Molina Jerez v. Holder

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-1283
___________

Jose Favio Molina Jerez, *
*
Petitioner, *
* Petition for Review of an Order of the
* Department of Homeland Security.
Eric H. Holder, Jr., Attorney General, *
*
Respondent. *
__________

Submitted: November 18, 2009
Filed: August 25, 2010
___________

Before RILEY, Chief Judge,1 WOLLMAN and SHEPHERD, Circuit Judges.
___________

RILEY, Chief Judge.

Jose Favio Molina Jerez (Molina) petitions for review of a final order of
reinstatement of removal entered by the Department of Homeland Security,

1
The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
Immigration and Customs Enforcement (DHS).2 We dismiss in part and deny in part
Molina’s petition.

I. BACKGROUND
A. Three Illegal Entries
Molina is a Guatemalan national. In March 1985, Molina entered the United
States illegally at Nogales, Arizona. DHS’s records state Molina “tried to apply for
amnesty in [Los Angeles, California], but was informed of his ineligibility due to time
and dates of entry to [the United States].” In August 1987, Molina left the United
States “to visit his parents and common-law Guatemalan wife and three children.”

In October 1987, Molina entered the United States illegally for a second time.
DHS apprehended Molina near Nogales, “enroute to his former residence and legal
wife in Los Angeles.” DHS placed Molina in deportation proceedings.3 In an order
to show cause, DHS alleged Molina entered the United States without inspection, in
violation of 8 U.S.C. § 1251(a)(2) (1988).

In May 1989, an immigration judge found Molina deportable as alleged, but
granted Molina the privilege to depart the United States voluntarily on or before

2
For the sake of simplicity, we refer to “DHS” throughout our opinion, often
anachronistically, thereby ignoring the reorganization and renaming of the relevant
agencies after Molina first entered the United States illegally. See Betz v. Chertoff,
578 F.3d 929, 932 (8th Cir. 2009) (sketching the creation of DHS and the merger of
the Immigration and Naturalization Service and the Bureau of Customs Enforcement),
cert. denied, 130 S. Ct. 1911 (2010). We deny the request of Eric H. Holder, Jr.,
Attorney General of the United States, to substitute Janet Napolitano, Secretary of
DHS, as the nominal respondent to Molina’s petition. See 8 U.S.C. § 1252(b)(3)(A)
(“The respondent is the Attorney General.”).
3
“What was formerly known as ‘deportation’ is now called ‘removal.”’
Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33 n.1 (2006). We use the terms
interchangeably. See Lopez v. Heinauer, 332 F.3d 507, 510 n.3 (8th Cir. 2003).

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September 2, 1989. See id. § 1254(e). In the event Molina failed to depart in a timely
manner, the immigration judge alternatively ordered Molina’s deportation to
Guatemala. Molina abused his privilege of voluntary departure and remained in the
United States for more than one year after he was ordered to depart voluntarily. The
immigration judge’s alternate deportation order, therefore, became a final order of
deportation.

In December 1990, Molina left the United States on his own accord, but subject
to the immigration judge’s deportation order. Molina did not apprise DHS he left the
United States.

In March 1991, Molina entered the United States illegally for a third time.
Molina crossed the Mexican border near San Ysidro, California, and settled in Los
Angeles.

B. Applications for Asylum and Work Authorization
In January 1992, Molina filed two applications with DHS: (1) an application for
asylum, and (2) an application for permission to work in the United States.4 In each
application, Molina falsely stated under oath that he had last entered the United States
on March 15, 1985.

In his asylum application, Molina testified he was “unwilling to return to
Guatemala for the well founded fear of persecution by the leftist guerrillas”; he
“would be discriminated [against], persecuted and humiliated” if he returned; and his
“life [was] in danger due to[]the constant violence in Guatemala that everyday is
getting worse.” In exchange for “protection while [his] application . . . [was]

4
DHS records reflect Molina’s applications were filed on January 2, 1992.
Molina claims he submitted his asylum application in late 1991.

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pending,” Molina “promise[d] to respect all the laws . . . of the [United States].”5
Molina expressed his “wish to return to Guatemala once the situation of [instability]
gets better.”

For most of the next two decades, DHS failed to issue a final decision on
Molina’s asylum application. No later than 1995, DHS granted Molina’s application
to work in the United States. Molina gained lawful employment as a laborer in
Lexington, Nebraska.

C. Intervening Changes in the Law
The significant delay in processing Molina’s asylum application was not
unusual. In 1985, “thousands of Salvadorian and Guatemalan asylum seekers . . . filed
a lawsuit against [DHS] claiming their asylum applications had not been fairly
adjudicated.” Cuadra v. Gonzales, 417 F.3d 947, 948 (8th Cir. 2005). In 1991, a
district court approved a class-action settlement agreement, American Baptist
Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (ABC), in which DHS
“agreed not to deport class members (commonly referred to as the ABC class), to give
each class member a proper de novo asylum interview, and to give class members
work authorization while they awaited these interviews.” Cuadra, 417 F.3d at 948.
DHS “delayed implementation of the settlement for years.” Id.

1. IIRIRA
While Molina’s asylum application was pending, Congress enacted the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No.

5
In 2005, while his asylum application was pending, Molina was accused of
beating his four-year old grandson with a leather belt. The boy allegedly suffered a
ten-inch-long and one-inch-wide welt across his upper torso. Molina pled “no
contest” in the District Court of Dawson County, Nebraska, to Negligent Child Abuse,
a misdemeanor violation of Neb. Rev. Stat. § 28-707. Molina was sentenced to three
days in jail and fourteen months of probation.

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104-208, 110 Stat. 3009-546. In relevant part, IIRIRA: (1) replaced suspension of
deportation with cancellation of removal, and (2) strengthened an extant
reinstatement-of-removal provision.

a. Cancellation of Removal
Before IIRIRA, aliens with pending asylum claims were able to apply for
suspension of deportation, which “gave the Attorney General discretion to grant
permanent resident status to an alien who had been in the United States for seven
years, was of good moral character, and whose deportation would cause extreme
hardship for the alien or certain lawfully present relatives.” Cuadra, 417 F.3d at 948-
49 (discussing 8 U.S.C. § 1254 (1994)). Time spent in deportation proceedings before
applying for suspension of deportation counted toward the seven-year physical
presence requirement. Tang v. INS, 223 F.3d 713, 715 (8th Cir. 2000).

