           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          October 23, 2009

                                     No. 08-60840                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



ELVIA MARINE TACO TACO

                                                   Petitioner
v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL

                                                   Respondent




                        Petition for Review of an Order of the
                            Board of Immigration Appeals
                                      A77 452 006


Before DAVIS, SMITH and DENNIS, Circuit Judges..
PER CURIAM:*
       Petitioner Elvia Marina Taco Taco seeks review of the final decision of the
Board of Immigration Appeals (BIA) upholding the decision of the Immigration
Judge denying Petitioner’s application for special rule cancellation of removal
pursuant to section 203 of the Nicaraguan Adjustment and Central American
Relief Act of 1997 (“NACARA”).




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-60840



                                       I.
      Petitioner is a native and citizen of Ecuador who entered the United States
in 1999 as a temporary visitor. In April 2004, Petitioner applied for special rule
cancellation as the spouse of a successful NACARA applicant.           Petitioner
married her husband, William Argueta, in 2001.             Argueta is a native
Salvardoran and lawful permanent resident of the United States since 2005 by
virtue of his successful NACARA application. Because at that time of her
application Petitioner had not yet accrued the seven years of continuous
presence required for special rule cancellation, her case was referred to the
immigration court.    In May 2005, the Department of Homeland Security
initiated removal proceedings against her for remaining in the United States
longer than permitted.
      By the time she appeared before the Immigration Judge in August 2006,
Petitioner had acquired the seven years of continuous presence in the United
States necessary to be considered for NACARA special rule cancellation.
Counsel for Petitioner agreed that to qualify for special rule cancellation
Petitioner had to show extreme hardship to herself, Argueta and their United
States citizen daughter, then one month old. After a hearing on the issue, the
Immigration Judge denied Petitioner’s application for failure to meet the
hardship requirement.
      On appeal, Petitioner added an equal protection argument, that as a
derivative NACARA applicant she should not be required to prove hardship
because principal applicants adjudicating their NACARA cases before the United
States Citizenship and Immigration Services or the Executive Office for
Immigration Review were not required to do so. The BIA did not address this
argument and dismissed the appeal after finding no error in the decision of the
Immigration Judge.

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                                       II.
      To the extent Petitioner seeks review of the BIA’s discretionary decision
to deny special rule cancellation on the basis of lack of extreme hardship, this
court does not have jurisdiction to review that decision. 8 U.S.C. §
1252(a)(2)(B)(I), 1229b(b).
                                       III.
      This court does have jurisdiction to consider constitutional claims and
questions of law. 8 U.S.C. § 1252(a)(2)(D); Danso v. Gonzales, 489 F.3d 709, 712
(5th Cir. 2006). Such review is de novo. Id. Petitioner states that she accrued
the seven years of residence required to be eligible to apply for suspension of
deportation or special rule cancellation of removal under NACARA and has not
been convicted of an aggravated felony. Therefore she argues that she should
not be required to prove any hardship because her husband, the principal
applicant under NACARA, and other applicants adjudicating their claims before
other immigration panels are not required to prove hardship.
      NACARA § 203 allowed aliens from certain countries who met specific
requirements to be considered for cancellation of removal under the more
relaxed statutory requirements that preceded the promulgation of the Illegal
Immigration Reform and Immigrant Responsibility Act. Principal applicants,
like Petitioner’s husband, had to demonstrate seven years of physical presence
in the United States, good moral character and extreme hardship. However,
such applicants were accorded a rebuttable presumption of extreme hardship.
8 C.F.R. § 1240.64(d)(1). Since Petitioner is not the principal applicant, the
presumption does not apply to her.
      Petitioner’s equal protection argument based on this distinction is without
merit. This court has previously recognized that Congress’ regulatory authority
in the area of immigration is plenary and that equal protection principles “do not
in any way restrict Congress’s authority to set admission and naturalization

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criteria that are place of original and nationality sensitive.” Rodriguez-Silva v.
INS, 242 F.3d 243, 248 (5th Cir. 2001)(declining to consider whether NACARA
satisfies rational basis review under equal protection review).      Congress is
clearly free to allow a rebuttable presumption of hardship to certain applicants
like Petitioner’s husband and not to others like Petitioner with different
qualifications.
                                       IV.
      For the foregoing reasons, Petitioner’s petition for review of the
discretionary decision of the immigration tribunals is DISMISSED. Petitioner’s
petition for review of her equal protection challenge is DENIED.




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