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CORTEZ-FELIPE V INS
Case Number: Date Filed:
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Petitioner, No. 99-70541
v. INS No.
IMMIGRATION AND NATURALIZATION
Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2001*
Filed April 2, 2001
Before: Stephen Reinhardt, Kim McLane Wardlaw, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
*The panel unanimously finds this case suitable for decision without
oral argument. Federal Rules of Appellate Procedure 34(a)(2).
Jerry Kagele, Kagele Law Offices, Spokane, Washington, for
David W. Ogden, Acting Assistant Attorney General; Norah
Ascoli Schwartz, Senior Litigation Counsel, Office of Immi-
gration Litigation; Donald A. Couvillon, Attorney, Office of
Immigration Litigation, Civil Division, Department of Justice,
Washington, D.C., for the respondent.
GOULD, Circuit Judge:
On April 25, 1997, the Immigration and Naturalization Ser-
vice ("INS") filed a Notice to Appear ("NTA") with the
Immigration Court charging Salustia Cortez-Felipe
("Petitioner") with removability pursuant to section
212(a)(6)(A) of the Immigration and Nationality Act ("INA"),
8 U.S.C. S 1182(a)(6)(A), as an alien within the United States
without being admitted. On January 26, 1998, Petitioner
admitted to the allegations in the NTA and conceded remov-
ability but moved to reinstate a previously issued Order to
Show Cause ("OSC") and terminate removal proceedings. An
Immigration Judge ("IJ") found Petitioner removable and
granted voluntary departure. Petitioner appealed to the Board
of Immigration Appeals ("BIA") arguing that she should have
been charged as deportable, not removable. On April 6, 1999,
the BIA dismissed Petitioner's appeal. Petitioner argues that
(1) she was improperly placed in removal proceedings; and
(2) this court should provide equitable relief by staying Peti-
tioner's removal and ordering her processed in deportation
proceedings. We have jurisdiction pursuant to 8 U.S.C.
S 1252(b) and deny the petition.
The amendments to the INA in the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996
("IIRIRA"), 110 Stat. 3009-625 became effective on April 1,
1997. See, e.g., Astrero v. INS, 104 F.3d 264, 266 (9th Cir.
1996) (holding that IIRIRA's amendments could not be
applied before IIRIRA's effective date of April 1, 1997).
Before April 1, 1997, deportation proceedings commenced
upon filing of an OSC and notice of hearing.1 An alien placed
in deportation proceedings could apply for "suspension of
deportation" -- a discretionary form of relief -- under INA
section 244, 8 U.S.C. S 1254 (1994). Eligibility for this relief
hinged on the ability to demonstrate (1) seven years of contin-
uous physical presence; (2) good moral character; and (3) that
deportation would result in "extreme hardship. " Id.
Effective April 1, 1997, immigration proceedings were no
longer initiated with an OSC. Rather, proceedings were to be
initiated with a new charging document called a Notice to
Appear.2 OSCs and NTAs serve similar purposes and have
1 Former INA section 242B(a)(1), 8 U.S.C. S 1252b(a)(1) (1994), was
the statutory authority for issuing OSCs.
2 IIRIRA section 308(b)(6) eliminated INA section 242B(a)(1) and
replaced it with INA section 239(a), 8 U.S.C. S 1229(a) (Supp. II 1997),
entitled "Notice to Appear."
nearly identical requirements. Compare 8 U.S.C.
S 1252b(a)(1) (1994), with 8 U.S.C.S 1229(a) (Supp. II
Also effective April 1, 1997, IIRIRA section 304(a)
repealed the "suspension of deportation" discretionary relief
provision of INA section 244 and replaced it with INA section
240A, 8 U.S.C. S 1229b (Supp. II 1997) which provides for
"cancellation of removal." It is more difficult for an alien to
qualify for cancellation of removal than for suspension of depor-
If an alien's proceedings commenced with an OSC before
April 1, 1997, the alien is processed in deportation proceed-
ings. 8 C.F.R. S 240.55. If an alien's proceedings commenced
with an NTA on or after April 1, 1997, the alien is processed
in removal proceedings. 8 C.F.R. S 239.1(a). In either case,
proceedings commence and jurisdiction vests with the IJ upon
filing of the charging document. 8 C.F.R. S 3.14(a) (1997).
In late March 1997, anticipating IIRIRA's April 1, 1997
amendments to the INA, including more stringent require-
ments for discretionary relief, Petitioner's counsel set an
appointment for Petitioner with the INS. On March 27, 1997,
the INS processed and served Appellant with an OSC.
