Pinho v. Immigration & Naturalization Service, 99-5844

• Decision Date: 31 January 2001
• Docket Number: No. 99-5844,99-5844
• Citation: 249 F.3d 183
• Parties: (3rd Cir. 2001) FERNANDO PINHO and MARIA PINHO, Petitioners v. IMMIGRATION & NATURALIZATION SERVICE (INS), Respondents
• Court: U.S. Court of Appeals — Third Circuit

Page 183

249 F.3d 183 (3rd Cir. 2001)

FERNANDO PINHO and MARIA PINHO, Petitioners v. IMMIGRATION & NATURALIZATION SERVICE (INS), Respondents

No. 99-5844

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued April 10, 2000

Filed January 31, 2001

[Copyrighted Material Omitted]

John D. Perez (ARGUED), Tous & Perez, P.C., Newark, NJ, Attorney for Appellants.

Heather Philips (ARGUED), David W. Ogden, Richard M. Evans, Nancy E. Friedman, Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, D.C., Attorneys for Respondents.

Before: NYGAARD, ALITO, and GIBSON,^* Circuit Judges.

OPINION OF THE COURT

JOHN R. GIBSON, Circuit Judge:

Fernando and Maria Pinho petition for review from an adverse ruling by the Board of Immigration Appeals (Board). The Board dismissed the Pinhos' appeal from an immigration judge decision denying suspension of deportation. The Pinhos contend that they satisfied the eligibility requirements for suspension of deportation at the time they filed their application and at the time the judge heard their case; that due to a long delay in their appeals process, which was beyond their control, they were unfairly held to a retroactive application of an amendment to section 240A(d) of the Immigration and Nationality Act, 8 U.S.C. 1229b(d) (Supp. IV 1998); and that the current immigration law confers benefits on certain classes of aliens in violation of the equal protection component of the Fifth Amendment's Due Process Clause. We affirm.

I.

In August 1984, the Pinhos came to the United States from Portugal with their three children as non-immigrant visitors and remained until December 1990. At that time, they returned to Portugal for not more than three weeks, where they sought unsuccessfully to obtain immigrant visas. Upon their return to the United States in January 1991, the Immigration and Naturalization Service (INS) served the Pinhos with orders to show cause why they should not be deported for having entered the United States without inspection, thereby instituting deportation proceedings against them. At the time the orders to show cause were served, the Pinhos did not have seven years of continuous physical presence in the United States. However, they had been continuously physically present in the United States for more than seven years when their case was heard on January 6, 1992.

Mr. Pinho continues to operate a concrete business he established in 1986 and employs others in his community. The Pinhos have strong ties to their community. Their children were educated here, and they own real estate in this country.

On January 6, 1992, the Pinhos appeared before the judge, conceded deportability, and applied for suspension of deportation under section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1254(a)(1) (1994) (repealed by the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 309, 110 Stat. 3009-615 (1996)), or, in the alternative, for voluntary departure. Immigration and Nationality Act 244(a)(1), as it existed at the time, authorized the discretionary relief of suspension of deportation if the immigrant met three criteria: seven years continuous physical presence in the United States, good moral character, and extreme hardship. The immigration judge denied their application for suspension of deportation based solely on his finding that deportation would not cause extreme hardship. The judge specifically stated that the Pinhos had lived in the United States for more than seven years, thus satisfying the continuous physical presence requirement as it then existed. Without specifically ruling on the issue of good moral character, the judge found no evidence that the Pinhos failed to meet this requirement. The judge granted the application for voluntary departure and ordered that the Pinhos be deported if they did not voluntarily depart the United States within the time allowed.

The Pinhos appealed the denial to the Board, which took no action on the appeal and had no communication with the Pinhos for the next six years. In March 1998, the Board requested supplemental briefing to address changes in the immigration laws that occurred while the Pinhos' appeal was pending. The Pinhos submitted their supplemental brief in April 1998.

On September 14, 1999, the Board dismissed their appeal, applying the new stop-time rule of section 240A(d) of the Immigration and Nationality Act, 8 U.S.C. 1229b(d) (Supp. IV 1998), which was enacted after the judge's decision. The Board concluded that the newly enacted law provided the eligibility criteria to be applied to the Pinhos' application for suspension of deportation. This petition for review followed.

II.

