                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-9-2001

Pinho v. Immigration & Naturalization Service
Precedential or Non-Precedential:

Docket 99-5844




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Filed May 09, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-5844

FERNANDO PINHO and MARIA PINHO,

       Petitioners

v.

IMMIGRATION & NATURALIZATION SER VICE (INS)

       Respondents

PETITION FOR REVIEW FROM AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS

(D.C. No. 0090-1: A71 643 458)
(D.C. No. 0090-1: A71 643 460)

Argued April 10, 2000

Before: NYGAARD, ALITO, and GIBSON,* Cir cuit Judges.

(Filed: January 31, 2001)

John D. Perez (ARGUED)
Tous & Perez, P.C.
838 Broad Street
Newark, NJ 07102

 Attorney for Appellants



_________________________________________________________________
* The Honorable John R. Gibson, United States Court of Appeals for the
Eighth Circuit, sitting by designation.
       Heather Philips (ARGUED)
       David W. Ogden
       Richard M. Evans
       Nancy E. Friedman
       Office of Immigration Litigation
       U.S. Department of Justice
       Civil Division
       P.O. Box 878, Ben Franklin Station
       Washington, D.C. 20044

        Attorneys for Respondents

OPINION OF THE COURT

JOHN R. GIBSON, Circuit Judge:

Fernando and Maria Pinho petition for r eview from an
adverse ruling by the Board of Immigration Appeals
(Board). The Board dismissed the Pinhos' appeal from an
immigration judge decision denying suspension of
deportation. The Pinhos contend that they satisfied the
eligibility requirements for suspension of deportation at the
time they filed their application and at the time the judge
heard their case; that due to a long delay in their appeals
process, which was beyond their control, they were unfairly
held to a retroactive application of an amendment to
section 240A(d) of the Immigration and Nationality Act, 8
U.S.C. S 1229b(d) (Supp. IV 1998); and that the current
immigration law confers benefits on certain classes of aliens
in violation of the equal protection component of the Fifth
Amendment's Due Process Clause. We affirm.

I.

In August 1984, the Pinhos came to the United States
from Portugal with their three childr en as non-immigrant
visitors and remained until December 1990. At that time,
they returned to Portugal for not mor e than three weeks,
where they sought unsuccessfully to obtain immigrant
visas. Upon their return to the United States in January
1991, the Immigration and Naturalization Service (INS)
served the Pinhos with orders to show cause why they

                                 2
should not be deported for having entered the United States
without inspection, thereby instituting deportation
proceedings against them. At the time the or ders to show
cause were served, the Pinhos did not have seven years of
continuous physical presence in the United States.
However, they had been continuously physically present in
the United States for more than seven years when their
case was heard on January 6, 1992.

Mr. Pinho continues to operate a concr ete business he
established in 1986 and employs others in his community.
The Pinhos have strong ties to their community. Their
children were educated here, and they own real estate in
this country.

On January 6, 1992, the Pinhos appeared befor e the
judge, conceded deportability, and applied for suspension of
deportation under section 244(a)(1) of the Immigration and
Nationality Act, 8 U.S.C. S 1254(a)(1) (1994) (repealed by the
Illegal Immigration Reform and Immigrant Responsibility
Act, Pub. L. No. 104-208, S 309, 110 Stat. 3009-615
(1996)), or, in the alternative, for voluntary departure.
Immigration and Nationality Act S 244(a)(1), as it existed at
the time, authorized the discretionary r elief of suspension
of deportation if the immigrant met three criteria: seven
years continuous physical presence in the United States,
good moral character, and extreme har dship. The
immigration judge denied their application for suspension
of deportation based solely on his finding that deportation
would not cause extreme hardship. The judge specifically
stated that the Pinhos had lived in the United States for
more than seven years, thus satisfying the continuous
physical presence requirement as it then existed. Without
specifically ruling on the issue of good moral character, the
judge found no evidence that the Pinhos failed to meet this
requirement. The judge granted the application for
voluntary departure and ordered that the Pinhos be
deported if they did not voluntarily depart the United States
within the time allowed.

