Gonzalez-Torres, et al v. INS

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-60395
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JOSE LUIS GONZALEZ-TORRES,
ALSO KNOWN AS JOSE LUIS GONZALEZ-SAUCEDO;
MARIA GONZALEZ-TORRES; EDWIN GONZALEZ-TORRES;
ENGELBERTH GONZALEZ-TORRES;
JOSE LUIS GONZALEZ-TORRES, JR.;
AND
CYNTHIA GONZALEZ-TORRES,
Petitioners,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
_________________________
June 21, 2000
Before POLITZ, SMITH, and
DENNIS,Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Jose Luis Gonzalez-Torres, his wife Maria
Gonzalez-Torres, and their children Jose Luis,
Jr., Engelberth, Edwin, and Cynthia
(“petitioners”), petition for review of the
denial of their applications for suspension of

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deportation, arguing that retroactive
application of the stop-time provision in the
Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”),
section 304(a), violates their due process right
to “fair notice and repose.” Concluding that
petitioners have no constitutional right to the
discretionary suspension of deportation, we
deny the petition for review and affirm.
I.
In July 1991, petitioners, natives of Mexico,
were ordered to show cause why they should
not be deported. The show-cause orders stat-
ed that Maria, Jose Luis, Jr., Engelberth, and
Edwin had entered the United States as non-
immigrants on June 20, 1990,1 that they were
authorized to remain in the country until
June 23, 1990, and that they had done so
without authorization since that date. Cyn-
thia’s show-cause order stated that she had
entered the country on July 1, 1985, and was
authorized to remain until July 4, 1985.
Petitioners conceded their deportability and
were ordered to depart voluntarily by July 2,
1992.
In August 1992, petitioners filed
applications for suspension of deportation and
a motion to reopen their deportation
proceeding. They asserted that they were of
good moral character, that they had entered
the country in 1985 and had been physically
present in the country for seven years, and that
they would suffer extreme hardship if
deported. See 8 U.S.C. § 1254(a)(1) (West
1995) (requirements for suspension of
deportation). The motion to reopen was
granted, and a hearing was held on November
6, 1992.
At that hearing, the immigration judge
(“IJ”) found that the petitioners were of good
moral character but that, despite their
contention that they had entered the country in
July 1985, there was no evidence
demonstrating that the they had been in the
United States before 1988. The IJ thus
concluded that the petitioners failed to
establish that they had been physically present
in the United States for a period of seven
years; the IJ also found that petitioners had not
demonstrated that they would suffer extreme
hardship if they were deported. Consequently,
the IJ denied the applications for suspension of
deportation and ordered that the petitioners be
allowed to depart voluntarily by December 17,
1992.
Petitioners appealed to the Board of
Immigration Appeals (“BIA”). In August
1996, while their appeal was pending, Maria
Gonzalez-Torres and the four children filed a
motion to reopen the deportation proceeding
based on Jose Luis, Sr.’s, death in January
1996.
In March 1998, the BIA issued a notice
requesting additional briefing based on the
passage of the IIRIRA. Following additional
briefing by the petitioners and the INS, the
BIA, on May 17, 1999, denied the petitioners’
motion to reopen the deportation proceedings
and denied the appeal.
The BIA stated that the record reflected
that all the family members except Cynthia had
entered the United States on July 20, 1990;
that on July 23, 1991, they had been served
with an order to show cause and a notice of
hearing; that Cynthia had entered the country
on July 1, 1985; and that on July 29, 1991, she
had been served with an order to show cause
and a notice of hearing. The BIA concluded 1 The deportation order indicated that the
children entered the country on July 1, 1985.

