The Immigration and Naturalization Service appeals the district court's determination that § 212(h) of the Immigration and Nationality Act ("INA")1 violates the equal protection component of the 5th Amendment's Due Process Clause. In her cross-appeal, Rita Dipeppe challenges the District Court's ruling that she is not entitled to seek relief from removal under INA § 212(c).2 For the reasons that follow, we will reverse the District Court's order as to § 212(h) and affirm it as to § 212(c).

INA § 212(h) previously gave the Attorney General the discretion to waive an alien's inadmissibility for crimes of moral turpitude if an alien was a spouse, parent, or child of a United States citizen or permanent resident alien, and the alien seeking the waiver could demonstrate that denial of admission would cause extreme hardship to the citizen or permanent resident alien. INA § 212(h)(1)(B). However, Congress amended § 212(h) in 1996. That provision of the INA now removes this discretion in the case of aliens who were previously admitted as permanent residents and had either been convicted of an aggravated felony or had not resided in the United States for seven continuous years. INA § 212(h).3 The statute applies only to aliens who have the status of legal permanent resident ("LPR"), it does not apply to non-legal permanent resident aliens ("non-LPR").4 Thus, an alien who is a non-LPR may still attempt to have the Attorney General waive eligibility for removal. See De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 637 (3d Cir.2002) (describing statutory distinction); and In re Michel, 21 I & N Dec. 1101, 1104 (B.I.A. 1998)(same).

Prior to repeal, § 212(c) also gave the Attorney General the authority to waive inadmissibility of otherwise deportable or excludable legal aliens. INS v. St. Cyr, 533 U.S. 289, 294, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001). Although § 212(c) only applied to exclusion proceedings on its face, the Board of Immigration Appeals ("BIA") also allowed any permanent resident alien with lawful unrelinquished domicile of seven consecutive years to apply for a discretionary waiver from deportation. Id. at 295, 121 S. Ct. 2271. If the application was granted, deportation proceedings were terminated and the alien could remain in the United States as a permanent resident. As might be expected, the number of aliens relying upon eligibility for § 212(c) waivers began to increase as Congress broadened the definition of deportable offenses. Id. at 295-96, 121 S. Ct. 2271.

In 1990, Congress amended § 212(c) to preclude relief for anyone convicted of an aggravated felony who had served a term of imprisonment of at least five years. INS v. St. Cyr, 533 U.S. 289, 295-96, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001). In 1996, Congress repealed § 212(c) in its entirety by enacting certain provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"). Section 212(c) was replaced with a new § 240A which "permits the Attorney General ... in her discretion to cancel removal in certain circumstances, but not when the alien has been convicted of an aggravated felony as defined by the INA." Xu Cheng v. INS, 206 F.3d 308, 312 (3rd Cir.2000) (emphasis added). IIRIRA § 304(b), 110 Stat. 3009-597 (repealing § 212(c)); see also IIRIRA § 304(b), 110 Stat. 3009-594 (creating 8 U.S.C. § 1229(b)).5

Rita DiPeppe is a native and citizen of Italy who was admitted to the United States on September 21, 1955 as an LPR. On August 5, 1992 she pled guilty to aggravated manslaughter after fatally shooting her husband with a handgun.6 She was sentenced to a term of twenty-seven years imprisonment with nine years of parole ineligibility. Based on her conviction, the INS issued and served upon DiPeppe an Order to Show Cause ("OSC") and Notice of Hearing dated September 24, 1992. Those documents informed DiPeppe that the INS was leveling deportation charges against her under former INA § 241(a)(2)(iii), 8 U.S.C. § 1251(a)(2)(A)(iii) based upon her conviction for a crime defined as an "aggravated felony" under the INA. However, the INS never filed its OSC or Notice of Hearing with the Immigration Court.7

Thereafter, DiPeppe attempted to obtain a waiver of deportation under INA § 212(c) by filing Form I-191 (Application for Advance Permission to Return to Unrelinquished Domicile) with the INS. On November 29, 1995, the New Jersey District Director of the INS denied DiPeppe's application on the merits. The Director concluded that DiPeppe's conviction for aggravated manslaughter precluded the Attorney General's favorable exercise of discretion. DiPeppe's counsel subsequently made several attempts to schedule a hearing with the INS so that her waiver application could be considered by an Immigration Judge.8 However, since the INS had not filed its OSC and Notice of Hearing with the Immigration Court, the court did not set a hearing date.

Finally, on August 2, 2000 (eight years after the initial OSC in 1992), the INS issued a Notice to Appear ("NTA"),9 in which it again charged DiPeppe with being removable from the United States pursuant to INA § 237(a)(2)(A)(iii) based upon her conviction for an aggravated felony after admission.10 Based upon that NTA, DiPeppe was taken into INS custody when she was released from prison on her manslaughter charge.