The Pinhos appealed the denial to the Board, which took
no action on the appeal and had no communication with
the Pinhos for the next six years. In March 1998, the Board
requested supplemental briefing to addr ess changes in the

                               3
immigration laws that occurred while the Pinhos' appeal
was pending. The Pinhos submitted their supplemental
brief in April 1998.

On September 14, 1999, the Board dismissed their
appeal, applying the new stop-time rule of section 240A(d)
of the Immigration and Nationality Act, 8 U.S.C.S 1229b(d)
(Supp. IV 1998), which was enacted after the judge's
decision. The Board concluded that the newly enacted law
provided the eligibility criteria to be applied to the Pinhos'
application for suspension of deportation. This petition for
review followed.

II.

We review only the decision of the Boar d, and not the
immigration judge's ruling. See Green v. INS, 46 F.3d 313,
320 (3d Cir. 1995). The only question befor e us is whether
the Board properly applied the new continuous physical
presence requirement (the stop-time rule) to the Pinhos'
pending deportation proceedings. We conclude that it did.

Before the enactment of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (often r eferred to
as IIRIRA, but we believe clarity is served by r eferring to it
in this opinion as the Reform and Responsibility Act),
suspension of deportation was a form of discr etionary relief
available to aliens who had been determined to be
deportable and who met certain statutory criteria. See 8
U.S.C. S 1254 (1994) (repealed 1996). The general
requirements were continuous physical presence in the
United States for seven years, good moral character , and
extreme hardship. Id. After the alien had established these
elements, the Attorney General had discr etion to grant or
deny the relief. Id.

The Reform and Responsibility Act, which over hauled the
process of excluding or removing aliens fr om the United
States, abolished suspension of deportation. Pending
deportation proceedings were generally excluded from the
Act's changes, see Reform and Responsibility Act
S 309(c)(1). However, certain pr ovisions were made
applicable to all pending and new cases.1 One of those
_________________________________________________________________

1. Congress set out transitional rules to specify how the Reform and
Responsibility Act was to apply to cases pending on that Act's effective

                               4
provisions is the stop-time rule of section 309(c)(5) (codified
at 8 U.S.C. S 1229b(d) (Supp. IV 1998)), which changed how
the continuous physical presence test was calculated. The
old rule provided that the seven-year period was counted
from the date the alien entered the United States until the
date of application for suspension of deportation. 8 U.S.C.
S 1254(a)(1) (1994) (repealed 1996). The new stop-time rule
stops the counting period on the date the alien is served
with an order to show cause why he or she should not be
deported. Reform and Responsibility Act S 309(c)(5); 8
U.S.C. S 1229b(d)(1) (Supp. IV 1998).

Uncertainty existed in the interpretation of Reform and
Responsibility Act S 309(c)(5) because it stated that the new
stop-time rule applied to "notices to appear issued before,
on, or after" enactment of the Reform and Responsibility Act.2
This language created ambiguity as to whether pending
deportation proceedings were actually covered because all
deportation cases were initiated with an or der to show
cause and not a notice to appear. In Matter of N-J-B-,
Interim Decision 3309 (B.I.A. 1997), the Boar d examined
section 309(c)(5) and held that the stop-time rule applied to
applications for suspension of deportation pending on the
effective date of the Reform and Responsibility Act.3 The
Attorney General vacated that decision and certified the
question to herself for review. The question was settled
when Congress passed the Nicaraguan Adjustment and
Central American Relief Act of 1997 (NACARA), Pub. L. No.
_________________________________________________________________

date. See 8 U.S.C. S 1101 note "Ef fective Date of 1996 Amendments"
(Supp. IV 1998).

