                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2008

Arca-Pineda v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 07-1914




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            PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                     No. 07-1914
                                     __________

                         NORMA ISABEL ARCA-PINEDA,
                                  Petitioner,

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                              Respondent.

                                     __________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A27-624-199
                        Immigration Judge: Henry S. Dogin
                                    ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                   May 15, 2008
                                   ___________

             Before: McKee and Garth, Circuit Judges, and RODRIGUEZ,
                                  District Judge *
                          (Opinion Filed: May 28, 2008)

            Marcia S. Kasdan, Esq.
            Law Office of Marcia Kasdan
            127 Main Street
            Hackensack, New Jersey 07601


      *
      The Honorable Joseph H. Rodriguez, Senior District Judge for the District of
New Jersey, sitting by designation.
       Attorney for Petitioner

Peter D. Keisler, Assistant Attorney General
Richard M. Evans, Assistant Director
Andrew Oliveira, Trial Attorney (On Brief)
Office of Immigration Litigation
U.S. Department of Justice
Civil Division
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
       Attorneys for Respondent

                          ___________

                           OPINION
                          ___________


GARTH, Circuit Judge
      Norma Isabel Arca-Pineda (“Petitioner”) petitions for
review of an order of the Board of Immigration Appeals (“BIA”),
which affirmed an order of an Immigration Judge (“IJ”), finding
her removable and denying her application for suspension of
deportation. For the following reasons, the petition will be denied.
                                 I.
        On November 26, 1986, Petitioner, a native and citizen of
Peru, entered the United States without inspection. That same day,
immigration officials served her with an order to show cause
charging her as removable under former Section 241 of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1251(a)(2)
(repealed 1986) (entrance without inspection). When Petitioner
failed to appear at her deportation hearing on March 23, 1987, the
order to show cause was returned to the Immigration and
Naturalization Service (“INS”) for appropriate action. Petitioner’s
deportation proceeding was then administratively closed.
       On August 11, 2001, Petitioner filed a motion to re-calendar
her case to allow her to apply for adjustment of status. The INS
denied her application for adjustment of status on July 18, 2002,


                                 -2-
because she failed to appear for her interview. On April 28, 2005,
Petitioner submitted an application for suspension of deportation
under former Section 244 of the INA, 8 U.S.C. § 1254 (repealed
1996).
       On July 18, 2005, the IJ denied Petitioner’s request for
suspension of deportation and ordered her deported to Peru. The
IJ held that the “stop-time” rule under Section 240A of the INA,
8 U.S.C. § 1229b(d)(1), applied to her case. As a result, the IJ
held that Petitioner accrued zero years of continuous physical
presence in the United States because she was served with an order
to show cause on the same day she entered the country. Because
Petitioner lacked the requisite seven years of continuous physical
presence for suspensions of deportation, the IJ denied her
application.
        Petitioner then appealed the IJ’s decision to the BIA. She
argued that her continuous physical presence clock restarted when
her deportation proceeding was administratively closed on March
23, 1987. Petitioner claimed that she then accrued the requisite
seven years of continuous physical presence in the United States.
On February 28, 2007, the BIA issued a decision adopting and
affirming the IJ’s decision, and thus rejected her claim of
eligibility for suspension of deportation. The BIA held that
Petitioner’s deportation proceedings did not “restart” when they
were administratively closed. Instead, the BIA held, Petitioner was
subject to one continuous immigration proceeding which began on
the date she entered the United States. The instant petition for
review followed.
                                 II.
       We have jurisdiction to review legal and constitutional
questions concerning Petitioner’s eligibility for suspension of
deportation. See 8 U.S.C. § 1252(a)(2)(D). Because the BIA
adopted and affirmed the IJ’s decision, and also made its own
findings, we review the decisions of both the BIA and the IJ.
Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We review
legal questions de novo, but “defer to the BIA’s reasonable
interpretations of statutes it is charged with administering.” Silva-
Rengifo v. Att’y Gen. of the U.S., 473 F.3d 58, 63 (3d Cir. 2007)
(citing INS v. Aguirre-Aquirre, 526 U.S. 415, 424 (1999)); see also

                                 -3-
            Partyka v. Att’y Gen. of the U.S., 417 F.3d 408, 411 (3d Cir. 2005).
                                            III.
                   Petitioner argues that she is eligible for suspension of
            deportation under former 8 U.S.C. § 1254(a)(1). Under this
            section, an alien was eligible for suspension of deportation upon
            showing, inter alia, that she had been “physically present in the
            United States for a continuous period of not less than seven years
            immediately preceding the date of [the] application.” 8 U.S.C. §
            1254(a)(1) (repealed 1996). The enactment of the Illegal
            Immigration Reform and Immigrant Responsibility Act
            (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009, made numerous
            changes affecting the availability of suspensions of deportation.
            One of those changes was the “stop-time” rule under Section
            240A(d)(1) of the INA, 8 U.S.C. § 1229b(d)(1). Under this rule,
            the count of time towards satisfying the seven year continuous
            physical presence requirement stops upon the service of a notice to
            appear placing the alien into removal proceedings under the INA.
            See 8 U.S.C. § 1229b(d)(1).1
                    Petitioner raises two arguments to support her claim of
            eligibility for suspension of deportation. First, she argues that she
            accrued more than seven years of continuous physical presence in
            the United States. She reaches this conclusion by maintaining that
            her deportation proceedings ended when they were administratively
            closed on March 23, 1987, whereupon she accrued over fourteen
            years of continuous physical presence until she filed her motion to
            reopen on August 11, 2001, which restarted her removal
            proceedings.
                   Second, she argues that the BIA’s application of the stop-
            time rule was “arbitrary and inequitable.” (Br. at 13.) Specifically,
            Petitioner relies on our decision in Okeke v. Gonzales, 407 F.3d
            585 (3d Cir. 2005), which held that lawful reentry into the United
            States after a clock-stopping event allows the alien’s continuous



