IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 9, 2009
No. 07-60271
Summary Calendar Charles R. Fulbruge III
Clerk
ISIDRO GARCIA
Petitioner
v.
ERIC H HOLDER, JR, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A94 011 815
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Isidro Garcia, a native and citizen of El Salvador, petitions for review of
a decision of the Board of Immigration Appeals. The BIA dismissed his appeal
from an Immigration Judge’s (IJ’s) denial of (1) a continuance and (2) his claims
for equitable relief. The removal order at issue stems from Garcia’s 1991 Texas
conviction for delivery of more than a quarter ounce of marijuana.
A factual point that Garcia raises throughout his legal arguments is that
he has a daughter who was born in this country and requires substantial
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-60271
medical attention unlikely to be available in El Salvador. Garcia alleges that the
equities raised by that factual situation have been presented to the Department
of Homeland Security in a request for deferral of action. No documentation of
the request appears in this record, but such a request could be made without
being filed as part of the current removal proceedings. According to the brief
filed by the Department of Justice, the Department of Homeland Security’s
range of authority under a request for deferral of action includes the following:
“(1) decline to institute proceedings; (2) terminate existing proceedings; or (3)
decline to execute a final order of removal.” Br. of Respondent at 7 n.5 (citing
Barahona-Gomez v. Reno, 236 F.3d 1115, 1119 n.3 (9th Cir. 2001)). We quote
the Government’s brief for this proposition because it expresses the
understanding of the Department of Justice as to how its own authority to
prosecute immigration matters can be limited. As we will discuss, Garcia was
granted several continuances in 2005 as he awaited a response from Homeland
Security on his request for deferral of action. There continues to be no evidence
that a deferral has been granted. We proceed to consider the legal issues,
satisfied that most of the equitable issues were for the Department of Homeland
Security.
Garcia argues that unconscionable governmental conduct occurred and
violated his Fifth Amendment right to due process. He argues that in light of his
daughter’s medical needs, the decision to deport him without providing an
opportunity to qualify for relief from deportation so shocks the conscience that
it amounts to a denial of substantive due process. The basis for his removal is
that he was convicted in 1991 of an aggravated felony, namely, delivery of a
controlled substance.
For his due process argument, Garcia relies on caselaw concerning
punitive damages. See BMW of N. Am. v. Gore, 517 U.S. 559 (1996). We find
that such caselaw is inapplicable. First, we have already noted that the
Department of Homeland Security is available for the kind of request Garcia is
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making. Second, Garcia must have a liberty or property interest before the due
process clause is relevant, and no such protected interests arise in the denial of
totally discretionary relief. See Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458,
465 (1981); Gutierrez-Morales v. Homan, 461 F.3d 605, 609-10 (5th Cir. 2006).
Furthermore, the process of applying for discretionary relief cannot itself be the
protected interest. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 280 n.2
(1998). These initial arguments are unpersuasive.
Garcia also alleges that his child has a separate protected interest.
Though his minor daughter is a United States citizen, her constitutional rights
are not affected by the deportation of a parent, even where her de facto
deportation will result. Perdido v. INS, 420 F.2d 1179, 1181 (5th Cir. 1969); see
also Payne-Barahona v. Gonzales, 474 F.3d 1, 2-3 (1st Cir. 2007).
Finally, at the hearing before the IJ, Garcia’s counsel admitted –
accurately it appears – that Garcia was not eligible for relief from removal
because he had been convicted of an aggravated felony. Thus, we find no
violation of procedural or substantive due process.
Garcia also characterizes as a substantive due process argument that the
constitutional prohibition of a bill of attainder was violated. See U.S. Const. art.
I, § 9, cl. 3. This argument is based on the fact that a statute bars aliens
convicted of aggravated felonies from applying for cancellation of removal. This
argument fails because deportation is not considered to be punishment, which
is a prerequisite for a successful labeling of an action as a bill of attainder. INS
v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984); see Cummings v. Missouri, 71
U.S. 277 (1867); SBC Commc’ns, Inc. v. FCC, 154 F.3d 226, 233 (5th Cir. 1998).
