                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-28-2003

DiPeppe v. Quarantillo
Precedential or Non-Precedential: Precedential

Docket No. 01-4043




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                                   PRECEDENTIAL

                                               Filed July 28, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                    Nos. 01-4043 & 01-4096


                           RITA DIPEPPE
                                  v.
   ANDREA QUARANTILLO, District Director of the New
    Jersey office of the Immigration and Naturalization
     Service; RALPH GREEN, Warden, Hudson County
       Correctional Facility and the Immigration and
                    Naturalization Service
                        Andrea Quarantillo,
                          Ralph Green,
                             Appellants

      On Appeal from the United States District Court
               for the District of New Jersey
                 (Dist. Ct. No. 01-cv-03181)
          District Judge: Hon. William G. Bassler

                   Argued: November 4, 2002
         Before: BECKER,* Chief Judge, McKEE and
                   HILL,** Circuit Judges

                 (Opinion Filed: July 28, 2003)



* Judge Becker completed his term as Chief Judge on May 4, 2003.
** Honorable James C. Hill, Senior Judge, United States Court of Appeals
for the Eleventh Circuit, sitting by designation.
                                    2


                           STEVEN A. MORLEY, ESQ. (Argued)
                           Bagia & Morley
                           111 South Independence Mall
                           The Bourse Building, Suite 592
                           Philadelphia, PA 19106
                           Attorney for Appellee
                           AUDREY BENISON, ESQ.
                           United States Department of Justice
                           Office of Immigration Litigation
                           1331 Pennsylvania Avenue, N.W.
                           Washington, DC 20530
                           MARGARET PERRY
                           AUDREY B. HEMESATH (Argued)
                           United States Department of Justice
                           Office of Immigration Litigation
                           P.O. Box 878
                           Ben Franklin Station
                           Washington, DC 20044
                           Attorneys for Appellants


                    OPINION OF THE COURT

McKEE, Circuit Judge:
   The Immigration and Naturalization Service appeals the
district court’s determination that § 212(h) of the
Immigration and Nationality Act (“INA”)1 violates the equal
protection component of the 5th Amendment’s Due Process
Clause. In her cross-appeal, Rita Dipeppe challenges the
District Court’s ruling that she is not entitled to seek relief
from removal under INA § 212(c).2 For the reasons that
follow, we will reverse the District Court’s order as to
§ 212(h) and affirm it as to § 212(c).

1. INA § 212(h) is codified at 8 U.S.C. § 1182(h).
2. INA § 212(c) was codified at 8 U.S.C. § 1182(c) (1995).
                                    3


                  I. INA §§ 212(h) AND 212(c)
   INA § 212(h) previously gave the Attorney General the
discretion to waive an alien’s inadmissibility for crimes of
moral turpitude if an alien was a spouse, parent, or child
of a United States citizen or permanent resident alien, and
the alien seeking the waiver could demonstrate that denial
of admission would cause extreme hardship to the citizen
or permanent resident alien. INA § 212(h)(1)(B). However,
Congress amended § 212(h) in 1996. That provision of the
INA now removes this discretion in the case of aliens who
were previously admitted as permanent residents and had
either been convicted of an aggravated felony or had not
resided in the United States for seven continuous years.
INA § 212(h).3 The statute applies only to aliens who have
the status of legal permanent resident (“LPR”), it does not
apply to non-legal permanent resident aliens (“non-LPR”).4

3. In 2000, INA § 212(h) [8 U.S.C. § 1182(h)], read in pertinent part:
    No waiver shall be provided under this subsection in the case of an
    alien who has been convicted of (or who has admitted committing
    acts that constitute) murder or criminal acts involving torture, or an
    attempt or conspiracy to commit murder or a criminal act involving
    torture. No waiver shall be granted under this subsection in the
    case of an alien who has previously been admitted to the United
    States as an alien lawfully admitted for permanent residence if
    either since the date of such admission the alien has been convicted
    of an aggravated felony or the alien has not lawfully resided
    continuously in the United States for a period of not less than 7
    years immediately preceding the date of initiation of proceedings to
    remove the alien from the United States. No court shall have
    jurisdiction to review a decision of the Attorney General to grant or
    deny a waiver under this subsection.
4. In the most basic sense, one’s status as an LPR, or immigrant,
corresponds with his or her intentions with regard to residence in the
United States. According to INA § 101(a)(20) [8 U.S.C. § 1101(a)(20)],
    [t]he term “lawfully admitted for permanent residence” means the
    status of having been lawfully accorded the privilege of residing
    permanently in the United States as an immigrant in accordance
    with the immigration laws, such status not having changed.
Obtaining lawful permanent resident status is a condition precedent to
United States citizenship, and therefore the objective of anyone who
wishes to remain in the United States on a long term basis. See RICHARD
A. BOSWELL, IMMIGRATION AND NATIONALITY LAW, 551 (3d ed. 2000) (describing
                                     4