IIRIRA replaced suspension of deportation with cancellation of removal. See
8 U.S.C. § 1229b (2006); Chanmouny v. Ashcroft, 376 F.3d 810, 811 n.1 (8th Cir.
2004) (citing IIRIRA §§ 304, 308(b)(7)). Cancellation of removal is “a much more
restrictive form of immigration relief.” Cuadra, 417 F.3d at 949. “Among other
things, the IIRIRA contains a stop-time rule, terminating the accrual of continuous
physical presence at the time when an alien is served with a notice to appear before
[DHS] on deportation charges.” Escudero-Corona v. INS, 244 F.3d 608, 613 (8th Cir.
2001) (citing 8 U.S.C. § 1229b(d)(1) (Supp. III 1997). This “stop-time rule” is
retroactive and “applies to show cause orders issued before . . . IIRIRA’s enactment
date.” Id. (citing 8 U.S.C. § 1101 note).

b. Reinstatement of Removal
Before IIRIRA, reinstatement of removal was a “little-used” provision, which
“did not apply to aliens . . . who were deported for entering the country without
inspection.” Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 862 (8th Cir. 2002) (citing
8 U.S.C. § 1252(f) (1994)), overruled on other grounds by Fernandez-Vargas v.

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Gonzales, 548 U.S. 30 (2006). IIRIRA ushered in “a broader and far less forgiving
reinstatement-of-removal provision.” Id. (discussing IIRIRA § 241(a)(5)). The
strengthened version provides:

If the Attorney General finds that an alien has reentered the United
States illegally after having been removed or having departed
voluntarily, under an order of removal, the prior order of removal is
reinstated from its original date and is not subject to being reopened or
reviewed, the alien is not eligible and may not apply for any relief under
this chapter, and the alien shall be removed under the prior order at any
time after the reentry.

8 U.S.C. § 1231(a)(5) (2006).

IIRIRA’s strengthened reinstatement-of-removal provision reflects a
Congressional determination that “[a]liens who violate U.S. immigration law should
be removed . . . as soon as possible” with “[e]xceptions . . . provided only in
extraordinary cases specified in the statute and approved by the Attorney General.”
Alvarez-Portillo, 280 F.3d at 863 (quoting S. Rep. No. 104-249, 7 (1996)). It “applies
to all previously deported aliens . . . whose prior deportation was for entry without
inspection.” Id. In the mine-run case, “the only issues to be determined are those
establishing the agency’s right to proceed under [8 U.S.C. § 1231(a)(5)]—the alien’s
identity, the existence of a prior removal order, and whether the alien has unlawfully
reentered.” Id. at 867.

For its part, DHS “adopted a summary administrative reinstatement-of-removal
procedure in which ‘[t]he alien has no right to a hearing before an immigration judge,’
an immigration officer determines whether the alien is subject to reinstatement of a
prior deportation order, and the alien is entitled only to written notice and an
opportunity to ‘make a written or oral statement contesting the determination.’” Id.
at 863 (quoting 8 C.F.R. § 241.8(a), (b)). “[T]he alien may neither attack the validity

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of the prior deportation order nor avoid removal by obtaining discretionary relief such
as an adjustment of status to lawful permanent resident.” Id.

c. IIRIRA as Applied to Molina
IIRIRA reduced Molina’s chances to stay in the United States if his asylum
claim were denied. If, as represented to DHS, Molina never left the United States
under the immigration judge’s 1989 deportation order, Molina would be subject to
cancellation of removal instead of suspension of deportation. If DHS learned Molina
left in 1990 and reentered in 1991, Molina would be subject to IIRIRA’s strengthened
reinstatement-of-removal provision.

2. ABC Class Member Benefits
While Molina’s asylum application was pending, Congress enacted legislation
to ameliorate some of IIRIRA’s adverse effects upon ABC class members. Molina
attempts to avail himself of such legislation in his petition for review.

a. NACARA and Cancellation of Removal
In 1997, Congress passed the Nicaraguan Adjustment and Central American
Relief Act of 1997 (NACARA), Pub. L. No. 105-100, 111 Stat. 2160. NACARA
§ 203 “allows ABC class members to seek relief under conditions approximating
pre-IIRIRA suspension of deportation.” Cuadra, 417 F.3d at 949. Such relief is called
“special rule cancellation of removal.” Id.

b. LIFE Act Amendments and Reinstatement of Removal
In 2000, Congress passed the LIFE Act Amendments of 2000 (LIFE Act
Amendments), Pub. L. No. 106-554, 114 Stat. 2763A-324 through 2763A-327.
“Section 1505 of the LIFE Act Amendments” exempts ABC class members from
IIRIRA’s strengthened reinstatement-of-removal provision and thereby “extend[s]
NACARA’s benefits to a category of aliens previously ineligible for NACARA

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relief.” Aguilar de Polanco v. U.S. D.O.J., 398 F.3d 199, 202 (2d Cir. 2005). More
specifically,

Prior to the passage of § 1505, [ABC class members] who had departed
and reentered the country while under a final order of deportation . . .
were rendered ineligible for [NACARA] § 203 relief by the operation of
[8 U.S.C. § 1231(a)(5)]. Congress, in enacting the LIFE Act
Amendments, made a policy determination that, despite the bar to relief
set forth in [8 U.S.C. § 1231(a)(5)], such [ABC class members] should
be allowed to seek § 203 relief. With this in mind, the LIFE Act
Amendments provided that [NACARA] § 203 determinations could be
made without regard to [8 U.S.C. § 1231(a)(5)].

Id. (citation omitted).

c. Molina Inquires About ABC Status
Thus, regardless of whether Molina left the United States in 1990, it redounded
to Molina’s benefit to be an ABC class member. If Molina had not left the United
States, he might seek special rule cancellation of removal under NACARA § 203. If
Molina had left, he could seek relief from IIRIRA’s strengthened reinstatement-of-
removal provision under NACARA through § 1505 of the LIFE Act Amendments.

In 2000, Molina repeatedly asked DHS whether he had registered as a member
of the ABC class before the deadline for doing so—December 31, 1991. See ABC,
760 F. Supp. at 799-800. DHS informed Molina its records did not show he had
registered for ABC benefits.

D. DHS Processes Molina’s Asylum and NACARA Claims
In December 2005, Molina failed to appear for a scheduled asylum interview.
DHS denied Molina’s asylum application as abandoned. Molina filed an application
for “suspension of deportation or special rule cancellation of removal” under

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NACARA § 203, but DHS refused the application in part because Molina failed to
attach required photographs.

On April 11, 2007, DHS interviewed Molina under oath about his eligibility for
ABC benefits. Molina testified he never filed for ABC benefits. At the conclusion
of the interview, DHS issued Molina a “Notice of Ineligibility for ABC Benefits.”
DHS found there was “no credible evidence” Molina registered for ABC benefits.
DHS informed Molina his prior order of deportation “may be enforced against [him]
and [he] may be removed from the United States.”

Molina then signed a waiver of his right to reconsideration. Molina
acknowledged:

I understand that [DHS] has determined that I am ineligible for the
benefits of the ABC settlement agreement . . . . I . . . understand that I
have 30 days in which to challenge this determination in federal court.
I wish to waive this 30-day period in order to complete my removal.