      1
        Although the stop-time rule applied only to notices to appear, Congress later
passed the Nicaraguan Adjustment and Central American Relief Act of 1997, Pub. L.
No. 105-100, 111 Stat. 2160 (1997), which clarified that the stop-time rule also applied
to orders to show cause.

                                             -4-
physical presence clock to restart.       Petitioner argues that
application of Okeke to her case shows the fallacy of the BIA’s
ruling. She claims that if she had left the United States in, say,
1989, and later sought reentry, her continuous physical presence
clock would have restarted and she would have accumulated seven
years of presence. She argues that this result violates the equal
protection component of the Due Process Clause of the Fifth
Amendment because it treats differently those aliens who have left
and reentered the country, and those who have not. We will
address each of these arguments separately.
                                 A.
       Petitioner claims that her continuous physical presence
clock restarted after the administrative termination of her case on
March 23, 1987 and that she then began accruing over fourteen
years of continuous physical presence until August 11, 2001, the
date she filed her motion to re-calendar. We disagree. Petitioner’s
immigration proceeding did not terminate upon administrative
closure. As noted by the First Circuit Court of Appeals,
“[a]dministrative closure is a procedural convenience that may be
granted if both parties to the removal proceedings agree, but it does
not constitute a final order.” Lopes-Reyes v. Gonzales, 496 F.3d
20, 21 (1st Cir. 2007) (citing In re Lopez-Barrios, 20 I. & N. Dec.
203, 204 (BIA 1990); In re Amico, 19 I. & N. Dec. 652, 654 n.1
(BIA 1988)). “Rather, administrative closure of a case temporarily
removes a case from an immigration judge’s calendar or from the
Board’s docket.” Id. (citing Mickeviciute v. INS, 327 F.3d 1159,
1161 n.1 (10th Cir. 2003); Amico, 19 I. & N. Dec. at 654 n.1).
Since Petitioner’s immigration proceedings did not end upon
administrative closure, and instead her proceedings were merely
removed from the IJ’s calendar, her continuous physical presence
clock did not begin anew. Therefore, Petitioner’s claim that she
began accruing continuous physical presence after the
administrative closure of her case must be rejected.
                                 B.
       Petitioner next argues that application of the stop-time rule
to her case is inequitable, and violates our Circuit’s precedent,
because it creates the following result: aliens who leave the United
States and then lawfully reenter have their continuous physical

                                 -5-
presence clock restarted, while aliens, such as her, who never leave
the United States do not have their physical presence clock
restarted. Petitioner argues that this result is prohibited under our
Circuit’s decision in Caroleo v. Gonzales, 476 F.3d 158 (3d Cir.
2007).
        In Caroleo, we analyzed the “statutory counterpart”
requirement for applications for waivers of removal by certain
deportable aliens under former Section 212(c) of the INA, 8 U.S.C.
§ 1182(c) (repealed 1996). We noted that, under the literal terms
of the statute, Section 212(c) relief was only available to aliens
who left the United States and are then faced with exclusion (i.e.,
inadmissibility) under Section 212(a) of the INA, 8 U.S.C. §
1182(a). Caroleo, 476 F.3d at 164 n.3. We further noted that the
INS later extended Section 212(c) relief to aliens who had left the
United States and were permitted to reenter despite being
excludable. Id. As we stated, “[t]his practice yielded an
inequitable result by treating differently, removable aliens who had
left and reentered the United States and those who had never left.”
Id. We then adopted the Second Circuit’s holding that “this
distinction was ‘not rationally related to any legitimate purpose of
the statute’” and therefore violated the equal protection component
of the Due Process Clause of the Fifth Amendment. Id. (quoting
Francis v. INS, 532 F.2d 268, 272 (2d Cir. 1976)).
       Petitioner argues that the reasoning of Caroleo applies to her
case. She contends that had she simply left the United States and
reentered seven or more years before August 11, 2001, she would
have restarted her physical presence clock and thereby accrued the
seven years of continuous physical presence necessary for a
suspension of deportation. Petitioner contends this result violates
the reasoning of Caroleo. Although Petitioner does not explicitly
state so in her brief, we construe this argument as claiming a
violation of her equal protection rights.
        We have held that “disparate treatment of different groups
of aliens triggers only rational basis review under equal protection
doctrine.” DeSousa v. Reno, 190 F.3d 175, 184 (3d Cir. 1999). In
DeSousa, we described rational basis review as follows:
       Under this minimal standard of review, a
       classification is accorded a strong presumption of

