IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60715
VICTOR RODRIGUEZ-SILVA,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition for Review of an Order of the
Immigration and Naturalization Service
February 8, 2001
Before GARWOOD, HIGGINBOTHAM, and STEWART, Circuit Judges.
GARWOOD, Circuit Judge:
Petitioner Victor Rodriguez-Silva, a native and citizen of
Mexico, seeks review of the decision of the Board of Immigration
Appeals denying the suspension of his deportation from the United
States. Rodriguez-Silva argues that the provisions of the
Nicaraguan Adjustment and Central American Relief Act, Pub. L. 105-
100, Title II, 111 Stat. 2160, 2193 (Nov. 19, 1997), which exempt
aliens of specified nationalities, but not including (among others)
Mexican nationals, from the “stop-time” rule of the Illegal
Immigration Reform and Immigrant Responsibility Act, Pub. L. No.
104-208, 110 Stat. 3009 (Sept. 30, 1996), deny him equal protection
of the laws under the Fifth Amendment. We disagree, and hence deny
the petition for review.
Facts and Proceedings Below
Although it presents but a single issue, this case has a long
and convoluted procedural history.
On September 2, 1993, the Immigration and Naturalization
Service (INS) served the petitioner, Victor Rodriguez-Silva, with
an Order to Show Cause and Notice of Hearing (OSC), charging that
he was deportable because he entered the country without inspection
in February of 1987.1 Rodriguez-Silva, a native and citizen of
Mexico (who has never been lawfully admitted to the United States), was
also notified on September 30, 1993, that he faced an additional
charge of civil document fraud. An immigration judge (IJ)
conducted a hearing, at which Rodriguez-Silva conceded that he was
deportable, but denied having committed document fraud. The IJ
ultimately found the document fraud charge to be valid, and ordered
Rodriguez-Silva to be deported to Mexico, denying his motion for
voluntary departure.
Rodriguez-Silva appealed the IJ’s denial of voluntary
departure, but did not appeal the order of deportation. On
February 22, 1994, the Board of Immigration Appeals (BIA) upheld
1
Rodriguez-Silva was charged with violating former § 241
(a)(1)(B) of the Immigration and Naturalization Act of 1952 (INA),
8 U.S.C. § 1251(a)(1)(B) (1999).
2
the IJ’s denial of voluntary departure, prompting Rodriguez-Silva
to file a petition for review of the BIA decision with this Court.
However, before the Court ruled on the petition, the INS rescinded
its finding of document fraud, and we thus remanded the case to the
BIA. The BIA thereafter granted Rodriguez-Silva’s unopposed motion
to reopen the case.
At the reopened hearing on May 20, 1996, Rodriguez-Silva
presented his application for suspension of deportation to the IJ.
The IJ found that Rodriguez-Silva was a person of good moral
character and that he had established seven years of residence in
the United States. However, she denied his application for
suspension of deportation because she found that he had failed to
establish extreme hardship. She then authorized Rodriguez-Silva to
depart the United States voluntarily within ninety days.
Rodriguez-Silva appealed the IJ’s decision to the BIA.
In 1996, Congress enacted the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110
Stat. 3009 (Sept. 30, 1996). Under the law as amended by IIRIRA,
aliens who “ha[ve] resided in the United States continuously for 7
years after having been admitted in any status” are eligible for
cancellation of their removal from the United States. 8 U.S.C. §
1229b(a)(2). This provision in general makes aliens who have
entered the country illegally eligible to stop standard deportation
proceedings if they have resided in the United States continuously
3
for seven years. IIRIRA instituted the “stop-time” rule, which was
intended to prevent aliens in deportation proceedings from delaying
those proceedings in order to accrue enough time in continuous
residence to be eligible for cancellation of their deportation.
Under the stop-time rule, an alien’s period of continuous physical
presence in the United States is deemed to end once he is served
with a notice to appear for removal proceedings, or commits any of
a category of criminal offenses. See 8 U.S.C. § 1229b(d)(1).