2. Pre-Reform and Responsibility Act charging documents that began
deportation proceedings were known as Or ders to Show Cause. As part
of the change in the overall scheme of immigration law, Congress
changed the name of the charging document and the government actions
vis a vis immigrants. The charging documents are now called Notices to
Appear, and deportation is now called r emoval. 8 U.S.C. SS 1229 (Supp.
IV 1998).

3. The Board came to that conclusion by interpreting the phrase to refer
generally to charging documents initiating pr oceedings in the nature of
deportation or removal, and not exclusively to the documents entitled
"Notice to Appear."

                               5
105-100, 111 Stat. 2160 (1997).4 Following enactment of
NACARA, the Board again was presented with the same
question and upheld its earlier interpretation of section
309(c)(5), concluding that NACARA clarified that the
Board's holding that the stop-time rule applied to orders to
show cause in Matter of N-J-B- was corr ect. In re Nolasco-
Tofino, Interim Decision 3385 (B.I.A. 1999); see also Rivera-
Jimenez v. INS, 214 F.3d 1213, 1217 (10th Cir. 2000).

Both the plain language of NACARA and Board pr ecedent
state that the stop-time rule applies to suspension of
deportation cases. The Pinhos challenge on two bases the
constitutionality of this law as applied to them. First, they
argue that the retroactive application of the stop-time rule
denies them procedural due process in violation of the Fifth
Amendment. Second, they argue that the exceptions for
certain classes of aliens violate the equal pr otection
principles of the Fifth Amendment's Due Process Clause.

A.

The question of whether to accord retr oactive effect to a
statute is determined by the Supreme Court's rule in
Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994).
The multi-part analysis begins with determining whether
Congress has expressly addressed whether the statute is to
apply to pending cases or only to new cases initiated after
the statute is enacted. See id. Since the transitional rule
with regard to suspension of deportation, Reform and
Responsibility Act S 309(c)(5), 8 U.S.C. S 1101 note (Supp.
IV 1998), itself states when it is to take ef fect and what
cases are covered by it, there is no need to resort to the
presumption against retroactivity. Id. Cf. Idahoan Fresh v.
Advantage Produce, Inc., 157 F.3d 197, 202 (3d Cir. 1998)
(clear and unambiguous plain language of a statute
obviates need for further inquiry).

Section 309(c)(5) of the Reform and Responsibility Act, as
modified by section 203(a)(1) of NACARA (T ransitional Rules
_________________________________________________________________

4. Section 203(a)(1) of NACARA amended Refor m and Responsibility Act
S 309(c)(5) by replacing the term"notices to appear" with the term
"orders to show cause." See infra at 8.

                               6
With Regard To Suspension Of Deportation), states in
relevant part that "section 240A(d) of the Immigration and
Nationality Act (relating to continuous r esidence or physical
presence) [the stop-time rule] shall apply to orders to show
cause . . . issued before, on, or after the date of the
enactment of this Act." The Reform and Responsibility Act
was enacted September 30, 1996 and took effect April 1,
1997. NACARA's amendments to it were ef fective "as if
included in the enactment of [the Reform and
Responsibility Act]." NACARA S 203(f); 8 U.S.C. S 1101 note
(Supp. IV 1998). The plain meaning of these statutes
establishes Congress's intent to apply the stop-time rule to
all cases, including those pending as of September 30,
1996. NACARA S 203(f).

The Pinhos' orders to show cause were issued on
January 7, 1991. Their case was decided by the Boar d
September 14, 1999, well after the transition rules took
effect. Although the Pinhos satisfied the continuous
physical presence test as of the date they applied for
suspension of deportation, the Board held that the law to
be applied was the one in effect at the time of its review
because the Act said it was to apply to pending cases. Since
the Pinhos could not demonstrate physical pr esence of
seven years in the United States from the time of their
entry until the time that the order to show cause was
served on them, they do not meet a threshold r equirement
for suspension of deportation and therefor e are ineligible to
be considered for this discretionary r elief.