Shortly thereafter, however, Molina filed a motion to reconsider and to reopen.
Molina confirmed “during his interview [he] could not recall registering for ABC,”
opined he “did not understand [ABC’s] importance” and “misspoke regarding his
registration.” Molina presented DHS with a copy of an ABC registration form dated
December 30, 1991 (one day before the deadline). The copy does not contain DHS’s
date stamp or bear any other indicia of filing. Molina asserted that, because he timely
registered for ABC benefits, he was eligible for relief from cancellation of removal.
Molina also added that he “neglected to mention that he did leave the country and
executed” his prior deportation order, although Molina did not mention a specific date
of departure. As proof, Molina submitted a copy of a “Cédula de Vecindad” (cédula)
“indicating his presence [in Guatemala] on February 28, 1991.”

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 In April 2008, DHS conducted an “[i]nterview on eligibility for asylum and
withholding of removal.” Molina did not inform DHS he had left the United States
in December 1990, but instead contemporaneously re-signed his original asylum form,
which stated he last arrived in the United States on March 15, 1985. Molina testified
that, while a member of the Guatemalan military police in the 1970s, he arrested and
interrogated “suspected guerrillas.” He “referred” some of the guerrillas “to S-2 and
G-2” and heard the guerrillas “were disappeared or tortured or thrown into the sea.”
In his sworn statement, Molina acknowledged “referr[ing] . . . five [guerrillas]
knowing they could be tortured or disappeared.” Molina admitted watching a guerrilla
“tied on his arms and legs to 4 jeeps and dismembered.”

In August 2008, DHS took Molina into custody. In September 2008, DHS
notified Molina it intended to deny his asylum claim. DHS found Molina to be
generally credible in his testimony at his asylum interview, but DHS held Molina
failed to establish past persecution in Guatemala, a well-founded fear of future
persecution in Guatemala, or it was more likely than not Molina’s life or freedom
would be threatened if he returned to Guatemala. DHS afforded Molina thirty days
to seek reconsideration and present rebuttal evidence.

In his response, Molina reasserted he had registered for ABC benefits and was
entitled to NACARA relief.6 Molina resubmitted his unstamped ABC registration
form to DHS and another application for “suspension of deportation or special rule
cancellation of removal” under NACARA § 203. Molina failed, however, to either
sign the application or include the required photographs. In such application, Molina
denied ever having “been ordered deported or removed”; “depart[ing] the United
States under an order of deportation or removal”; or “overstay[ing] a grant of

6
Despite his conviction for child abuse, Molina falsely stated he had “no
criminal conviction for[ ]any offense. The only blemish [Molina] has in the
United [S]tates is his ‘ILLEGAL ENTRY.’” (emphasis in original).

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voluntary departure.” Molina stated he left the United States in “12/1990” and
reentered in “3/1991.”

In November 2008, DHS denied Molina’s asylum claim. DHS found Molina’s
“rebuttal failed to overcome the basis of the decision of [DHS] to deny [his] request
for asylum.” DHS informed Molina of its intent to execute the immigration judge’s
1989 deportation order.

E. Removal
On December 3, 2008, Molina applied for a stay of deportation. Molina argued
there was no legal basis for deportation because “he did leave the United States in
1990 thereby executing the judge’s order.” Molina again alleged he was a member
of the ABC class and entitled to special rule cancellation of removal. DHS denied
Molina’s motion, finding “there is no credible evidence that he registered for ABC
benefits”; “there is no proof” Molina departed the United States in 1990; and the
immigration judge’s departure order is “still in effect.”

At 9:37 a.m. on December 4, 2008, a DHS-operated airplane carrying Molina
departed Louisiana for Guatemala.

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 F. Emergency Order7
At 9:38 a.m., Molina filed a petition for a writ of habeas corpus in the United
States District Court for the District of Nebraska against various government officials.
Molina asserted jurisdiction under 28 U.S.C. §§ 2241, 1331 and 1361. Among other
things, Molina argued DHS’s final order of removal was unlawful because (1) Molina
left the United States in 1990, “thereby executing the Immigration Judge’s order of
removal,” which was “no longer valid for purposes of removal”; (2) application of
IIRIRA’s strengthened reinstatement-of-removal provision was impermissibly
retroactive as applied to Molina; and (3) Molina was entitled to special rule
cancellation of removal. Molina asked the district court to stay his removal and
release him from custody.

At 12:06 p.m., the district court “provisionally granted” Molina an emergency
stay “pending a hearing on the matter.” The district court ordered: “Any proceeding
or action to remove [Molina] from the United States of America to Guatemala is
hereby stayed until further order of the court.” (Emergency Order). At the time the
district court issued its Emergency Order, Molina was already outside of the United
States and within thirty minutes of landing in Guatemala. DHS returned Molina to the
United States and took him into custody. The district court cancelled the hearing,
observed Molina “could be entitled to relief,” and ordered DHS to respond to
Molina’s petition. See 28 U.S.C. § 2243. In its response, DHS argued the district

7
Ordinarily our scope of review is limited to “the administrative record on
which the order of removal is based.” 8 U.S.C. § 1252(b)(4)(A). Molina moved to
supplement the administrative record to include certain documents, which are part of
Molina’s administrative file with DHS. DHS initially resisted the motion, and we
reserved ruling. DHS later withdrew its objection and moved to supplement the record
to include “the complete certified administrative record” filed in the district court case.
We granted DHS’s motion, and now we grant Molina’s motion. In their briefs, the
parties freely refer to the district court proceedings, of which we may take judicial
notice for the sake of completeness. Cf. Stutzka v. McCarville, 420 F.3d 757, 760-61
n.2 (8th Cir. 2005); Gustafson v. Cornelius Co., 724 F.2d 75, 79 (8th Cir. 1983).

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court lacked subject matter jurisdiction and urged the district court to dismiss the
petition under Fed. R. Civ. P. 12.

G. Reinstatement Order
On December 18, 2008, Molina asked DHS to release him upon a bond. DHS
apparently was asserting alternate grounds for Molina’s removal: (1) if Molina did not
depart the United States in 1990, he was subject to deportation under the immigration
judge’s 1989 order, or (2) if Molina left the United States in 1990, Molina was subject
to IIRIRA’s strengthened reinstatement-of-removal provision. Molina insisted (1) the
cédula proved he left the United States in 1990, so he was no longer subject to
deportation under the immigration judge’s 1989 order, and (2) IIRIRA’s strengthened
reinstatement-of-removal provision did not apply, because Molina was an ABC class
member and, in any event, such provision would be impermissibly retroactive as
applied to Molina. Molina provided DHS his original cédula, which DHS forwarded
to a forensic laboratory for evaluation.

On January 8, 2009, DHS invoked IIRIRA and reinstated the immigration
judge’s 1989 order of removal. See 8 U.S.C. § 1231(a)(5); 8 C.F.R. § 241.8. Unable
to prove the cédula was fake or authentic, DHS conceded Molina left the United States
in December 1990, but then reentered in March 1991. Although DHS’s reinstatement-
of-removal order (Reinstatement Order) does not address Molina’s request for ABC
benefits, Molina contends DHS found he was not eligible for ABC benefits.8

On February 6, 2009, Molina filed the instant petition for review of the
Reinstatement Order, pursuant to 8 U.S.C. § 1252.