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that because “none of the respondents had ac-
crued 7 years of continuous physical presence
before the service of the Order to Show Cause
and Notice of Hearing, none [was] eligible for
suspension of deportation.” BIA Order
(May 17, 1999) (citing Matter of Nolasco-
Tofino, Interim Decision 3385 (BIA 1999)).
The BIA did not address the IJ’s finding that
none of the petitioners would suffer an
extreme hardship if deported.
II.
Under its transitional rules, IIRIRA § 309-
(c)(4)(E) provides, in pertinent part, that
“there shall be no appeal of any discretionary
decision” with respect to the BIA’s denial of a
motion to suspend deportation. See Moosa v.
INS, 171 F.3d 994, 1010-11 (5th Cir. 1999).
In Moosa, we held that we have no jurisdiction
to review the BIA’s decision denying
suspension based on the immigrant’s failure to
demonstrate extreme hardship.2
Here, however, the BIA did not base its
denial of petitioners’ motion on the IJ’s
determination that they had not established the
extreme-hardship element. Instead, the BIA
determined that petitioners had failed to prove
another necessary element for eligibility for
suspension of deportationSSthat they had ac-
crued seven years’ continuous presence in the
United States. This determination is not a
matter of agency discretion, but involves appli-
cation of the law to factual determinations. It
therefore is not precluded from judicial review
by § 309(c)(4)(E). See Kalaw v. INS,
133 F.3d 1147, 1151 (9th Cir. 1997).3
III.
Petitioners challenge the application of the
new stop-time rule in the IIRIRA to their de-
portation proceedings, arguing that § 309-
(c)(5) cannot constitutionally be applied to
them, because doing so would constitute a ret-
roactive application of a law in violation of
procedural due process. They do not argue
that Congress did not intend that § 309(c)(5)
would apply retroactively; instead, they assert
that this provision is one that the Constitution
prohibits from being applied retroactively even
if Congress plainly mandated that it be applied
retroactively. Thus, petitioners concede that
there is no need to undergo the two-step anal-
ysis in Landgraf v. USI Film Prods., 511 U.S.
244 (1994), for determining whether a law
applies retroactively.
Petitioners rely, however, on another
portion of Landgraf that states that “[t]he Due
Process Clause also protects the interests in
fair notice and repose that may be
compromised by retroactive legislation; a
justification sufficient to validate a statute’s
prospective application under the Clause ‘may
not suffice’ to warrant its retroactive
application.” Id. at 306 (internal citations
omitted). Accordingly, petitioners contend
that their due process interest in “fair notice
and repose” has been violated by the
retroactive application of § 309(c)(5), which
altered the conditions of their deportability
2 See id. at 1012 (“We join our sister courts in
holding that denials of suspension based on the INS
§ 244 element of ‘extreme hardship’ are
discretionary decisions, which IIRIRA § 309(c)
precludes us from reviewing.”).
3 See also Moosa, 171 F.3d at 1012, in which
the court cited that portion of Kalaw that “found
that the continuous physical presence element was
a factual inquiry, rather than a discretionary
decision, that was reviewed for substantial
evidence; thus, § 309(c) did not divest the court of
its jurisdiction.”

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after they had been served with the orders to
show cause and had begun their deportation
proceedings.
A.
Before 1996, INA § 244(a) provided the
Attorney General with discretion to grant sus-
pension of deportation to an alien. To be eligi-
ble for this suspension, however, the alien had
to satisfy several requirements, including that
he be “physically present in the United States
for a continuous period of not less than seven
years immediately preceding the date of such
application [for suspension of deportation].”
8 U.S.C. § 1254(a)(1). But unlike the
situation under current IIRIRA § 304(a), the
time an alien spent in deportation proceedings
counted toward the physical presence
requirement.
To expedite the removal of deportable ali-
ens and to limit discretionary relief, Congress
enacted the IIRIRA and repealed the sus-
pension-of-deportation provision in INA
§ 244. Congress replaced the old provision
with new INA § 240A, which provides for the
“cancellation of removal.” 8 U.S.C. § 1229b.
Section 304(a) enacted a stop-time rule for
determining an alien’s eligibility for suspension
of deportation or cancellation of removal, pro-
viding that “any period of continuous
residence or continuous physical presence
shall be deemed to end when the alien is
served a notice to appear.” 8 U.S.C. § 1229b-
(d)(1) (emphasis added). Thus, “[a]fter
IIRIRA’s enactment, the i nitiation of
deportation proceedings stops the clockSSan
alien can no longer accrue years of continuous
physical presence once proceedings have
begun.” Appiah v. INS, 202 F.3d 704, 707
(4th Cir. 2000).
Initially, § 304(a)’s use of the term “notice
to appear” created potential confusion, be-
cause it was uncertain whether this stop-time
provision also applied to orders to show cause.
But the BIA interpreted the new phrase to in-
clude pre-IIRIRA show-cause orders, and, in
1997, Congress eliminated any remaining con-
fusion: It enacted the Nicaraguan Adjustment
and Cent ral American Relief Act
(“NACARA”), which included a clarifying
amendment to the IIRIRA’s stop-time rule,
replacing “notices to appear” with “orders to
show cause.” See NACARA § 203(a), Pub. L.
No. 105-100, 111 Stat. 2160, 2196.
The IIRIRA’s amendments to the INA typi-
cally do not apply to aliens placed in
deportation proceedings before April 1, 1997.
See § 309(c)(1). Section 309(c)(5) contains,
however, a special “Transitional Rule with
Regard to Suspension of Deportation,” which
provides 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].” Pub. L. No. 104-208, 110
Stat. 3009-546, 3009-627 (emphasis added).
It is this provision that petitioners allege is
impermissibly retroactive.
B.
Two circuits have considered this precise
challenge to the retroactive application of
IIRIRA’s stop-time provisions, and both have
upheld that application and rejected the aliens’
constitutional arguments. See Tefel v. Reno,
180 F.3d 1286, 1301-02 (11th Cir. 1999),
petition for cert. filed, 68 U.S.L.W. 3513
(U.S. Feb. 3, 2000) (No. 99-1314); Appiah,
202 F.3d at 708-10. Those courts employed
similar analyses, reject ing the aliens’
arguments on two grounds. First, the courts
held that the stop-time rule has no retroactive
effect, because it does not “impair rights a par-
ty possessed when he acted, increase a party’s

