2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-28-2003

DiPeppe v. Quarantillo

Precedential or Non-Precedential: Precedential

Docket No. 01-4043

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PRECEDENTIAL

Filed July 28, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 01-4043 & 01-4096

RITA DIPEPPE

v.

ANDREA QUARANTILLO, District Director of the New

Jersey office of the Immigration and Naturalization

Service; RALPH GREEN, Warden, Hudson County

Correctional Facility and the Immigration and

Naturalization Service

Andrea Quarantillo,

Ralph Green,

Appellants

On Appeal from the United States District Court

for the District of New Jersey

(Dist. Ct. No. 01-cv-03181)

District Judge: Hon. William G. Bassler

Argued: November 4, 2002

Before: BECKER,* Chief Judge, McKEE and

HILL,** Circuit Judges

(Opinion Filed: July 28, 2003)

* Judge Becker completed his term as Chief Judge on May 4, 2003. 

** Honorable James C. Hill, Senior Judge, United States Court of Appeals

for the Eleventh Circuit, sitting by designation. 
STEVEN A. MORLEY, ESQ. (Argued)

Bagia & Morley

111 South Independence Mall

The Bourse Building, Suite 592

Philadelphia, PA 19106

Attorney for Appellee

AUDREY BENISON, ESQ.

United States Department of Justice

Office of Immigration Litigation

1331 Pennsylvania Avenue, N.W.

Washington, DC 20530

MARGARET PERRY

AUDREY B. HEMESATH (Argued)

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Attorneys for Appellants

OPINION OF THE COURT

McKEE, Circuit Judge: 

The Immigration and Naturalization Service appeals the

district court’s determination that § 212(h) of the

Immigration and Nationality Act (“INA”)1 violates the equal

protection component of the 5th Amendment’s Due Process

Clause. In her cross-appeal, Rita Dipeppe challenges the

District Court’s ruling that she is not entitled to seek relief

from removal under INA § 212(c).2 For the reasons that

follow, we will reverse the District Court’s order as to

§ 212(h) and affirm it as to § 212(c).

1. INA § 212(h) is codified at 8 U.S.C. § 1182(h). 

2. INA § 212(c) was codified at 8 U.S.C. § 1182(c) (1995). 

2
I. INA §§ 212(h) AND 212(c)

INA § 212(h) previously gave the Attorney General the

discretion to waive an alien’s inadmissibility for crimes of

moral turpitude if an alien was a spouse, parent, or child

of a United States citizen or permanent resident alien, and

the alien seeking the waiver could demonstrate that denial

of admission would cause extreme hardship to the citizen

or permanent resident alien. INA § 212(h)(1)(B). However,

Congress amended § 212(h) in 1996. That provision of the

INA now removes this discretion in the case of aliens who

were previously admitted as permanent residents and had

either been convicted of an aggravated felony or had not

resided in the United States for seven continuous years.

INA § 212(h).3 The statute applies only to aliens who have

the status of legal permanent resident (“LPR”), it does not

apply to non-legal permanent resident aliens (“non-LPR”).4

3. In 2000, INA § 212(h) [8 U.S.C. § 1182(h)], read in pertinent part: 

No waiver shall be provided under this subsection in the case of an

alien who has been convicted of (or who has admitted committing

acts that constitute) murder or criminal acts involving torture, or an

attempt or conspiracy to commit murder or a criminal act involving

torture. No waiver shall be granted under this subsection in the

case of an alien who has previously been admitted to the United

States as an alien lawfully admitted for permanent residence if

either since the date of such admission the alien has been convicted

of an aggravated felony or the alien has not lawfully resided

continuously in the United States for a period of not less than 7

years immediately preceding the date of initiation of proceedings to

remove the alien from the United States. No court shall have

jurisdiction to review a decision of the Attorney General to grant or

deny a waiver under this subsection. 

4. In the most basic sense, one’s status as an LPR, or immigrant,

corresponds with his or her intentions with regard to residence in the

United States. According to INA § 101(a)(20) [8 U.S.C. § 1101(a)(20)], 

[t]he term “lawfully admitted for permanent residence” means the

status of having been lawfully accorded the privilege of residing

permanently in the United States as an immigrant in accordance

with the immigration laws, such status not having changed. 