8
On January 20, 2009, Molina signed another application for NACARA relief.
There is no evidence in the record Molina filed the application with DHS.

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H. Order to Show Cause
Upon learning of the Reinstatement Order, the district court issued an order to
show cause to DHS. The district court stated the Reinstatement Order “may be a
proceeding or action to remove [Molina] from the United States in violation of” the
Emergency Order. In response, DHS stressed it did not intentionally violate the
Emergency Order, pointing out (1) the Emergency Order lapsed when DHS returned
Molina and the district court cancelled the hearing; and (2) DHS was not attempting
to execute an outstanding order of deportation, but rather reinstate a prior order of
removal. DHS reiterated the district court lacked jurisdiction over Molina’s habeas
corpus petition and pointed out Molina filed a petition for review with the court of
appeals.

After a hearing, the district court found DHS, albeit acting in good faith,
unintentionally violated the Emergency Order, because “the [R]einstatement [O]rder
materially alter[ed] [Molina’s] position with respect to his habeas petition.” The court
then wrote:

If the reinstatement order stands, then [Molina’s] habeas petition should
be denied. However, if it is set aside, then his petition should be granted.
. . . There is no doubt [the Eighth Circuit] is the proper forum for review
of the validity of the reinstatement order. See 8 U.S.C. § 1252(b)(2).
[Molina concedes] the arguments before this Court would be largely the
same as those he would make before the [Eighth Circuit]. It is therefore
unnecessary for this Court to decide whether setting aside the
reinstatement order as a sanction is “review of [an] order[] of removal”
within the meaning of 8 U.S.C. § 1252(b), because the [Eighth Circuit]
will likely consider whether the order should be set aside on that basis.
The most appropriate course for this Court, therefore, is to stay these
proceedings pending the outcome of [Molina’s petition for review].

The district court left “the question of detention to [the court of appeals’] sound
judgment,” but found Molina was non-violent; Molina did not pose a flight risk; and

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Molina’s “immediate removal from the United States would not be in the public
interest.” The district court concluded “all prior orders . . . shall remain in effect.”

I. Emergency Motion
In February 2009, Molina asked our court for an emergency stay of removal
(Emergency Motion). See Fed. R. App. P. 27. Molina stated, “[t]he core dispute”
between Molina and DHS is whether Molina is entitled to ABC benefits and eligible
for special rule cancellation of removal under NACARA. Molina also argued his
continued detention was impermissibly indefinite under Zadvydas v. Davis, 533 U.S.
678 (2001). Molina asserted a stay was appropriate because his probability of success
on the merits was high, the possibility of irreparable injury or serious legal questions
was raised, and the balance of hardships tipped sharply in his favor. DHS resisted
Molina’s Emergency Motion.

On March 11, 2009, we denied Molina’s Emergency Motion. Molina remains
in DHS custody in Nebraska pursuant to the district court’s stay.9

II. DISCUSSION
In his petition for review, Molina asks this court to review the Reinstatement
Order of January 9, 2009. Molina argues (1) he has demonstrated “prima facie
eligibility for relief” under NACARA as an ABC class member and thus the

9
Molina later filed a second petition for a writ of habeas corpus in the district
court under 28 U.S.C. § 2241 against various federal officials. Molina argued the
officials lacked a legal basis to detain him and, in any event, he was subject to an
impermissibly indefinite detention under Zadvydas. The government moved to
dismiss the case for lack of jurisdiction and asked the district court to lift its prior stay
in light of our denial of the Emergency Motion. The district court denied Molina’s
petition on its merits, finding Molina’s detention was authorized under 8 U.S.C.
§ 1231, but denied DHS’s motion to lift the stay “in a related, yet unconsolidated
matter.”

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Reinstatement Order is contrary to law; and (2) the Reinstatement Order is
impermissibly retroactive.

A. Jurisdiction
Our jurisdiction to consider Molina’s petition is narrow. “Congress’s authority
to establish judicial review procedures in immigration matters is plenary.” Dalombo
Fontes v. Gonzales, 483 F.3d 115, 119 (1st Cir. 2007). As previously indicated,
IIRIRA’s strengthened reinstatement-of-removal provision, 8 U.S.C. § 1231(a)(5),
provides that reinstatement-of-removal orders are “not subject to being . . . reviewed.”
It is undisputed Molina meets all of the criteria for reinstatement of removal in § 1231,
insofar as an immigration judge ordered Molina deported in 1989, Molina left the
United States in 1990, and Molina reentered without inspection in 1991. As a general
matter, therefore, Molina does not have a right to judicial review of the Reinstatement
Order.

Section 1252 does, however, restore limited jurisdiction to the circuit courts of
appeals for the review of reinstatement-of-removal orders. In relevant part,
§ 1252(a)(2)(D) provides:

Nothing . . . in any . . . provision of this chapter . . . which limits
or eliminates judicial review, shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition for
review filed with an appropriate court of appeals in accordance with this
section.

Therefore, we have jurisdiction to review “a constitutional claim or question of law”
but not DHS’s “factual findings or discretionary judgments.” Purwantono v.
Gonzales, 498 F.3d 822, 824 (8th Cir. 2007).

In determining the extent to which we have jurisdiction under 8 U.S.C. § 1252,
“[w]e look to the nature of the argument advanced in the petition.” Id. Mere

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recitation of constitutional or legal terms in a petitioner’s brief will “not convert [an]
attack” on DHS’s factual or discretionary findings into colorable constitutional or
legal claims over which we have jurisdiction. Manani v. Filip, 552 F.3d 894, 900 n.3
(8th Cir. 2009). “[A] petitioner may not create the jurisdiction that Congress chose
to remove simply by cloaking an abuse of discretion argument in constitutional garb.”
Meraz-Reyes v. Gonzales, 436 F.3d 842, 843 (8th Cir. 2006) (per curiam) (quoting
Onyinkwa v. Ashcroft, 376 F.3d 797, 799 n.1 (8th Cir. 2004)).

B. ABC Benefits
Applying these standards, we lack subject matter jurisdiction over the bulk of
Molina’s petition. In his primary argument—all but a little more than five pages of
the argument section of his brief—Molina contends he is exempt from IIRIRA’s
strengthened reinstatement-of-removal provision because he has demonstrated “prima
facie eligibility for relief under NACARA” through the LIFE Act Amendments.
Molina insists he presented DHS with “prima facie evidence of ABC registration”
and, therefore, DHS improperly rejected his NACARA application. Molina requests
special cancellation of removal and a concomitant right to contest his removal in
immigration court.

Although Molina couches his argument in legal concepts, Molina’s argument
rises or falls upon a single critical factual determination: whether Molina registered
for ABC benefits on or before December 31, 1991. Molina admits as much in his
brief, when he writes, “A major factual dispute in this case is whether [Molina]
registered for ABC class benefits.” (emphasis added.) Molina points out that, in
addition to his proffered ABC registration form dated December 30, 1991, there are
repeated references to “ABC” in DHS’s computer records. He also notes DHS once
stated “you may or may not be eligible for ABC benefits.”

