United States v. 2005-12-29 | 03-72021 | MASNAUSKAS VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 SYLVIA MASNAUSKAS,
Petitioner, No. 03-72021
v. Agency No.
 A74-810-052ALBERTO R. GONZALES,* Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 21, 2005**
Pasadena, California
Filed December 30, 2005
Before: A. Wallace Tashima and Raymond C. Fisher,
Circuit Judges, and Milton I. Shadur,***
Senior District Judge.
Opinion by Judge Tashima
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
**This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
***The Honorable Milton I. Shadur, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.
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COUNSEL
Michael J. Hernandez, Law Offices of Ronzio & Associates,
Los Angeles, California, for the petitioner.
Ernesto H. Molina, Jr., Civil Division, U.S. Department of
Justice, Washington, D.C., for the respondent.
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OPINION
TASHIMA, Circuit Judge:
Petitioner Sylvia Masnauskas (“Masnauskas”), a native and
citizen of Lithuania, petitions for review of the decision of the
Board of Immigration Appeals (“BIA”) summarily affirming
the decision of the Immigration Judge (“IJ”). The IJ denied
Masnauskas’ application for derivative adjustment of status
and for suspension of deportation under the Nicaraguan
Adjustment and Central American Relief Act (“NACARA”).
Masnauskas challenges NACARA on equal protection
grounds, arguing that she should be eligible for derivative
adjustment of status even though she is a not a national of
Nicaragua or Cuba.
We have jurisdiction under 8 U.S.C. § 1252, as amended by
§ 106(d) of the REAL ID Act of 2005, Pub. L. No. 109-13,
§ 106(d), 119 Stat. 231, 311 (2005). See Sotelo v. Gonzales,
2005 WL 3302264, at *2 (9th Cir. Dec. 7, 2005). We reject
the equal protection challenge and deny the petition for
review.
BACKGROUND
Masnauskas is a 47-year-old native and citizen of Lithua-
nia. She arrived in the United States on December 4, 1991,
and filed an application for asylum in 1995. On December 4,
1997, Masnauskas married Patricio Somarriba-Rugama
(“Somarriba”), a 39-year-old citizen and national of Nicara-
gua. Somarriba arrived in the United States in September
1989, and applied for asylum in 1991. Later, he adjusted his
status under NACARA § 202 to that of lawful permanent resi-
dent.
On July 12, 1996, the Immigration and Naturalization Ser-
vice (“INS”)1 commenced deportation proceedings against
1The INS has been abolished and its functions transferred to the Depart-
ment of Homeland Security. See Homeland Security Act of 2002, Pub. L.
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Masnauskas, by serving her with an Order to Show Cause.
The INS charged Masnauskas with being deportable as an
alien remaining in the United States longer than permitted, in
violation of Immigration and Nationality Act (“INA”)
§ 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B) (1994). Masnauskas
conceded that she was deportable and requested asylum and
withholding of deportation. The IJ found Masnauskas deport-
able as charged, denied the applications for asylum and with-
holding, and granted an application for voluntary departure.
Masnauskas filed an appeal to the BIA, which was dismissed
as untimely.
After the enactment of NACARA, Masnauskas filed a
motion to reopen for derivative adjustment of status under
NACARA § 202 based on her marriage to a Nicaraguan
national, and suspension of deportation under NACARA
§ 203 based on her status as a Lithuanian national. The IJ
granted the motion to reopen, but then denied both the deriva-
tive application for adjustment of status and the application
for suspension of deportation. The IJ found that Masnauskas
was not a citizen of Cuba or Nicaragua and was therefore
ineligible for derivative adjustment of status under NACARA
§ 202. Regarding suspension of deportation, the IJ found that
Masnauskas was a citizen of Lithuania. However, the IJ also
found that she had neither entered the United States on or
before December 31, 1990, nor applied for asylum before
December 31, 1991. Therefore, the IJ found Masnauskas inel-
igible for relief under NACARA § 203.