At her ensuing hearing, DiPeppe argued for discretionary relief pursuant to §§ 212(c) and 212(h). However, the Immigration Judge concluded that she had been convicted of, and imprisoned for, an aggravated felony as defined under the INA and that she was therefore not eligible for the discretionary relief she sought See §§ 212(c) and 212(h). On appeal, the BIA affirmed the Immigration Judge's decision and DiPeppe thereafter petitioned the District Court for a writ of habeas corpus staying removal and vacating the final order of removal.

The District Court began its analysis by examining DiPeppe's eligibility for § 212(c) relief.11 The District Court first noted that DiPeppe had already been denied § 212(c) relief by the INS District Director in 1995. However, the court rejected DiPeppe's argument that the delay in prosecuting her removal constituted a due process denial. That claim was based upon DiPeppe's assertion that the delay placed her beyond the five year incarceration limit on discretionary relief that was originally a condition of the favorable exercise of discretion under § 212(c). According to DiPeppe, the delay had improperly precluded her from seeking the remedies she was otherwise entitled to before AEDPA and IIRIRA became law. When she entered her guilty plea, § 212(c) waivers were unavailable only if the alien "had been convicted of an aggravated felony and ... had served a prison term of at least five years for such [felony]." DeSousa v. Reno, 190 F.3d 175, 178 (3rd Cir. 1999) (emphasis added). Thus, the delay in processing her removal resulted in her requesting relief after she had been imprisoned for more than five years.

DiPeppe also argued that, since the INS delayed to the point that she was forced to request discretionary relief after she had already been incarcerated for 5 years, the government should be estopped from relying upon the length of her incarceration to preclude her from being eligible for seeking discretionary relief from removal. The District Court rejected both arguments. As to the latter claim, the court reasoned that, even if DiPeppe was able to prove the traditional elements of estoppel, she could not establish any affirmative misconduct by the government.

The court did, however, agree that the INA's disparate treatment of LPRs and non-LPRs codified in § 212(h) was a violation of the equal protection guarantee embodied in the Due Process Clause of the Fifth Amendment. The court reasoned that there was no rational relationship between any legitimate governmental purpose and the disparate treatment of LPRs and non-LPRs applying for waivers under § 212(h). Accordingly, the court held that the statutory distinction between LPRs and non-LPRs denied DiPeppe due process of law, and she was therefore eligible to seek discretionary relief from removal from the Attorney General. This appeal and cross-appeal followed. The INS appeals the District Court's determination that § 212(h) is a violation of the Fifth Amendment Due Process Clause, and DiPeppe appeals that court's conclusion that she is not eligible to seek relief under § 212(c) as it existed before repeal.

Although DiPeppe's equal protection challenge to § 212(h) has some appeal, it is precluded by our holding in DeLeon-Reynoso v. Ashcroft, 293 F.3d 633 (3d Cir. 2002).12 There, we held that the distinction between LPRs and non-LPRs applying for waivers under § 212(h) survives rational basis inquiry and that provision of the INA is therefore not a violation of the equal protection component of the Fifth Amendment's Due Process clause. DeLeon-Reynoso, 293 F.3d at 640-41. We summarized the alien's argument there as follows:

De Leon argues that § 1182(h) violates the equal protection component of the Fifth Amendment's Due Process clause by making an impermissible distinction between two categories of aliens who are not permitted to reside in the United States: those who have not previously been lawfully admitted to the United States (i.e., non-LPRs) and those who have been previously admitted to the United States but have not resided in the United States for seven consecutive years before removal proceedings are initiated (LPRs) .... De Leon asserts that this distinction allows a criminal alien who has never had permanent resident status in the United States, never acquired equities or familial ties, to secure a waiver, while those who have previously been admitted as lawful permanent residents, but with less than the seven years required residence, will be deported. Thus, he argues, the amendatory 1996 legislation is unconstitutional.

293 F.3d at 638 (internal citations omitted). However, in denying the alien's equal protection claim, we nevertheless expressed concern with the inequities that could result from this distinction, id. at 640, and we urged Congress to address them. We reiterate that concern here, and again urge Congress to address the potential inequities endemic in this statutory scheme.13 Here, as in De Leon-Reynoso

[o]ur holding that the § 1182(h) distinction survives rational basis scrutiny should not be mistaken for an endorsement of the policy. We urge Congress to reconsider the ramifications of entirely eliminating the Attorney General's discretion in this area. At times, pathetic, heart-wrenching pain for families and burdensome consequences for employers and taxpayers accompany removal proceedings.

