432 F.3d 1067 (9th Cir. 2005), 03-72021, Masnauskas v. Gonzales

• Citation: 432 F.3d 1067
• Party Name: Sylvia MASNAUSKAS, Petitioner, v. Alberto R. GONZALES, [*] Attorney General, Respondent.
• Case Date: December 30, 2005
• Court: United States Courts of Appeals, U.S. Court of Appeals — Ninth Circuit

Page 1067

432 F.3d 1067 (9th Cir. 2005)

Sylvia MASNAUSKAS, Petitioner,

v.

Alberto R. GONZALES, ^[*] Attorney General, Respondent.

No. 03-72021.

United States Court of Appeals, Ninth Circuit.

December 30, 2005

Submitted October 21, 2005^[**] Pasadena, California.

OPINION

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Michael J. Hernandez, Law Offices of Ronzio & Associates, Los Angeles, California, for the petitioner.

Ernesto H. Molina, Jr., Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A74-810-052.

Before: A. Wallace Tashima and Raymond C. Fisher, Circuit Judges, and Milton I. Shadur, ^[***] Senior District Judge.

TASHIMA, Circuit Judge:

Petitioner Sylvia Masnauskas ("Masnauskas"), a native and citizen of Lithuania, petitions for review of the decision of the Board of Immigration Appeals ("BIA") summarily affirming the decision of the Immigration Judge ("IJ"). The IJ denied Masnauskas' application for derivative adjustment of status and for suspension of deportation under the Nicaraguan Adjustment and Central American Relief Act ("NACARA"). Masnauskas challenges

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NACARA on equal protection grounds, arguing that she should be eligible for derivative adjustment of status even though she is a not a national of Nicaragua or Cuba.

We have jurisdiction under 8 U.S.C. § 1252, as amended by § 106(d) of the REAL ID Act of 2005, Pub. L. No. 109-13, § 106(d), 119 Stat. 231, 311 (2005). See Sotelo v. Gonzales, 2005 WL 3302264, at *2 (9th Cir. Dec. 7, 2005). We reject the equal protection challenge and deny the petition for review.

BACKGROUND

Masnauskas is a 47-year-old native and citizen of Lithuania. She arrived in the United States on December 4, 1991, and filed an application for asylum in 1995. On December 4, 1997, Masnauskas married Patricio Somarriba-Rugama ("Somarriba"), a 39-year-old citizen and national of Nicaragua. Somarriba arrived in the United States in September 1989, and applied for asylum in 1991. Later, he adjusted his status under NACARA § 202 to that of lawful permanent resident.

On July 12, 1996, the Immigration and Naturalization Service ("INS")¹ commenced deportation proceedings against Masnauskas, by serving her with an Order to Show Cause. The INS charged Masnauskas with being deportable as an alien remaining in the United States longer than permitted, in violation of Immigration and Nationality Act ("INA") § 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B) (1994). Masnauskas conceded that she was deportable and requested asylum and withholding of deportation. The IJ found Masnauskas deportable as charged, denied the applications for asylum and withholding, and granted an application for voluntary departure. Masnauskas filed an appeal to the BIA, which was dismissed as untimely.

After the enactment of NACARA, Masnauskas filed a motion to reopen for derivative adjustment of status under NACARA § 202 based on her marriage to a Nicaraguan national, and suspension of deportation under NACARA § 203 based on her status as a Lithuanian national. The IJ granted the motion to reopen, but then denied both the derivative application for adjustment of status and the application for suspension of deportation. The IJ found that Masnauskas was not a citizen of Cuba or Nicaragua and was therefore ineligible for derivative adjustment of status under NACARA § 202. Regarding suspension of deportation, the IJ found that Masnauskas was a citizen of Lithuania. However, the IJ also found that she had neither entered the United States on or before December 31, 1990, nor applied for asylum before December 31, 1991. Therefore, the IJ found Masnauskas ineligible for relief under NACARA § 203.

Masnauskas timely appealed the decision to the BIA, arguing that NACARA § 202 violates equal protection. The BIA summarily affirmed pursuant to 8 C.F.R. § 1003.1(e)(4). Masnauskas timely filed a petition for review.

STANDARD OF REVIEW

Because the BIA affirmed the decision of the IJ without opinion, we review the decision of the IJ. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 848 (9th Cir. 2003). We review constitutional challenges de novo. Ram v. INS, 243 F.3d 510, 517 (9th Cir. 2001).

DISCUSSION

I. IIRIRA and NACARA

Before the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

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("IIRIRA") took effect on April 1, 1997, an alien against whom deportation proceedings had been commenced could apply for suspension of deportation, provided that she had been continuously physically present in the United States for seven years, had "good moral character," and could show that deportation would result in "extreme hardship" to the alien or certain United States citizen relatives. 8 U.S.C. § 1254(a) (repealed 1997); Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 597 (9th Cir. 2002). IIRIRA, inter alia, repealed "suspension of deportation," and substituted "cancellation of removal," a more stringent standard for obtaining relief. Id. Cancellation of removal requires ten years of continuous physical presence, good moral character, and a showing of "exceptional and extremely unusual hardship" to certain United States citizen relatives. 8 U.S.C. § 1229b(b)(1).

Congress enacted NACARA in 1997 to ameliorate some of the harsher effects of IIRIRA for nationals of certain countries. NACARA was intended to correct provisions in IIRIRA that would have had the effect of "changing the rules in the middle...