The problem for Molina is—DHS found, as a matter of fact, that Molina failed
to register for ABC benefits. DHS found Molina’s proffered evidence not credible.

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Molina’s ABC registration form, while dated December 30, 1991, is not file-stamped.
Because DHS has no internal record indicating Molina registered for ABC benefits
and Molina denied registering for ABC benefits under oath, Molina’s production of
an ABC registration form at the eleventh hour is suspicious. The significance of the
references to “ABC” in Molina’s DHS file is unknown, and Molina’s attempt to
construe such references as concessions or admissions by DHS is speculative, at best.
Any such speculation is at odds with DHS’s consistent—and final—position that
Molina is not eligible for ABC benefits, and DHS’s ultimate decision to reinstate
Molina’s prior removal proceedings.

Whether Molina registered for ABC benefits in a timely manner is a purely
factual issue over which this court lacks jurisdiction. See, e.g., Flores v. Gonzales,
205 F. App’x 573, 574 (9th Cir. 2006) (unpub. mem.) (“We lack jurisdiction, under
statute, to review the IJ’s determination that Barrios Flores was not eligible for
NACARA relief because she failed to establish that she timely registered for [ABC]
benefits.”); see also Viracacha v. Mukasey, 518 F.3d 511, 514-16 (7th Cir.), cert.
denied, 129 S. Ct. 451 (2008). Because we lack jurisdiction to review this factual
issue, we may not afford Molina the relief he requests, special cancellation of removal
under NACARA. In this large part, Molina’s petition must be dismissed.10

C. Retroactivity
Molina also argues DHS’s reinstatement order “would have an impermissible
retroactive effect,” because he entered the United States illegally before IIRIRA. DHS
denies there is a retroactivity problem, but concedes this is a legal issue over which
we retain jurisdiction.

10
We need not rule on DHS’s alternative arguments, such as whether an
application for NACARA relief is properly before us or whether Molina waived his
right to NACARA relief.

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 1. Jurisdiction
We agree with the parties that we have jurisdiction to consider Molina’s
retroactivity argument. See 8 U.S.C. § 1252(a)(2)(D); see, e.g., Fernandez-Vargas,
548 U.S. at 37-47 (exercising jurisdiction over a question of retroactivity).

2. Law of Retroactivity
A two-step test determines whether a statute may be applied retroactively. At
the first step, we discern whether Congress has expressly prescribed the statute’s
intended reach. Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). If so, our
inquiry ends. Id. At the second step, we

examine whether the statute would have a retroactive effect; that is,
“whether it would impair rights a party possessed when he acted,
increase a party’s liability for past conduct, or impose new duties with
respect to transactions already completed.” If the statute would do any
of these things, the presumption is that the statute does not govern,
absent clear congressional intent otherwise.

Kinerman v. Cadogan (In re ADC Telecomms., Inc. Secs. Litig.), 409 F.3d 974, 976
(8th Cir. 2005) (ADC) (quoting Landgraf, 511 U.S. at 280).

3. Analysis
In Fernandez-Vargas, 548 U.S. at 38-42, the Supreme Court found Congress did
not expressly prescribe whether IIRIRA’s strengthened reinstatement-of-removal
provision should apply retroactively to aliens such as Molina, who illegally reentered
the United States before IIRIRA went into effect. We must determine, then, whether
IIRIRA’s strengthened reinstatement-of-removal provision “would impair rights
[Molina] possessed when he acted, increase [Molina’s] liability for past conduct, or
impose new duties with respect to transactions already completed.” ADC, 409 F.3d
at 976. In making such determination, we are “informed and guided by familiar
considerations of fair notice, reasonable reliance, and settled expectations,” and we

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exercise “commonsense, functional judgment about whether [IIRIRA] attaches new
legal consequences to events completed before its enactment.” INS v. St. Cyr, 533
U.S. 289, 321 (2001) (quoting Martin v. Hadix, 527 U.S. 343, 357-58 (1999))
(internal marks omitted).

Although the parties do not cite cases precisely on point, we do not believe
IIRIRA’s strengthened reinstatement-of-removal provision is impermissibly
retroactive as applied to Molina. Again, Fernandez-Vargas is instructive.

In Fernandez-Vargas, as here, DHS sought to reinstate a pre-IIRIRA
deportation order even though the illegal alien had reentered the United States without
inspection prior to IIRIRA’s enactment. The alien argued imposition of IIRIRA’s
strengthened reinstatement-of-removal provision was impermissibly retroactive, but
the Supreme Court disagreed. See Fernandez-Vargas, 548 U.S. at 37-47. The Court
reasoned, “While the law looks back to a past act in its application to ‘an alien [who]
has reentered . . . illegally,’ . . . . it is the conduct of remaining in the country after
entry that is the predicate action.” Id. at 44 (quoting 8 U.S.C. § 1231(b)(5)).
Therefore, “It is . . . the alien’s choice to continue his illegal presence, after illegal
reentry and after the effective date of the new law, that subjects him to the new and
less generous legal regime, not a past act that he is helpless to undo up to the moment
[DHS] finds him out.” Id. The Supreme Court concluded:

What [the alien] complains of is the application of new law to
continuously illegal action within his control both before and after the
new law took effect. He claims a right to continue illegal conduct
indefinitely under the terms on which it began, an entitlement of legal
stasis for those whose lawbreaking is continuous. But “if every time a
man relied on existing law in arranging his affairs, he were made secure
against any change in legal rules, the whole body of our law would be
ossified forever.”

Id. at 46 (quoting L. Fuller, The Morality of Law 60 (1964)) (internal marks omitted).

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 Molina attempts to distinguish Fernandez-Vargas on the ground he had a
pending application for asylum when IIRIRA was enacted. The problem for Molina,
however, is IIRIRA did not affect the substance of his asylum application. A statute
only has impermissible “retroactive effect when it takes away or impairs vested rights
acquired under existing laws, or creates a new obligation, imposes a new duty, or
attaches a new disability, in respect to transactions or considerations already past.”
Gonzalez v. Chertoff, 454 F.3d 813, 816 (8th Cir. 2006) (quoting St. Cyr, 533 U.S.
at 321). The relevant legal standards governing Molina’s asylum application
remained constant over time, and applying such constant legal standards, DHS found
Molina was not entitled to asylum. Molina received exactly what he expected when
he filed his asylum application—evaluation of his asylum claim and permission to
work in the United States pending its final resolution.