Thus, an alien who is a non-LPR may still attempt to have
the Attorney General waive eligibility for removal. See
DeLeon-Reynoso v. Aschroft, 293 F.3d 633, 637 (3d Cir.
2002) (describing statutory distinction); and In re Michel, 21
I & N Dec. 1101, 1104 (B.I.A. 1998)(same).
   Prior to repeal, § 212(c) also gave the Attorney General
the authority to waive inadmissibility of otherwise
deportable or excludable legal aliens. INS v. St. Cyr, 533 US
289, 294 (2001). Although § 212(c) only applied to exclusion
proceedings on its face, the Board of Immigration Appeals
(“BIA”) also allowed any permanent resident alien with
lawful unrelinquished domicile of seven consecutive years
to apply for a discretionary waiver from deportation. Id. at
295. If the application was granted, deportation proceedings
were terminated and the alien could remain in the United
States as a permanent resident. As might be expected, the
number of aliens relying upon eligibility for § 212(c) waivers
began to increase as Congress broadened the definition of
deportable offenses. Id. at 295-96.
   In 1990, Congress amended § 212(c) to preclude relief for
anyone convicted of an aggravated felony who had served a
term of imprisonment of at least five years. INS v. St. Cyr,
533 U.S. 289, 295-96 (2001). In 1996, Congress repealed
§ 212(c) in its entirety by enacting certain provisions of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”),
and the Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”). Section 212(c) was replaced

the importance of lawful permanent resident status). While the status of
being “lawfully admitted for permanent residence” is the only type of
lawful immigrant status, the numerous nonimmigrant classifications are
set forth in INA § 101(a)(15) [8 U.S.C. § 1101(a)(15)], and include
individuals, who, for whatever reason, wish to remain in the United
States on a temporary basis. See CHARLES GORDON ET AL., IMMIGRATION LAW
AND PROCEDURE § 1.03[2][e] at 1-30 (2003) (explaining the distinguishing
features of nonimmigrant classifications and corresponding visas which
allow students, business visitors, tourists and others to temporarily
remain in the United States). These differences in length of stay between
immigrant and nonimmigrant largely accounts “for the more detailed
attention ordinarily given to immigrant visa applications.” Id. at § 8.04[1],
8-6.
                                     5


with a new § 240A which “permits the Attorney General . . .
in her discretion to cancel removal in certain
circumstances, but not when the alien has been convicted of
an aggravated felony as defined by the INA.” Xu Cheng v.
INS, 206 F.3d 308, 312 (3rd Cir. 2000) (emphasis added).
IIRIRA § 304(b), 110 Stat. 3009-597 (repealing § 212(c)); see
also IIRIRA § 304(b), 110 Stat. 3009-594 (creating 8 U.S.C.
§ 1229(b)).5

                  II.   FACTUAL BACKGROUND
  Rita DiPeppe is a native and citizen of Italy who was
admitted to the United States on September 21, 1955 as an
LPR. On August 5, 1992 she pled guilty to aggravated
manslaughter after fatally shooting her husband with a
handgun.6 She was sentenced to a term of twenty-seven
years imprisonment with nine years of parole ineligibility.
Based on her conviction, the INS issued and served upon
DiPeppe an Order to Show Cause (“OSC”) and Notice of
Hearing dated September 24, 1992. Those documents
informed DiPeppe that the INS was leveling deportation
charges against her under former INA § 241(a)(2)(iii), 8
U.S.C. § 1251(a)(2)(A)(iii) based upon her conviction for a
crime defined as an “aggravated felony” under the INA.