We review only the decision of the Board, and not the immigration judge's ruling. See Green v. INS, 46 F.3d 313, 320 (3d Cir. 1995). The only question before us is whether the Board properly applied the new continuous physical presence requirement (the stop-time rule) to the Pinhos' pending deportation proceedings. We conclude that it did.

Before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (often referred to as IIRIRA, but we believe clarity is served by referring to it in this opinion as the Reform and Responsibility Act), suspension of deportation was a form of discretionary relief available to aliens who had been determined to be deportable and who met certain statutory criteria. See 8 U.S.C. 1254 (1994) (repealed 1996). The general requirements were continuous physical presence in the United States for seven years, good moral character, and extreme hardship. Id. After the alien had established these elements, the Attorney General had discretion to grant or deny the relief. Id.

The Reform and Responsibility Act, which overhauled the process of excluding or removing aliens from the United States, abolished suspension of deportation. Pending deportation proceedings were generally excluded from the Act's changes, see Reform and Responsibility Act 309(c)(1). However, certain provisions were made applicable to all pending and new cases.¹ One of those provisions is the stop-time rule of section 309(c)(5) (codified at 8 U.S.C. 1229b(d) (Supp. IV 1998)), which changed how the continuous physical presence test was calculated. The old rule provided that the seven-year period was counted from the date the alien entered the United States until the date of application for suspension of deportation. 8 U.S.C. 1254(a)(1) (1994) (repealed 1996). The new stop-time rule stops the counting period on the date the alien is served with an order to show cause why he or she should not be deported. Reform and Responsibility Act 309(c)(5); 8 U.S.C. 1229b(d)(1) (Supp. IV 1998).

Uncertainty existed in the interpretation of Reform and Responsibility Act 309(c)(5) because it stated that the new stop-time rule applied to "notices to appear issued before, on, or after" enactment of the Reform and Responsibility Act.² This language created ambiguity as to whether pending deportation proceedings were actually covered because all deportation cases were initiated with an order to show cause and not a notice to appear. In Matter of N-J-B-, Interim Decision 3309 (B.I.A. 1997), the Board examined section 309(c)(5) and held that the stop-time rule applied to applications for suspension of deportation pending on the effective date of the Reform and Responsibility Act.³ The Attorney General vacated that decision and certified the question to herself for review. The question was settled when Congress passed the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA), Pub. L. No. 105-100, 111 Stat. 2160 (1997).⁴ Following enactment of NACARA, the Board again was presented with the same question and upheld its earlier interpretation of section 309(c)(5), concluding that NACARA clarified that the Board's holding that the stop-time rule applied to orders to show cause in Matter of N-J-B- was correct. In re Nolasco-Tofino, 1999 BIA LEXIS 12, Interim Decision 3385 (B.I.A. 1999); see also Rivera-Jimenez v. INS, 214 F.3d 1213, 1217 (10th Cir. 2000).

Both the plain language of NACARA and Board precedent state that the stop-time rule applies to suspension of deportation cases. The Pinhos challenge on two bases the constitutionality of this law as applied to them. First, they argue that the retroactive application of the stop-time rule denies them procedural due process in violation of the Fifth Amendment. Second, they argue that the exceptions for certain classes of aliens violate the equal protection principles of the Fifth Amendment's Due Process Clause.

A.

The question of whether to accord retroactive effect to a statute is determined by the Supreme Court's rule in Landgraf v. USI Film Products, 511 U.S. 244, 280, 114 S. Ct. 1483 128 L. Ed. 2d 229 (1994). The multi-part analysis begins with determining whether Congress has expressly addressed whether the statute is to apply to pending cases or only to new cases initiated after the statute is enacted. See id. Since the transitional rule with regard to suspension of deportation, Reform and Responsibility Act 309(c)(5), 8 U.S.C. 1101 note (Supp. IV 1998), itself states when it is to take effect and what cases are covered by it, there is no need to resort to the presumption against retroactivity. Id. Cf. Idahoan Fresh v. Advantage Produce, Inc., 157 F.3d 197, 202 (3d Cir. 1998) (clear and unambiguous plain language of a statute obviates need for further inquiry).

Section 309(c)(5) of the Reform and Responsibility Act, as modified by section 203(a)(1) of NACARA (Transitional Rules With Regard To Suspension Of Deportation), states in relevant part that "section 240A(d) of the Immigration and Nationality Act (relating to continuous residence or physical presence) [the stop-time rule] shall apply to orders to show cause . . . issued before, on, or after the date of the enactment of ...