Marroquin v. Ashcroft

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals
For the First Circuit

No. 03-1358

CARLOS HUMBERTO MARROQUIN, ET AL.,

Petitioners,

v.

JOHN ASHCROFT,
UNITED STATES ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Selya, and Howard, Circuit Judges.

Robert D. Watt, Jr. on brief, for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Anthony W. Norwood, Senior Litigation Counsel, and Don G. Scroggin,
Trial Attorney, United States Department of Justice, Office of
Immigration Litigation, on brief, for respondent.

July 23, 2004
 Per Curiam. Prior to April 1, 1997, non-criminal aliens

facing deportation were entitled to seek discretionary relief under

a regime known as "suspension of deportation" if, inter alia, they

had accumulated seven years of continuous presence in the United

States. See Immigration and Nationality Act § 244, 8 U.S.C. §

1254 (repealed April 1, 1997). The Immigration Reform and

Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110

Stat. 3009, 3546 (IIRIRA), which went into effect on April 1, 1997,

eliminated this entitlement and replaced it with a stricter regime,

titled "cancellation of removal," which is available only to aliens

who have been continuously present in the United States for ten

years. The IIRIRA specified that only aliens who had been placed

"in deportation proceedings" prior to April 1, 1997, remained

eligible to apply for suspension of deportation. See IIRIRA §

309(c)(1).

Petitioners are illegal aliens who, due to the length of

their continuous residency within the United States, would have

been entitled to seek suspension of deportation but are not

entitled to request cancellation of removal. In early March 1997,

they presented themselves to an Immigration and Naturalization

Service office after their attorney (allegedly) was told that, if

they did so, prior to April 1, 1997, they would be placed in

deportation proceedings -- meaning that papers charging them with

deportability (to use the old parlance) or removability would be

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filed with the Immigration Court, see Costa v. INS, 233 F.3d 31,

34-37 (1st Cir. 2000) (defining what it means to be "in deportation

proceedings" within the meaning of the IIRIRA). Notwithstanding

this alleged promise, the INS did not file the relevant charging

papers until after April 1. Subsequently, and over petitioners'

objections, an immigration judge found them ineligible for

discretionary relief from deportation/removal and ordered them to

depart the country by a date certain. The Board of Immigration

Appeals dismissed petitioners' appeal from this order. Petitioners

seek relief from the BIA's ruling.

We are foreclosed by circuit precedent from granting

petitioners the relief they seek. The Costa panel held on

indistinguishable facts that an alien in petitioners' situation was

not entitled to seek suspension of deportation. See id. To the

extent that petitioners seek to avoid the effect of Costa by

invoking the doctrines of equitable estoppel and equitable tolling,

their efforts fail. Assuming arguendo the potential availability

of these doctrines against the government, petitioners have failed

to show the reasonable reliance essential to an estoppel claim, see

id. at 38 & n.7 (observing that reasonable reliance cannot be shown

where petitioners have no right to "call the tune as to when the

INS would commence deportation proceedings" and because the hope of

obtaining discretionary relief in the form of suspension of

deportation is not a "right" which the government might be

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equitably estopped from infringing). Nor have petitioners shown

that tolling principles might properly be thought applicable in a

context, as here, where the running of some sort of limitations

period is not at issue.

Petition denied.

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