Obtaining lawful permanent resident status is a condition precedent to

United States citizenship, and therefore the objective of anyone who

wishes to remain in the United States on a long term basis. See RICHARD

A. BOSWELL, IMMIGRATION AND NATIONALITY LAW, 551 (3d ed. 2000) (describing

3
Thus, an alien who is a non-LPR may still attempt to have

the Attorney General waive eligibility for removal. See

DeLeon-Reynoso v. Aschroft, 293 F.3d 633, 637 (3d Cir.

2002) (describing statutory distinction); and In re Michel, 21

I & N Dec. 1101, 1104 (B.I.A. 1998)(same). 

Prior to repeal, § 212(c) also gave the Attorney General

the authority to waive inadmissibility of otherwise

deportable or excludable legal aliens. INS v. St. Cyr, 533 US

289, 294 (2001). Although § 212(c) only applied to exclusion

proceedings on its face, the Board of Immigration Appeals

(“BIA”) also allowed any permanent resident alien with

lawful unrelinquished domicile of seven consecutive years

to apply for a discretionary waiver from deportation. Id. at

295. If the application was granted, deportation proceedings

were terminated and the alien could remain in the United

States as a permanent resident. As might be expected, the

number of aliens relying upon eligibility for § 212(c) waivers

began to increase as Congress broadened the definition of

deportable offenses. Id. at 295-96. 

In 1990, Congress amended § 212(c) to preclude relief for

anyone convicted of an aggravated felony who had served a

term of imprisonment of at least five years. INS v. St. Cyr,

533 U.S. 289, 295-96 (2001). In 1996, Congress repealed

§ 212(c) in its entirety by enacting certain provisions of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”),

and the Illegal Immigration Reform and Immigrant

Responsibility Act (“IIRIRA”). Section 212(c) was replaced

the importance of lawful permanent resident status). While the status of

being “lawfully admitted for permanent residence” is the only type of

lawful immigrant status, the numerous nonimmigrant classifications are

set forth in INA § 101(a)(15) [8 U.S.C. § 1101(a)(15)], and include

individuals, who, for whatever reason, wish to remain in the United

States on a temporary basis. See CHARLES GORDON ET AL., IMMIGRATION LAW

AND PROCEDURE § 1.03[2][e] at 1-30 (2003) (explaining the distinguishing

features of nonimmigrant classifications and corresponding visas which

allow students, business visitors, tourists and others to temporarily

remain in the United States). These differences in length of stay between

immigrant and nonimmigrant largely accounts “for the more detailed

attention ordinarily given to immigrant visa applications.” Id. at § 8.04[1],

8-6. 

4
with a new § 240A which “permits the Attorney General . . .

in her discretion to cancel removal in certain

circumstances, but not when the alien has been convicted of

an aggravated felony as defined by the INA.” Xu Cheng v.

INS, 206 F.3d 308, 312 (3rd Cir. 2000) (emphasis added).

IIRIRA § 304(b), 110 Stat. 3009-597 (repealing § 212(c)); see

also IIRIRA § 304(b), 110 Stat. 3009-594 (creating 8 U.S.C.

§ 1229(b)).5

II. FACTUAL BACKGROUND

Rita DiPeppe is a native and citizen of Italy who was

admitted to the United States on September 21, 1955 as an

LPR. On August 5, 1992 she pled guilty to aggravated

manslaughter after fatally shooting her husband with a

handgun.6 She was sentenced to a term of twenty-seven

years imprisonment with nine years of parole ineligibility.

Based on her conviction, the INS issued and served upon

DiPeppe an Order to Show Cause (“OSC”) and Notice of

Hearing dated September 24, 1992. Those documents

informed DiPeppe that the INS was leveling deportation

charges against her under former INA § 241(a)(2)(iii), 8

U.S.C. § 1251(a)(2)(A)(iii) based upon her conviction for a

crime defined as an “aggravated felony” under the INA.

5. Prior to its repeal, § 212(c) stated in pertinent part: 

Aliens lawfully admitted for permanent residence who temporarily

proceeded abroad voluntarily and not under an order of deportation,

and who are returning to a lawful unrelinquished domicile of seven

consecutive years, may be admitted in the discretion of the Attorney

General without regard to the provisions of subsection (a). Nothing

contained in this subsection shall limit the authority of the Attorney

General to exercise the discretion vested in him under section

211(b). The first sentence of this subsection shall not apply to an

alien who has been convicted of one or more aggravated felonies and

has served for such felony or felonies a term of imprisonment of at

least 5 years. 