We recognize in Fernandez-Vargas the Supreme Court left open the question
of whether IIRIRA’s strengthened reinstatement-of-removal provision would be
impermissibly retroactive as applied to an alien with a pending application for
adjustment of status. See Fernandez-Vargas, 541 U.S. at 36 n.5 (pointing out “[t]he
Courts of Appeals . . . are . . . divided on the question whether an alien’s marriage or
application for adjustment of status before the [reinstatement] statute’s effective date
(facts not in play here) renders the statute impermissibly retroactive when it is applied
to the alien”); see also Valdez-Sanchez v. Gonzales, 485 F.3d 1084, 1089 (10th Cir.
2007). But an application for asylum is not an application for adjustment of legal
status, and in all other relevant respects Molina is similarly situated to the alien in
Fernandez-Vargas. To the extent Molina complains IIRIRA deprived him of the right
to a hearing before an immigration judge, it is settled “[n]o one has a vested right in
any given mode of procedure.” Crane v. Hahlo, 258 U.S. 142, 147 (1922). “Changes
in procedural rules may often be applied in suits arising before their enactment
without raising concerns about retroactivity.” Landgraf, 511 U.S. at 275.

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 Two cases from the Ninth Circuit Court of Appeals, Vasquez-Zavala v.
Ashcroft, 324 F.3d 1105 (9th Cir. 2003) and Lopez-Urenda v. Ashcroft, 345 F.3d 788
(9th Cir. 2003), are instructive. In Vasquez-Zavala, the Ninth Circuit held an illegal
alien had no settled expectation DHS would initiate pre-IIRIRA deportation
proceedings—as opposed to post-IIRIRA removal proceedings—after denial of his
asylum application simply because he submitted such application before IIRIRA’s
effective date. Vasquez-Zavala, 324 F.3d at 1108. In Lopez-Urenda, a similar case,
the Ninth Circuit observed:

Proceedings could have begun several months after [the alien] filed his
[asylum] application, in which case suspension of deportation would
have remained a viable option; or they could have begun years later, as
they did, at a time when the law had undergone significant change. That
[the alien] did not know of the specific change—the enactment of
IIRIRA and its permanent rules abolishing suspension of
deportation—does not mean that he had a settled expectation that
proceedings would commence before any such change took place.

Lopez-Urenda, 345 F.3d at 794. Just like the aliens in Vasquez-Zavala and Lopez-
Urenda, Molina did not have a settled expectation when he filed his asylum
application that suspension of deportation would be available to him if such asylum
application were denied. See also Uspango v. Ashcroft, 289 F.3d 226, 230 (3d Cir.
2002) (reaching a similar conclusion and saying, “filing an asylum petition did not
implicate any quid pro quo arrangement with the government”).

We hold 8 U.S.C. § 1231(a)(5) does not have an impermissible retroactive
effect as applied to Molina and deny the remainder of his petition for review.11

11
The dissent argues our holding that § 1231(a)(5) does not have an
impermissible retroactive effect as applied to Molina is inconsistent with circuit
precedent. The two circuit precedents the dissent mentions are Lovan v. Holder, 574
F.3d 990 (8th Cir. 2009) and Alvarez-Portillo v. Ashcroft, 280 F.3d 858 (8th Cir.
2002). Citing Lovan, 574 F.3d at 994, the dissent concludes that, “[p]ost-Fernandez-

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Vargas, we have continued to rely upon our retroactivity analysis in Alvarez-Portillo”
and “IIRIRA’s deprivation of Molina’s ability to argue for relief from removal has a
substantive effect and is impermissibly retroactive under our case law.” Infra at 30-
31.

Lovan is inapposite. In Lovan, we held the repeal of 8 U.S.C. § 1182(c) (1994),
see IIRIRA § 304(b), would be impermissibly retroactive as to a lawful permanent
resident who, before IIRIRA, was convicted by a jury of what is now an “aggravated
felony.” See Lovan, 574 F.3d at 993-94. Following the Third Circuit’s decision in
Atkinson v. Attorney General, 479 F.3d 222, 230-31 (3d Cir. 2007), we extended INS
v. St. Cyr, 533 U.S. 289, 314-26 (2001), in which the Supreme Court held § 304(b)
“would have an impermissible retroactive effect if applied to aliens who became
eligible for [§ 1182(c)] relief by pleading guilty to aggravated felonies prior to the
statute’s repeal.” Lovan does not cite Fernandez-Vargas, does cite Alvarez-Portillo,
and does not address the retroactivity issue Molina presents in his petition for review.

With respect to the retroactivity issue presented in Molina’s petition for review,
we recognized in Gonzalez v. Chertoff, 454 F.3d 813 (8th Cir. 2006), that the
reasoning of Alvarez-Portillo is overruled. In Gonzalez, we held an alien who failed
to apply for adjustment of status before IIRIRA’s enactment, based on a pre-IIRIRA
marriage, was subject to the new expedited removal proceedings under IIRIRA. See
Gonzalez, 454 F.3d at 814-15, 816-18 & n.4. After discussing Fernandez-Vargas at
length, we determined “the Supreme Court in Fernandez-Vargas found that the
elimination of the opportunity to apply for adjustment of status under [IIRIRA]
imposed no new burden on a completed act.” Id. at 818. We stated “[w]e find that
decision determinative on the issue of retroactivity in the instant case.” Id. We then
noted, “To the extent our decision in Alvarez-Portillo, 280 F.3d at 861 (holding that
‘the substantive defenses to removal eliminated by [8 U.S.C. § 1231(a)(5)] may not
be retroactively denied to aliens who illegally reentered prior to enactment’), suggests
a different result, it is overruled by Fernandez-Vargas. See Fernandez-Vargas, 126
S. Ct. at 2427 & n.5.” Id. at 818 n.4. See also Herrera-Molina v. Holder, 597 F.3d
128, 135-36 (2d Cir. 2010) (surveying our precedents and concluding “the reasoning
of Alvarez-Portillo conflicts with [the reasoning of Fernandez-Vargas], and therefore,
as the Eighth Circuit itself has recognized, Alvarez-Portillo was overruled”).

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 D. District Court Proceedings
We are left with the stayed district court proceedings, to which the parties have
brought our attention and upon which the district court has invited us to rule. We
agree with the district court’s statement that jurisdiction to review the propriety of the
Reinstatement Order rests with the court of appeals. See 8 U.S.C. § 1252; see, e.g.,
Ochoa-Carrillo v. Gonzales, 446 F.3d 781, 782 (8th Cir. 2006) (holding the district
court lacked jurisdiction to consider a habeas petition challenging a § 1231(a)(5)
reinstatement proceeding, explaining “the appropriate court of appeals is the ‘sole and
exclusive’ means to review a § 1231(a)(5) order reinstating a prior removal order”);
Lopez v. Heinauer, 332 F.3d 507, 510 (8th Cir. 2003) (same). Once the district court
determined it lacked jurisdiction over Molina’s habeas corpus petition, however, the
district court was required to transfer the case to us pursuant to 28 U.S.C. § 1631,
which provides:

Whenever a civil action is filed . . . and that court finds that there is a
want of jurisdiction, the court shall, if it is in the interest of justice,
transfer such action . . . to any other such court in which the action . . .
could have been brought at the time it was filed . . . , and the action . . .
shall proceed as if it had been filed in . . . the court to which it is
transferred on the date upon which it was actually filed in . . . the court
from which it is transferred.

