Appiah v. INSAppiah v. INS
WILKINSON, Chief Judge:
Samuel Appiah, a citizen of Ghana illegally residing in the United States, seeks to suspend his deportation. In order to be eligible for a suspension of deportation, an alien must show a continuous physical presence in the United States for seven years. Suspension then rests in the discretion of the Attorney General. While Appiah‘s deportation proceedings were pending, Congress enacted a new stop-time rule for calculating the required period of continuous physical presence. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 309(c)(5), 110 Stat. 3009-546. Appiah argues that applying this new stop-time rule to his case would have an impermissible retroactive effect and would violate his due process and equal protection rights. The Board of Immigration Appeals dismissed Appiah‘s claims because under the new rule he had failed to accrue the necessary seven years of continuous physical presence. We now affirm.
I.
Samuel Appiah entered the United States on June 9, 1987, as a non-immigrant student with authorization to remain for a temporary period not to exceed the time of full-time enrollment in school. Appiah violated the terms of his visa by remaining in the United States beyond the time of full-time enrollment without authorization from the Immigration and Naturalization Service (INS). In January 1993, Appiah married Felicia Brown, an American citizen. Ms. Brown filed an immediate relative visa petition on Appiah‘s behalf, but then later withdrew the petition.
On December 17, 1993, the INS instituted deportation proceedings against Appiah by serving him with an order to show cause why he should not be deported. The order charged Appiah with remaining in the United States longer than permitted.
Appiah appealed the immigration judge‘s decision to the Board of Immigration Appeals (BIA). The BIA dismissed the appeal because Appiah had failed to meet the seven years of continuous physical presence in the United States and thus could not be considered for a suspension of deportation. See
II.
Appiah challenges the application of the new stop-time rule in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) to his pending deportation proceedings. A brief review of the statutory background is in order.
Prior to 1996, under section 244(a) of the INA the Attorney General could grant suspension of deportation to an alien. See
In 1996, Congress enacted IIRIRA, which aimed to expedite the removal of deportable aliens and to limit discretionary relief. Pub. L. No. 104-208, 110 Stat. 3009-546. IIRIRA section 304(a) repealed the suspension of deportation provision in INA section 244, and replaced it with a new INA section 240A that provides for the “cancellation of removal.”
Under the effective date provisions of IIRIRA section 309(c)(1), most of the IIRIRA amendments to the INA do not apply to aliens placed in deportation proceedings prior to April 1, 1997. 110 Stat. at 3009-625. Yet IIRIRA section 309(c)(5) provides a special “Transitional Rule with Regard to Suspension of Deportation,” which states that the new stop-time rule “shall apply to notices to appear issued before, on, or after the date of the enactment of this Act [Sept. 30, 1996].” 110 Stat. at 3009-627.
Shortly after the enactment of IIRIRA, the BIA found that the new stop-time rule applied to aliens who were in deportation proceedings prior to IIRIRA‘s enactment. See In re N-J-B, Int. Dec. 3309 (BIA 1997). The BIA interpreted the new phrase “notices to appear” in IIRIRA section 309(c)(5) to include other documents initiating deportation or removal proceedings, including the pre-IIRIRA “orders to show cause.” According to In re N-J-B, aliens who failed to accrue the necessary time for continuous physical presence before their deportation proceedings were initiated were now ineligible for a sus
NACARA amended IIRIRA‘s stop-time rule by replacing “notices to appear” with “orders to show cause.” NACARA § 203(a), 111 Stat. at 2196. NACARA also exempted certain classes of aliens based on their national origin from the new continuous presence rules. The new stop-time rule does not apply to certain groups of nationals from Salvador, Guatemala, the Soviet Union, Russia, any republic of the former Soviet Union, Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania, Hungary, Bulgaria, Albania, East Germany, Yugoslavia, or any state of the former Yugoslavia. See NACARA § 203(a), 111 Stat. at 2196-97.
In light of NACARA, the BIA decided that the new stop-time rule applied to all pending deportation proceedings (except for those aliens qualifying for a statutory exemption). See In re Nolasco-Tofino, Int. Dec. 3385 (BIA 1999). The BIA found the language of the new stop-time rule to be “unambiguous.” Id.
With this statutory framework in mind, we proceed to consider Appiah‘s claims.
III.
Appiah contends that the new stop-time rule should not affect his eligibility for a suspension of deportation because this would work an impermissible retroactive application of the law. He further argues that applying the law retroactively violates his due process and equal protection rights under the Fifth Amendment.
A.