6. The circumstances surrounding DiPeppe’s killing of her husband

apparently included mental and physical abuse by her husband over the

course of their 23 year marriage. The sentencing judge recommended

that she not be deported because of that offense. Supp. App. at 7. 

5
However, the INS never filed its OSC or Notice of Hearing

with the Immigration Court.7

Thereafter, DiPeppe attempted to obtain a waiver of

deportation under INA § 212(c) by filing Form I-191

(Application for Advance Permission to Return to

Unrelinquished Domicile) with the INS. On November 29,

1995, the New Jersey District Director of the INS denied

DiPeppe’s application on the merits. The Director concluded

that DiPeppe’s conviction for aggravated manslaughter

precluded the Attorney General’s favorable exercise of

discretion. DiPeppe’s counsel subsequently made several

attempts to schedule a hearing with the INS so that her

waiver application could be considered by an Immigration

Judge.8 However, since the INS had not filed its OSC and

Notice of Hearing with the Immigration Court, the court did

not set a hearing date. 

Finally, on August 2, 2000 (eight years after the initial

OSC in 1992), the INS issued a Notice to Appear (“NTA”),9

in which it again charged DiPeppe with being removable

from the United States pursuant to INA § 237(a)(2)(A)(iii)

based upon her conviction for an aggravated felony after

admission.10 Based upon that NTA, DiPeppe was taken into

INS custody when she was released from prison on her

manslaughter charge. 

7. Under INS regulations in effect in 1992, filing the charging document

with the Immigration Court commenced proceedings to determine the

deportability of an alien, which required the alien to appear before an

Immigration Judge for a hearing. See 8 C.F.R. § 242.1(a)-(b) (1992). 

8. It appears from the administrative record that DiPeppe’s counsel sent

seven letters to INS officials in his efforts to procure a hearing on her

OSC. 

9. IIRIRA significantly altered the landscape of immigration proceedings.

The INS now serves a Notice to Appear rather than an Order to Show

Cause. Furthermore, deportation proceedings are now termed “removal

proceedings” and suspension of deportation is called “cancellation of

removal.” See 8 U.S.C. §§ 1229, 1229a, 1229b. 

10. INA § 237(a)(2)(A)(iii), codified at 8 U.S.C. § 1227(a)(2)(A)(iii), states:

“[a]ny alien who is convicted of an aggravated felony at any time after

admission is deportable.” 

6
At her ensuing hearing, DiPeppe argued for discretionary

relief pursuant to §§ 212(c) and 212(h). However, the

Immigration Judge concluded that she had been convicted

of, and imprisoned for, an aggravated felony as defined

under the INA and that she was therefore not eligible for

the discretionary relief she sought See §§ 212(c) and 212(h).

On appeal, the BIA affirmed the Immigration Judge’s

decision and DiPeppe thereafter petitioned the District

Court for a writ of habeas corpus staying removal and

vacating the final order of removal. 

III. DISTRICT COURT PROCEEDINGS

The District Court began its analysis by examining

DiPeppe’s eligibility for § 212(c) relief.11 The District Court

first noted that DiPeppe had already been denied § 212(c)

relief by the INS District Director in 1995. However, the

court rejected DiPeppe’s argument that the delay in

prosecuting her removal constituted a due process denial.

That claim was based upon DiPeppe’s assertion that the

delay placed her beyond the five year incarceration limit on

discretionary relief that was originally a condition of the

favorable exercise of discretion under § 212(c). According to

DiPeppe, the delay had improperly precluded her from

seeking the remedies she was otherwise entitled to before

AEDPA and IIRREA became law. When she entered her

guilty plea, § 212(c) waivers were unavailable only if the

alien “had been convicted of an aggravated felony and . . .

had served a prison term of at least five years for such

[felony].” DeSousa v. Reno, 190 F.3d 175, 178 (3rd Cir.

1999) (emphasis added). Thus, the delay in processing her

removal resulted in her requesting relief after she had been

imprisoned for more than five years. 