Masnauskas timely appealed the decision to the BIA, argu-
ing that NACARA § 202 violates equal protection. The BIA
summarily affirmed pursuant to 8 C.F.R. § 1003.1(e)(4). Mas-
nauskas timely filed a petition for review.
No. 107-296, 116 Stat. 2142 (2002), 6 U.S.C. §§ 101-557. We will refer
to the government agency as the INS.
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STANDARD OF REVIEW
Because the BIA affirmed the decision of the IJ without
opinion, we review the decision of the IJ. See Falcon Car-
riche v. Ashcroft, 350 F.3d 845, 848 (9th Cir. 2003). We
review constitutional challenges de novo. Ram v. INS, 243
F.3d 510, 517 (9th Cir. 2001).
DISCUSSION
I. IIRIRA and NACARA
Before the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”) took effect on April 1,
1997, an alien against whom deportation proceedings had
been commenced could apply for suspension of deportation,
provided that she had been continuously physically present in
the United States for seven years, had “good moral character,”
and could show that deportation would result in “extreme
hardship” to the alien or certain United States citizen rela-
tives. 8 U.S.C. § 1254(a) (repealed 1997); Jimenez-Angeles v.
Ashcroft, 291 F.3d 594, 597 (9th Cir. 2002). IIRIRA, inter
alia, repealed “suspension of deportation,” and substituted
“cancellation of removal,” a more stringent standard for
obtaining relief. Id. Cancellation of removal requires ten years
of continuous physical presence, good moral character, and a
showing of “exceptional and extremely unusual hardship” to
certain United States citizen relatives. 8 U.S.C. § 1229b(b)(1).
Congress enacted NACARA in 1997 to ameliorate some of
the harsher effects of IIRIRA for nationals of certain coun-
tries. NACARA was intended to correct provisions in IIRIRA
that would have had the effect of “changing the rules in the
middle of the game for thousands of Central Americans and
others who came to the United States because their lives and
families had been torn apart by war and oppression.” 143
Cong. Rec. S12,261 (daily ed. Nov. 9, 1997) (statement of
Sen. Abraham). NACARA § 202 created a new “adjustment
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of status” process for qualified nationals of Nicaragua and
Cuba. Pub. L. No. 105-100, § 202, 111 Stat. 2160, 2193-96
(1997).2 A qualified alien who timely applies for adjustment
shall be adjusted to permanent resident status, without having
to demonstrate any level of hardship. Id. Under NACARA
§ 202(d), aliens who arrive in the United States after Decem-
ber 1, 1995, are also eligible for adjustment if they satisfy
three requirements: being (1) a national of Nicaragua or Cuba,
(2) the spouse or child of a qualified national of Nicaragua or
Cuba, and (3) physically present in the United States when the
adjustment application is filed. Id.
NACARA § 203(b) also created a “Special Rule for Can-
cellation of Removal” for aliens from certain countries. Under
the special rule, aliens from those countries who apply for
cancellation of removal are required to meet only the pre-
IIRIRA standards of seven years of continuous presence,
good moral character, and a showing of extreme hardship to
the alien or citizen relatives. NACARA, Pub. L. No. 105-100,
§ 203(b), 111 Stat. 2160, 2198 (1997).3 Any spouse or child
of such an alien is also covered by the special rule. Id.
II. Equal Protection Challenge to NACARA § 202(d)
Masnauskas challenges the first requirement of NACARA
§ 202(d), arguing that she should be eligible for derivative
adjustment of status even though she is not a national of Nica-
2A qualified national of Nicaragua or Cuba is any alien who has been
continuously physically present in the United States since December 1,
1995, and is admissible to the United States for permanent residence, not-
withstanding certain otherwise applicable requirements, such as having a
valid visa. Id.
