De Arriaga v. Immigration & Naturalization Service

MEMORANDUM ***

IIRIRA § 309(c)(5)(A) applies the stop-time rule to transitional aliens whose deportations were initiated with the service of an Order to Show Cause (“OSC”) and who seek suspension of deportation. Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). The discretionary legislative decision to favor certain aliens from specific war-torn countries must be upheld because it stems from a rational diplomatic decision to encourage such aliens to remain in the United States. Id. at 517 . INS is not estopped from pursuing De Arriaga’s deportation because INS’s appeal to the BIA was not reckless or frivolous, much less an example of affirmative misconduct by governmental agents. See INS v. Pangilinan, 486 U.S. 875, 883-84 , 108 S.Ct. 2210 , 100 L.Ed.2d 882 (1988). As trero v. INS, 104 F.3d 264 (9th Cir.1996), does not present .grounds for holding INS’s appeal to the BIA frivolous because the appeal was not limited to the stop-time issue. The BIA’s misstatement of De Arriaga’s date of entry was harmless because even under the correct date she was not present for seven years before service with an OSC. Finally, the record reflects that INS timely filed its opening brief before the…