Garcia next argues that the decision of the former Immigration and
Naturalization Service to grant “ABC”1 class membership and Temporary
1
See Am. Baptist Churches v. Thornburgh, 760 F. Supp. 796, 797 (N.D. Cal. 1991)
(explaining a settlement agreement arising from a class action lawsuit alleging that the
government engaged in discriminatory treatment of asylum claims made by Salvadorans).
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No. 07-60271
Protected Status to Garcia, and to allow him to remain in the United States for
more than 14 years, estops its successor bureaucracy, the Department of
Homeland Security, from denying all relief from deportation. This argument
amounts to a challenge to the Government’s decision to commence removal
proceedings against Garcia. We have no jurisdiction to consider that category
of claim. 8 U.S.C. § 1252(g); see Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471, 487 (1999). Garcia’s estoppel claim is without merit.
Garcia also alleges that the IJ’s denial of his motion for a continuance
pending his request with the Department of Homeland Security for an exercise
of discretion not to prosecute him denied him the opportunity (1) to develop his
case on the record, (2) to obtain an answer to his request for prosecutorial
discretion, and (3) to prepare and present his argument for eligibility for
suspension of deportation. He argues that this denial constituted a violation of
his Fifth Amendment right to due process and was an abuse of discretion.
The IJ continued the proceedings three times, twice at Garcia’s request.
At the time of Garcia’s third request, which was denied, the IJ could consider
that Garcia admitted the factual allegations in the Notice to Appear, had not
challenged the IJ’s removability finding, and had not requested any formal relief
from removal. Simply put, Garcia lacked good cause for a continuance because
he was ineligible for removal relief under the relevant statutes. See 8 C.F.R. §
1003.29; Ahmed v. Gonzales, 447 F.3d 433, 439 (5th Cir. 2006). The IJ was
under no obligation to grant continuances of indefinite duration. See Witter v.
INS, 113 F.3d 549, 555 (5th Cir. 1997).
Garcia argues that the repeal by the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA) of a provision that would have allowed
him to seek suspension of deportation had an impermissibly retroactive effect as
applied to him. See Immigration and Nationality Act (INA) § 244, formerly
codified at 8 U.S.C. § 1254 (repealed 1996). The Supreme Court has created a
limit to the retroactivity of the change. See INS v. St. Cyr, 533 U.S. 289, 316-21
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(2001). Unlike the alien in St. Cyr, though, Garcia had no expectation of
eligibility for suspension of deportation when he pled guilty in 1991 to delivery
of more than a quarter ounce of marijuana, because that offense was an
aggravated felony under the law at the time. See Carranza-de Salinas v.
Gonzales, 477 F.3d 200, 205 (5th Cir. 2007) (holding that an alien must show
“actual, subjective reliance on the pre-IIRIRA state of the law to be eligible for
relief”). The change in the law did not change the disqualifying effect of his prior
conviction. In addition, Garcia did not have the requisite 10 years of residence
in the United States at the time of his 1991 conviction. See INA § 244(a)(2)
(repealed 1996). The IIRIRA’s repeal of suspension of deportation therefore had
no retroactive effect on Garcia.
We accept that Garcia, at least by 2005, had raised in the proper manner
to the proper authorities his equitable arguments regarding his daughter’s
medical needs and any other issues by which he wished to obtain a deferral of
action from the Department of Homeland Security. Even at this late date,
Garcia has not shown that he has obtained such discretionary relief. There is
no legal basis in the proceedings before us on which to grant that form of relief.
Garcia’s petition for review of the decision of the BIA is DENIED. His
motion for a stay of removal is DENIED. The Government’s motion to withdraw
its supplemental brief regarding an issue now seen as moot is GRANTED.
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