5. Prior to its repeal, § 212(c) stated in pertinent part:
    Aliens lawfully admitted for permanent residence who temporarily
    proceeded abroad voluntarily and not under an order of deportation,
    and who are returning to a lawful unrelinquished domicile of seven
    consecutive years, may be admitted in the discretion of the Attorney
    General without regard to the provisions of subsection (a). Nothing
    contained in this subsection shall limit the authority of the Attorney
    General to exercise the discretion vested in him under section
    211(b). The first sentence of this subsection shall not apply to an
    alien who has been convicted of one or more aggravated felonies and
    has served for such felony or felonies a term of imprisonment of at
    least 5 years.
6. The circumstances surrounding DiPeppe’s killing of her husband
apparently included mental and physical abuse by her husband over the
course of their 23 year marriage. The sentencing judge recommended
that she not be deported because of that offense. Supp. App. at 7.
                                      6


However, the INS never filed its OSC or Notice of Hearing
with the Immigration Court.7
  Thereafter, DiPeppe attempted to obtain a waiver of
deportation under INA § 212(c) by filing Form I-191
(Application for Advance Permission to Return to
Unrelinquished Domicile) with the INS. On November 29,
1995, the New Jersey District Director of the INS denied
DiPeppe’s application on the merits. The Director concluded
that DiPeppe’s conviction for aggravated manslaughter
precluded the Attorney General’s favorable exercise of
discretion. DiPeppe’s counsel subsequently made several
attempts to schedule a hearing with the INS so that her
waiver application could be considered by an Immigration
Judge.8 However, since the INS had not filed its OSC and
Notice of Hearing with the Immigration Court, the court did
not set a hearing date.
   Finally, on August 2, 2000 (eight years after the initial
OSC in 1992), the INS issued a Notice to Appear (“NTA”),9
in which it again charged DiPeppe with being removable
from the United States pursuant to INA § 237(a)(2)(A)(iii)
based upon her conviction for an aggravated felony after
admission.10 Based upon that NTA, DiPeppe was taken into
INS custody when she was released from prison on her
manslaughter charge.

7. Under INS regulations in effect in 1992, filing the charging document
with the Immigration Court commenced proceedings to determine the
deportability of an alien, which required the alien to appear before an
Immigration Judge for a hearing. See 8 C.F.R. § 242.1(a)-(b) (1992).
8. It appears from the administrative record that DiPeppe’s counsel sent
seven letters to INS officials in his efforts to procure a hearing on her
OSC.
9. IIRIRA significantly altered the landscape of immigration proceedings.
The INS now serves a Notice to Appear rather than an Order to Show
Cause. Furthermore, deportation proceedings are now termed “removal
proceedings” and suspension of deportation is called “cancellation of
removal.” See 8 U.S.C. §§ 1229, 1229a, 1229b.
10. INA § 237(a)(2)(A)(iii), codified at 8 U.S.C. § 1227(a)(2)(A)(iii), states:
“[a]ny alien who is convicted of an aggravated felony at any time after
admission is deportable.”
                                  7


   At her ensuing hearing, DiPeppe argued for discretionary
relief pursuant to §§ 212(c) and 212(h). However, the
Immigration Judge concluded that she had been convicted
of, and imprisoned for, an aggravated felony as defined
under the INA and that she was therefore not eligible for
the discretionary relief she sought See §§ 212(c) and 212(h).
On appeal, the BIA affirmed the Immigration Judge’s
decision and DiPeppe thereafter petitioned the District
Court for a writ of habeas corpus staying removal and
vacating the final order of removal.

            III. DISTRICT COURT PROCEEDINGS
   The District Court began its analysis by examining
DiPeppe’s eligibility for § 212(c) relief.11 The District Court
first noted that DiPeppe had already been denied § 212(c)
relief by the INS District Director in 1995. However, the
court rejected DiPeppe’s argument that the delay in
prosecuting her removal constituted a due process denial.
That claim was based upon DiPeppe’s assertion that the
delay placed her beyond the five year incarceration limit on
discretionary relief that was originally a condition of the
favorable exercise of discretion under § 212(c). According to
DiPeppe, the delay had improperly precluded her from
seeking the remedies she was otherwise entitled to before
AEDPA and IIRREA became law. When she entered her
guilty plea, § 212(c) waivers were unavailable only if the
alien “had been convicted of an aggravated felony and . . .
had served a prison term of at least five years for such
[felony].” DeSousa v. Reno, 190 F.3d 175, 178 (3rd Cir.
1999) (emphasis added). Thus, the delay in processing her
removal resulted in her requesting relief after she had been
imprisoned for more than five years.
   DiPeppe also argued that, since the INS delayed to the
point that she was forced to request discretionary relief
after she had already been incarcerated for 5 years, the
government should be estopped from relying upon the
length of her incarceration to preclude her from being