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liability for past conduct, or impose new duties
with respect to transactions already complet-
ed.” Appiah, 202 F.3d at 709 (quoting Land-
graf, 511 U.S. at 280); Tefel, 180 F.3d
at 1302. Applying IIRIRA’s new stop-time
rule to petitioners’ pending INS proceedings
“does not overturn final BIA decisions
affirming an immigration judge’s decision to
grant suspension of deportation.” Id.4 While
petitioners may have expected that they would
be eligible for suspension of deportation,
IIRIRA’s amendment limited only their
eligibility for discretionary relief; it did not
infringe on a right that they possessed prior to
its enactment. See Appiah, 202 F.3d at 709.
Similarly, the courts also rejected the due
process challenges, because the aliens could
not show that they had a “vested right in not
being deport ed, and the challenged statutory
provisions easily withstand rational basis
review.” Id.; Tefel, 180 F.3d at 1301. The
Tefel court noted that “[n]o constitutionally
protected interest arises from the INS’ actions
in granting or denying applications for
suspension because the Attorney General
exercises ‘unfettered’ discretion over
applications for suspension.” Id.5 And the
Appiah court correctly noted that there is a
rational basis for the new stop-time
ruleSS“Congress enacted the rule to remove an
alien’s incentive for prolonging deportation
proceedings in order to become eligible for
suspension.” Appiah, 202 F.3d at 709.
Petitioners offer no arguments to refute
these courts’ cogent analyses. Consequently,
we join our sister courts in holding that the
application of the IIRIRA’s stop-time
provision to deportation proceedings pending
at the time of the statute’s enactment does not
violate aliens’ due process rights.
IV.
Petitioners make an alternative argument
that they are eligible for suspension of
deportation because they have accrued a full
seven years of continuous physical presence in
the United States after service of the orders to
show cause. That is, they have remained in the
country for more than seven years since they
received the show-cause orders in July 1991.
While the transitional rule, § 309(c)(5),
provides that § 304(a) plainly stops the clock
and prevents petitioners from adding the time
they have spent in deportation proceedings to
the time they had accrued before they were
served the show-cause orders, petitioners
argue that the stop-time rule is silent as to
whether the time spent in the proceedings can
itself be sufficient to satisfy the seven-year-
continuous-presence requirement. Thus, they
conclude that nothing has operated to cut off
this seven-year period for eligibility purposes.
The INS responds by noting that because
petitioners did not make this argument before
the BIA, they have failed to exhaust their ad-
ministrative remedies, and we are without jur-
isdiction to hear the issue.6 Petitioners did not
file a motion to reconsider the BIA’s decision,
4 See also Landgraf, 511 U.S. at 269 (“A
statute does not operate ‘retrospectively’ merely
because it is applied in a case arising from conduct
antedating the statute’s enactment or upsets
expectations based in prior law.”).
5 See also Appiah, 202 F.3d at 709 (“Because
suspension of deportation is discretionary, it does
not create a protectible liberty or property
interest.”).
6 See Rodriguez v. INS, 9 F.3d 408, 414 (5th
Cir. 1993) (holding that a failure to exhaust
remedies with respect to a question deprives the
court of jurisdiction to hear the matter).

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and they do not challenge the fact that they
have never presented this argument to the
BIA.
Petitioners respond, instead, that to exhaust
their administrative remedies, they were not
required to file a motion to reconsider, and
that doing so would be futile, because the BIA
was bound by its interpretation in Nolasco-
Tofino, which precluded eligibility for
suspension of deportation in cases such as pe-
titioners’. This is an odd assertion, however,
because petitioners’ argument on the merits of
this claim is that Nolasco-Tofino did not
address the particular issue presented in this
caseSSi.e., whether the continuous-presence
requirement can be satisfied after service of
the orders to show cause. If this claim has any
merit, then, Nolasco-Tofino would not bind
the BIA, and a motion to reconsider,
therefore, would not have been futile.
The petitioners, except Cynthia, were
served with show cause orders on July 23,
1991; Cynthia was served on July 29, 1991.
As a result, by August 1998 the petitioners
could have raised this new argument that they
had been physically present in the country for
seven years since the service of the show cause
orders. At that time, their case was still pend-
ing before the BIA, which did not render its
decision until May 17, 1999.
Furthermore, the petitioners base their ar-
gument, in part, on the concurring opinion in
Nolasco-Tofino, which was decided on
April 15, 1999, a month before the BIA
decided petitioners’ case. Thus, they had
more than thirty days in which they again
could have raised this issue before the BIA.
Therefore, they have not exhausted their
administrative remedy with respect to this ar-
gument, so we are without jurisdiction to
review it.
The petition for review is DENIED, and the
order of the BIA is AFFIRMED.

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