IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-60395
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JOSE LUIS GONZALEZ-TORRES,
ALSO KNOWN AS JOSE LUIS GONZALEZ-SAUCEDO;
MARIA GONZALEZ-TORRES; EDWIN GONZALEZ-TORRES;
ENGELBERTH GONZALEZ-TORRES;
JOSE LUIS GONZALEZ-TORRES, JR.;
AND
CYNTHIA GONZALEZ-TORRES,
Petitioners,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
_________________________
June 21, 2000
Before POLITZ, SMITH, and Jose Luis Gonzalez-Torres, his wife Maria
DENNIS,Circuit Judges. Gonzalez-Torres, and their children Jose Luis,
Jr., Engelberth, Edwin, and Cynthia
JERRY E. SMITH, Circuit Judge: (“petitioners”), petition for review of the
denial of their applications for suspension of
deportation, arguing that retroactive At that hearing, the immigration judge
application of the stop-time provision in the (“IJ”) found that the petitioners were of good
Illegal Immigration Reform and Immigrant moral character but that, despite their
Responsibility Act of 1996 (“IIRIRA”), contention that they had entered the country in
section 304(a), violates their due process right July 1985, there was no evidence
to “fair notice and repose.” Concluding that demonstrating that the they had been in the
petitioners have no constitutional right to the United States before 1988. The IJ thus
discretionary suspension of deportation, we concluded that the petitioners failed to
deny the petition for review and affirm. establish that they had been physically present
in the United States for a period of seven
I. years; the IJ also found that petitioners had not
In July 1991, petitioners, natives of Mexico, demonstrated that they would suffer extreme
were ordered to show cause why they should hardship if they were deported. Consequently,
not be deported. The show-cause orders stat- the IJ denied the applications for suspension of
ed that Maria, Jose Luis, Jr., Engelberth, and deportation and ordered that the petitioners be
Edwin had entered the United States as non- allowed to depart voluntarily by December 17,
immigrants on June 20, 1990,1 that they were 1992.
authorized to remain in the country until
June 23, 1990, and that they had done so Petitioners appealed to the Board of
without authorization since that date. Cyn- Immigration Appeals (“BIA”). In August
thia’s show-cause order stated that she had 1996, while their appeal was pending, Maria
entered the country on July 1, 1985, and was Gonzalez-Torres and the four children filed a
authorized to remain until July 4, 1985. motion to reopen the deportation proceeding
Petitioners conceded their deportability and based on Jose Luis, Sr.’s, death in January
were ordered to depart voluntarily by July 2, 1996.
1992.
In March 1998, the BIA issued a notice
In August 1992, petitioners filed requesting additional briefing based on the
applications for suspension of deportation and passage of the IIRIRA. Following additional
a motion to reopen their deportation briefing by the petitioners and the INS, the
proceeding. They asserted that they were of BIA, on May 17, 1999, denied the petitioners’
good moral character, that they had entered motion to reopen the deportation proceedings
the country in 1985 and had been physically and denied the appeal.
present in the country for seven years, and that
they would suffer extreme hardship if The BIA stated that the record reflected
deported. See 8 U.S.C. § 1254(a)(1) (West that all the family members except Cynthia had
1995) (requirements for suspension of entered the United States on July 20, 1990;
deportation). The motion to reopen was that on July 23, 1991, they had been served
granted, and a hearing was held on November with an order to show cause and a notice of
6, 1992. hearing; that Cynthia had entered the country
on July 1, 1985; and that on July 29, 1991, she
had been served with an order to show cause
1
The deportation order indicated that the and a notice of hearing. The BIA concluded
children entered the country on July 1, 1985.
2
that because “none of the respondents had ac- 133 F.3d 1147, 1151 (9th Cir. 1997).3
crued 7 years of continuous physical presence
before the service of the Order to Show Cause III.
and Notice of Hearing, none [was] eligible for Petitioners challenge the application of the
suspension of deportation.” BIA Order new stop-time rule in the IIRIRA to their de-
(May 17, 1999) (citing Matter of Nolasco- portation proceedings, arguing that § 309-
Tofino, Interim Decision 3385 (BIA 1999)). (c)(5) cannot constitutionally be applied to
The BIA did not address the IJ’s finding that them, because doing so would constitute a ret-
none of the petitioners would suffer an roactive application of a law in violation of
extreme hardship if deported. procedural due process. They do not argue
that Congress did not intend that § 309(c)(5)
II. would apply retroactively; instead, they assert
Under its transitional rules, IIRIRA § 309- that this provision is one that the Constitution
(c)(4)(E) provides, in pertinent part, that prohibits from being applied retroactively even
“there shall be no appeal of any discretionary if Congress plainly mandated that it be applied
decision” with respect to the BIA’s denial of a retroactively. Thus, petitioners concede that
motion to suspend deportation. See Moosa v. there is no need to undergo the two-step anal-
INS, 171 F.3d 994, 1010-11 (5th Cir. 1999). ysis in Landgraf v. USI Film Prods., 511 U.S.
