Gonzalez-Esparza v. Immigration & Naturalization Service

42 F. App'x 1001

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 22, 2002
• Docket: No. 00-71703
• Status: Published

Opinion

MEMORANDUM

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Hector Gonzalez-Esparza petitions for review of the final decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an immigration judge’s denial of his application for suspension of deportation. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) transitional rules apply, see Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), and we have jurisdiction under 8 U.S.C. § 1105a(a), see Avetova-Elisseva v. INS, 213 F.3d 1192, 1195 n. 4 (9th Cir.2000). We deny the petition for review.

Gonzalez-Esparza contends that the operation of section 309(c)(5) of IIRIRA deprives him of equal protection because it stops the accrual of time for suspension of deportation eligibility with the service of an order to show cause and thereby creates an irrational distinction between aliens who have been detected by the Immigration and Naturalization Service (“INS”) and served with an order to show cause and those aliens who have evaded INS detection. This contention lacks merit.

To prevail on his equal protection challenge, Gonzalez-Esparza must show that the distinction is “wholly irrational.” Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1163 (9th Cir.2002). Gonzalez-Esparza’s equal protection challenge fails because there is a rational basis for stopping the accrual of time for suspension of deportation eligibility for aliens in deportation proceedings. See Ram v. INS, 243 F.3d 510, 518 (9th Cir.2001) (noting Congress’ concern that aliens attempt to delay deportation proceedings to become eligible for suspension of deportation). Accordingly, we deny Gonzalez-Esparza’s petition for review.

PETITION FOR REVIEW 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.