Rodriguez-Silva v. I.N.S., RODRIGUEZ-SILV

• Decision Date: 08 February 2001
• Docket Number: P,RODRIGUEZ-SILV,No. 99-60715,99-60715
• Citation: 242 F.3d 243
• Parties: (5th Cir. 2001) VICTORetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Fifth Circuit

Page 243

242 F.3d 243 (5th Cir. 2001)

VICTOR RODRIGUEZ-SILVA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 99-60715

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

February 8, 2001

Petition for Review of an Order of the Immigration and Naturalization Service.

Before GARWOOD, HIGGINBOTHAM, and STEWART, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner Victor Rodriguez-Silva, a native and citizen of Mexico, seeks review of the decision of the Board of Immigration Appeals denying the suspension of his deportation from the United States. Rodriguez-Silva argues that the provisions of the Nicaraguan Adjustment and Central American Relief Act, Pub. L. 105-100, Title II, 111 Stat. 2160, 2193 (Nov. 19, 1997), which exempt aliens of specified nationalities, but not including (among others) Mexican nationals, from the "stop-time" rule of the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), deny him equal protection of the laws under the Fifth Amendment. We disagree, and hence deny the petition for review.

Facts and Proceedings Below

Although it presents but a single issue, this case has a long and convoluted procedural history.

On September 2, 1993, the Immigration and Naturalization Service (INS) served the petitioner, Victor Rodriguez-Silva, with an Order to Show Cause and Notice of Hearing (OSC), charging that he was deportable because he entered the country without inspection in February of 1987.¹ Rodriguez-Silva, a native and citizen of Mexico (who has never been lawfully admitted to the United States), was also notified on September 30, 1993, that he faced an additional charge of civil document fraud. An immigration judge (IJ) conducted a hearing, at which Rodriguez-Silva conceded that he was deportable, but denied having committed document fraud. The IJ ultimately found the document fraud charge to be valid, and ordered Rodriguez-Silva to be deported to Mexico, denying his motion for voluntary departure.

Rodriguez-Silva appealed the IJ's denial of voluntary departure, but did not appeal the order of deportation. On February 22, 1994, the Board of Immigration Appeals (BIA) upheld the IJ's denial of voluntary departure, prompting Rodriguez-Silva to file a petition for review of the BIA decision with this Court. However, before the Court ruled on the petition, the INS rescinded its finding of document fraud, and we thus remanded the case to the BIA. The BIA thereafter granted Rodriguez-Silva's unopposed motion to reopen the case.

At the reopened hearing on May 20, 1996, Rodriguez-Silva presented his application for suspension of deportation to the IJ. The IJ found that Rodriguez-Silva was a person of good moral character and that he had established seven years of residence in the United States. However, she denied his application for suspension of deportation because she found that he had failed to establish extreme hardship. She then authorized Rodriguez-Silva to depart the United States voluntarily within ninety days. Rodriguez-Silva appealed the IJ's decision to the BIA.

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996). Under the law as amended by IIRIRA, aliens who "ha[ve] resided in the United States continuously for 7 years after having been admitted in any status" are eligible for cancellation of their removal from the United States. 8 U.S.C. § 1229b(a)(2). This provision in general makes aliens who have entered the country illegally eligible to stop standard deportation proceedings if they have resided in the United States continuously for seven years. IIRIRA instituted the "stop-time" rule, which was intended to prevent aliens in deportation proceedings from delaying those proceedings in order to accrue enough time in continuous residence to be eligible for cancellation of their deportation. Under the stop-time rule, an alien's period of continuous physical presence in the United States is deemed to end once he is served with a notice to appear for removal proceedings, or commits any of a category of criminal offenses. See 8 U.S.C. § 1229b(d)(1).

In 1997, the BIA held that the IIRIRA stop-time rule extended to aliens who had applied for suspension of deportation prior to IIRIRA's enactment. See In re N-J-B, Int. Dec. 330, 1997 WL 107593 (BIA Feb. 20, 1997). On the basis of IIRIRA section 309(c)(5), which outlines the Act's transitional regime regarding suspension of deportation, the BIA concluded that the stop-time rule applied to aliens in deportation proceedings before September 30, 1996-the date of IIRIRA's enactment.

On April 4, 1997, the BIA dismissed Rodriguez-Silva's subsequent appeal of the IJ's 1996 decision. It held that Rodriguez-Silva's case fell under the IIRIRA transitional rules because his deportation proceedings had begun before September of 1996. Citing In re N-J-B, the BIA reasoned that Rodriguez-Silva was statutorily ineligible for suspension of deportation because the 1993 OSC was served before he had accrued seven years of continuous physical residence in the United States.