11. Counsel for the government initially conceded that he had not
considered whether DiPeppe would have been eligible for § 212(c) relief
when she pled guilty in 1992.
                                    8


eligible for seeking discretionary relief from removal. The
District Court rejected both arguments. As to the latter
claim, the court reasoned that, even if DiPeppe was able to
prove the traditional elements of estoppel, she could not
establish any affirmative misconduct by the government.
   The court did, however, agree that the INA’s disparate
treatment of LPRs and non-LPRs codified in § 212(h) was a
violation of the equal protection guarantee embodied in the
Due Process Clause of the Fifth Amendment. The court
reasoned that there was no rational relationship between
any legitimate governmental purpose and the disparate
treatment of LPRs and non-LPRs applying for waivers under
§ 212(h). Accordingly, the court held that the statutory
distinction between LPRs and non-LPRs denied DiPeppe
due process of law, and she was therefore eligible to seek
discretionary relief from removal from the Attorney General.
This appeal and cross-appeal followed. The INS appeals the
District Court’s determination that § 212(h) is a violation of
the Fifth Amendment Due Process Clause, and DiPeppe
appeals that court’s conclusion that she is not eligible to
seek relief under § 212(c) as it existed before repeal.

                          IV. DISCUSSION
  Although DiPeppe’s equal protection challenge to § 212(h)
has some appeal, it is precluded by our holding in DeLeon-
Reynoso v. Ashcroft, 293 F.3d 633 (3d Cir. 2002).12 There,
we held that the distinction between LPRs and non-LPRs
applying for waivers under § 212(h) survives rational basis
inquiry and that provision of the INA is therefore not a
violation of the equal protection component of the Fifth
Amendment’s Due Process clause. DeLeon-Reynoso, 293
F.3d at 640-41. We summarized the alien’s argument there
as follows:
     De Leon argues that § 1182(h) violates the equal

12. The District Court did not have the benefit of our analysis in DeLeon-
Reynoso when it ruled upon DiPeppe’s equal protection argument. A
motions panel of this Court relied upon our holding in that case in
rejecting DiPeppe’s equal protection claim before we heard oral
argument.
                                  9


        protection component of the Fifth Amendment’s Due
        Process clause by making an impermissible distinction
        between two categories of aliens who are not permitted
        to reside in the United States: those who have not
        previously been lawfully admitted to the United States
        (i.e., non-LPRs) and those who have been previously
        admitted to the United States but have not resided in
        the United States for seven consecutive years before
        removal proceedings are initiated (LPRs). . . . De Leon
        asserts that this distinction allows a criminal alien who
        has never had permanent resident status in the United
        States, never acquired equities or familial ties, to
        secure a waiver, while those who have previously been
        admitted as lawful permanent residents, but with less
        than the seven years required residence, will be
        deported. Thus, he argues, the amendatory 1996
        legislation is unconstitutional.
293 F.3d at 638 (internal citations omitted). However, in
denying the alien’s equal protection claim, we nevertheless
expressed concern with the inequities that could result
from this distinction, id. at 640, and we urged Congress to
address them. We reiterate that concern here, and again
urge Congress to address the potential inequities endemic
in this statutory scheme.13 Here, as in De Leon-Reynoso
        [o]ur holding that the § 1182(h) distinction survives
        rational basis scrutiny should not be mistaken for an
        endorsement of the policy. We urge Congress to
        reconsider the ramifications of entirely eliminating the
        Attorney General’s discretion in this area. At times,
        pathetic, heart-wrenching pain for families and
        burdensome      consequences     for   employers    and
        taxpayers accompany removal proceedings.
Id.14

13. In doing so, we do not intend to minimize the crime of violence
DiPeppe committed, nor suggest that the equities in her case would
warrant relief from removal.
14. This does not, of course, imply that it is the job of courts to
“endorse” policy choices made by Congress. Rather, our concern arises
from an appropriate vigilance regarding inequities that may result from
                                     10


