Lattab v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-2146

AZZEDINE LATTAB,

Petitioner,

v.

JOHN ASHCROFT, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF A FINAL ORDER

OF UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT

Before

Selya, Dyk* and Howard,

Circuit Judges.

Carlos E. Estrada, with whom Allan M. Tow was on brief, for
petitioner.
Trina A. Realmuto and Nadine K. Wettstein on brief for
American Immigration Law Foundation, amicus curiae.
Papu Sandhu, Senior Litigation Counsel, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
with whom Peter D. Keisler, Assistant Attorney General, and Emily
Anne Radford, Assistant Director, were on brief, for respondent.

September 14, 2004

__________
*Of the Federal Circuit, sitting by designation.
 SELYA, Circuit Judge. The petitioner, Azzedine Lattab,

is an Algerian national. His case presents a gallimaufry of

issues, including yet another in the series of retroactivity

problems that have trailed Congress's enactment of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Pub.

L. 104-208, 110 Stat. 3009-598 (IIRIRA). Broadly stated, Lattab —

with the able assistance of the amicus — attacks an IIRIRA

provision, codified at 8 U.S.C. § 1231(a)(5), which mandates the

reinstatement of a prior deportation order (or removal order — the

terms are interchangeable on these facts) when an alien subject to

such an order is found to have reentered the country illegally. He

argues that the reinstatement provision is impermissibly

retroactive as applied to his case; that the regulatory procedure

implementing it is ultra vires; and that, in all events, the

provision deprives illegally reentering aliens of procedural due

process. As a fallback, he asserts that the reinstatement

provision ought not to have been invoked in this instance because

another statute trumped its operation. Concluding, as we do, that

this asseverational array lacks force, we deny and dismiss the

petition for review.

I. THE NEW REINSTATEMENT PROVISION

We begin by limning the parameters of the new

reinstatement provision. Among many other innovations, IIRIRA

repealed the former reinstatement provision, section 242(f) of the

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Immigration and Nationality Act (INA), 8 U.S.C. § 1252(f) (repealed

1996), and enacted a new reinstatement provision at section

241(a)(5), 8 U.S.C. § 1231(a)(5).1 Section 241(a)(5) 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 [the INA], and the alien shall be
removed under the prior order at any time
after the reentry.

This provision took effect on April 1, 1997. It altered

preexisting law in at least three salient respects. First, under

the old regime only illegal reentrants who had previously been

deported on certain specified grounds (e.g., conviction for an

aggravated felony) were subject to having their original

deportation orders reinstated. Under section 241(a)(5), however,

all illegal reentrants now face the prospect of such reinstatement.

See Arevalo v. Ashcroft, 344 F.3d 1, 5 (1st Cir. 2003). Second,

under the earlier system an alien had a right to a hearing,

presided over by an immigration judge, before reinstatement of the

prior deportation order became a fait accompli. Under the

1
For better or worse, it is customary when discussing
immigration law to refer to sections of the INA and the various
statutes amending it by public law section number rather than
United States Code section number. We will adhere to this
convention and provide parallel citations to the relevant code
provisions only when referring to statutory sections for the first
time.

-3-
regulations implementing section 241(a)(5), however, there is no

longer a right to such a hearing (or to any hearing, for that

matter). See 8 C.F.R. § 241.8. Third, preexisting law allowed an

illegal reentrant to attempt to fend off execution of a reinstated

deportation order by petitioning for discretionary relief in the

form of an adjustment of his status to that of an alien lawfully

admitted for permanent residence. Conversely, section 241(a)(5)

pretermits an illegal reentrant's ability to apply for any relief

under the INA. See Arevalo, 344 F.3d at 5.

II. THE FACTUAL BACKGROUND

We next recount the facts undergirding the case. The

petitioner first entered the United States on February 7, 1992, as

a tourist. He overstayed his visa and remained here for some time.

