Mendoza-Solis v. I.N.S. ( 1994 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-40225
Summary Calendar
JOSE CANDELARIO MENDOZA-SOLIS,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION
SERVICE,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
(INS No. A29-993-730)
(September 2, 1994)
Before POLITZ, Chief Judge, DUHÉ and DeMOSS, Circuit Judges.
POLITZ, Chief Judge:*
Jose Candelario Mendoza-Solis, a citizen of Mexico, petitions
for review of a final order of deportation by the Board of
Immigration Appeals. We deny review.
Background
In 1989 Mendoza-Solis became a temporary resident as a
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
seasonal agricultural worker (SAW). He lost his temporary resident
card, applied for a replacement, and was given a receipt by the INS
for the replacement cost. Soon thereafter he returned to Mexico
and there sustained an injury. He attempted entry near Del Rio,
Texas, intending to secure medical attention, but the Border Patrol
agents refused him entry because he lacked proper identification.
As a last resort, on April 2, 1990, Mendoza-Solis crossed the
border illegally and without inspection, wading across the
Rio Grande River. He was apprehended around 1:00 a.m. the next
morning by a deputy sheriff who called the Border Patrol because he
suspected that Mendoza-Solis and his three companions in the
vehicle were illegal aliens. In an affidavit executed at the time,
Mendoza-Solis stated that he had entered illegally because he
believed he would again be denied entry if he presented himself for
inspection.
The INS sought a declaration of deportability. The
immigration judge, however, determined that Mendoza-Solis could not
be deported until termination of his lawful temporary resident
status. The BIA reversed, concluding that the Immigration and
Nationality Act provides for automatic termination of SAW temporary
resident status upon entry of a final deportation order. On remand
Mendoza-Solis contended that he had gained lawful permanent
resident status by operation of law on December 3, 1991, resulting
in a waiver of any action to deport him for his previous entry
without inspection; that his deportability should be equitably
estopped because he was refused lawful admission despite
2
presentation of his INS receipt; and that the evidence of his
illegal entry should have been suppressed because he was
apprehended without probable cause in violation of the fourth
amendment. Rejecting each claim, the immigration judge declared
Mendoza-Solis deportable. The BIA affirmed. Mendoza-Solis timely
petitioned for review.
Analysis
On appeal Mendoza-Solis reurges his equitable estoppel and
fourth amendment claims and additionally asserts that the Act is
facially unconstitutional because it authorizes automatic loss of
residency status without notice.
First, Mendoza-Solis maintains that the government illegally
refused him entry, ignoring his receipt. His illegal entry only
occurred, he claims, because of the agents' misconduct and,
consequently, the government should be equitably estopped from
deporting him. To prevail he must show that the denial of entry
was tantamount to "willfulness, wantonness, and recklessness."1 He
failed, however, to present valid identification corroborating that
he was the person named on the receipt. Under the circumstances,
the agents' refusal of entry was not unreasonable. Equitable
estoppel against the government does not lie.
Mendoza-Solis's fourth amendment issue is similarly
unpersuasive. He claims that the deputy sheriff detained him
without probable cause and that evidence thereof should have been
suppressed. He misperceives the law. It is well established that
1
Fano v. O'Neill, 806 F.2d 1262, 1265 (5th Cir. 1987).
3
the fourth amendment exclusionary rule is not to be applied in
deportation proceedings.2
Finally, Mendoza-Solis claims that the Act is facially
unconstitutional, depriving him of due process and equal protection
by allowing SAW temporary residency status to be revoked
automatically and without independent notice upon issuance of a
deportation order3 while the temporary residency of non-SAWs must
be terminated prior to initiation of deportation proceedings.4 The
government correctly points out that the "automatic" revocation of
residency without notice when a SAW is declared deportable does not
deprive him of either notice or an opportunity to contest the
revocation. Because the grounds for loss of status in this context
are identical to the grounds for deportation, the alien contests
the revocation at the deportation hearing, of which he received
notice, by there challenging the grounds for deportation. Indeed,
the loss of status is not a separate matter or action under the
statute, but merely a consequence of deportation. Notice of a
deportation hearing is a notice that a SAW may lose his or her
temporary residency. The absence of separate notice does not
breach due process protections.
Mendoza-Solis's implicit equal protection challenge also
fails. Congress may legitimately draw distinctions between classes
2
INS v. Lopez-Mendoza, 468 U.S. 1032 (1984); Smith Steel
Casting Co. v. Brock, 800 F.2d 1329 (5th Cir. 1986).
3
8 U.S.C. § 1160(a)(3)(A).
4
8 U.S.C. § 1255a.
4
of aliens.5 The distinction between SAW temporary residency, which
requires of the applicant only 90 days of seasonal agricultural
work per year,6 and section 245A temporary residency, which is
afforded only to aliens who have continuously resided in and been
continuously physically present in the United States for many
years,7 is an obvious one. Congress did not violate equal
protection requirements by providing a lower thershold for revoking
the more easily obtained SAW temporary residency.
Petition for review DENIED.
5
Fiallo v. Bell, 430 U.S. 787 (1977).
6
8 U.S.C. § 1160(a)(1)(B)(ii).
7
8 U.S.C. § 1255a(a)(2), (3).
5