Skelly v. I.N.S.

• Decision Date: 22 February 1999
• Docket Number: Docket No. 97-4121
• Citation: 168 F.3d 88
• Parties: Meldrina SKELLY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

Page 88

168 F.3d 88

Meldrina SKELLY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Docket No. 97-4121.

United States Court of Appeals Second Circuit.

Argued Dec. 7, 1998.

Decided Feb. 22, 1999.

Kerry E. Ford, Coudert Brothers, New York, N.Y. (Douglas F. Broder, Coudert Brothers, New York, NY, of counsel), for Petitioner.

Diogenes P. Kekatos, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney, James A. O'Brien III, Special Assistant United States Attorney, Steven M. Haber, Assistant United States Attorney, of counsel), for Respondent.

Before: KEARSE, CARDAMONE, and STRAUB, Circuit Judges.

STRAUB, Circuit Judge:

Petitioner Meldrina Skelly seeks review of an order of the Board of Immigration Appeals ("BIA"), which dismissed her appeal of an order of an Immigration Judge (Margaret McManus, Immigration Judge ) denying Skelly's request to file an application for suspension of deportation and ordering that she be excluded from the United States. The only question presented by her petition concerns the constitutionality of the provision on which she relied in seeking a suspension of deportation in her exclusion proceeding--former § 244(a)(1) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1254(a)(1) (1994) (repealed 1996) ("former § 244(a)(1)"). We recently concluded that former § 244(a)(1) permits aliens to seek suspensions of deportation only in deportation proceedings, not in exclusion proceedings. See Patel v. McElroy, 143 F.3d 56 (2d Cir.1998). We now reject Skelly's equal protection challenge to the statute, holding that former § 244(a)(1)'s differing treatment of aliens in deportation proceedings and aliens in exclusion proceedings does not offend equal protection principles. Because of our holding on the statute's constitutionality, Skelly's petition is controlled by Patel, which does not permit her to seek a suspension of deportation. Accordingly her petition is denied.

BACKGROUND

Skelly first entered the United States from her native St. Lucia in 1987 on a nonimmigrant visitor's visa. Overstaying her visa, she appears to have lived illegally in the United States continuously until August of 1994. She has two daughters--both U.S. citizens--and a husband, all of whom live in Brooklyn, New York.

Skelly returned to St. Lucia on or about August 9, 1994, and then attempted to reenter the United States on August 29, 1994, without any documentation authorizing her admission. The Immigration and Naturalization Service stopped her as she attempted to enter the country and commenced exclusion proceedings because she lacked either a valid visa or an exemption from the visa requirement.

At her exclusion hearing before an Immigration Judge, Skelly admitted that she was excludable but requested a suspension of deportation under former § 244(a)(1), which would have permitted the Justice Department to adjust her status to that of a lawful permanent resident. The Immigration Judge denied the request and ordered Skelly excluded and deported. Skelly then appealed to the BIA, which denied Skelly oral argument and dismissed her appeal. Reaching their decisions before we issued our opinion in Patel, both the Immigration Judge and the BIA relied on In re Torres, 19 I. & N. Dec. 371 (BIA 1986), an earlier BIA case also interpreting former § 244(a)(1) to apply only in deportation cases. Neither tribunal explicitly addressed Skelly's equal protection argument.

DISCUSSION

I. Statutory Scheme

Generally "any immigrant at the time of application for admission [to the United States] who is not in possession of a valid unexpired immigrant visa, reentry permit" or other suitable travel document is excludable. 8 U.S.C. § 1182(a)(7)(A)(i)(I) (1994).

Until its repeal in 1996, a separate provision, former § 244(a)(1), provided in relevant part that

the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien ... who applies to the Attorney General for suspension of deportation ... and is deportable under any law of the United States ...; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

8 U.S.C. § 1254(a)(1) (1994) (repealed September 30, 1996) (emphasis added). Patel held as a matter of statutory construction that the suspensions of deportation discussed in former § 244(a)(1) are available only to those aliens who are being deported and not to those who are merely being excluded from admission to the United States--as is Skelly. ¹ 143 F.3d at 57, 59-61.