As noted above, DiPeppe has filed a cross-appeal from the District Court's rejection of her claim that she remains eligible for relief under § 212(c) pursuant to the Supreme Court's holding in INS v. St. Cyr. There, the Court held that § 212(c) relief "remains available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." 533 U.S. 289, 326, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001) (emphasis added).

DiPeppe makes an additional, related, argument based upon the INS delay in processing her removal. She argues that the delay entitles her to relief even if we reject her argument under St. Cyr. She argues that the INS violated her due process rights by failing to promptly place the matter before an Immigration Judge in violation of its own regulations, thereby precluding her from seeking relief before she had served five years in prison and thus became ineligible for discretionary relief under § 212(c) as it existed at the time of her guilty plea. She therefore argues once again that the government should be estopped from relying upon the length of time she has been imprisoned to deny her relief under § 212(c). According to DiPeppe, she would have been eligible for such relief had the government processed her removal in a timely manner.

In responding to DiPeppe's cross-appeal, we note at the outset that aliens facing removal are afforded due process protections. Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001). Moreover, we afford DiPeppe's due process claim de novo review. Chong v. INS, 264 F.3d 378, 386 (3d Cir.2001). Nevertheless, we conclude that the District Court was correct in holding that she is now foreclosed from seeking relief under § 212(c), and in rejecting her estoppel argument. We address each of her arguments in turn.

In St. Cyr, the Supreme Court was confronted with the retroactive effect of the AEDPA and IIRIRA amendments on discretionary relief from deportation and removal proceedings in the case of an alien who pled guilty to a deportable crime before those amendments became effective. 533 U.S. at 292-93, 121 S. Ct. 2271. The Court held that § 212(c) relief remained available for a certain class of aliens whose (1) convictions were obtained through plea agreements prior to AEDPA's effective date of April 24, 1996, (2) who had a "lawful unrelinquished domicile of seven consecutive years," and (3) were not deemed ineligible for a discretionary waiver for having served more than five years incarceration following a conviction for an aggravated felony. Id. at 326, 121 S. Ct. 2271 (addressing the retroactive effect of AEDPA and IIRIRA on availability of § 212(c) relief).

As noted above, Rita DiPeppe's conviction arose from a guilty plea in 1992, and she had been an LPR since her admission to the United States in 1955. However, her twenty-seven year prison sentence included an initial nine year period of parole ineligibility. The Court in St. Cyr recognized that the language of § 212(c) places the discretionary relief afforded therein beyond the reach of anyone convicted of an aggravated felony who has served a term of imprisonment of five or more years. See INA § 212(c). In St. Cyr, the Court barred retroactive application of the elimination of discretionary relief under § 212(c) because the possibility of being afforded such relief may well have been a factor in the alien's decision to plead guilty and waive valuable constitutional guarantees. The Court reasoned: "[b]ecause respondent, and other aliens like him, almost certainly relied upon that likelihood in deciding whether to forgo their right to a trial, the elimination of any possibility of § 212(c) relief by IIRIRA has an obvious and severe retroactive effect." St. Cyr, 533 U.S. at 325, 121 S. Ct. 2271.

That is simply not DiPeppe's situation. She knew when she entered her guilty plea that she would be exposed to a period of incarceration that could preclude consideration under § 212(c). It appears that Dipeppe entered an "open" plea rather than a negotiated plea as was the case in St. Cyr.15 The Supreme Court was particularly concerned about the reasonable expectations endemic in the quid pro quo of the negotiated guilty plea in St. Cyr. See 533 U.S. at 321, 121 S. Ct. 2271 ("Plea agreements involve a quid pro quo between a criminal defendant and the government."). Nevertheless, by pleading guilty to a crime of violence such as manslaughter, DiPeppe had to realize that she would almost certainly be ineligible for the discretionary relief that may otherwise have been available under § 212(c). Moreover, she was clearly not eligible for discretionary waiver once the court sentenced her to a period of incarceration that mandated her imprisonment for more than five years. That is precisely what happened when the court ordered that she remain ineligible for parole for nine years. Therefore the reasoning of St. Cyr does not apply here.

As the District Court correctly noted, adopting DiPeppe's interpretation of § 212(c) relief would force the INS to consider an alien's eligibility in a vacuum, ignoring any change in circumstance, including the commission of a felony, between the time the application was filed and the time a waiver decision was made. Her position would require an alien to remain eligible for § 212(c) indefinitely. Hypothetically, an alien could therefore escape from prison after serving 4 years and 11 months of a life sentence, which is less than 5 years, and then argue entitlement to consideration for a § 212(c) waiver when apprehended twenty years later. That is clearly not what Congress intended when it provided § 212(c) relief as an option for aliens facing removal. Accordingly, the delay in processing her removal following imposition of her sentence in 1992 does not entitle her to consideration under § 212(c).