We begin with Appiah‘s statutory challenge. When evaluating a claim of retroactivity, we must first determine whether “Congress has
In this case, Congress has clearly stated that the stop-time rule applies to pending deportation proceedings. The stop-time rule “shall apply to orders to show cause . . . issued before, on, or after the date of the enactment of this Act.” IIRIRA § 309(c)(5)(A), as amended by NACARA § 203(a),
Moreover, other courts have found identical language in other immigration laws to be facially plain. For example, IIRIRA section 322(c) applies to “convictions . . . entered before, on, or after the date of the enactment of this Act.” 110 Stat. at 3009-629. The Fifth Circuit found that “[t]he plain language of § 322(c) leaves no doubt that Congress intended for the definition in § 322(c) to be applied retroactively. Congress could not have more clearly expressed this intent than through its statement that § 322(a) was to apply to convictions entered before the date of IIRIRA‘s enactment.” Moosa v. INS, 171 F.3d 994, 1007 (5th Cir. 1999); accord Feroz v. INS, 22 F.3d 225 (9th Cir. 1994) (explaining that where Congress uses “before, on, or after” language, provision applies to pending cases).
Even if the language were somehow ambiguous, the stop-time rule still has no “retroactive effect” because it does not “impair rights a party possessed when he acted, increase a party‘s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf, 511 U.S. at 280. Here, the stop-time provision
Appiah may have expected to receive a suspension, but the Court in Landgraf emphasized that a statute does not operate retroactively merely because it “upsets expectations based in prior law.” 511 U.S. at 269. As the Court noted, “Even uncontroversially prospective statutes may unsettle expectations and impose burdens on past conduct.” Id. at 269 n. 24. The prospect of unsettled expectations, however, is not a reason for declining to apply a statute to a pending case. Like a prisoner waiting for the executive pardon, Appiah could hope for reprieve from deportation, yet hope does not establish a right to relief.
B.
Appiah‘s due process and equal protection claims also fail because illegal aliens have no vested right in not being deported, and the challenged statutory provisions easily withstand rational basis review.
The Fifth Amendment provides that no person shall “be deprived of life, liberty, or property, without due process of law.”
Appiah has given us no reason to apply to his claims anything other than the most deferential standard of review. As an illegal alien he has no right to continue to reside in the United States. Moreover, eligibility for suspension is not a right protected by the Constitution. Suspension of deportation is rather an “act of grace” that rests in the “unfettered discretion” of the Attorney General. INS v. Yueh-Shaio Yang, 519 U.S. 26, 30 (1996) (internal quotation marks omitted). Because suspension of deportation is discretionary, it does not create a protectible liberty or property interest. Indeed, “a constitutionally protected interest cannot arise from relief that the executive exercises unfettered discretion to award.” Tefel, 180 F.3d at 1300. This is true
Moreover, judicial review over federal immigration legislation has always been limited. See Fiallo v. Bell, 430 U.S. 787, 792 (1977). The Supreme Court has “long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government‘s political departments largely immune from judicial control.” Shaughnessy v. Mezei, 345 U.S. 206, 210 (1953). “The reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.” Mathews v. Diaz, 426 U.S. 67, 81-82 (1976). In fact, the “constraints of rationality imposed by the constitutional requirement of substantive due process and of nondiscrimination exacted by the equal protection component of the due process clause do not limit the federal government‘s power to regulate either immigration or naturalization.” In re Longstaff, 716 F.2d 1439, 1442-43 (7th Cir. 1983).
The stop-time rule is rationally grounded. Congress enacted the rule to remove an alien‘s incentive for prolonging deportation proceedings in order to become eligible for suspension. See H.R. Rep. No. 104-469(I) (1996) (“Suspension of deportation is often abused by aliens seeking to delay proceedings until 7 years have accrued.“). Removing the incentive for delay in the deportation process is a valid government objective, and applying the stop-time rule to aliens such as Appiah who are already in deportation proceedings rationally furthers this purpose.
We finally reject Appiah‘s contention that NACARA impermissibly created special classes of suspension applicants for whom the old rules still apply. Under IIRIRA section 309(c)(5)(C), as amended by NACARA, aliens from certain countries can still accrue time towards continuous physical residence after being served an order to show cause. Although these provisions differentiate among aliens based on national origin, strict scrutiny does not apply here because Congress can favor some nationalities over others in immigration law. See Mathews, 426 U.S. at 78-80 & n. 13; In re Longstaff, 716 F.2d at 1442 (“Congress can bar aliens from entering the United States for discriminatory and arbitrary reasons . . . .“).
IV.
The new stop-time rule clearly and constitutionally applies to Appiah‘s pending deportation proceedings. He was served an order to show cause before seven years had elapsed, making him ineligible for a suspension of deportation. For the foregoing reasons, the petition for review is denied and the decision of the Board of Immigration Appeals is
AFFIRMED.