Mohsin v. INS

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-60364
Summary Calendar
_____________________
SHAIKH MOHAMMAD MOHSIN,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION
SERVICE,
Respondent.
_________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A29 491 421
_________________________________________________________________
October 26, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Shaikh Mohammad Mohsin has filed a petition for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
of the denial of his application for suspension of deportation.
Mohsin argues that the BIA erred in determining that he was not
entitled to suspension of deportation because he had been served
with an order to show cause prior to acquiring seven years of
physical presence in the United States. Specifically, Mohsin
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
contends that: (1) under the stop-time rule of the Illegal
Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), as
amended by the Nicaraguan Adjustment and Central American Relief
Act (“NACARA”), the service of an order to show cause does not
break physical presence in a suspension of deportation case and (2)
the application of the stop-time rule violates his constitutional
rights to procedural due process and equal protection of the laws.
See IIRIRA § 309(c)(5)(a); NACARA § 203(a)(1).
This court reviews the BIA’s legal determinations de novo.
See Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996).
Mohsin’s first argument was rejected in Ayoub v. INS, 222 F.3d 214,
215 (5th Cir. 2000), which held that the issuance of a show cause
order tolls the physical presence period in a suspension of
deportation case. Mohsin’s due process argument was likewise
foreclosed by Gonzalez-Torres v. INS, 213 F.3d 899, 903 (5th Cir.
2000), in which this court “joined [its] 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.” See Appiah
v. INS, 202 F.3d 704, 708-10 (4th Cir. 2000); Tefel v. Reno, 180
F.3d 1286, 1301-02 (11th Cir. 1999).
Mohsin’s equal protection argument is also without merit.
Although the Gonzalez-Torres court did not explicitly reject equal
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protection challenges to the stop-time rule, it approved of the
“cogent analyses” in two extra-circuit decisions that did reject
such challenges. See 213 F.3d at 903; Appiah, 202 F.3d at 709-10;
Tefel, 180 F.3d at 1298. Moreover, the Gonzalez-Torres court
acknowledged that there is a rational basis for the stop-time rule,
in that Congress’ purpose was to remove an alien’s incentive for
prolonging deportation proceedings in order to become eligible for
suspension of deportation. 213 F.3d at 903. This “facially
legitimate and bona fide reason" suffices to demonstrate the lack
of merit in Mohsin’s equal protection claim, given “the need for
special judicial deference to congressional policy choices in the
immigration context.” See Requena-Rodriguez v. Pasquarell, 190
F.3d 299, 308-09 (5th Cir. 1999) (internal quotation marks and
citation omitted).
Mohsin’s petition for review is DENIED.
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