                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-26-2004

Ventosa v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1148




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 03-1148


                           JOSE JOSON VENTOSA, JR.;
                           VICTORIA CRUZ VENTOSA,
                                               Petitioners

                                          v.

                           JOHN ASHCROFT,
                ATTORNEY GENERAL OF THE UNITED STATES,
                                                   Respondent


                       On Petition for Review of an Order of the
                           Board of Immigration Appeals
                      (BIA Nos. A29-731-984 and A29-731-203)


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  February 9, 2004
          Before: SCIRICA, Chief Judge, ROTH and McKEE, Circuit Judges

                               (Filed February 26, 2004)


                             OPINION OF THE COURT


SCIRICA, Chief Judge.

      Removal proceedings were initiated against petitioners Jose Joson Ventosa, Jr. and

Victoria Cruz Ventosa. The Immigration Judge found them removable and denied their
application for asylum and withholding of removal but granted their motion for voluntary

departure. The Board of Immigration Appeals issued an affirmance without opinion. The

Ventosas filed a petition for review alleging certain constitutional errors— specifically,

that during the interval when the INS delayed in hearing their asylum claims, the

controlling law changed to their detriment. They also allege the Immigration Judge’s

decision was not supported by substantial evidence.

       We will deny the Ventosas’ petition and affirm the BIA’s order of removal.

                                              I

       The Ventosas, native citizens of the Philippines, arrived in the United States on

May 12, 1986 on visitors’ visas with authorization to remain until November 11, 1986.

They remained beyond that time without authorization from the INS.

       On May 12, 1989, the Ventosas filed an asylum application based on fear of

physical harm and death on returning to the Philippines. They subsequently filed an

amended application alleging they had been persecuted on account of membership in a

particular social group and on account of their political opinion. Their application alleged

they were victims of extortion by the New People’s Army (“NPA”), and they had been

threatened by the Aquino party because they supported the Marcos Government.

       The INS took no action on their asylum application until almost a decade later and

on December 8, 1998, issued a Notice to Appear charging the Ventosas with

removability. Appearing before an Immigration Judge, the Ventosas admitted the factual



                                              2
allegations and conceded they were removable as charged. They applied for asylum,

withholding of removal, and cancellation of removal. On February 17, 2000, the

Immigration Judge denied their applications for relief but granted their alternative request

for voluntary departure. The Immigration Judge found: (a) there was no evidence of

credible past harm that rose to the level of persecution; (b) there was no evidence of

future persecution if they had to return because the Aquino Government is no longer in

power; and (c) the claim that the NPA was attempting to extort the Ventosas did not

constitute persecution on account of political opinion.

       The Ventosas appealed to the BIA. On December 19, 2002, the BIA summarily

affirmed without opinion under 8 C.F.R. § 1003.1(e)(4). The Ventosas now appeal.1

                                             II

       The Ventosas allege that after they had made their original asylum application in

1989, the INS implemented a “last in first out” policy for new asylum cases which left the

Ventosas’ claim for asylum unreviewed for almost a decade. They allege that during this

period of “limbo,” the applicable law changed to their detriment. On April 1, 1997,

“suspension of deportation” relief, 8 U.S.C. § 1254 (repealed 1997), was replaced by

“cancellation of removal” relief, 8 U.S.C. § 1229b(b), when Congress passed the Illegal




   1
   We have jurisdiction over a petition for review of a final order of removal of the BIA
under the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(1). The Immigration
Judge completed the proceedings in Newark, New Jersey, so venue for the petition is
proper. Id. at (b)(2).

                                             3
Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208 Div. C., 110

Stat. 3009 (1996) (“IIRIRA”).

       Under suspension of deportation relief, an alien against whom deportation

proceedings had been commenced, could apply for suspension of deportation, provided he

had been continuously physically present in the United States for seven years, had good

moral character, and could show that deportation would work a severe hardship upon him

or upon certain United States citizen relatives. See 8 U.S.C. § 1254 (repealed 1997). By

contrast, “cancellation of removal” requires ten years of continuous presence and requires

the alien to show that her removal would work a hardship upon a qualifying United States

citizen or legal permanent resident spouse, child, or parent (rather than upon the alien

himself). See 8 U.S.C. § 1229b(b). The Ventosas maintain that they qualified for

suspension of deportation but are ineligible for cancellation of removal because they have

no American citizen relatives. They argue that equitable estoppel should apply against

the INS due to its delay in processing their asylum claims; that the INS has impermissibly

retroactively applied the IIRIRA Permanent Rules to their case; and that they have been

denied due process and equal protection.2




   2
    Pure questions of law concerning the INA are reviewed de novo. Ladha v. INS, 215
F.3d 889, 896 (9th Cir. 2000). Alleged due process violations are also reviewed de novo.
Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir. 2000). However, we owe deference to
the Attorney General’s reasonable interpretation of the INA. INS v. Aguirre-Aguirre, 526
U.S. 415, 424-25 (1999).