According to Petitioner's counsel, the INS said that it would
fax Petitioner's files to Seattle so the files would arrive in
time to be filed with the Immigration Court before the April
1, 1997 deadline. However, Petitioner's counsel asserts that
on or about April 16, 1997, the INS informed him that Peti-
tioner's OSC had not been timely filed with the Immigration
Court. Instead, on April 10, 1997, the INS served Petitioner
with an NTA.
3 For example, cancellation of removal increased the continuous physi-
cal presence requirement from seven to ten years. IIRIRA S 304(a)(3).
To the extent Petitioner presents "an abstract legal question
concerning the effect, if any, of a served but unfiled OSC" our
review is de novo. Costa v. INS, 233 F.3d 31, 34 (1st Cir.
2000) (discussing and denying a petition factually and legally
similar to that presented here).
1. Proper dismissal
 The BIA correctly dismissed Petitioner's appeal. The
INS served Petitioner with an OSC before IIRIRA's effective
date, but did not file it. Deportation proceedings did not com-
mence under the law as it existed before IIRIRA's effective
date. 8 C.F.R. S 3.14(a) ("[P]roceedings . . . commence, when
a charging document is filed with the Immigration Court by
the Service."); El Rescate Legal Servs., Inc. v. Executive
Office of Immigration Review, 959 F.2d 742, 749 (9th Cir.
1992) ("A deportation proceeding commences with the filing
of an order to show cause."); Costa, 233 F.3d at 34. Rather,
the INS served Petitioner with an NTA and filed the NTA
after IIRIRA's effective date, properly commencing removal
proceedings. 8 C.F.R. S 239.1(a) ("Every removal proceeding
. . . to determine the deportability . . . of an alien is com-
menced by the filing of a notice to appear with the Immigra-
 Petitioner argues that, upon her request, and because of
the INS's verbal assurances, the INS should have filed her
OSC before April 1, 1997, and that its failure to do so entitles
her to relief. We disagree. The Attorney General has discre-
tion regarding when and whether to initiate deportation pro-
ceedings. Yao v. INS, 2 F.3d 317, 319 (9th Cir. 1993) ("As a
matter of statutory authority and administrative discretion, the
INS is free to decide not to commence deportation proceed-
ings . . . ."); Cabasug v. INS, 847 F.2d 1321, 1324 (9th Cir.
1988) ("[T]he Attorney General retains discretion at the stage
of deciding to initiate a deportation proceeding."). The IJ and
BIA lack authority to review that exercise of discretion.
Barahona-Gomez v. Reno, 236 F.3d 115, 1119-30 (9th Cir.
2001); Lopez-Telles v. INS, 564 F.2d 1302, 1304 (9th Cir.
1977) ("The immigration judge is not empowered to review
the wisdom of the INS in instituting the proceedings. His [or
her] powers are sharply limited . . . ."); In Re G-N-C, Interim
Dec. 3366 (BIA 1998) (1998 WL 646918) (decision to insti-
tute deportation proceedings involves exercise of prosecu-
torial discretion and is not a decision that the IJ or BIA may
 Finally, Petitioner asserts that INS delay and verbal
assurances estopped the INS from processing her in removal
proceedings. To be sure, equitable estoppel is applicable to
deportation proceedings if, in failing to initiate proceedings
promptly, the INS engaged in affirmative misconduct. Santi-
ago v. INS, 526 F.2d 488, 491-92 (9th Cir. 1975) (en banc).
However, such a conclusion is not lightly inferred. For exam-
ple, when the only evidence of INS negligence was an 18-
month delay in processing an application, the United States
Supreme Court has held that "[a]lthough the time was indeed
long, [it could not] say in the absence of evidence to the con-
trary that the delay was unwarranted." INS v. Miranda, 459
U.S. 14, 18 (1982).
 Here, Petitioner's counsel asserts that the INS failed to
file Petitioner's OSC by April 1, but had told her it would do
so on March 27. Even if proven, that failure at most reflects
negligence on the part of the INS and not affirmative miscon-
duct. See, e.g., Costa, 233 F.3d at 37 (holding that the INS did
not act in bad faith by failing to file an OSC served thirteen
days before April 1, 1997). The INS is not estopped from pro-
ceeding with Petitioner's removal.
2. Equitable relief
Petitioner urges us to exercise our equitable powers by
staying her removal pending a hearing and issuing an order
allowing the OSC to be adjudicated on the merits. Alterna-
tively, Petitioner requests that we entertain the OSC that was
served but not filed and adjudicate the merits of Petitioner's
suspension of deportation. However, we have no authority to
grant the requested relief.
We deny the petition.
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