Second, he concluded that there was no violation of the equal protection clause because the differentiation about which petitioner complained was not wholly irrational. Deportation proceedings against petitioner began on January 24, 1997. Thus, there is no retroactive application against petitioner, and the argument must be rejected. Equal Protection Clause Petitioner argues that the equal protection clause was violated because of the unequal treatment of aliens in deportation proceedings and those in exclusion proceedings. The Court concludes that there is no violation of equal protection.
Discretionary relief remains, however, for aliens in exclusion proceedings.
A distinction between aliens involved in deportation proceedings and aliens involved in exclusion proceedings does not run afoul of the equal protection clause if it is not wholly irrational. The Court finds that the distinction between aliens who are in the country at the time of deportation proceedings, where such proceedings take place after incarceration, and aliens who left the country but are attempting to re-enter, is not wholly irrational because of the traditional distinction between the two classes of aliens. For example, an alien could traditionally be excluded on many grounds that were not grounds for deportation, including poor health and the likelihood that he or she would become a public charge. This case was referred to Magistrate Judge Rappoport for a Report and Recommendation by Order of the Court on August 25, 1998.