Gonzalez-Esparza

MEMORANDUM **

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…