In Moosa, we held that we have no jurisdiction 244 (1994), for determining whether a law
to review the BIA’s decision denying applies retroactively.
suspension based on the immigrant’s failure to
demonstrate extreme hardship.2 Petitioners rely, however, on another
portion of Landgraf that states that “[t]he Due
Here, however, the BIA did not base its Process Clause also protects the interests in
denial of petitioners’ motion on the IJ’s fair notice and repose that may be
determination that they had not established the compromised by retroactive legislation; a
extreme-hardship element. Instead, the BIA justification sufficient to validate a statute’s
determined that petitioners had failed to prove prospective application under the Clause ‘may
another necessary element for eligibility for not suffice’ to warrant its retroactive
suspension of deportationSSthat they had ac- application.” Id. at 306 (internal citations
crued seven years’ continuous presence in the omitted). Accordingly, petitioners contend
United States. This determination is not a that their due process interest in “fair notice
matter of agency discretion, but involves appli- and repose” has been violated by the
cation of the law to factual determinations. It retroactive application of § 309(c)(5), which
therefore is not precluded from judicial review altered the conditions of their deportability
by § 309(c)(4)(E). See Kalaw v. INS,
3
See also Moosa, 171 F.3d at 1012, in which
the court cited that portion of Kalaw that “found
2
See id. at 1012 (“We join our sister courts in that the continuous physical presence element was
holding that denials of suspension based on the INS a factual inquiry, rather than a discretionary
§ 244 element of ‘extreme hardship’ are decision, that was reviewed for substantial
discretionary decisions, which IIRIRA § 309(c) evidence; thus, § 309(c) did not divest the court of
precludes us from reviewing.”). its jurisdiction.”
3
after they had been served with the orders to to appear” created potential confusion, be-
show cause and had begun their deportation cause it was uncertain whether this stop-time
proceedings. provision also applied to orders to show cause.
But the BIA interpreted the new phrase to in-
A. clude pre-IIRIRA show-cause orders, and, in
Before 1996, INA § 244(a) provided the 1997, Congress eliminated any remaining con-
Attorney General with discretion to grant sus- fusion: It enacted the Nicaraguan Adjustment
pension of deportation to an alien. To be eligi- and Cent ral American Relief Act
ble for this suspension, however, the alien had (“NACARA”), which included a clarifying
to satisfy several requirements, including that amendment to the IIRIRA’s stop-time rule,
he be “physically present in the United States replacing “notices to appear” with “orders to
for a continuous period of not less than seven show cause.” See NACARA § 203(a), Pub. L.
years immediately preceding the date of such No. 105-100, 111 Stat. 2160, 2196.
application [for suspension of deportation].”
8 U.S.C. § 1254(a)(1). But unlike the The IIRIRA’s amendments to the INA typi-
situation under current IIRIRA § 304(a), the cally do not apply to aliens placed in
time an alien spent in deportation proceedings deportation proceedings before April 1, 1997.
counted toward the physical presence See § 309(c)(1). Section 309(c)(5) contains,
requirement. however, a special “Transitional Rule with
Regard to Suspension of Deportation,” which
To expedite the removal of deportable ali- provides that the new stop-time rule “shall
ens and to limit discretionary relief, Congress apply to notices to appear issued before, on,
enacted the IIRIRA and repealed the sus- or after the date of the enactment of this Act
pension-of-deportation provision in INA [Sept. 30, 1996].” Pub. L. No. 104-208, 110
§ 244. Congress replaced the old provision Stat. 3009-546, 3009-627 (emphasis added).
with new INA § 240A, which provides for the It is this provision that petitioners allege is
“cancellation of removal.” 8 U.S.C. § 1229b. impermissibly retroactive.
Section 304(a) enacted a stop-time rule for
determining an alien’s eligibility for suspension B.
of deportation or cancellation of removal, pro- Two circuits have considered this precise
viding that “any period of continuous challenge to the retroactive application of
residence or continuous physical presence IIRIRA’s stop-time provisions, and both have
shall be deemed to end when the alien is upheld that application and rejected the aliens’
served a notice to appear.” 8 U.S.C. § 1229b- constitutional arguments. See Tefel v. Reno,
(d)(1) (emphasis added). Thus, “[a]fter 180 F.3d 1286, 1301-02 (11th Cir. 1999),
IIRIRA’s enactment, the i nitiation of petition for cert. filed, 68 U.S.L.W. 3513
deportation proceedings stops the clockSSan (U.S. Feb. 3, 2000) (No. 99-1314); Appiah,
alien can no longer accrue years of continuous 202 F.3d at 708-10. Those courts employed
physical presence once proceedings have similar analyses, reject ing the aliens’
begun.” Appiah v. INS, 202 F.3d 704, 707 arguments on two grounds. First, the courts
(4th Cir. 2000). held that the stop-time rule has no retroactive
effect, because it does not “impair rights a par-
Initially, § 304(a)’s use of the term “notice ty possessed when he acted, increase a party’s
4
liability for past conduct, or impose new duties suspension.” Appiah, 202 F.3d at 709.
