
    Margarita Terrayas DE ARRIAGA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 99-71202.
    INS No. [ AXX-XXX-XXX ].
    United States Court of Appeals, Ninth Circuit.
    Submitted June 7, 2001.
    
    Decided June 18, 2001.
    
      Before PREGERSON, HENRY, and HAWKINS, Circuit Judges.
    
      
       The panel finds this case appropriate for submission without oral argument pursuant to Fed. R.App. P. 34(a)(2).
    
    
      
       Honorable Robert H. Henry, United States Circuit Judge for the Tenth Circuit Court of Appeals, sitting by designation.
    
   MEMORANDUM

IIRIRA § 309(c)(5)(A) applies the stop-time rule to transitional aliens whose deportations were initiated with the service of an Order to Show Cause (“OSC”) and who seek suspension of deportation. Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). The discretionary legislative decision to favor certain aliens from specific war-torn countries must be upheld because it stems from a rational diplomatic decision to encourage such aliens to remain in the United States. Id. at 517. INS is not estopped from pursuing De Arriaga’s deportation because INS’s appeal to the BIA was not reckless or frivolous, much less an example of affirmative misconduct by governmental agents. See INS v. Pangilinan, 486 U.S. 875, 883-84, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988). Astrero v. INS, 104 F.3d 264 (9th Cir.1996), does not present .grounds for holding INS’s appeal to the BIA frivolous because the appeal was not limited to the stop-time issue. The BIA’s misstatement of De Arriaga’s date of entry was harmless because even under the correct date she was not present for seven years before service with an OSC. Finally, the record reflects that INS timely filed its opening brief before the BIA.

Petition for review DENIED. Petitioner’s remedy with respect to claims for relief under Barahona-Gomez lies in district court in accordance with this court’s recent opinion in Barahona-Gomez v. Reno, 167 F.3d 1228 (9th Cir.1999), aff'd, 236 F.3d 1115 (2001). Because the district court’s preliminary injunction in Barahona-Gomez precludes the Attorney General from deporting class members until the class action is resolved, denial of this petition for review does not affect the rights of this class member as to that preclusion or the rights asserted in the class action. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     