In 1997, the BIA held that the IIRIRA stop-time rule extended
to aliens who had applied for suspension of deportation prior to
IIRIRA’s enactment. See In re N-J-B, Int. Dec. 330, 1997 WL 107593
(BIA Feb. 20, 1997). On the basis of IIRIRA section 309(c)(5),
which outlines the Act’s transitional regime regarding suspension
of deportation, the BIA concluded that the stop-time rule applied
to aliens in deportation proceedings before September 30, 1996–the
date of IIRIRA’s enactment.
On April 4, 1997, the BIA dismissed Rodriguez-Silva’s
subsequent appeal of the IJ’s 1996 decision. It held that
Rodriguez-Silva’s case fell under the IIRIRA transitional rules
because his deportation proceedings had begun before September of
1996. Citing In re N-J-B, the BIA reasoned that Rodriguez-Silva
was statutorily ineligible for suspension of deportation because
the 1993 OSC was served before he had accrued seven years of
continuous physical residence in the United States.
4
Rodriguez-Silva then filed a petition for review of the BIA
decision with this Court. While the petition was still pending,
the Attorney General vacated In re N-J-B,2 and this Court granted
Rodriguez-Silva’s motion to again remand the case to the BIA on
September 25, 1997.
On November 19, 1997, while Rodriguez-Silva’s remanded case
was pending before the BIA, Congress enacted the Nicaraguan
Adjustment and Central American Relief Act (NACARA).3 The NACARA
effectively codified the In re N-J-B decision by making it clear
that the stop-time rule applied to orders to show cause issued on,
before, or after the date of IIRIRA’s enactment.4 NACARA section
203 also amended the transition rules set forth in IIRIRA section
309(c)(5) to relax the eligibility requirements (including the
stop-time rule) for suspension of deportation for certain specified
nationalities——but not including (among others) Mexican nationals,
such as Rodriguez-Silva——who were in deportation or exclusion
proceedings before IIRIRA’s effective date of April 1, 1997.5 In
2
See Att’y Gen. Order No. 2093-97 (July 10, 1997).
3
District of Columbia Appropriations Act of 1998, tit. II,
Pub. L. No. 105-100, 111 Stat. 2160, 2193 as amended, Pub. L. No.
105-139, 111 Stat. 2644 (Dec. 2, 1997).
4
See NACARA § 203(a)(1), Pub. L. No. 105-100, 111 Stat. 2160,
2193.
5
The nationalities exempted from IIRIRA’s requirements are
Salvadorans, Guatemalans, and nationals of the Soviet Union (or its
successor republics), Latvia, Estonia, Lithuania, Poland,
Czechoslovakia, Romania, Hungary, Bulgaria, Albania, East Germany,
5
April 1999, the BIA held that the NACARA amendment to the IIRIRA
stop-time rule provision was “unambiguous,” and that the IIRIRA
physical presence requirements therefore applied to cases pending
on the date of IIRIRA’s enactment.6 On the basis of that decision,
the BIA, in September 1999, held that Rodriguez-Silva could not be
considered for suspension of deportation because he was unable to
demonstrate seven years of physical presence in the United States
before he was served with the 1993 OSC. The BIA dismissed
Rodriguez-Silva’s appeal, authorizing him to depart the United
States voluntarily.
Rodriguez-Silva now seeks review by this Court of the BIA’s
September 1999 decision. His sole claim on appeal is that the
provisions of the NACARA that exempt aliens of specified
nationalities——but not including his nationality——from the stop-time
provisions of the IIRIRA violates his right to equal protection of
the laws under the Fifth Amendment to the United States
Constitution. Rodriguez-Silva argues that he should be afforded
the right to present his suspension of deportation application to
an immigration judge just as the class of aliens described in the
NACARA have been allowed to do.
or Yugoslavia (or its successor republics). See NACARA §
203(a)(1), codified as amended at 8 U.S.C. 1101 note (1999).
