Pinon-Moreno v. Immigration & Naturalization Service

MEMORANDUM ^**

We are prohibited by statute from reviewing the INS’s discretionary decision to commence proceedings against an alien. See 8 U.S.C. § 1252(g); see also Cortez-Felipe v. INS, 245 F.3d 1054, 1057 (9th Cir.2001). It is also well-established that Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) can be applied to petitioners who presented themselves to the INS prior to the statute’s effective date. See Lopez-Urenda v. Ashcroft, 345 F.3d 788, 793 (9th Cir.2003); Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1108 (9th Cir.2003); Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 602 (9th Cir.2002). We therefore lack jurisdiction to review the Pinon-Morenos’ claim that the INS should have commenced deportation proceedings against them before the effective date of IIRIRA. And because the Pinon-Morenos’ due process and equal protection claims amount to a challenge to the INS’s decision to commence proceedings, these claims must similarly fail. See Lopez-Urenda, 345 F.3d at 796; Vasquez-Zavala, 324 F.3d at 1108-09.

The Pinon-Morenos have not shown affirmative misconduct by the INS; we thus decline equitably to estop the agency from proceeding under IIRIRA. See Cortez-Felipe, 245 F.3d at 1057; Mukherjee v. INS, 793 F.2d 1006, 1008-09 (9th Cir. 1986). Furthermore, because the Pinon-Morenos’ discovery motions sought information about the INS’s discretionary and unreviewable decision to commence proceedings, the Immigration Judge did not err in denying them. See Jimenez-Angeles, 291 F.3d at 598-99; Campos v. Nail, 940 F.2d 495, 497 n. 8 (9th Cir.1991).

The Pinon-Morenos’ motion to supplement the administrative record is denied.

The petition for review is DENIED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.