   As noted above, DiPeppe has filed a cross-appeal from
the District Court’s rejection of her claim that she remains
eligible for relief under § 212(c) pursuant to the Supreme
Court’s holding in INS v. St. Cyr. There, the Court held that
§ 212(c) relief “remains available for aliens, like respondent,
whose convictions were obtained through plea agreements
and who, notwithstanding those convictions, would have
been eligible for § 212(c) relief at the time of their plea under
the law then in effect.” 533 U.S. 289, 326 (2001) (emphasis
added).
  DiPeppe makes an additional, related, argument based
upon the INS delay in processing her removal. She argues
that the delay entitles her to relief even if we reject her
argument under St. Cyr. She argues that the INS violated
her due process rights by failing to promptly place the
matter before an Immigration Judge in violation of its own
regulations, thereby precluding her from seeking relief
before she had served five years in prison and thus became
ineligible for discretionary relief under § 212(c) as it existed
at the time of her guilty plea. She therefore argues once
again that the government should be estopped from relying
upon the length of time she has been imprisoned to deny
her relief under § 212(c). According to DiPeppe, she would
have been eligible for such relief had the government
processed her removal in a timely manner.
  In responding to DiPeppe’s cross-appeal, we note at the
outset that aliens facing removal are afforded due process
protections. Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.
2001). Moreover, we afford DiPeppe’s due process claim de
novo review. Chong v. INS, 264 F.3d 378, 386 (3d Cir.
2001). Nevertheless, we conclude that the District Court
was correct in holding that she is now foreclosed from
seeking relief under § 212(c), and in rejecting her estoppel
argument. We address each of her arguments in turn.

legislation that treats distinct groups differently. We therefore think it
appropriate to reiterate our concern about the equities of the disparate
treatment required under § 212(h). See In re Murchison, 349 U.S. 133,
136 (1955) (“[T]o perform its high function in the best way[,] ‘justice
must satisfy the appearance of justice.’ ”) (quoting Offutt v. United States,
348 U.S. 11, 14 (1954)).
                               11


   In St. Cyr, the Supreme Court was confronted with the
retroactive effect of the AEDPA and IIRIRA amendments on
discretionary relief from deportation and removal
proceedings in the case of an alien who pled guilty to a
deportable crime before those amendments became
effective. 533 U.S. at 292-93. The Court held that § 212(c)
relief remained available for a certain class of aliens whose
(1) convictions were obtained through plea agreements prior
to AEDPA’s effective date of April 24, 1996, (2) who had a
“lawful unrelinquished domicile of seven consecutive years,”
and (3) were not deemed ineligible for a discretionary waiver
for having served more than five years incarceration
following a conviction for an aggravated felony. Id. at 326
(addressing the retroactive effect of AEDPA and IIRIRA on
availability of § 212(c) relief).
   As noted above, Rita DiPeppe’s conviction arose from a
guilty plea in 1992, and she had been an LPR since her
admission to the United States in 1955. However, her
twenty-seven year prison sentence included an initial nine
year period of parole ineligibility. The Court in St. Cyr
recognized that the language of § 212(c) places the
discretionary relief afforded therein beyond the reach of
anyone convicted of an aggravated felony who has served a
term of imprisonment of five or more years. See INA
§ 212(c). In St. Cyr, the Court barred retroactive application
of the elimination of discretionary relief under § 212(c)
because the possibility of being afforded such relief may
well have been a factor in the alien’s decision to plead
guilty and waive valuable constitutional guarantees. The
Court reasoned: “[b]ecause respondent, and other aliens
like him, almost certainly relied upon that likelihood in
deciding whether to forgo their right to a trial, the
elimination of any possibility of § 212(c) relief by IIRIRA has
an obvious and severe retroactive effect.” St. Cyr, 533 U.S.
at 325.
  That is simply not DiPeppe’s situation. She knew when
she entered her guilty plea that she would be exposed to a
period of incarceration that could preclude consideration
under § 212(c). It appears that Dipeppe entered an “open”
plea rather than a negotiated plea as was the case in St. Cyr.15

15. Although the record is not without ambiguity on this point, it
appears from all our examination of the sentencing court’s stated
                                   12