with respect to transactions already complet-
ed.” Appiah, 202 F.3d at 709 (quoting Land- Petitioners offer no arguments to refute
graf, 511 U.S. at 280); Tefel, 180 F.3d these courts’ cogent analyses. Consequently,
at 1302. Applying IIRIRA’s new stop-time we join our sister courts in holding that the
rule to petitioners’ pending INS proceedings application of the IIRIRA’s stop-time
“does not overturn final BIA decisions provision to deportation proceedings pending
affirming an immigration judge’s decision to at the time of the statute’s enactment does not
grant suspension of deportation.” Id.4 While violate aliens’ due process rights.
petitioners may have expected that they would
be eligible for suspension of deportation, IV.
IIRIRA’s amendment limited only their Petitioners make an alternative argument
eligibility for discretionary relief; it did not that they are eligible for suspension of
infringe on a right that they possessed prior to deportation because they have accrued a full
its enactment. See Appiah, 202 F.3d at 709. seven years of continuous physical presence in
the United States after service of the orders to
Similarly, the courts also rejected the due show cause. That is, they have remained in the
process challenges, because the aliens could country for more than seven years since they
not show that they had a “vested right in not received the show-cause orders in July 1991.
being deport ed, and the challenged statutory While the transitional rule, § 309(c)(5),
provisions easily withstand rational basis provides that § 304(a) plainly stops the clock
review.” Id.; Tefel, 180 F.3d at 1301. The and prevents petitioners from adding the time
Tefel court noted that “[n]o constitutionally they have spent in deportation proceedings to
protected interest arises from the INS’ actions the time they had accrued before they were
in granting or denying applications for served the show-cause orders, petitioners
suspension because the Attorney General argue that the stop-time rule is silent as to
exercises ‘unfettered’ discretion over whether the time spent in the proceedings can
applications for suspension.” Id.5 And the itself be sufficient to satisfy the seven-year-
Appiah court correctly noted that there is a continuous-presence requirement. Thus, they
rational basis for the new stop-time conclude that nothing has operated to cut off
ruleSS“Congress enacted the rule to remove an this seven-year period for eligibility purposes.
alien’s incentive for prolonging deportation
proceedings in order to become eligible for The INS responds by noting that because
petitioners did not make this argument before
4
the BIA, they have failed to exhaust their ad-
See also Landgraf, 511 U.S. at 269 (“A ministrative remedies, and we are without jur-
statute does not operate ‘retrospectively’ merely isdiction to hear the issue.6 Petitioners did not
because it is applied in a case arising from conduct
file a motion to reconsider the BIA’s decision,
antedating the statute’s enactment or upsets
expectations based in prior law.”).
5 6
See also Appiah, 202 F.3d at 709 (“Because See Rodriguez v. INS, 9 F.3d 408, 414 (5th
suspension of deportation is discretionary, it does Cir. 1993) (holding that a failure to exhaust
not create a protectible liberty or property remedies with respect to a question deprives the
interest.”). court of jurisdiction to hear the matter).
5
and they do not challenge the fact that they review it.
have never presented this argument to the
BIA. The petition for review is DENIED, and the
order of the BIA is AFFIRMED.
Petitioners respond, instead, that to exhaust
their administrative remedies, they were not
required to file a motion to reconsider, and
that doing so would be futile, because the BIA
was bound by its interpretation in Nolasco-
Tofino, which precluded eligibility for
suspension of deportation in cases such as pe-
titioners’. This is an odd assertion, however,
because petitioners’ argument on the merits of
this claim is that Nolasco-Tofino did not
address the particular issue presented in this
caseSSi.e., whether the continuous-presence
requirement can be satisfied after service of
the orders to show cause. If this claim has any
merit, then, Nolasco-Tofino would not bind
the BIA, and a motion to reconsider,
therefore, would not have been futile.
The petitioners, except Cynthia, were
served with show cause orders on July 23,
1991; Cynthia was served on July 29, 1991.
As a result, by August 1998 the petitioners
could have raised this new argument that they
had been physically present in the country for
seven years since the service of the show cause
orders. At that time, their case was still pend-
ing before the BIA, which did not render its
decision until May 17, 1999.
Furthermore, the petitioners base their ar-
gument, in part, on the concurring opinion in
Nolasco-Tofino, which was decided on
April 15, 1999, a month before the BIA
decided petitioners’ case. Thus, they had
more than thirty days in which they again
could have raised this issue before the BIA.
Therefore, they have not exhausted their
administrative remedy with respect to this ar-
gument, so we are without jurisdiction to
6