Jimenez-Angeles v. Ashcroft

• Decision Date: 22 May 2002
• Docket Number: No. 00-71478.,00-71478.
• Parties: Alma Delia JIMENEZ-ANGELES, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

291 F.3d 594

Alma Delia JIMENEZ-ANGELES, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 00-71478.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2001.

Filed May 22, 2002.

COPYRIGHT MATERIAL OMITTED

Robert F. Jacobs, Santa Ana, CA, for the petitioner.

Stuart E. Schiffer, Richard M. Evans, Michael T. Dougherty, United States Department of Justice, Washington, DC, for the respondent.

Before T.G. NELSON and W. FLETCHER, Circuit Judges, and AIKEN,^* District Judge.

OPINION

WILLIAM A. FLETCHER, Circuit Judge.

Alma Delia Jimenez-Angeles entered the United States illegally from Mexico on March 6, 1990. Sometime in March 1997, prior to the April 1, 1997 effective date of the Illegal Immigration Reform and Immigrant Responsibility Act, PL 104-208 Div. C, 110 Stat. 3009 (1996) ("IIRIRA"), she presented herself to the Immigration and Naturalization Service ("INS") hoping to avail herself of the pre-IIRIRA remedy of suspension of deportation. If the INS had commenced deportation proceedings prior to April 1, 1997, she would have been eligible for suspension of deportation. Instead, the INS did not commence proceedings (now called "removal" proceedings under IIRIRA) against her until November 1998. An Immigration Judge ("IJ") found Jimenez-Angeles removable, and the Board of Immigration Appeals ("BIA") affirmed the order. Jimenez-Angeles now petitions this court for review. Because we hold that Jimenez-Angeles' case is governed by IIRIRA's permanent rules, and because we hold that those rules are not impermissibly retroactive when applied to her, we deny the petition.

I

After entering the United States illegally, Jimenez-Angeles and her husband settled in the Los Angeles area. They have obtained jobs and have had two children while living in the United States. As of March 6, 1997, Jimenez-Angeles had been continuously present in this country for seven years. In March 1997, after she reached the seven-year residency mark, she presented herself to the INS to admit her undocumented status and to attempt to begin a process that would permit her to apply for the discretionary relief of suspension of deportation.

Before IIRIRA took effect on April 1, 1997, an alien against whom deportation proceedings had been commenced could apply for suspension of deportation, provided she had been continuously physically present in the United States for seven years, had good moral character, and could show that deportation would work a severe hardship upon her or upon certain United States citizen relatives. See 8 U.S.C. § 1254 (repealed 1997). When IIRIRA took effect on April 1, 1997, shortly after Jimenez-Angeles presented herself to the INS, "deportation" was replaced by "removal," and "suspension of deportation" was replaced by "cancellation of removal." See 8 U.S.C. § 1229b(b). Cancellation of removal requires ten years of continuous presence (rather than seven) and requires the alien to show that her removal would work a hardship upon a qualifying United States citizen or legal permanent resident spouse, child or parent (rather than upon the alien herself). Id.

IIRIRA includes transitional rules providing that, for the most part, the new provisions of IIRIRA do not apply to aliens against whom deportation proceedings were commenced prior to its effective date. Therefore, an alien may apply for the pre-IIRIRA remedy of suspension of deportation if deportation proceedings against her were commenced before April 1, 1997. See IIRIRA § 309(c); Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000). However, if an alien's case is commenced after April 1, 1997, it appears to be controlled by the new, permanent provisions of IIRIRA, including the ten-year residency requirement for cancellation of removal. Castillo-Perez, 212 F.3d at 523. Under pre-IIRIRA law, a deportation proceeding was commenced when the INS filed (not merely served) an Order to Show Cause ("OSC"). Under IIRIRA, a removal proceeding is commenced when the INS files a Notice to Appear ("NTA").

Prior to IIRIRA, an alien in deportation proceedings continued to accrue time towards satisfying the seven-year residency requirement for suspension of deportation during the pendency of the proceedings. However, IIRIRA includes a "stop-clock" provision. Under this provision, once an alien is served with an NTA, the alien ceases to accrue time towards the residency requirement. See IIRIRA § 304; 8 U.S.C. § 1229b(d). The stop-clock provision applies to all deportation and removal proceedings, whether they are governed by the transitional rules or the permanent rules, see IIRIRA § 309(c)(5)(A); Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001), unless the alien is covered by the Nicaraguan Adjustment and Central American Relief Act of 1997, PL 105-100, 111 Stat. 2160 (1997) (NACARA). NACARA exempts aliens from certain specified countries from the stop-clock provision, but Mexico is not one of those countries.