Although § 1631 does not directly empower a circuit court of appeals to transfer
a district court case, we may “deem [a] case properly transferred to [this court].”
Lopez, 332 F.3d at 511. Transfer is “mandatory,” and we need not engage in the
empty formalism of “remand[ing] to the district court and direct[ing] that court to
transfer the case back to us so that we can consider what is already before us” in a
petition for review of a reinstatement order. Id.; see also Paul v. INS, 348 F.3d 43, 46-
48 (2d Cir. 2003) (Sotomayor, J.) (sua sponte transferring district court case to court
of appeals). Cf. Rodriguez-Roman v. INS, 98 F.3d 416, 424 (9th Cir. 1996). In this
case, transfer is in the interest of justice, because transfer (1) furthers Congress’s
intent, plainly expressed in 8 U.S.C. § 1252, to streamline litigation over removal

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orders into the circuit courts of appeals; (2) allows for a prompter disposition; and (3)
is consistent with the district court’s invitation for us to resolve Molina’s entire case.
See INS v. Doherty, 502 U.S. 314, 323 (1992) (recognizing “every delay works to the
advantage of the deportable alien who wishes merely to remain in the United States”).

Upon transfer, we dismiss Molina’s petition for a writ of habeas corpus in
accordance with our disposition of his petition for review. The district court’s
Emergency Order is improper and is vacated. See 8 U.S.C. § 1252(e)(1)(A); id.
§ 1252(b)(3)(B). See also Rife v. Ashcroft, 374 F.3d 606, 615-16 (8th Cir. 2004)
(noting “IIRIRA repealed the provision that courts may not review a removal order
if the alien has departed the United States” and “abolished the rule that aliens are
entitled to automatic stays of removal upon filing petitions for review”).

III. CONCLUSION
We dismiss in part (jurisdiction is lacking for the court to review Molina’s
eligibility for NACARA relief as an ABC class member) and deny in part (no
impermissible retroactivity exists) Molina’s petition for review. Molina’s motion to
supplement the administrative record is granted. The clerk of court is directed to enter
an order transferring Jose Favio Molina Jerez v. Jeffery Lynch, et al., No. 8:08-cv-522
(D. Neb. filed Dec. 4, 2008) to this court, which shall then be consolidated with this
case. The district court’s order enjoining Molina’s removal from the United States is
vacated, and Molina’s petition for a writ of habeas corpus is dismissed. The mandate
shall issue forthwith.

WOLLMAN, Circuit Judge, dissenting.

The majority recognizes the validity of all aspects of Molina’s retroactivity
claim, save one: whether application of IIRIRA would affect his substantive rights
by retroactively eliminating his ability to argue for relief from removal. The majority

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concludes that it would not. Because I believe that such a holding is contrary to
Eighth Circuit precedent, I respectfully dissent.

Molina applied for asylum in 1992. DHS did not finally adjudicate his
application until 2005. During the thirteen years in which Molina’s application was
pending, Congress enacted IIRIRA, which expanded the class of aliens subject to
expedited removal via reinstatement of a prior removal order. IIRIRA enabled DHS
to reinstate the removal order of an alien who had been previously removed and
allowed administrative staff to determine when expedited removal applied.
Immigration and Nationalization Act § 241(a)(5), 8 U.S.C. § 1231(a)(5). Under the
new law, “the alien is not eligible and may not apply for any relief” from removal,
meaning, for example, that the alien may not argue for suspension of deportation on
the grounds of undue hardship. Id. Molina argues that, in light of his asylum
application, DHS’s attempt to use expedited removal constitutes an impermissible
retroactive application of IIRIRA.

As the majority notes, we have jurisdiction to consider a retroactivity claim in
this context, because it presents a pure question of law. Lovan v. Holder, 574 F.3d
990, 994 (8th Cir. 2009). Our consideration of this claim, as the majority states, is
guided by Landgraf v. USI Film Prods., 511 U.S. 244 (1994). Because Congress did
not explicitly prescribe the temporal reach of IIRIRA, we must determine whether
application of IIRIRA to Molina would “impair rights a party possessed when he
acted, increase a party’s liability for past conduct, or impose new duties with respect
to transactions already completed.” 511 U.S. at 280. If a statute merely changes
“procedural rules” and does not affect “substantive rights, liabilities, or duties,” it will
not have an impermissible retroactive effect. Id. at 275, 278.

In Alvarez-Portillo v. Ashcroft, we concluded that IIRIRA had an
impermissible retroactive effect on the petitioner because it denied him the ability to
argue affirmative defenses to removal. 280 F.3d 858, 867 (8th Cir. 2002), overruled

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on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). We found
that this was a substantive rather than a merely procedural change. Id. We
determined “that the elimination of a substantive defense, without more, attaches new
legal consequences to events completed prior to enactment that would give rise to
liability under the new statute.” Id. (internal punctuation omitted). Four other circuits
have reached the same conclusion. Valdez-Sanchez v. Gonzalez, 485 F.3d 1084,
1090-91 (10th Cir. 2007) (“[W]hen application of IIRIRA § 241(a)(5) disturbs an
alien’s substantive rights or expectations, such as the substantive relief available to the
Petitioner in this case, DHS may not apply it retroactively.”); Faiz-Mohammad v.
Ashcroft, 395 F.3d 799, 810 (7th Cir. 2005) (holding IIRIRA’s preclusion of
application for relief constitutes a new disability and is impermissibly retroactive);
Cisneros v. U.S. Att’y Gen., 381 F.3d 1277, 1284 (11th Cir. 2004) (holding IIRIRA’s
denial of ability to apply for relief “created a new disability” and was impermissibly
retroactive); Arevalo v. Ashcroft, 344 F.3d 1, 14 (1st Cir. 2003) (“The availability of
relief (or, at least, the opportunity to seek it) is properly classified as a substantive
right.”). Applying Alvarez-Portillo to Molina’s case, I conclude that retroactive
deprivation of his ability to argue for relief from removal is impermissible.

The majority makes three arguments in reaching the opposite conclusion: (1)
Molina’s claim is foreclosed by Fernandez-Vargas, (2) IIRIRA did not affect the
substance of Molina’s asylum application, and (3) Molina did not have a settled
expectation in the ability to argue for relief from removal.

First, Fernandez-Vargas does not foreclose relief for Molina. In Fernandez-
Vargas, the petitioner was subject to expedited removal based upon his continued
illegal presence in the United States after IIRIRA’s enactment. 548 U.S. at 45-47.
Fernandez-Vargas failed to take affirmative steps to remedy his illegal presence until
2001, years after the new law took effect. Id. at 35. Accordingly, the illegal act that
subjected Fernandez-Vargas to expedited removal was his continued presence in the
United States. Unlike Fernandez-Vargas, Molina took affirmative steps to legalize his

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presence. Molina applied for asylum well before IIRIRA took effect, and the agency
did not consider his application until years after the passage of IIRIRA. Moreover,
unlike Fernandez-Vargas, Molina was lawfully present and authorized to work in the
United States pending the adjudication of his asylum application. Molina is not
similarly situated to Fernandez-Vargas because he is being sanctioned for his re-entry
and not for his continuing presence in the country.