DiPeppe also argued that, since the INS delayed to the

point that she was forced to request discretionary relief

after she had already been incarcerated for 5 years, the

government should be estopped from relying upon the

length of her incarceration to preclude her from being

11. Counsel for the government initially conceded that he had not

considered whether DiPeppe would have been eligible for § 212(c) relief

when she pled guilty in 1992. 

7
eligible for seeking discretionary relief from removal. The

District Court rejected both arguments. As to the latter

claim, the court reasoned that, even if DiPeppe was able to

prove the traditional elements of estoppel, she could not

establish any affirmative misconduct by the government. 

The court did, however, agree that the INA’s disparate

treatment of LPRs and non-LPRs codified in § 212(h) was a

violation of the equal protection guarantee embodied in the

Due Process Clause of the Fifth Amendment. The court

reasoned that there was no rational relationship between

any legitimate governmental purpose and the disparate

treatment of LPRs and non-LPRs applying for waivers under

§ 212(h). Accordingly, the court held that the statutory

distinction between LPRs and non-LPRs denied DiPeppe

due process of law, and she was therefore eligible to seek

discretionary relief from removal from the Attorney General.

This appeal and cross-appeal followed. The INS appeals the

District Court’s determination that § 212(h) is a violation of

the Fifth Amendment Due Process Clause, and DiPeppe

appeals that court’s conclusion that she is not eligible to

seek relief under § 212(c) as it existed before repeal.

IV. DISCUSSION

Although DiPeppe’s equal protection challenge to § 212(h)

has some appeal, it is precluded by our holding in DeLeonReynoso v. Ashcroft, 293 F.3d 633 (3d Cir. 2002).12 There,

we held that the distinction between LPRs and non-LPRs

applying for waivers under § 212(h) survives rational basis

inquiry and that provision of the INA is therefore not a

violation of the equal protection component of the Fifth

Amendment’s Due Process clause. DeLeon-Reynoso, 293

F.3d at 640-41. We summarized the alien’s argument there

as follows:

De Leon argues that § 1182(h) violates the equal

12. The District Court did not have the benefit of our analysis in DeLeonReynoso when it ruled upon DiPeppe’s equal protection argument. A

motions panel of this Court relied upon our holding in that case in

rejecting DiPeppe’s equal protection claim before we heard oral

argument. 

8
protection component of the Fifth Amendment’s Due

Process clause by making an impermissible distinction

between two categories of aliens who are not permitted

to reside in the United States: those who have not

previously been lawfully admitted to the United States

(i.e., non-LPRs) and those who have been previously

admitted to the United States but have not resided in

the United States for seven consecutive years before

removal proceedings are initiated (LPRs). . . . De Leon

asserts that this distinction allows a criminal alien who

has never had permanent resident status in the United

States, never acquired equities or familial ties, to

secure a waiver, while those who have previously been

admitted as lawful permanent residents, but with less

than the seven years required residence, will be

deported. Thus, he argues, the amendatory 1996

legislation is unconstitutional. 

293 F.3d at 638 (internal citations omitted). However, in

denying the alien’s equal protection claim, we nevertheless

expressed concern with the inequities that could result

from this distinction, id. at 640, and we urged Congress to

address them. We reiterate that concern here, and again

urge Congress to address the potential inequities endemic

in this statutory scheme.13 Here, as in De Leon-Reynoso

[o]ur holding that the § 1182(h) distinction survives

rational basis scrutiny should not be mistaken for an

endorsement of the policy. We urge Congress to

reconsider the ramifications of entirely eliminating the

Attorney General’s discretion in this area. At times,

pathetic, heart-wrenching pain for families and

burdensome consequences for employers and

taxpayers accompany removal proceedings. 

Id.

14

13. In doing so, we do not intend to minimize the crime of violence

DiPeppe committed, nor suggest that the equities in her case would

warrant relief from removal. 

14. This does not, of course, imply that it is the job of courts to

“endorse” policy choices made by Congress. Rather, our concern arises

from an appropriate vigilance regarding inequities that may result from

9
As noted above, DiPeppe has filed a cross-appeal from

the District Court’s rejection of her claim that she remains

eligible for relief under § 212(c) pursuant to the Supreme

Court’s holding in INS v. St. Cyr. There, the Court held that

§ 212(c) relief “remains available for aliens, like respondent,

whose convictions were obtained through plea agreements

and who, notwithstanding those convictions, would have

been eligible for § 212(c) relief at the time of their plea under

the law then in effect.” 533 U.S. 289, 326 (2001) (emphasis

added). 