                                 -6-
                   validity and the government has no obligation to
                   produce evidence to sustain its rationality. Indeed,
                   such a classification can be upheld as constitutional
                   even when it is based on rational speculation rather
                   than on empirical data. Once a facially legitimate
                   reason for the classification is found, whether such
                   a reason was articulated by Congress or not, we must
                   rule the classification constitutional. As always,
                   when performing such review, our role is not to
                   judge the wisdom or fairness of Congress’s policy
                   choices, but rather their constitutionality.
            Id. (internal citations and quotations omitted); see also Appiah v.
            INS, 202 F.3d 704, 709-10 (4th Cir. 2000) (applying rational basis
            review to an equal protection challenge to the stop-time rule).
                   The distinction drawn here, between those aliens who
            lawfully reenter the country and those who do not, clearly passes
            muster under rational basis review. As noted by the Fourth Circuit
            Court of Appeals, “Congress enacted the [stop-time] rule to remove
            an alien’s incentive for prolonging deportation proceedings in order
            to become eligible for suspension.” Appiah, 202 F.3d at 710. The
            House Report accompanying the legislation supports this
            proposition, stating that Congress enacted the stop-time rule
            because “[s]uspension of deportation is often abused by aliens
            seeking to delay the proceedings until 7 years have accrued.” See
            H.R. Rep. No. 104-469(I) (1996). Other courts have agreed that the
            stop-time rule was enacted to combat efforts by aliens to
            intentionally delay their immigration proceedings to enable them to
            apply for suspension of deportation. See De La Cruz v. Mauer, 483
            F.3d 1013, 1021 (10th Cir. 2007); Appiah, 202 F.3d at 710.
                   The distinction here furthers this legislative purpose. While
            the Government does not contend that Petitioner intentionally
            delayed her immigration proceedings, it appears that the same
            concerns that fostered Congress’s enactment of the stop-time rule
            apply here. The record shows that Petitioner failed to appear at her
            deportation hearing in 1987 2 , which resulted in her immigration


      2
       As noted, Petitioner also failed to appear on July 18, 2002 when she moved to re-
calendar her case.

                                            -7-
proceedings being administratively terminated. Petitioner is now
attempting to capitalize upon this situation by claiming that the
administrative closure restarted her continuous physical presence
clock, thereby allowing her to accumulate seven years of
continuous physical presence. Allowing Petitioner to apply for
suspension of deportation here would essentially permit her to
benefit from her failure to attend a deportation proceeding. This
would clearly frustrate Congress’ purpose for enacting the stop-
time rule.
        This fact also makes Petitioner’s situation different from that
faced in Caroleo. In Caroleo, we agreed with the Second Circuit
that there was no legitimate purpose for the distinction at issue
there. Caroleo, 476 F.3d at 163 n.3. In the instant matter, however,
the distinction is effective. By not appearing at her immigration
hearing and remaining in the United States, Petitioner is seeking to
benefit from the delays in her immigration case to argue that she
satisfied the seven year presence requirement. On the other hand,
an alien who leaves the country and lawfully reenters causes no
delay in her case. Instead, once an alien reenters the country, her
continuous physical presence clock starts anew and she must stay
in this country for another seven years to be eligible for suspension
of deportation. See Okeke, 407 F.3d at 591. Therefore, the
distinction at issue here is rationally related to the purpose of the
stop-time rule.
                                  C.
       Although not raised by the Government, Petitioner is
ineligible for suspension of deportation for another reason. Section
1254(a)(1) requires that an alien seeking suspension of deportation
be “physically present in the United States for a continuous period
of not less than seven years immediately proceeding the date of
such application....” 8 U.S.C. § 1254(a)(1) (1996) (emphasis
added). Here, Petitioner is attempting to rely on the fourteen years
of presence between 1987 and 2001 to argue that she meets the
physical presence requirement. This period of time, however, did
not “immediately proceed” her application for suspension of
deportation. The record indicates that Petitioner applied for
suspension of deportation on April 28, 2005, which was nearly four
years after her period of continuous physical presence. For this


                                  -8-
additional reason, Petitioner is ineligible for suspension of
deportation.
                                 IV.
       Petitioner also argues that retroactively applying the stop-
time rule to her case violates her Due Process rights. We have
already rejected this challenge, however, in a previous decision.
Pinho v. INS, 249 F.3d 183, 188 (3d Cir. 2001) (holding that “[t]he
plain meaning of these statutes establishes Congress’s intent to
apply the stop-time rule to all cases, including those pending as of
[the date of the enactment of IIRIRA]”). Furthermore, we rejected
in Pinho the same due process challenge that Petitioner raises. Id.
at 189 (holding that because “[s]uspension of deportation is
prospective relief it does not impair any vested rights” and therefore
“no potential violation of due process exists”) (citations omitted).
Accordingly, Petitioner is not entitled to relief on this ground.
                                 V.
      For the foregoing reasons, we will deny the petition for
review.




                                 -9-