In the Illegal Immigration Reform and Immigration Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-594 ("IIRIRA"), Congress repealed former § 244(a)(1), replacing it with a similar provision permitting the Attorney General to exercise her discretion to grant lawful permanent resident status to aliens scheduled to be returned to their native countries. See 8 U.S.C.A. § 1229b(b)(1) (West 1998). The new section differs from former § 244(a)(1) in two ways: (1) it does away with the distinction between exclusion and deportation proceedings, and (2) it increases the requirement of continuous presence in the United States to ten years. See id. The new provision, however, applies only in proceedings commenced after April 1, 1997; for proceedings--like Skelly's--commenced before that date, the earlier version remains in effect. See IIRIRA §§ 309(a) & (c), 110 Stat. at 3009-625; Patel, 143 F.3d at 57, 60-61.

II. Skelly's Constitutional Claim

Skelly does not contest that she is excludable under the statute and concedes that Patel precludes her from arguing that former § 244(a)(1) permits a suspension of deportation in her case. Thus, the only question before us is whether former § 244(a)(1) is an unconstitutional violation of Skelly's equal protection rights because of its differing treatment of aliens in exclusion and deportation proceedings. As we explain below we hold that former § 244(a)(1) does not violate equal protection principles.

At the outset, we note that there is a well-established equal protection component to the Fifth Amendment Due Process Clause applicable to the federal government. See Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954); Furlong v. Shalala, 156 F.3d 384, 392 (2d Cir.1998). Accordingly, even though the Fifth Amendment itself--unlike the Fourteenth--does not contain any specific equal protection language, the INS and the statutory authority under which the INS acts must still comport with equal protection principles.

For purposes of this appeal, we assume without deciding that Skelly enjoys the same equal protection rights afforded to continuous residents under the Constitution. Although aliens at the border are generally accorded few constitutional rights, "once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly." Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). In this respect, "a continuously present resident alien is entitled to a fair hearing when threatened with deportation," id., regardless of whether that alien is present illegally, see, e.g., Leng May Ma v. Barber, 357 U.S. 185, 187, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958); Augustin v. Sava, 735 F.2d 32, 36 (2d Cir.1984). Likewise, a continuously present alien is entitled to equal protection of the laws, see Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Francis v. INS, 532 F.2d 268, 272 (2d Cir.1976), even if the entry was unlawful, see Plyler v. Doe, 457 U.S. 202, 211-17, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). Skelly's case, however, presents a more knotty question that we need not decide to resolve this appeal: whether Skelly had effectively severed her connection to the United States and therefore her status as a continuous resident by returning to St. Lucia for twenty days. Compare Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 214, 73 S.Ct. 625, 97 L.Ed. 956 (1953) (absence of approximately nineteen months effected "clear break in an alien's continuous residence" in United States), with Plasencia, 459 U.S. at 34, 103 S.Ct. 321 (determining that Mezei does not govern a case in which a permanent resident was absent from the United States for only "a few days").

Assuming without deciding that Skelly is entitled to the constitutional protections afforded continuous residents, former § 244(a)(1) satisfies equal protection scrutiny. As an initial matter, Congress deserves special deference in the area of immigration and naturalization. See Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977); Giusto v. INS, 9 F.3d 8, 9 (2d Cir.1993) (per curiam). Specifically, Congress's classifications should survive an equal protection challenge so long as there is a " 'facially legitimate and bona fide reason' " for the classification. Fiallo, 430 U.S. at 794, 97 S.Ct. 1473 (quoting Kleindienst v. Mandel, 408 U.S. 753, 770, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972)); accord Giusto, 9 F.3d at 9-10. "Thus, a legislative scheme for deporting certain aliens but not others will ' "not be set aside as the denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it." ' " Giusto, 9 F.3d at 10 (quoting Linnas v. INS, 790 F.2d 1024, 1032 (2d Cir.) (in turn quoting Metropolitan Casualty Ins. Co. v....