Marroquin v. Ashcroft , 104 F. App'x 756 ( 2004 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1358
CARLOS HUMBERTO MARROQUIN, ET AL.,
Petitioners,
v.
JOHN ASHCROFT,
UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Selya, and Howard, Circuit Judges.
Robert D. Watt, Jr. on brief, for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Anthony W. Norwood, Senior Litigation Counsel, and Don G. Scroggin,
Trial Attorney, United States Department of Justice, Office of
Immigration Litigation, on brief, for respondent.
July 23, 2004
Per Curiam. Prior to April 1, 1997, non-criminal aliens
facing deportation were entitled to seek discretionary relief under
a regime known as "suspension of deportation" if, inter alia, they
had accumulated seven years of continuous presence in the United
States. See Immigration and Nationality Act § 244, 8 U.S.C. §
1254 (repealed April 1, 1997). The Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110
Stat. 3009, 3546 (IIRIRA), which went into effect on April 1, 1997,
eliminated this entitlement and replaced it with a stricter regime,
titled "cancellation of removal," which is available only to aliens
who have been continuously present in the United States for ten
years. The IIRIRA specified that only aliens who had been placed
"in deportation proceedings" prior to April 1, 1997, remained
eligible to apply for suspension of deportation. See IIRIRA §
309(c)(1).
Petitioners are illegal aliens who, due to the length of
their continuous residency within the United States, would have
been entitled to seek suspension of deportation but are not
entitled to request cancellation of removal. In early March 1997,
they presented themselves to an Immigration and Naturalization
Service office after their attorney (allegedly) was told that, if
they did so, prior to April 1, 1997, they would be placed in
deportation proceedings -- meaning that papers charging them with
deportability (to use the old parlance) or removability would be
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filed with the Immigration Court, see Costa v. INS, 233 F.3d 31,
34-37 (1st Cir. 2000) (defining what it means to be "in deportation
proceedings" within the meaning of the IIRIRA). Notwithstanding
this alleged promise, the INS did not file the relevant charging
papers until after April 1. Subsequently, and over petitioners'
objections, an immigration judge found them ineligible for
discretionary relief from deportation/removal and ordered them to
depart the country by a date certain. The Board of Immigration
Appeals dismissed petitioners' appeal from this order. Petitioners
seek relief from the BIA's ruling.
We are foreclosed by circuit precedent from granting
petitioners the relief they seek. The Costa panel held on
indistinguishable facts that an alien in petitioners' situation was
not entitled to seek suspension of deportation. See id. To the
extent that petitioners seek to avoid the effect of Costa by
invoking the doctrines of equitable estoppel and equitable tolling,
their efforts fail. Assuming arguendo the potential availability
of these doctrines against the government, petitioners have failed
to show the reasonable reliance essential to an estoppel claim, see
id. at 38 & n.7 (observing that reasonable reliance cannot be shown
where petitioners have no right to "call the tune as to when the
INS would commence deportation proceedings" and because the hope of
obtaining discretionary relief in the form of suspension of
deportation is not a "right" which the government might be
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equitably estopped from infringing). Nor have petitioners shown
that tolling principles might properly be thought applicable in a
context, as here, where the running of some sort of limitations
period is not at issue.
Petition denied.
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