Kaviani v. INS

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 15, 2001
• Docket: 99-60467
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60467 Summary Calendar

FARHAD KAVIANI,

Petitioner,

versus

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

-------------------- Petition for Review of an Order of the Board of Immigration of Appeals BIA No. A27 898 036 -------------------- June 14, 2001

Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Farhad Kaviani petitions for review of the order of the Bureau

of Immigration Appeals (BIA) denying his motion to reopen his

deportation proceedings to apply for the suspension of deportation.

Kaviani contends that the BIA erred by determining that he is not

statutorily eligible for the relief of suspension of deportation

because an Order to Show Cause why he should not be deported was

issued to him in 1988. He argues that an order to show cause

issued prior to June 13, 1992, did not toll the period of

continuous physical presence in the United States.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-60467 -2-

Kaviani’s argument is foreclosed by the holding in Ayoub v.

INS, 222 F.3d 214, 215 (2000) that the issuance of a show-cause

order prior to the enactment of IIRIRA tolls the period of an

alien’s continuous presence in the United States.

Kaviani also argues that IIRIRA and NACARA are

unconstitutional provisions because they deprive him of equal

protection and due process. He argues that similarly situated

persons are treated differently based on the time that they

received an order to show cause and their national origins.

With respect to a denial of equal protection based on

different treatment of different nationalities, this argument is

foreclosed by Rodriguez-Silva v. INS, 242 F.3d 243 (5th Cir. 2001).

In Rodriguez, the court determined that Congress was not required

to make a showing of a rational basis for the nationality-sensitive

provisions because its regulatory power in the area of immigration

is plenary. Id. at 248.

Kaviani’s argument that applicants for suspension of

deportation are treated differently depending upon the time the

applicant is served with a notice to appear for removal proceedings

is also without merit. Similarly situated persons are treated in

the same manner because the stop-time rule is applied to all

illegal aliens who receive a notice to appear for removal

proceedings, whether the applicant was served with the notice prior

to or after IIRIRA instituted the “stop-time” rule. See id. at

245.

PETITION DENIED.