The Court limited its holding in Fernandez-Vargas to petitioners who, unlike
Molina, failed to take steps to legalize their presence pre-IIRIRA. Id. at 46. The
Court expressed no opinion regarding the circumstances we confront here: a
retroactivity claim brought by a petitioner who had sought to legalize his presence in
the United States prior to the enactment of IIRIRA. Id. Thus, one questions the
majority’s use of Fernandez-Vargas to satisfy the Landgraf analysis in light of the fact
that Fernandez-Vargas did not resolve whether deprivation of the ability to argue for
relief from removal affected substantive rights. Fernandez-Vargas, 548 U.S. at 38 n.6,
45-47. Numerous courts have recognized that a narrow avenue of relief remains for
petitioners who sought to legalize their presence before IIRIRA took effect. Valdez-
Sanchez, 485 F.3d at 1086; Wilson v. Gonzales, 471 F.3d 111, 121-22 (2d Cir. 2006);
United States v. Charleswell, 456 F.3d 347, 362 n.19 (3d Cir. 2006). Consequently,
Fernandez-Vargas does not preclude the claim that Molina brings here and it does not
resolve the Landgraf issue we face.

Second, the majority argues that depriving Molina of the ability to argue
defenses to removal is permissible because IIRIRA did not affect the substance of his
asylum application. But the impact of IIRIRA on his asylum application is just one
aspect of Molina’s claim. He also argues that retroactive deprivation of the ability to
argue for relief from removal by IIRIRA is impermissible. As we stated in Alvarez-
Portillo, each provision of IIRIRA must be considered individually to determine its
retroactive effect on each aspect of the petitioner’s case. 280 F.3d at 865; see
Landgraf, 511 U.S. at 280. At issue in this case is Molina’s ability to argue for relief

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from removal. Because § 1231(a)(5) eliminates this possibility, our traditional
presumption against retroactivity prevents the application of § 1231(a)(5) to him. It
is worth repeating that Molina argues that he was improperly deprived of the ability
to argue for defenses to removal. On this point, our precedent compels a result
contrary to the majority’s decision.

Third, the majority cites two Ninth Circuit cases and one Third Circuit case to
support its argument that Molina did not have a settled expectation that he could apply
for relief from removal pre-IIRIRA. Lopez-Urenda v. Ashcroft, 345 F.3d 788 (9th
Cir. 2003); Vasquez-Zavala v. Ashcroft, 324 F.3d 1105 (9th Cir. 2003); Uspango v.
Ashcroft, 289 F.3d 226 (3d Cir. 2002). These cases are inapposite because they deal
with situations in which petitioners filed last-minute asylum applications in the hope
of avoiding the implications of IIRIRA, Lopez-Urenda, 345 F.3d at 790 (application
filed three weeks before passage of IIRIRA); Vasquez-Zavala, 324 F.3d at 1106
(application filed three weeks before IIRIRA took effect); Uspango, 289 F.3d at 228
(application filed two months prior to passage of IIRIRA), a point recognized by both
the Ninth and Third Circuits in subsequent cases. See Hernandez de Anderson v.
Gonzales, 497 F.3d 927, 943 (9th Cir. 2007); Halul v. Ashcroft, 96 Fed. Appx. 827,
830 (3d Cir. 2004) (unpublished). The majority’s citation to Lopez-Urenda, Vasquez-
Zavala and Uspango is puzzling because the petitioners in these cases received what
Molina seeks: adjudication of his case before an immigration judge and the
opportunity to argue for defenses to removal. 345 F.3d at 790-91; 324 F.3d at 1106-
07; 289 F.3d at 228-29. Moreover, the issue in Lopez-Urenda, Vasquez-Zavala, and
Uspango was the standard to be used when adjudicating the claim for relief, not
whether the petitioner could bring a claim for relief at all.

Indeed, subsequent cases out of the Ninth and Third circuits support a
conclusion contrary to the one that the majority draws. As the Ninth Circuit
subsequently held in Hernandez de Anderson, IIRIRA is impermissibly retroactive
when applied to a petitioner who applied for naturalization in 1995, more than a year

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before IIRIRA took effect, because it “would have a retroactive consequence in the
disfavored sense of affecting substantive rights, liabilities, or duties on the basis of
conduct arising before its enactment.” 497 F.3d at 944. As the court explained, “To
deny Petitioner the opportunity to apply for suspension of deportation would be
inconsistent with the elementary considerations of fairness dictating that individuals
should have an opportunity to know what the law is and to conform their conduct
accordingly.” Id. And as the Third Circuit has elaborated on these types of claims,
a petitioner need not demonstrate reliance on pre-IIRIRA law to prevail on a
retroactivity claim; he need only show that the law affected rights he possessed when
he acted. Atkinson v. Att’y Gen. of U. S., 479 F.3d 222, 227-28 (3d Cir. 2007) (“The
Court has never held that reliance on the prior law is an element required to make the
determination that a statute may be applied retroactively.”). Thus, these cases appear
to support Molina’s claim, rather than refute it.

An unexplained premise in the majority’s opinion is that Molina’s asylum
application is meaningfully different from an application for an adjustment of status
for the purpose of our retroactivity analysis. Both an application for asylum and an
application for adjustment of status involve attempts to legalize one’s presence in the
United States. The Landgraf analysis does not rise or fall upon the character or the
type of relief the petitioner sought. INS v. St. Cyr, 533 U.S. 289, 325 (2001) (stating
that it was immaterial to the retroactivity analysis whether the relief sought was
discretionary or not). Rather, the question is whether application of the new law had
a substantive effect on the petitioner.

As recounted above, we have held that deprivation of the ability to argue
defenses to removal affects substantive rights and is not merely a procedural change.
Alvarez-Portillo, 280 F.3d at 867. Post- Fernando-Vargas, we have continued to rely
upon our retroactivity analysis in Alvarez-Portillo. See Lovan, 574 F.3d at 994.
IIRIRA’s deprivation of Molina’s ability to argue for relief from removal has a
substantive effect and is impermissibly retroactive under our case law.

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 Congress did not authorize retroactive application of IIRIRA to individuals like
Molina and the majority has not provided sufficient justification for allowing DHS to
do so. “[T]he presumption against retroactive legislation is deeply rooted in our
jurisprudence, and embodies a legal doctrine centuries older than our Republic.”
Landgraf, 511 U.S. at 265. “That a statute shall not be given retroactive effect, unless
such construction is required by explicit language or by necessary implication, is a
rule of general application.” United States v. St. Louis, S. F. & T. Ry. Co., 270 U.S.
1, 3 (1926). However problematic Molina’s claim for relief may appear to some, our
traditional presumption against retroactive application entitles him to have it reviewed
on its merits. Accordingly, I would grant the petition for review.
______________________________

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