On March 29, 1996, an immigration judge found him deportable but

allowed him to depart voluntarily on or before June 27 of that

year. The petitioner failed to comply — he did not leave the

United States until August 23, 1996 — and that default caused the

immigration judge's ukase to mutate into a deportation order. See

8 C.F.R. § 243.5 (repealed 1997). In the eyes of the law,

therefore, the petitioner's belated departure was tantamount to

self-deportation. Id.

While in the United States, the petitioner had become

romantically involved with a United States citizen (he claims that

they had become engaged). He reentered the United States illegally

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on March 1, 1997, and resumed this courtship. He and his fiancee

were married on July 5, 1999.

On May 23, 2000, the petitioner's wife filed an

"immediate relative" petition with the Immigration and

Naturalization Service (INS).2 This petition was approved on

August 28, 2002. That approval, standing alone, did not affect the

petitioner's immigration status, but, rather, paved the way for a

possible adjustment. See INA § 245(i), 8 U.S.C. § 1255(i). To

that end, he immediately sought to have his status changed to that

of lawful permanent resident. During the pendency of that

application, the INS approved the petitioner's request for

temporary authorization to engage in employment. See 8 C.F.R. §

274a.12(c).

On August 5, 2003, the petitioner endeavored to renew his

employment authorization. While at the CIS office in Boston, an

immigration officer discovered that the petitioner had been

deported once before. He was taken into custody and soon

thereafter ICE, relying on section 241(a)(5), reinstated the 1996

deportation order.

2
The Homeland Security Act of 2002, Pub. L. 107-296, § 471,
116 Stat. 2135, 2205 (codified as amended at 6 U.S.C. § 291(a)),
abolished the INS and transferred its duties to the Department of
Homeland Security. The INS functions related to the processing of
applications for adjustment of status now reside in the United
States Citizenship and Immigration Service (CIS). Responsibility
for immigration enforcement, including the authority to reinstate
prior orders of deportation, lies with a separate sub-agency known
as United States Immigration and Customs Enforcement (ICE).

-5-
 Dismayed by this chain of events, the petitioner sought

judicial review. His petition contends, inter alia, that the

government's attempt to apply section 241(a)(5) to his case has an

impermissibly retroactive effect; that the summary reinstatement of

the prior deportation order disregarded both statutorily mandated

procedures and the dictates of the Due Process Clause; and that in

the circumstances of this case, section 241(a)(5) must yield to a

different (allegedly conflicting) INA provision. Because an order

reinstating a prior removal order is "the functional equivalent of

a final order of removal," Arevalo, 344 F.3d at 9, we have

jurisdiction to hear and determine these contentions under 8 U.S.C.

§ 1252.

III. ANALYSIS

The petitioner and the amicus advance four principal

arguments. We consider them in an order that roughly corresponds

to the amount of energy that they have devoted to each.

A. Retroactivity.

The centerpiece of the petitioner's case is a claim that

application of section 241(a)(5) to his circumstances is

impermissibly retroactive. Since IIRIRA took effect after his

illegal reentry in 1997, this thesis runs, retroactive application

of the new reinstatement proviso would violate his settled

expectation that he would be allowed to seek an adjustment of his

immigration status following his marriage.

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 Whether application of a statute to a given situation is

impermissibly retroactive presents a quintessentially legal

question. Judicial review is de novo and, accordingly, the

agency's views garner no special deference. Arevalo, 344 F.3d at

9-10 (explaining that "courts, rather than agencies, are best

equipped to make the constitutionally tinged judgment calls

inherent in retroactivity determinations"). We proceed on that

basis.

There is no doubt that Congress has the raw power to

enact statutes that operate retroactively. See Landgraf v. USI

Film Prods., 511 U.S. 244, 267 (1994). But because retroactive

legislation has the potential to alter the consequences of actions

already taken, courts start with a presumption that Congress

intends to legislate prospectively. Id. at 272-73. Congress can

overcome this presumption and give legislation a retroactive effect

only by clearly indicating its intent to do so. Id. at 268.