Six other circuits have addressed the applicability of the
stop-time rule to pending deportation proceedings, and
each has held that the stop-time rule applies to all pending
cases in which a final administrative decision had not been
rendered by the enactment of the Refor m and
Responsibility Act. See Afolayan v. INS, 219 F.3d 784, 788
(8th Cir. 2000); Gonzalez-Torr es v. INS, 213 F.3d 899, 903
(5th Cir. 2000); Rivera-Jimenez v. INS , 214 F.3d 1213, 1217
(10th Cir. 2000); Appiah v. INS, 202 F.3d 704, 708-09 (4th
Cir. 2000); Tefel v. Reno, 180 F.3d 1286, 1288-90 (11th Cir.
1999), cert. denied 120 S.Ct. 2657 (2000); Arrozal v. INS,
159 F.3d 429, 434-35 (9th Cir. 1998). The decision of the
Board constitutes the final administrative decision.

                               7
Therefore, as a matter of statutory law, the Board properly
applied the new stop-time rule to the Pinhos' applications.

The Board's application of the stop-time rule to the
Pinhos' case does not constitute an unconstitutional
retroactive application of law. "A statute does not operate
`retrospectively' merely because it . . . upsets expectations
based in prior law." Landgraf, 511 U.S. at 269. "When the
intervening statute authorizes or affects the propriety of
prospective relief, application of the new provision is not
retroactive." Id. at 273.

Suspension of deportation is prospective r elief because it
does not impair any vested rights. See T efel, 180 F.3d at
1302. Since the relief had not yet been granted and was
discretionary even if the alien met all eligibility criteria, the
change in eligibility criteria did not overtur n a final
administrative decision or impair vested rights. At most, the
Pinhos merely had an expectation of receiving the relief
requested, not a right to it. The Pinhos had no preexisting
legal right to remain in the United States, as they had
already been adjudged deportable. Since no vested rights
were affected in this case, no potential violation of due
process exists. See Gonzalez-Torres, 213 F.3d at 903; Tefel,
180 F.3d at 1302.

The Pinhos argue that the Board's decision deprives them
of more than discretionary relief which has not yet been
granted because it deprives them of "their home, their
family unit, their business and community support and the
ties which they have established over the past fifteen
years." The adjudication of their deportability established
that they had no legal right to remain in this country. It
was that determination, not the failur e to grant
discretionary relief afterward, that cut off their rights to
remain in the United States. Since the Pinhos conceded
deportability, their status as deportable aliens is not before
this Court.

The United States did not officially or systematically
encourage the Pinhos to remain in this country or to
pursue suspension of deportation in lieu of another means
of acquiring lawful residency in the United States. On the
contrary, the Pinhos overstayed their non-immigrant visas,

                                8
chose to establish residency, and started a business in this
country without obtaining authorization to be in the United
States. They also returned to the United States without
valid authorization after having been refused immigrant
visas. If the Government had induced the Pinhos to waive
their rights to contest deportability or had singled out their
application for delayed review until after the stop-time rule
went into effect, then a different analysis might be
appropriate.5 There is no evidence that anything out of the
ordinary occurred in this case. The Pinhos are deportable
because they entered the United States illegally. At the time
their application for the discretionary r elief of suspension of
deportation was reviewed by the Board, they did not qualify
for any special exception from the generally applicable
immigration laws.

The due process considerations of "fair notice, reasonable
reliance, and settled expectations" ar e not implicated in this
case. See Landgraf, 511 U.S. at 270. The Pinhos were not
deprived of the opportunity to conform their conduct to the
law. See id. at 265. The eligibility criteria for suspension of
deportation review the circumstances in which an alien
facing deportation is found, not any action taken by him.
The Pinhos could not have undertaken any lawful action
that would have changed their circumstances, allowing
them to satisfy the continuous physical presence test.

