-3479

Although Wu claims that he never received notice of the 7

hearing, the IJ found otherwise. The IJ noted that while the

resulting in abstentia order was returned as undeliverable,

Wu received proper notice of the hearing because the INS

sent the notice to the address he provided and it was not

returned.

6-8-09

the Attorney General to proceed under the removal

statute in cases in which an evidentiary hearing has not

yet commenced. In Wu’s case, a hearing took place on

June 18, 1992, and § 309(c)(2) therefore does not apply.7

Furthermore, the Act requires that the government

provide notice of its election to proceed with removal

proceedings at least thirty days before the date of the

hearing. IIRIRA § 309(c)(2). We doubt that the government’s mere failure to object to Wu’s citation to

the removal statute or its motion to transfer venue are

the types of notice contemplated by Congress in § 309(c)(2).

III. CONCLUSION

The INA provisions created by the IIRIRA, including

cancellation of removal, are inapplicable to aliens who

were in exclusion or deportation proceedings prior to the

IIRIRA’s effective date on April 1, 1997. The INS instituted

exclusion proceedings against Wu on March 27, 1992, and

neither of the IIRIRA’s exceptions to its prospective

application apply. Wu is therefore statutorily ineligible

for cancellation of removal, and his petition is DENIED.