Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
On Petition for Review of an Order of the Board of Immigration Appeals.
Carlos A. Batara, San Diego, CA, for Petitioners.
Regional Counsel, Western Region, Immigration & Naturalization Service, Laguna Niguel, CA, CAS-District Counsel, Office of the District Counsel, San Diego, CA, Ronald E. LeFevre, Chief Legal Officer, Office of the District Counsel, San Francisco, CA, Mark C. Walters, Esq., Mary Jane Candaux, Esq., Greg D. Mack, Esq., Audrey B. Hemesath, Washington, DC, for Respondent.
Before KOZINSKI, O'SCANNLAIN, and SILVERMAN, Circuit Judges.
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.
We are prohibited by statute from reviewing the INS's discretionary decision to commence proceedings against an alien. See 8 U.S.C. § 1252(g); see also Cortez-Felipe v. INS, 245 F.3d 1054, 1057 (9th Cir.2001). It is also well-established that Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) can be applied to petitioners who presented themselves to the INS prior to the statute's effective date. See Lopez-Urenda v. Ashcroft, 345 F.3d 788, 793 (9th Cir.2003); Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1108 (9th Cir.2003); Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 602 (9th Cir.2002). We therefore lack jurisdiction to review the Pinon-Morenos' claim that the INS should have commenced deportation proceedings against them before the effective date of IIRIRA. And because the Pinon-Morenos' due process and equal protection claims amount to a challenge to the INS's decision to commence proceedings, these claims must similarly fail. See Lopez-Urenda, 345 F.3d at 796; Vasquez-Zavala, 324 F.3d at 1108-09.
The Pinon-Morenos have not shown affirmative misconduct by the INS; we thus decline equitably to estop the agency from proceeding under IIRIRA. See Cortez-Felipe, 245 F.3d at 1057; Mukherjee v. INS, 793 F.2d 1006, 1008-09 (9th Cir.1986). Furthermore, because the Pinon
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Morenos' discovery motions sought information about the INS's discretionary and unreviewable decision to commence proceedings, the Immigration Judge did not err in denying them. See Jimenez-Angeles, 291 F.3d at 598-99; Campos v. Nail, 940 F.2d 495, 497 n. 8 (9th Cir.1991).
The Pinon-Morenos' motion to supplement the administrative record is denied.
The petition for review is DENIED.