                                             4
       A. Equitable Estoppel

       The Ventosas allege that the INS’s delay in hearing their claim caused them to lose

the right to apply for a suspension of deportation claim for relief. As a result, the

Ventosas argue the INS should be equitably estopped from denying them the opportunity

to apply for suspension of deportation relief.

       Equitable estoppel does not lie against the government in the same manner as

against private litigants. Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 419 (1990).

“[E]stoppel requires proof of affirmative misconduct on the part of the Government, a

burden not easily met.” Yang v. INS, 574 F.2d 171, 175 (3d Cir. 1978) (citation omitted).

       The approximate eight year interval it took the INS to address the Ventosas’

asylum application, though an unfortunate delay, does not constitute affirmative

misconduct sufficient to estop the INS from preventing the Ventosas from applying for

suspension of deportation relief. See INS v. Miranda, 459 U.S. 14, 19 (1982) (“Proof

only that the Government failed to process promptly an application falls far short of

establishing [affirmative misconduct].”).

       B. Impermissible Retroactive Application

       The Ventosas claim that applying the permanent rules of the IIRIRA, as opposed

to the transitional rules,3 has an impermissible retroactive effect. They assert that their




   3
    IIRIRA includes transitional rules providing that the new provisions do not apply to
aliens against whom deportation proceedings were commenced prior to its effective date.

                                                 5
admission of unlawful status in their asylum application created a settled expectation that

if asylum were denied, they would be able to request suspension of deportation relief.

They claim that through their admission, they created a significant benefit to the

government.

       The transitional rules of IIRIRA do not apply to their claims. “[R]emoval

proceedings under IIRIRA do not commence upon the initial contact between the alien

and the INS. Rather, they commence when the INS files a ‘charging document’ with the

Immigration Court.” Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 600 (9th Cir. 2002).

Because the INS issued the charging documents on December 8, 1998, the Ventosas’

claims are covered by the IIRIRA permanent rules which became effective April 1, 1997.

See 8 U.S.C. § 1229b(e).

       The Ventosas also contend that applying the IIRIRA rules has an impermissible

retroactive effect and that they are entitled to suspension of deportation under INS v. St.

Cyr, 533 U.S. 289 (2001). In St. Cyr, the alien was a lawful permanent resident who

more than seven years after his entry into the United States, pled guilty to a felony

pursuant to a plea bargain. His guilty plea rendered him deportable, but under the then

current pre-IIRIRA law, he was eligible for waiver of deportation under former INA §

212(c), 8 U.S.C. § 1182(c) (1994). Ten days after IIRIRA became effective, the INS

placed him in removal proceedings. The Supreme Court held that IIRIRA’s elimination

of the § 212(c) waiver of deportation could not be retroactively applied to aliens like St.



                                              6
Cyr “whose convictions were obtained through plea agreements and who,

notwithstanding those convictions, would have been eligible for [a § 212(c) waiver] at the

time of their plea under the law then in effect.” St. Cyr, 533 U.S. at 326. The Court held

the repeal had an impermissible retroactive effect as applied to St. Cyr because his plea

was predicated on the presumption he would be eligible for § 212(c) waiver. See id. at

321 (“Plea agreements involve a quid pro quo between a criminal defendant and the

government.”). Having engaged in a bargaining process with the government in which he

“waive[d] several of [his] constitutional rights (including the right to a trial) and grant[ed]

the government numerous tangible benefits, such as promptly imposed punishment

without the expenditure of prosecutorial resources,” id. at 322 (internal quotations

omitted), St. Cyr reasonably relied on the fact that his plea would preserve his eligibility

for a § 212(c) waiver of deportation. He had a settled expectation that the waiver would

be available to him, and he reasonably believed there was a substantial chance of having

the waiver granted, given the high rate of success for § 212(c) waiver applications. See

id. at 322-23.

       The Court of Appeals for the Ninth Circuit has addressed how St. Cyr affects

aliens who lost the right to apply for suspension of deportation relief after the passage of

IIRIRA. We find their analysis apposite. In Jimenez-Angeles v. Ashcroft, 291 F.3d 594,

599 (9th Cir. 2002), the court rejected a claim by an alien “that she [wa]s like the alien in

St. Cyr, who pled guilty prior to IIRIRA’s effective date in reliance on the possibility of §



                                              7
212(c) [suspension of deportation] relief, in that she revealed her status to the INS prior to

April 1, 1997 in reliance on the availability of suspension of deportation.” Id. at 600

(citation omitted) (internal quotations omitted). The court concluded that her

circumstances differed significantly from those in St. Cyr; “[t]he factors that militated in

favor of St. Cyr—in particular, his ‘settled expectations’ based on ‘transactions or

considerations already past’—are not present in Jimenez-Angeles’ case.” Id. at 602. The

court noted: “When St. Cyr entered into his plea bargain, he gave up valuable legal rights,

including his right to trial by jury. By contrast, when Jimenez-Angeles revealed herself to

the INS, she gave up only her ability to continue living illegally and undetected in the

United States.” Id.