DiPeppe makes an additional, related, argument based

upon the INS delay in processing her removal. She argues

that the delay entitles her to relief even if we reject her

argument under St. Cyr. She argues that the INS violated

her due process rights by failing to promptly place the

matter before an Immigration Judge in violation of its own

regulations, thereby precluding her from seeking relief

before she had served five years in prison and thus became

ineligible for discretionary relief under § 212(c) as it existed

at the time of her guilty plea. She therefore argues once

again that the government should be estopped from relying

upon the length of time she has been imprisoned to deny

her relief under § 212(c). According to DiPeppe, she would

have been eligible for such relief had the government

processed her removal in a timely manner. 

In responding to DiPeppe’s cross-appeal, we note at the

outset that aliens facing removal are afforded due process

protections. Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.

2001). Moreover, we afford DiPeppe’s due process claim de

novo review. Chong v. INS, 264 F.3d 378, 386 (3d Cir.

2001). Nevertheless, we conclude that the District Court

was correct in holding that she is now foreclosed from

seeking relief under § 212(c), and in rejecting her estoppel

argument. We address each of her arguments in turn. 

legislation that treats distinct groups differently. We therefore think it

appropriate to reiterate our concern about the equities of the disparate

treatment required under § 212(h). See In re Murchison, 349 U.S. 133,

136 (1955) (“[T]o perform its high function in the best way[,] ‘justice

must satisfy the appearance of justice.’ ”) (quoting Offutt v. United States,

348 U.S. 11, 14 (1954)). 

10
In St. Cyr, the Supreme Court was confronted with the

retroactive effect of the AEDPA and IIRIRA amendments on

discretionary relief from deportation and removal

proceedings in the case of an alien who pled guilty to a

deportable crime before those amendments became

effective. 533 U.S. at 292-93. The Court held that § 212(c)

relief remained available for a certain class of aliens whose

(1) convictions were obtained through plea agreements prior

to AEDPA’s effective date of April 24, 1996, (2) who had a

“lawful unrelinquished domicile of seven consecutive years,”

and (3) were not deemed ineligible for a discretionary waiver

for having served more than five years incarceration

following a conviction for an aggravated felony. Id. at 326

(addressing the retroactive effect of AEDPA and IIRIRA on

availability of § 212(c) relief). 

As noted above, Rita DiPeppe’s conviction arose from a

guilty plea in 1992, and she had been an LPR since her

admission to the United States in 1955. However, her

twenty-seven year prison sentence included an initial nine

year period of parole ineligibility. The Court in St. Cyr

recognized that the language of § 212(c) places the

discretionary relief afforded therein beyond the reach of

anyone convicted of an aggravated felony who has served a

term of imprisonment of five or more years. See INA

§ 212(c). In St. Cyr, the Court barred retroactive application

of the elimination of discretionary relief under § 212(c)

because the possibility of being afforded such relief may

well have been a factor in the alien’s decision to plead

guilty and waive valuable constitutional guarantees. The

Court reasoned: “[b]ecause respondent, and other aliens

like him, almost certainly relied upon that likelihood in

deciding whether to forgo their right to a trial, the

elimination of any possibility of § 212(c) relief by IIRIRA has

an obvious and severe retroactive effect.” St. Cyr, 533 U.S.

at 325. 

That is simply not DiPeppe’s situation. She knew when

she entered her guilty plea that she would be exposed to a

period of incarceration that could preclude consideration

under § 212(c). It appears that Dipeppe entered an “open”

plea rather than a negotiated plea as was the case in St. Cyr.

15

15. Although the record is not without ambiguity on this point, it

appears from all our examination of the sentencing court’s stated

11
The Supreme Court was particularly concerned about the

reasonable expectations endemic in the quid pro quo of the

negotiated guilty plea in St. Cyr. See 533 U.S. at 321 (“Plea

agreements involve a quid pro quo between a criminal

defendant and the government.”). Nevertheless, by pleading

guilty to a crime of violence such as manslaughter, DiPeppe

had to realize that she would almost certainly be ineligible

for the discretionary relief that may otherwise have been

available under § 212(c). Moreover, she was clearly not

eligible for discretionary waiver once the court sentenced

her to a period of incarceration that mandated her

imprisonment for more than five years. That is precisely

what happened when the court ordered that she remain

ineligible for parole for nine years. Therefore the reasoning

of St. Cyr does not apply here. 