DiPeppe's remaining claim focuses on the implicit time restrictions contemplated by the "unitary process" envisioned in the INS regulations and the delay between the OSC served on her in 1992 and the NTA served on her in 2000. DiPeppe argues that the INS improperly delayed placing her case before an Immigration Judge in violation of its own regulations, but fails to point to any mandatory time frame under those regulations to support her claim. Although 8 U.S.C. § 1229(d)(1) mandates that the Attorney General begin removal proceedings as expeditiously as possible,16 the clarification contained in § 1229(d)(2) fatally undermines her argument about the effect of that mandate. There, Congress declared: "Nothing in this subsection shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person." 8 U.S.C. § 1229(d)(2) We cannot adopt DiPeppe's due process argument without ignoring that directive.

The second prong of DiPeppe's procedural due process argument, challenging the delay between the OSC in 1992 and NTA in 2000, fails by operation of the INS regulations, which provide that removal proceedings commence with the filing of a charging document with the Immigration Court. Compare 8 C.F.R. § 242.1 (1992) ("[e]very proceeding to determine the deportability of an alien in the United States is commenced by the filing of an Order to Show Cause with the Office of Immigration Judge ....") with 8 C.F.R. § 239.1 (2000) ("[e]very removal proceeding conducted under section 240 of the Act to determine the deportability or inadmissibility of an alien is commenced by the filing of a notice to appear with the Immigration Court."). See also, Uspango v. Ashcroft, 289 F.3d 226, 229 (3d Cir.2002). Therefore, removal proceedings were not initiated against DiPeppe until the NTA was filed with the Immigration Court in 2000.

We recognize that we have previously noted the possibility that removal proceedings may be viewed as commencing when an OSC is served upon the alien. See Uspango, 289 F.3d at 229; and Pinho v. INS, 249 F.3d 183, 185 (3d Cir.2001). However, both "suggestions" were dicta. A close reading of Uspango, which was decided after Pinho readily discloses this. There, we declared, "We hold that the removal proceeding ... did not commence when [the alien] filed his asylum petition... Instead that proceeding commenced in January 1998." 289 F.3d at 230. That was when the INS filed its NTA. Moreover, we clearly stated "INS regulations provide that removal proceedings commence with the filing of a notice to appear with the Immigration Court. Reg. §§ 3.14 and 239.1" Id. at 229. Moreover, in those cases we were deciding the retroactivity of the changes in immigration law. See Pinho, 249 F.3d at 187 (determining retroactive effect of stop-time provision implicated by IIRIRA); Bury v. Reno, 101 F. Supp. 2d 296, 299 (E.D.Pa.2000) (noting issuance of OSC rather than filing is "the meaningful event for the purpose of determining whether a proceeding was subject to a newly enacted law"); Canela v. United States DOJ, 64 F. Supp. 2d 456, 458 (E.D.Pa.1999) (examining retroactive effect of AEDPA on INS proceedings). Here, it is clear that proceedings were initiated against DiPeppe when the charging documents were filed with the Immigration Court.

Although DiPeppe was served with an OSC and Notice of Hearing in 1992, removal proceedings did not effectively commence for her until 2000, when the NTA was filed with the Immigration Court. See Uspango, 289 F.3d at 229. Therefore even though the delay between serving the OSC and filing the NTA is not to be condoned, the circumstances here do not implicate the Due Process Clause of the Fifth Amendment. DiPeppe was not actually in proceedings in 1992 because the OSC was not filed with the Immigration Judge until 2000.17

We also must reject DiPeppe's estoppel argument. She contends that the INS should be estopped from invoking the bar on waiver applications under INA § 212(c) for those who have served more than five years in prison. We agree that the doctrine of estoppel can apply to action of the government. Yang v. INS, 574 F.2d 171, 174-75 (3d Cir.1978). However, in order for DiPeppe to succeed on her estoppel argument, she must prove (1) a misrepresentation by the government, (2) which she reasonably relied upon; (3) to her detriment and (4) affirmative misconduct. US v. Asmar, 827 F.2d 907, 912 (3d Cir. 1987); Fredericks v. CIR, 126 F.3d 433, 438 (3d Cir.1997). DiPeppe can not establish any of these four elements.18 Therefore her estoppel claim must also fail.19

For the reasons set forth above, we will reverse the District Court's judgment with sustaining DiPeppe's equal protection challenge to § 212(h), and we will affirm the district court's judgment in all other respects.