6
See In re Nolasco-Tofino, Int. Dec. 3385 (BIA 1999).
6
Discussion
Because Rodriguez-Silva challenges a BIA decision issued on or
after October 31, 1996, in a deportation case initiated prior to
April 1, 1997, this Court has jurisdiction pursuant to the
transition rules for judicial review set forth in section 309(c)(4)
of the IIRIRA, Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30,
1996), and those provisions of section 106 of the INA which those
transition rules do not supercede. See Moosa v. INS, 171 F.3d 994,
1010 (5th Cir. 1999); Kalaw v. INS, 133 F.3d 1147, 1152 (9th Cir.
1997); see also IIRIRA §§ 309(a) (setting April 1, 1997, as the
general effective date for many IIRIRA provisions) and 309(c)(4)
(establishing transitional rules for judicial review of final
orders of exclusion and deportation issued on or after October 31,
1996). We turn now to the merits of Rodriguez-Silva’s claim.
The petitioner does not contend that the stop-time rule itself
suffers from any infirmity. Instead, he argues that the NACARA
provisions that apply the rule selectively to certain
nationalities, but not his, violate his right to equal protection
of the laws. Rodriguez-Silva admits that congressional acts
regulating immigration are due substantial deference, but argues
that even under rational basis scrutiny the NACARA classifications
are invalid. Before we reach the rationality of the NACARA, we must
first determine if the Fifth Amendment requires that Congress
justify nationality-sensitive admission criteria for aliens.
7
Although resident aliens are entitled to many constitutional
protections, see Landon v. Plasencia, 103 S.Ct. 321 (1982); Hampton
v. Mow Sun Wong 96 S.Ct. 1895 (1976), this protection is limited by
Congress’s broad powers to control immigration. Indeed, the
Supreme Court “has repeatedly emphasized that ‘over no conceivable
subject is the legislative power of Congress more complete than it
is over’ the admission of aliens.” Fiallo v. Bell, 97 S.Ct. 1473,
1478 (1977) (quoting Oceanic Navigation Co. v. Stranahan, 29 S.Ct.
671, 676 (1909)). The Court has “long recognized the power to
expel or exclude aliens as a fundamental sovereign attribute . . .
largely immune from judicial control,” Shaughnessey v. Mezei, 73
S.Ct. 625, 628 (1972), and has noted that “the power over aliens is
of a political character and therefore subject only to narrow
judicial review.” Mow Sun Wong, 96 S.Ct. at 1904 n. 21. See also
Harisiades v. Shaughnessy, 72 S.Ct. 512, 522 (1952) (Frankfurter,
J., concurring) (“The conditions for entry of every alien, the
particular classes of aliens that shall be denied entry altogether,
the basis for determining such classification, the right to
terminate hospitality to aliens, the grounds on which such
determination shall be based, have been recognized as matters
solely for the responsibility of the Congress and wholly outside
the power of this Court to control.”)
However, the broad power to control immigration does not imbue
Congress with plenary power over aliens themselves. As this Court
8
recently stated: “Aliens can of course claim some constitutional
protections. The language of the due process clause refers to
‘persons,’ not ‘citizens,’ and it is well established that aliens
within the territory of the United States may invoke its
protections.” Zadvydas v. Underdown, 185 F.3d 279, 289 (5th Cir.
1999), cert. granted, 121 S.Ct. 297 (2000). For example, an alien
may not be punished criminally without the same process of law that
would be due a citizen of the United States. Wong Wing v. United
States, 16 S.Ct. 977, 981 (1896). In this Circuit it is also clear
that aliens are “persons” entitled to protection against invidious
State action under the Fourteenth Amendment. See Zadvydas, 185
F.3d at 289; Lynch v. Cannatella, 810 F.2d 1363, 1375 (5th Cir.