As the District Court correctly noted, adopting DiPeppe’s

interpretation of § 212(c) relief would force the INS to

consider an alien’s eligibility in a vacuum, ignoring any

change in circumstance, including the commission of a

felony, between the time the application was filed and the

time a waiver decision was made. Her position would

require an alien to remain eligible for § 212(c) indefinitely.

Hypothetically, an alien could therefore escape from prison

after serving 4 years and 11 months of a life sentence,

which is less than 5 years, and then argue entitlement to

consideration for a § 212(c) waiver when apprehended

twenty years later. That is clearly not what Congress

intended when it provided § 212(c) relief as an option for

aliens facing removal. Accordingly, the delay in processing

her removal following imposition of her sentence in 1992

does not entitle her to consideration under § 212(c). 

DiPeppe’s remaining claim focuses on the implicit time

restrictions contemplated by the “unitary process”

envisioned in the INS regulations and the delay between the

OSC served on her in 1992 and the NTA served on her in

2000. DiPeppe argues that the INS improperly delayed

rational for the sentence that there was no agreement as to the sentence

that was to be imposed pursuant to the plea. Thus, at least to the extent

of the length of time that would be recommended, the plea was “open.”

12
placing her case before an Immigration Judge in violation of

its own regulations, but fails to point to any mandatory

time frame under those regulations to support her claim.

Although 8 U.S.C. § 1229(d)(1) mandates that the Attorney

General begin removal proceedings as expeditiously as

possible,16 the clarification contained in § 1229(d)(2) fatally

undermines her argument about the effect of that mandate.

There, Congress declared: “Nothing in this subsection shall

be construed to create any substantive or procedural right

or benefit that is legally enforceable by any party against

the United States or its agencies or officers or any other

person.” 8 U.S.C. § 1229(d)(2) We cannot adopt DiPeppe’s

due process argument without ignoring that directive. 

The second prong of DiPeppe’s procedural due process

argument, challenging the delay between the OSC in 1992

and NTA in 2000, fails by operation of the INS regulations,

which provide that removal proceedings commence with the

filing of a charging document with the Immigration Court.

Compare 8 C.F.R. § 242.1 (1992) (“[e]very proceeding to

determine the deportability of an alien in the United States

is commenced by the filing of an Order to Show Cause with

the Office of Immigration Judge. . . .”) with 8 C.F.R. § 239.1

(2000) (“[e]very removal proceeding conducted under section

240 of the Act to determine the deportability or

inadmissibility of an alien is commenced by the filing of a

notice to appear with the Immigration Court.”). See also,

Upsango v. Ashcroft, 289 F.3d 226, 229 (3d Cir. 2002).

Therefore, removal proceedings were not initiated against

DiPeppe until the NTA was filed with the Immigration Court

in 2000. 

We recognize that we have previously noted the

possibility that removal proceedings may be viewed as

commencing when an OSC is served upon the alien. See

16. 8 U.S.C. § 1229(d)(1) provides: 

Prompt initiation of removal. 

(1) In the case of an alien who is convicted of an offense which

makes the alien deportable, the Attorney General shall begin any

removal proceeding as expeditiously as possible after the date of the

conviction. 

13
Upsango, 289 F.3d at 229; and Pinho v. INS, 249 F.3d 183,

185 (3d Cir. 2001). However, both “suggestions” were dicta.

A close reading of Upsango, which was decided after Pinho

readily discloses this. There, we declared, “We hold that the

removal proceeding . . . did not commence when [the alien]

filed his asylum petition . . . Instead that proceeding

commenced in January 1998.” 289 F.3d at 230. That was

when the INS filed its NTA. Moreover, we clearly stated “INS

regulations provide that removal proceedings commence

with the filing of a notice to appear with the Immigration

Court. Reg. §§ 3.14 and 239.1” Id. at 229. Moreover, in

those cases we were deciding the retroactivity of the

changes in immigration law. See Pinho, 249 F.3d at 187

(determining retroactive effect of stop-time provision

implicated by IIRIRA); Bury v. Reno, 101 F.Supp. 2d 296,

299 (E.D.Pa. 2000) (noting issuance of OSC rather than

filing is “the meaningful event for the purpose of

determining whether a proceeding was subject to a newly

enacted law”); Canela v. United States DOJ, 64 F.Supp. 2d

456, 458 (E.D. Pa. 1999) (examining retroactive effect of

AEDPA on INS proceedings). Here, it is clear that

proceedings were initiated against DiPeppe when the

charging documents were filed with the Immigration Court.