Rodriguez-Silva then filed a petition for review of the BIA decision with this Court. While the petition was still pending, the Attorney General vacated In re N-J-B,² and this Court granted Rodriguez-Silva's motion to again remand the case to the BIA on September 25, 1997.

On November 19, 1997, while Rodriguez-Silva's remanded case was pending before the BIA, Congress enacted the Nicaraguan Adjustment and Central American Relief Act (NACARA).³ The NACARA effectively codified the In re N-J-B decision by making it clear that the stop-time rule applied to orders to show cause issued on, before, or after the date of IIRIRA's enactment.⁴ NACARA section 203 also amended the transition rules set forth in IIRIRA section 309(c)(5) to relax the eligibility requirements (including the stop-time rule) for suspension of deportation for certain specified nationalities----but not including (among others) Mexican nationals, such as Rodriguez-Silva----who were in deportation or exclusion proceedings before IIRIRA's effective date of April 1, 1997.⁵ In April 1999, the BIA held that the NACARA amendment to the IIRIRA stop-time rule provision was "unambiguous," and that the IIRIRA physical presence requirements therefore applied to cases pending on the date of IIRIRA's enactment.⁶ On the basis of that decision, the BIA, in September 1999, held that Rodriguez-Silva could not be considered for suspension of deportation because he was unable to demonstrate seven years of physical presence in the United States before he was served with the 1993 OSC. The BIA dismissed Rodriguez-Silva's appeal, authorizing him to depart the United States voluntarily.

Rodriguez-Silva now seeks review by this Court of the BIA's September 1999 decision. His sole claim on appeal is that the provisions of the NACARA that exempt aliens of specified nationalities----but not including his nationality----from the stop-time provisions of the IIRIRA violates his right to equal protection of the laws under the Fifth Amendment to the United States Constitution. Rodriguez-Silva argues that he should be afforded the right to present his suspension of deportation application to an immigration judge just as the class of aliens described in the NACARA have been allowed to do.

Discussion

Because Rodriguez-Silva challenges a BIA decision issued on or after October 31, 1996, in a deportation case initiated prior to April 1, 1997, this Court has jurisdiction pursuant to the transition rules for judicial review set forth in section 309(c)(4) of the IIRIRA, Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), and those provisions of section 106 of the INA which those transition rules do not supercede. See Moosa v. INS, 171 F.3d 994, 1010 (5th Cir. 1999); Kalaw v. INS, 133 F.3d 1147, 1152 (9th Cir. 1997); see also IIRIRA §§ 309(a) (setting April 1, 1997, as the general effective date for many IIRIRA provisions) and 309(c)(4) (establishing transitional rules for judicial review of final orders of exclusion and deportation issued on or after October 31, 1996). We turn now to the merits of Rodriguez-Silva's claim.

The petitioner does not contend that the stop-time rule itself suffers from any 0infirmity. Instead, he argues that the NACARA provisions that apply the rule selectively to certain nationalities, but not his, violate his right to equal protection of the laws. Rodriguez-Silva admits that congressional acts regulating immigration are due substantial deference, but argues that even under rational basis scrutiny the NACARA classifications are invalid. Before we reach the rationality of the NACARA, we must first determine if the Fifth Amendment requires that Congress justify nationality-sensitive admission criteria for aliens.

Although resident aliens are entitled to many constitutional protections, see Landon v. Plasencia, 103 S.Ct. 321 (1982); Hampton v. Mow Sun Wong 96 S.Ct. 1895 (1976), this protection is limited by Congress's broad powers to control immigration. Indeed, the Supreme Court "has repeatedly emphasized that 'over no conceivable subject is the legislative power of Congress more complete than it is over' the admission of aliens." Fiallo v. Bell, 97 S.Ct. 1473, 1478 (1977) (quoting Oceanic Navigation Co. v. Stranahan, 29 S.Ct. 671, 676 (1909)). The Court has "long recognized the power to expel or exclude aliens as a fundamental sovereign attribute . . . largely immune from judicial control," Shaughnessey v. Mezei, 73 S.Ct. 625, 628 (1972), and has noted that "the power over aliens is of a political character and therefore subject only to narrow judicial review." Mow Sun Wong, 96 S.Ct. at 1904 n. 21. See also Harisiades v. Shaughnessy, 72 S.Ct. 512, 522 (1952) (Frankfurter, J., concurring) ("The conditions for entry of every alien, the...