The Supreme Court was particularly concerned about the
reasonable expectations endemic in the quid pro quo of the
negotiated guilty plea in St. Cyr. See 533 U.S. at 321 (“Plea
agreements involve a quid pro quo between a criminal
defendant and the government.”). Nevertheless, by pleading
guilty to a crime of violence such as manslaughter, DiPeppe
had to realize that she would almost certainly be ineligible
for the discretionary relief that may otherwise have been
available under § 212(c). Moreover, she was clearly not
eligible for discretionary waiver once the court sentenced
her to a period of incarceration that mandated her
imprisonment for more than five years. That is precisely
what happened when the court ordered that she remain
ineligible for parole for nine years. Therefore the reasoning
of St. Cyr does not apply here.
   As the District Court correctly noted, adopting DiPeppe’s
interpretation of § 212(c) relief would force the INS to
consider an alien’s eligibility in a vacuum, ignoring any
change in circumstance, including the commission of a
felony, between the time the application was filed and the
time a waiver decision was made. Her position would
require an alien to remain eligible for § 212(c) indefinitely.
Hypothetically, an alien could therefore escape from prison
after serving 4 years and 11 months of a life sentence,
which is less than 5 years, and then argue entitlement to
consideration for a § 212(c) waiver when apprehended
twenty years later. That is clearly not what Congress
intended when it provided § 212(c) relief as an option for
aliens facing removal. Accordingly, the delay in processing
her removal following imposition of her sentence in 1992
does not entitle her to consideration under § 212(c).
  DiPeppe’s remaining claim focuses on the implicit time
restrictions contemplated by the “unitary process”
envisioned in the INS regulations and the delay between the
OSC served on her in 1992 and the NTA served on her in
2000. DiPeppe argues that the INS improperly delayed

rational for the sentence that there was no agreement as to the sentence
that was to be imposed pursuant to the plea. Thus, at least to the extent
of the length of time that would be recommended, the plea was “open.”
                                      13


placing her case before an Immigration Judge in violation of
its own regulations, but fails to point to any mandatory
time frame under those regulations to support her claim.
Although 8 U.S.C. § 1229(d)(1) mandates that the Attorney
General begin removal proceedings as expeditiously as
possible,16 the clarification contained in § 1229(d)(2) fatally
undermines her argument about the effect of that mandate.
There, Congress declared: “Nothing in this subsection shall
be construed to create any substantive or procedural right
or benefit that is legally enforceable by any party against
the United States or its agencies or officers or any other
person.” 8 U.S.C. § 1229(d)(2) We cannot adopt DiPeppe’s
due process argument without ignoring that directive.
    The second prong of DiPeppe’s procedural due process
argument, challenging the delay between the OSC in 1992
and NTA in 2000, fails by operation of the INS regulations,
which provide that removal proceedings commence with the
filing of a charging document with the Immigration Court.
Compare 8 C.F.R. § 242.1 (1992) (“[e]very proceeding to
determine the deportability of an alien in the United States
is commenced by the filing of an Order to Show Cause with
the Office of Immigration Judge. . . .”) with 8 C.F.R. § 239.1
(2000) (“[e]very removal proceeding conducted under section
240 of the Act to determine the deportability or
inadmissibility of an alien is commenced by the filing of a
notice to appear with the Immigration Court.”). See also,
Upsango v. Ashcroft, 289 F.3d 226, 229 (3d Cir. 2002).
Therefore, removal proceedings were not initiated against
DiPeppe until the NTA was filed with the Immigration Court
in 2000.
  We recognize that we have previously noted the
possibility that removal proceedings may be viewed as
commencing when an OSC is served upon the alien. See

16. 8 U.S.C. § 1229(d)(1) provides:
    Prompt initiation of removal.
    (1) In the case of an alien who is convicted of an offense which
    makes the alien deportable, the Attorney General shall begin any
    removal proceeding as expeditiously as possible after the date of the
    conviction.
                                    14