       The Ventosas rely on St. Cyr for the proposition that when they admitted their

unlawful status in their asylum applications prior to the enactment of IIRIRA, they had a

settled expectation that, if asylum were denied, they would be able to request suspension

of deportation relief. Accordingly, they urge that as in St. Cyr, the government should be

denied from retroactively applying the new provisions of IIRIRA against them.

       The Ventosas’ reliance on St. Cyr is misplaced. In contrast to permanent resident

alien St. Cyr, they, like Jimenez-Angeles, are in the country without lawful status. The

transaction for which the Ventosas claim a retroactive effect was their voluntary contact

with the INS to apply for a benefit. The Ventosas did not give up a constitutional right

when they filed their asylum applications and conceded they were aliens; they gave up



                                              8
only their ability to continue living illegally and undetected in the United States. Their

concession of alienage is not the sort of “exchange” or “tangible benefit” contemplated by

the Court in St. Cyr because the question of alienage is rarely challenged or litigated.

Because there was neither negotiation with the government nor adequate quid pro quo,

the Ventosas’ concession of alienage does not cause Congress’s repeal of suspension of

deportation as applied to the Ventosas to be impermissibly retroactive.

       C. Due Process

       The Ventosas also claim that application of the IIRIRA permanent rules violates

due process. The Ventosas are correct in contending that aliens within the United States

may not be deprived of liberty or property without due process of law. Matthews v. Diaz,

426 U.S. 67, 77 (1976). But aliens must in the first instance possess a liberty or property

interest. See Bd. of Regents v. Roth, 408 U.S. 564, 569-71 (1972). Aliens who seek only

discretionary relief from deportation have no constitutional right to receive that relief.

Rather, the ability of such aliens to remain in the United States is a matter of “permission

and tolerance.” Harrisiades v. Shaughnessy, 342 U.S. 580, 586-87 (1952). The “failure

to be granted discretionary relief does not amount to deprivation of liberty interest.”

Huicochea-Gomez v. INS, 237 F.3d 696, 700 (6th Cir. 2001).

       Suspension of deportation is a form of discretionary relief. The Supreme Court

characterized suspension of deportation as an “act of grace” that, like a Presidential

pardon, is extended in the Attorney General’s “unfettered discretion.” INS v. Yueh-Shaio



                                              9
Yang, 519 U.S. 26, 30 (1997) (internal quotations omitted). “No constitutionally

protected interest arises from the INS’s actions in granting or denying applications for

suspension because the Attorney General exercises ‘unfettered’ discretion over

applications for suspension.” Tefel v. Reno, 180 F.3d 1286, 1301 (11th Cir. 1999).

Moreover, the Ventosas’ attempt to argue that their constitutional injury stems, not from

being denied suspension of deportation, but from being rendered ineligible to be

considered for suspension fails. This “argument draws a distinction without a

constitutional difference. Where no deprivation of a liberty or property interest has

occurred, no violation of procedural due process has occurred.” Id. Accordingly, we

conclude the Ventosas had no liberty or property interest in the grant of such relief, and

their due process challenge to the effects of Congress’s repeal fails.

       D. Equal Protection

       The Ventosas argue there is no rational basis for giving felons like St Cyr relief

under the pre-IIRIRA law and denying it for law-abiding aliens like them. They argue to

do so constitutes an equal protection violation. But equal protection “does not require

things which are different in fact or opinion to be treated in law as though they were the

same.” Plyler v. Doe, 457 U.S. 202, 216 (1982) (internal quotations omitted). We have

already demonstrated that the Ventosas are not similarly situated to aliens like St. Cyr

who had settled expectations due to a plea bargain. Accordingly, the Ventosas’ equal

protection claim fails.



                                             10
                                             III

         The Ventosas claim that the evidence in the record compels the conclusion that the

BIA’s conclusions were erroneous because it shows that they had a well-founded fear of

persecution on account of their political opinions.

         Where the BIA adopts the Immigration Judge’s decision as its own, we review the

Immigration Judge’s decision as the final decision of the agency. Gao v. Ashcroft, 299

F.3d 266, 271 (3d Cir. 2002). Whether the Ventosas have demonstrated past persecution

or a well-founded fear of future persecution are factual determinations reviewed under the

substantial evidence standard. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (The

determination must be upheld if “supported by reasonable, substantial, and probative

evidence on the record considered as a whole.”) (internal quotations omitted). Under this

deferential standard, the findings must be upheld unless the evidence not only supports a

contrary conclusion, “but compels it.” Id. at n.1 (emphasis in original).

         Substantial evidence in the record supports the Immigration Judge’s determination

that the Ventosas did not establish past persecution on account of any statutorily-

protected grounds or a well-founded fear of persecution if they return to the Philippines.

The Immigration Judge had considerable evidence in the record upon which to base the

conclusions that the Ventosas failed to prove that the NPA or the Aquino government

persecuted or will persecute them on account of their political opinions. We find no

error.



                                             11
                                          IV

      For the foregoing reasons, we will affirm the BIA’s final order of removal and

deny the Ventosas’ petition.




                                          12
