IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________

No. 95-60290 Summary Calendar ______________

GUSTAVO LLERENAS-CEBALLOS, Petitioner,

versus

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

_________________________________________________________________

Petition for Review of an Order of the Board of Immigration Appeals (A34 011 098) _________________________________________________________________

December 20, 1995

Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM*:

Petitioner Gustavo Llerenas-Ceballos ("Llerenas-Ceballos")

petitions for review of the final order of the Board of Immigration

Appeals dismissing his appeal from the Immigration Judge's order of

deportation. We affirm.

FACTS AND PROCEDURAL HISTORY

Llerenas-Ceballos, a thirty-eight year old Mexican citizen,

was admitted to the United States as a lawful permanent resident in

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. 1973. He pleaded guilty and was convicted in federal court of

conspiracy to possess with intent to distribute a controlled

substance in violation of

, 841(a)(1). On April

10, 1989, he was sentenced to serve 151 months imprisonment and

five years of supervised release. Llerenas-Ceballos has remained

in federal prison since his sentencing.

In 1992 Llerenas-Ceballos requested transfer to a Mexican

prison pursuant to the United States-Mexico Prisoner Transfer

Treaty. His request was denied on December 23, 1992 by the

Criminal Division of the U.S. Department of Justice based on his

"substantial ties to the U.S." Respondent Immigration and

Naturalization Service ("INS") issued a detainer against Llerenas-

Ceballos on December 10, 1993.

On December 16, 1993, the INS issued an Order to Show Cause

charging Llerenas-Ceballos with deportability under

(a)(2)(A)(iii) and (a)(2)(B)(i), for having been convicted of

an aggravated felony and a controlled substance violation. After

a hearing was conducted before an Immigration Judge ("IJ") on

November 14, 1994, the IJ found Llerenas-Ceballos deportable. The

IJ further found Llerenas-Ceballos ineligible for a waiver of

deportation under § 212(c) of the Immigration and Nationality Act

("INA"),

(c), because he had been convicted of an

aggravated felony, for which he had been incarcerated for over five

years. The Board of Immigration Appeals ("BIA") affirmed the

decision of the IJ, finding that Llerenas-Ceballos's deportability

had been established, and that he was ineligible for relief from

2 deportation, and dismissed the appeal.

STANDARD OF REVIEW

The issue in the instant case is whether Llerenas-Ceballos is

statutorily ineligible for a waiver of deportation under

(c) because he had served more than five years in prison for

his aggravated felony conviction prior to the IJ's consideration of

his case in deportation proceedings. The BIA found that the

statute barred Llerenas-Ceballos from applying for a waiver of

deportation as mandated by Congress when it enacted the aggravated

felony bar. Our review of the BIA's decision is very limited.

Rodriguez v. I.N.S.,

(5th Cir. 1993) (internal

citations omitted). We must give deference to the BIA's

interpretation of immigration statutes unless there exists

compelling indications that the BIA's interpretation is incorrect.

Campos-Guardado v. I.N.S.,

(5th Cir.), cert.

denied,

,

,

(1987) (citing

Guevara Flores v. I.N.S.,

, 1250 n.8 (5th Cir. 1986),

cert. denied,

,

,

(1987)).

DUE PROCESS

Llerenas-Ceballos contends that the INS denied him due process

by not proceeding with his deportation proceedings until after he

became ineligible for a waiver of deportation due to having served

five years in prison. We find Llerenas-Ceballos was not denied due

process because he is not eligible to apply for a waiver. Indeed,

"he is not entitled to any process because he is not eligible under

3 the statute to apply for discretionary relief." Rodriguez,

. The language of § 1182(c) clearly precludes eligibility

for relief to Llerenas-Ceballos, as it plainly states that the

discretionary waiver "shall not apply to an alien who has been

convicted of one or more aggravated felonies and has served a term

of at least five years."

(c). Once Llerenas-

Ceballos was imprisoned for five years, he became ineligible for a

waiver of deportation.

EQUAL PROTECTION

Llerenas-Ceballos next contends that the INS denied him equal

protection by its uneven enforcement of

(c). He

argues that § 1182(c) creates two classes of convicted aliens:

those who are brought before the IJ before they have served five

years on their sentences, and thus can apply for a waiver of

deportation and; those, like Llerenas-Ceballos, who do not have the

opportunity to appear before the IJ until after they have served

five years or more, and thus cannot apply. "Congress is not

required to treat all aliens alike; it is only required to give a

facially legitimate and bona fide reason for treating them

differently." Rodriguez,

(citing Fiallo v. Bell,

,

,

(1977)). Congress

enacted the aggravated felony bar in § 1182(c) to deny relief to

those aliens who commit serious crimes and who serve five years in

prison, representing a legitimate exercise of Congress' authority

to "expel or exclude aliens" who have egregiously violated the

hospitality of the United States, and who pose a danger to the

4 community. Fiallo,

. Even if, as Llerenas-Ceballos

argues, the timing of the commencement of deportation proceedings

creates two classes of aliens under the statute, we find, as did

the BIA, that Congress has mandated such a result.

ESTOPPEL

Alternatively, Llerenas-Ceballos contends that the INS and the

Immigration Court should be estopped from denying the IJ

jurisdiction to address the merits of his claim of waiver from

deportation due to the INS's conduct in delaying the initiation of

his deportation proceedings. In support of his contention,

Llerenas-Ceballos argues that the INS failed to act expeditiously

in initiating his deportation proceedings, and failed to advise him

that he would lose his right to apply for a waiver after five years

of incarceration. He claims that he has made a prima facie showing

of his eligibility for a waiver due to his hardship and

rehabilitation, and the Department of Justice's recognition of his

"substantial ties to the U.S." in denying his request for transfer

to Mexico.

"[T]o state a cause of action for estoppel against the

government, a private party must allege more than mere negligence,

delay, inaction, or failure to follow and internal agency

guideline." Fano v. O'Neill,

(5th Cir. 1987).

This "affirmative misconduct" cannot be proven by a showing of mere

delay. See I.N.S. v. Miranda,

,

,

(1982). Llerenas-Ceballos has offered no evidence

that tending to show that he was targeted or singled-out in any way

5 by the INS, nor has he offered evidence that any immigration

official engaged in misconduct. We find no conduct by the INS or

the Immigration Court that can even arguably be characterized as

affirmative misconduct. Thus, we decline to consider Llerenas-

Ceballos's estoppel claim.

CONCLUSION

For the reasons articulated above, the final order of the

Board of Immigration Appeals is AFFIRMED.

6