1987). Aliens enjoy some constitutional protections, regardless of
their status. The question petitioner raises is whether the Fifth
Amendment’s Due Process Clause requires Congress to provide a
rational basis for its decision when it sets exclusion criteria for
aliens.
The Due Process Clause of the Fifth Amendment applies to the
federal government a version of equal protection largely similar to
that which governs the states under the Fourteenth Amendment. But,
even though equal protection principles require the same type of
analysis under the Fifth and Fourteenth Amendments, see Buckley v.
Valeo, 424 U.S. 1, 93 (1976), the scope of the two protections is
not necessarily identical. In Hampton v. Mow Sun Wong, 96 S.Ct.
9
1895 (1976), the Supreme Court held that civil service regulations
requiring United States citizenship of all federal employees
violated equal protection, but the Court also indicated that had
the citizenship requirement been imposed by Congress or the
President it would likely have been justified by overriding
national concerns and would not have infringed on whatever due
process rights the petitioners possessed. Mow Sun Wong, 96 S.Ct.
at 1906. The Court pointed out that due process does not always
require of the federal government what equal protection would of
the states, and noted that the federal government can enact
legislation that would be invalid under the Fourteenth Amendment if
enacted by a State, particularly if the legislation related to
immigration. Id. at 1903-06. The Supreme Court has also recognized
that the governmental power to exclude or expel aliens may restrict
aliens’ constitutional rights when the two come into direct
conflict. See Mathews v. Diaz, 96 S.Ct. 1883, 1891 (1976) (“In
the exercise of its broad power over naturalization and
immigration, Congress regularly makes rules that would be
unacceptable if applied to citizens.”).
Because of foreign policy considerations, the United States
government has encouraged Nicaraguans and Cubans to remain in this
country, and had also given special protections to other Central
American and European groups. See Appiah v. INS, 202 F.3d 704, 710
(4th Cir. 2000) (quoting 143 Cong. Rec. S12,261 (daily ed. Nov. 9,
10
1997) (statement of Sen. Abraham)). The NACARA was intended by
Congress to correct a provision in the IIRIRA that would have
“chang[ed] the rules in the middle of the game for thousands of
Central Americans and others who came to the United States because
their lives and families had been torn apart by war and
oppression.” Id. The core of Congress’s power over immigration is
the ability to set the requirements an alien must meet to qualify
for admission to, or continued residence in, the United States or
for naturalization as a United States citizen. Due process does not
require Congress to grant aliens from all nations the same chances
for admission to or remaining within the United States. Congress
may permissibly set immigration criteria that are sensitive to an
alien’s nationality or place of origin. It is not for this Court
to question Congress’s decisions on such matters.
Because we hold that the equal protection principles that are
implicit in the Due Process Clause of the Fifth Amendment do not in
any way restrict Congress’s authority to set admission and
naturalization criteria that are place of origin or nationality-
sensitive, we do not reach the question of whether the NACARA
satisfies rational basis review in this respect.7
7
Although it is very likely that it would. See Appiah, 202 F.3d
at 709-10 (holding that Congress had ample foreign policy reasons for
enacting the NACARA, and that the Act does not violate equal
protection).
11
Conclusion
We hold that the equal protection principles that are implicit
in the Due Process Clause of the Fifth Amendment do not in any way
restrict Congress’s power to use nationality or place of origin as
criteria for the naturalization of aliens or for their admission to
or exclusion or removal from the United States. The petitioner’s
claim rests entirely on the argument that equal protection requires
Congress provide a rational basis for the nationality-sensitive
provisions of the NACARA. Congress need not make such a showing;
its regulatory power in this respect is plenary. Because we find
no error in the decision of the BIA, the petition for review is
DENIED.
12
Rodriguez-Silva v. Immigration & Naturalization Service
Court: Court of Appeals for the Fifth Circuit
Date filed: 2001-02-08
Citations: 242 F.3d 243
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