Although DiPeppe was served with an OSC and Notice of

Hearing in 1992, removal proceedings did not effectively

commence for her until 2000, when the NTA was filed with

the Immigration Court. See Upsango, 289 F.3d at 229.

Therefore even though the delay between serving the OSC

and filing the NTA is not to be condoned, the circumstances

here do not implicate the Due Process Clause of the Fifth

Amendment. DiPeppe was not actually in proceedings in

1992 because the OSC was not filed with the Immigration

Judge until 2000.17

17. DiPeppe cites Singh v. Reno, 182 F.3d 504 (7th Cir. 1999) to support

her claim that the delay constituted a due process violation. The facts

and circumstances of Singh distinguish it from DiPeppe’s case. In Singh,

the court entertained the possibility of a constitutional claim by an alien

claiming that the INS’s failure to calendar a deportation hearing

prevented him from applying for a discretionary waiver. 182 F.3d at 510.

Rather than address the merits of Singh’s claim, the court viewed it as

the basis of a substantial constitutional claim entitling him to judicial

14
We also must reject DiPeppe’s estoppel argument. She

contends that the INS should be estopped from invoking

the bar on waiver applications under INA § 212(c) for those

who have served more than five years in prison. We agree

that the doctrine of estoppel can apply to action of the

government. Yang v. INS, 574 F.2d 171, 174-75 (3d Cir.

1978). However, in order for DiPeppe to succeed on her

estoppel argument, she must prove (1) a misrepresentation

by the government, (2) which she reasonably relied upon;

(3) to her detriment and (4) affirmative misconduct. US v.

Asmar, 827 F.2d 907, 912 (3d Cir. 1987); Fredericks v. CIR,

126 F.3d 433, 438 (3d Cir. 1997). DiPeppe can not

establish any of these four elements.18 Therefore her

estoppel claim must also fail.19

review. Id. The court then allowed Singh to proceed with his due process

claim before the Immigration Judge. Id. at 511. We decline to follow the

Seventh Circuit in Singh because, as we explained in the text, an alien

does not have a constitutional right for her removal hearing to

commence at any certain time. 

18. It is worth noting that the Supreme Court, in INS v. Miranda rejected

a claim of affirmative misconduct involving the INS’s “unreasonable

delay” in processing a visa application. 459 U.S. 14 (1982). Eighteen

months of inaction by the INS on a visa petition, which eventually

effectively disqualified the petitioner from permanent resident status, did

not amount to affirmative misconduct. Id. at 18. 

19. The INS also contends that we are unable to review the discretionary

decision of the Attorney General to commence proceedings, adjudicate

cases or execute removal orders under INA § 242(g), 8 U.S.C. § 1252(g).

See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471,

482 (1999); M.B. v. Quarantillo, 301 F.3d 109, 111 (3d Cir. 2002).

Section 1252(g) provides: 

Except as provided in this section and notwithstanding any other

provision of law, no court shall have jurisdiction to hear any cause

or claim by or on behalf of any alien arising from the decision or

action by the Attorney General to commence proceedings, adjudicate

cases, or execute removal orders against any alien under this

chapter. 

However, the INS’s reliance on this argument is misplaced. In DeSousa

v. Reno, 190 F.3d 175, 182-183 (3d Cir. 1999) we interpreted the

Supreme Court’s decision in Arab American as applying only to “suits

challenging the government’s selective enforcement of the immigration

laws.” Furthermore, § 242(g) does not eliminate habeas corpus

jurisdiction. Sandoval v. Reno, 166 F.3d 225, 238 (3d Cir. 1999). 

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V. CONCLUSION

For the reasons set forth above, we will reverse the

District Court’s judgment with sustaining DiPeppe’s equal

protection challenge to § 212(h), and we will affirm the

district court’s judgment in all other respects. 

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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