Upsango, 289 F.3d at 229; and Pinho v. INS, 249 F.3d 183,
185 (3d Cir. 2001). However, both “suggestions” were dicta.
A close reading of Upsango, which was decided after Pinho
readily discloses this. There, we declared, “We hold that the
removal proceeding . . . did not commence when [the alien]
filed his asylum petition . . . Instead that proceeding
commenced in January 1998.” 289 F.3d at 230. That was
when the INS filed its NTA. Moreover, we clearly stated “INS
regulations provide that removal proceedings commence
with the filing of a notice to appear with the Immigration
Court. Reg. §§ 3.14 and 239.1” Id. at 229. Moreover, in
those cases we were deciding the retroactivity of the
changes in immigration law. See Pinho, 249 F.3d at 187
(determining retroactive effect of stop-time provision
implicated by IIRIRA); Bury v. Reno, 101 F.Supp. 2d 296,
299 (E.D.Pa. 2000) (noting issuance of OSC rather than
filing is “the meaningful event for the purpose of
determining whether a proceeding was subject to a newly
enacted law”); Canela v. United States DOJ, 64 F.Supp. 2d
456, 458 (E.D. Pa. 1999) (examining retroactive effect of
AEDPA on INS proceedings). Here, it is clear that
proceedings were initiated against DiPeppe when the
charging documents were filed with the Immigration Court.
  Although DiPeppe was served with an OSC and Notice of
Hearing in 1992, removal proceedings did not effectively
commence for her until 2000, when the NTA was filed with
the Immigration Court. See Upsango, 289 F.3d at 229.
Therefore even though the delay between serving the OSC
and filing the NTA is not to be condoned, the circumstances
here do not implicate the Due Process Clause of the Fifth
Amendment. DiPeppe was not actually in proceedings in
1992 because the OSC was not filed with the Immigration
Judge until 2000.17

17. DiPeppe cites Singh v. Reno, 182 F.3d 504 (7th Cir. 1999) to support
her claim that the delay constituted a due process violation. The facts
and circumstances of Singh distinguish it from DiPeppe’s case. In Singh,
the court entertained the possibility of a constitutional claim by an alien
claiming that the INS’s failure to calendar a deportation hearing
prevented him from applying for a discretionary waiver. 182 F.3d at 510.
Rather than address the merits of Singh’s claim, the court viewed it as
the basis of a substantial constitutional claim entitling him to judicial
                                    15


   We also must reject DiPeppe’s estoppel argument. She
contends that the INS should be estopped from invoking
the bar on waiver applications under INA § 212(c) for those
who have served more than five years in prison. We agree
that the doctrine of estoppel can apply to action of the
government. Yang v. INS, 574 F.2d 171, 174-75 (3d Cir.
1978). However, in order for DiPeppe to succeed on her
estoppel argument, she must prove (1) a misrepresentation
by the government, (2) which she reasonably relied upon;
(3) to her detriment and (4) affirmative misconduct. US v.
Asmar, 827 F.2d 907, 912 (3d Cir. 1987); Fredericks v. CIR,
126 F.3d 433, 438 (3d Cir. 1997). DiPeppe can not
establish any of these four elements.18 Therefore her
estoppel claim must also fail.19

review. Id. The court then allowed Singh to proceed with his due process
claim before the Immigration Judge. Id. at 511. We decline to follow the
Seventh Circuit in Singh because, as we explained in the text, an alien
does not have a constitutional right for her removal hearing to
commence at any certain time.
18. It is worth noting that the Supreme Court, in INS v. Miranda rejected
a claim of affirmative misconduct involving the INS’s “unreasonable
delay” in processing a visa application. 459 U.S. 14 (1982). Eighteen
months of inaction by the INS on a visa petition, which eventually
effectively disqualified the petitioner from permanent resident status, did
not amount to affirmative misconduct. Id. at 18.
19. The INS also contends that we are unable to review the discretionary
decision of the Attorney General to commence proceedings, adjudicate
cases or execute removal orders under INA § 242(g), 8 U.S.C. § 1252(g).
See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471,
482 (1999); M.B. v. Quarantillo, 301 F.3d 109, 111 (3d Cir. 2002).
Section 1252(g) provides:
    Except as provided in this section and notwithstanding any other
    provision of law, no court shall have jurisdiction to hear any cause
    or claim by or on behalf of any alien arising from the decision or
    action by the Attorney General to commence proceedings, adjudicate
    cases, or execute removal orders against any alien under this
    chapter.
However, the INS’s reliance on this argument is misplaced. In DeSousa
v. Reno, 190 F.3d 175, 182-183 (3d Cir. 1999) we interpreted the
Supreme Court’s decision in Arab American as applying only to “suits
challenging the government’s selective enforcement of the immigration
laws.” Furthermore, § 242(g) does not eliminate habeas corpus
jurisdiction. Sandoval v. Reno, 166 F.3d 225, 238 (3d Cir. 1999).
                             16


                    V. CONCLUSION
  For the reasons set forth above, we will reverse the
District Court’s judgment with sustaining DiPeppe’s equal
protection challenge to § 212(h), and we will affirm the
district court’s judgment in all other respects.

A True Copy:
        Teste:
                  Clerk of the United States Court of Appeals
                              for the Third Circuit
