IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60467
Summary Calendar
FARHAD KAVIANI,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
--------------------
Petition for Review of an Order
of the Board of Immigration of Appeals
BIA No. A27 898 036
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June 14, 2001
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Farhad Kaviani petitions for review of the order of the Bureau
of Immigration Appeals (BIA) denying his motion to reopen his
deportation proceedings to apply for the suspension of deportation.
Kaviani contends that the BIA erred by determining that he is not
statutorily eligible for the relief of suspension of deportation
because an Order to Show Cause why he should not be deported was
issued to him in 1988. He argues that an order to show cause
issued prior to June 13, 1992, did not toll the period of
continuous physical presence in the United States.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-60467
-2-
Kaviani’s argument is foreclosed by the holding in Ayoub v.
INS, 222 F.3d 214, 215 (2000) that the issuance of a show-cause
order prior to the enactment of IIRIRA tolls the period of an
alien’s continuous presence in the United States.
Kaviani also argues that IIRIRA and NACARA are
unconstitutional provisions because they deprive him of equal
protection and due process. He argues that similarly situated
persons are treated differently based on the time that they
received an order to show cause and their national origins.
With respect to a denial of equal protection based on
different treatment of different nationalities, this argument is
foreclosed by Rodriguez-Silva v. INS, 242 F.3d 243 (5th Cir. 2001).
In Rodriguez, the court determined that Congress was not required
to make a showing of a rational basis for the nationality-sensitive
provisions because its regulatory power in the area of immigration
is plenary. Id. at 248.
Kaviani’s argument that applicants for suspension of
deportation are treated differently depending upon the time the
applicant is served with a notice to appear for removal proceedings
is also without merit. Similarly situated persons are treated in
the same manner because the stop-time rule is applied to all
illegal aliens who receive a notice to appear for removal
proceedings, whether the applicant was served with the notice prior
to or after IIRIRA instituted the “stop-time” rule. See id. at
245.
PETITION DENIED.