3The countries covered by the provision are El Salvador, Guatemala, the
Soviet Union, any republic of the former Soviet Union, Russia, Latvia,
Estonia, Lithuania, Poland, Romania, Czechoslovakia, Hungary, Bulgaria,
Albania, East Germany, Yugoslavia, and any state of the former Yugosla-
via. Id.; see Ram v. INS, 243 F.3d 510, 517 n.9 (9th Cir. 2001).
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ragua or Cuba. She claims that the nationality-based classifi-
cation required by § 202(d) violates equal protection.
[1] Because Congress has broad power over immigration
and naturalization, our review is limited. Fiallo v. Bell, 430
U.S. 787, 792 (1977) (“[T]he power to expel or exclude aliens
[is] a fundamental sovereign attribute exercised by the Gov-
ernment’s political departments largely immune from judicial
control.” (citations and quotation marks omitted)). When
challenged under equal protection, “ ‘[l]ine-drawing’ deci-
sions made by Congress or the President in the context of
immigration and naturalization must be upheld if they are
rationally related to a legitimate government purpose.” Ram,
243 F.3d at 517. Using such rational-basis review, a statute is
presumed constitutional, and “the burden is on the one attack-
ing the legislative arrangement to negative every conceivable
basis which might support it.” Heller v. Doe, 509 U.S. 312,
320 (1993) (citation and quotation marks omitted). Courts
must accept a legislative classification even where “there is an
imperfect fit between means and ends.” Id.
[2] We have previously held that NACARA has a rational
purpose because it was intended to favor aliens who had taken
unusual risks in escaping from oppressive governments or
whose countries had been ravaged by war. Ram, 243 F.3d at
517. The enactment of NACARA was a rational diplomatic
decision to encourage such aliens to remain in the United
States. Id. Nicaraguan aliens were a particular concern of
Congress because of United States’ involvement in the civil
war in Nicaragua, the large number of Nicaraguan asylum-
seekers in the 1980s, and a history of special programs for
Nicaraguan aliens under the Carter and Reagan administra-
tions. See 143 Cong. Rec. S12,261 (daily ed. Nov. 9, 1997)
(statement of Sen. Abraham). Congress also specifically
extended the adjustment of status procedure to Nicaraguan
spouses and children of qualified Nicaraguan nationals, even
if they had not been in the United States since 1995. Id. As
the government contends, Congress had good reason to enact
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this provision because families fleeing war-torn areas were
not always able to travel together, and Congress wanted to
keep Nicaraguan families together in the United States. We
agree that this is a reasonable justification. Given the special
diplomatic concern for Nicaraguan aliens and others of simi-
lar circumstances,4 and the broad deference afforded to Con-
gress in this field, we must uphold its decision to limit the
scope of NACARA § 202(d) to spouses who are themselves
Nicaraguan or Cuban nationals.5
CONCLUSION
[3] The nationality-based classification in NACARA
§ 202(d) is rationally related to legitimate foreign policy con-
cerns that Congress had when it enacted NACARA. Accord-
ingly, we reject Masnauskas’s equal protection challenge to
NACARA § 202(d).
PETITION FOR REVIEW DENIED.
4Although we primarily refer to Nicaraguans throughout this opinion,
Congress’ rationale for enacting NACARA applies equally to others iden-
tified in the text of the Act. See 143 Cong. Rec. S12,258 (daily ed. Nov.
9, 1997) (statement of Sen. Abraham) (“[T]hese Central American refu-
gees — as well as refugees from other countries in like circumstances —
face the realistic prospect that a retroactive change in our laws might
uproot them yet again.”).
5Masnauskas also argues that allowing non-Nicaraguan spouses to be
derivative beneficiaries of their spouse’s “special cancellation of removal”
under NACARA § 203, but not derivative beneficiaries of their spouse’s
“adjustment of status” under NACARA § 202, is irrational. Because
adjustment of status is a much more generous form of relief, not requiring
any showing of hardship or good moral character, it is reasonable for its
availability to be more narrow in scope.
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