The application of the stop-time rule to pending cases is
constitutional if it has a rational basis. See Appiah, 202
F.3d at 710. We conclude that it does. Congress enacted
this rule for the purpose of expediting the r emoval of
deportable aliens, limiting discretionary r elief, and removing
incentive to delay immigration proceedings. Gonzalez-
Torres, 213 F.3d at 902; Appiah, 202 F.3d at 710. This was
_________________________________________________________________

5. Circumstances such as these led to the exceptions for certain groups
of aliens set out in NACARA. See also section II. B. of this opinion,
infra.
While we are troubled by the significant delay in the Board's action on
the Pinhos' appeal, we cannot conclude that it amounts to inducement
by the Government for the Pinhos to remain in this country or to forego
any alternative course of action. We can only speculate as to whether a
different result may have been achieved if the Board acted promptly and
decided this case prior to the enactment of the Reform and
Responsibility Act.

                               9
done as an integral part of an overall streamlining of the
immigration process in order to impr ove efficiency in that
process. See Gonzalez-Torres , 213 F.3d at 902.

B.

The Pinhos also challenge NACARA's system for pr oviding
more lenient requirements for certain groups of aliens with
respect to the continuous physical presence rules. Aliens
from Nicaragua, Cuba, and certain other Central American
and eastern European countries ar e not subject to the
stop-time rule under the transitional rules. See NACARA
SS 202(b)(1), 203(a)(1); 8 U.S.C. S 1101 note (Supp. IV
1998).

It is well settled that the power to regulate the admission
or removal of aliens is a "fundamental sover eign attribute
exercised by the Government's political departments largely
immune from judicial control." Fiallo v. Bell, 430 U.S. 787,
792 (1977) (quoting Shaughnessy v. Mezei, 345 U.S. 206,
210 (1953)). Congress's differing tr eatment of certain
classes of aliens is an aspect of that political power and
involves the United States' relations with for eign powers.
Mathews v. Diaz, 426 U.S. 67, 81 (1976). Accor dingly, we
must afford such legislation great deference, applying a
"narrow standard of review" and upholding the law if it has
a rational basis. Id. at 82.

NACARA's exceptions from the general stop-time rule for
certain alien groups easily withstand this rational basis
review. Since the application of the stop-time rule to
pending cases itself does not violate due pr ocess, any
exceptions to this rule that are carved out by Congress
would be invalid only if the challenger "advanc[es]
principled reasoning that will at once invalidate that
[classification] and yet tolerate a dif ferent [classification]
separating some aliens from others." 426 U.S. at 82.

The United States specifically encouraged aliens who are
members of the groups described in NACARA to seek
asylum and to remain in the United States. These aliens
were given work authorization, granted various special
statuses to avoid deportation until their cases could be fully
reviewed, and specifically encouraged to apply for

                               10
suspension of deportation, as that remedy existed. See 143
Cong. Rec. S10,185, at 10197 (daily ed. Sept. 30, 1997)
(statement of Sen. Mack). The special exemptions fr om "the
1996 retroactive immigration bill" for members of these
"extremely identifiable groups," 143 Cong. Rec. S10185, at
S10197 (daily ed. Sept. 30, 1997) (statement of Sen.
Graham), bears at least a rational relationship to the
legitimate government interests of for eign relations,
national security policy, and compliance with on-going
government programs.

The Pinhos are treated differ ently from groups of aliens
who are granted special exceptions from the general
immigration rules because they are not similarly situated to
members of those groups. NACARA's exceptions ar e not
arbitrary, but rather respond to particular government
action directed specifically toward members of the groups
who are granted the exceptions. Pursuant to its power to
control immigration and respond to for eign relations and
defense policy objectives, Congress passed the Reform and
Responsibility Act, among other things, to limit
discretionary relief from the generally applicable
immigration laws. It further amended the immigration laws
to provide for an exception for a readily identifiable, limited
group of aliens who were subjects of on-going judicial and
other government proceedings, including informal
immigration proceedings. The exception was cr eated to
prevent interference with settled expectations arising out of
those proceedings. Therefore, we conclude that Congress
acted well within its authority in enacting NACARA.

Accordingly, we affirm the decision of the Board of
Immigration Appeals.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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