The INS took no action on Jimenez-Angeles' case until late in 1998. Jimenez-Angeles was served with an NTA, and the clock was stopped, on October 15, 1998. When the NTA was served and the clock stopped, Jimenez-Angeles had been continuously present in the United States for approximately eight and one-half years. The NTA was filed, and removal proceedings commenced, in November 1998.

An IJ found Jimenez-Angeles removable on June 10, 1999, and found her ineligible for either the pre-IIRIRA remedy of suspension of deportation or the IIRIRA remedy of cancellation of removal. The IJ first held that Jimenez-Angeles' case did not commence when she appeared at the INS office in March 1997. Rather, her case commenced only when the NTA was filed in November 1998, after the effective date of IIRIRA. Because it commenced after IIRIRA's effective date, it was a removal rather than a deportation proceeding. Thus, according to the IJ, Jimenez-Angeles was ineligible for the pre-IIRIRA remedy of suspension of deportation. Next, applying the stop-clock provision, the IJ held that Jimenez-Angeles had accrued less than ten years of continuous residency when the NTA was served, and so she was ineligible for the IIRIRA remedy of cancellation of removal. The BIA upheld the order and granted Jimenez-Angeles voluntary departure.

Jimenez-Angeles petitions this court for review. She points out that if the INS had commenced proceedings against her by filing an OSC immediately after she turned herself in to the INS in March 1997, those proceedings would have been pre-IIRIRA deportation proceedings, and she would have been eligible for suspension of deportation. She argues, first, that the INS should have commenced deportation proceedings immediately. She argues, second, that application of IIRIRA's permanent rules to her is impermissibly retroactive in light of INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), arguing that St. Cyr has in effect overruled our earlier decision in Cortez-Felipe v. INS, 245 F.3d 1054 (9th Cir.2001) (holding that deportation proceedings did not commence before IIRIRA's effective date, and the transitional rules therefore did not apply, where OSC was served but not filed prior to IIRIRA's effective date). We lack jurisdiction to address Jimenez-Angeles' first argument. We have jurisdiction to address her second argument, which we reject on the merits.

II

We hold at the outset that we lack jurisdiction to address Jimenez-Angeles' argument that the INS should have commenced deportation proceedings against her immediately upon becoming aware of her illegal presence in the United States. IIRIRA provides in part, "no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien 7503 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." 8 U.S.C. § 1252(g) (emphasis added). Section 1252(g) is not subject to IIRIRA's transitional rules; it applies "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings" under the Act. IIRIRA § 306(c)(1). See also Reno v. American-Arab Anti-Discrimination Committee ("AADC"), 525 U.S. 471, 477, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999). We construe § 1252(g), which removes our jurisdiction over "decision[s]... to commence proceedings" to include not only a decision in an individual case whether to commence, but also when to commence, a proceeding. See Richards-Diaz v. Fasano, 233 F.3d 1160, 1165 (9th Cir.2000) ("We are in no position to review the timing of the Attorney General's decision to `commence proceedings.'"), vacated on other grounds by Fasano v. Richards-Diaz, 533 U.S. 945, 121 S.Ct. 2584, 150 L.Ed.2d 745 (2001). Thus, § 1252(g) removes our jurisdiction to decide Jimenez-Angeles' individual claim that the INS was obligated immediately to initiate deportation proceedings against her once she had presented herself to the INS. See AADC, 525 U.S. at 487, 119 S.Ct. 936 (A "challenge to the Attorney General's decision to `commence proceedings'... falls squarely within § 1252(g)."). See also Cortez-Felipe, 245 F.3d at 1057 ("`[T]he Attorney General retains discretion at the stage of deciding to initiate a deportation proceeding.'") (quoting Cabasug v. INS, 847 F.2d 1321, 1324 (9th Cir.1988)).

III

A

We do have jurisdiction, however, to address Jimenez-Angeles' argument that the application of IIRIRA's permanent rules to her is impermissibly retroactive. Section 1252(g)'s jurisdictional bar is to be construed narrowly. See AADC, 525 U.S. at 487, 119 S.Ct. 936. We are not precluded, for example, from ruling on constitutional challenges to deportation procedures. See Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir.1998) ("By its terms, [§ 1252(g)] does not prevent the district court from exercising jurisdiction over the plaintiffs' due process claims [because such claims] constitute ...