UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-40225 Summary Calendar

JOSE CANDELARIO MENDOZA-SOLIS, Petitioner,

versus

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Petition for Review of an Order of the Board of Immigration Appeals

(September 2, 1994)

Before POLITZ, Chief Judge, DUHÉ and DeMOSS, Circuit Judges.

POLITZ, Chief Judge:

Jose Candelario Mendoza-Solis, a citizen of Mexico, petitions

for review of a final order of deportation by the Board of

Immigration Appeals. We deny review.

Background

In 1989 Mendoza-Solis became a temporary resident as a

seasonal agricultural worker (SAW). He lost his temporary resident

card, applied for a replacement, and was given a receipt by the INS

for the replacement cost. Soon thereafter he returned to Mexico

and there sustained an injury. He attempted entry near Del Rio, Texas, intending to secure medical attention, but the Border Patrol

agents refused him entry because he lacked proper identification.

As a last resort, on April 2, 1990, Mendoza-Solis crossed the

border illegally and without inspection, wading across the

Rio Grande River. He was apprehended around 1:00 a.m. the next

morning by a deputy sheriff who called the Border Patrol because he

suspected that Mendoza-Solis and his three companions in the

vehicle were illegal aliens. In an affidavit executed at the time,

Mendoza-Solis stated that he had entered illegally because he

believed he would again be denied entry if he presented himself for

inspection.

The INS sought a declaration of deportability. The

immigration judge, however, determined that Mendoza-Solis could not

be deported until termination of his lawful temporary resident

status. The BIA reversed, concluding that the Immigration and

Nationality Act provides for automatic termination of SAW temporary

resident status upon entry of a final deportation order. On remand

Mendoza-Solis contended that he had gained lawful permanent

resident status by operation of law on December 3, 1991, resulting

in a waiver of any action to deport him for his previous entry

without inspection; that his deportability should be equitably

estopped because he was refused lawful admission despite

presentation of his INS receipt; and that the evidence of his

illegal entry should have been suppressed because he was

apprehended without probable cause in violation of the fourth

amendment. Rejecting each claim, the immigration judge declared

2 Mendoza-Solis deportable. The BIA affirmed. Mendoza-Solis timely

petitioned for review.

Analysis

On appeal Mendoza-Solis reurges his equitable estoppel and

fourth amendment claims and additionally asserts that the Act is

facially unconstitutional because it authorizes automatic loss of

residency status without notice.

First, Mendoza-Solis maintains that the government illegally

refused him entry, ignoring his receipt. His illegal entry only

occurred, he claims, because of the agents' misconduct and,

consequently, the government should be equitably estopped from

deporting him. To prevail he must show that the denial of entry

was tantamount to "willfulness, wantonness, and recklessness."1 He

failed, however, to present valid identification corroborating that

he was the person named on the receipt. Under the circumstances,

the agents' refusal of entry was not unreasonable. Equitable

estoppel against the government does not lie.

Mendoza-Solis's fourth amendment issue is similarly

unpersuasive. He claims that the deputy sheriff detained him

without probable cause and that evidence thereof should have been

suppressed. He misperceives the law. It is well established that

the fourth amendment exclusionary rule is not to be applied in

deportation proceedings.2

1 Fano v. O'Neill,

(5th Cir. 1987). 2 INS v. Lopez-Mendoza,

(1984); Smith Steel Casting Co. v. Brock,

(5th Cir. 1986).

3 Finally, Mendoza-Solis claims that the Act is facially

unconstitutional, depriving him of due process and equal protection

by allowing SAW temporary residency status to be revoked

automatically and without independent notice upon issuance of a

deportation order3 while the temporary residency of non-SAWs must

be terminated prior to initiation of deportation proceedings.4 The

government correctly points out that the "automatic" revocation of

residency without notice when a SAW is declared deportable does not

deprive him of either notice or an opportunity to contest the

revocation. Because the grounds for loss of status in this context

are identical to the grounds for deportation, the alien contests

the revocation at the deportation hearing, of which he received

notice, by there challenging the grounds for deportation. Indeed,

the loss of status is not a separate matter or action under the

statute, but merely a consequence of deportation. Notice of a

deportation hearing is a notice that a SAW may lose his or her

temporary residency. The absence of separate notice does not

breach due process protections.

Mendoza-Solis's implicit equal protection challenge also

fails. Congress may legitimately draw distinctions between classes

of aliens.5 The distinction between SAW temporary residency, which

requires of the applicant only 90 days of seasonal agricultural

3

(a)(3)(A). 4 8 U.S.C. § 1255a. 5 Fiallo v. Bell,

(1977).

4 work per year,6 and section 245A temporary residency, which is

afforded only to aliens who have continuously resided in and been

continuously physically present in the United States for many

years,7 is an obvious one. Congress did not violate equal

protection requirements by providing a lower thershold for revoking

the more easily obtained SAW temporary residency.

Petition for review DENIED.

6

(a)(1)(B)(ii). 7 8 U.S.C. § 1255a(a)(2), (3).

5