We analyze the possibility that Congress intended a

statute to apply retroactively under the rubric set forth in

Landgraf. Initially, we decide whether Congress has clearly stated

an intention to have the statute apply retrospectively. Id. at

280; Arevalo, 344 F.3d at 10. Although this prong of the test

requires Congress's intention to be unmistakable, our inquiry is

not limited to the statutory text but may include an examination of

standard ensigns of statutory construction, such as the statute's

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structure and legislative history. See Martin v. Hadix, 527 U.S.

343, 355-57 (1999); see also Arevalo, 344 F.3d at 11-13 (examining

these factors in determining the sweep of section 241(a)(5), but

noting that "the benchmark for finding unambiguous temporal scope

is quite high"). If this perscrutation leads to a firm conviction

that Congress intended the statute to have a specific temporal

reach, the retroactivity analysis ends and we will apply the

statute in accordance with Congress's prescription. In the absence

of such a directive, we will proceed to determine whether the

application in question would have an impermissibly retroactive

effect. Landgraf, 511 U.S. at 280; Arevalo, 344 F.3d at 10-11.

That result obtains if the specified application 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." Landgraf, 511 U.S. at 280. In

that event, the presumption that Congress did not intend the

statute to apply retrospectively will hold. Arevalo, 344 F.3d at

11. Otherwise, retroactive application is permissible. Id.

In the case at hand, the search for express congressional

intent need not occupy us for long. Three years ago, the Supreme

Court ruled that Congress did not specify the temporal reach of

section 304 of IIRIRA. INS v. St. Cyr, 533 U.S. 289, 320 (2001).

Building on that foundation, we concluded last year that section

241(a)(5) shared this characteristic. Arevalo, 344 F.3d at 13. In

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forming that conclusion, we carefully examined both the text and

legislative history of IIRIRA in general and section 241(a)(5) in

particular. Id. at 11-13. This exercise left us with the

conviction that "section 241(a)(5) is hopelessly unclear as to

whether it applies to those who illegally reentered the United

States before April 1, 1997." Id. at 13. This panel is bound by

that determination. United States v. Wogan, 938 F.2d 1446, 1449

(1st Cir. 1991).

The second step of the Landgraf pavane requires us to

determine whether application of section 241(a)(5) to the

petitioner's circumstances would have an impermissibly retroactive

effect. The logical starting point for this inquiry is the

ascertainment of what rights and justifiable expectations the

petitioner may have had under the law as it existed immediately

before IIRIRA's effective date.

The law did not change between the date when the

petitioner illegally reentered the country (March 1, 1997) and

IIRIRA's effective date (April 1, 1997). Under that regime, the

petitioner was immediately deportable. See 8 U.S.C. § 1227 (1994)

(specifying grounds for deportation). There is no indication in

the record that the petitioner ever sought, or qualified for,

asylum. From aught that appears, in the spring of 1997 he would

not have had any defense to deportation.

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 To be sure, at that time the petitioner would not have

been subject to summary reinstatement of the prior deportation

order. Instead, deportability would have been determined in a new

proceeding before an immigration judge. See 8 C.F.R. § 242.23

(repealed 1999). Pre-IIRIRA law would have allowed the petitioner,

coincident with the commencement of that new proceeding, to apply

for adjustment of his immigration status based upon his marriage,

notwithstanding the fact that he had reentered the country

illegally. INA § 245, 8 U.S.C. § 1255(i).

Given that template, IIRIRA worked relatively few changes

in the petitioner's situation. Substantively, he was still

illegally in the country and still subject to deportation after the

new law took effect. While section 241(a)(5) barred him from

applying for any affirmative relief (such as an adjustment of

status) from and after April 1, 1997, that change was

inconsequential because there was no relief for which petitioner

could then have qualified. After all, his wedding did not occur

until July 5, 1999 (over two years after IIRIRA took effect).

In fact, the only consequence that IIRIRA added to the

petitioner's illegal reentry was procedural: he was subject to

having his prior deportation order peremptorily reinstated and was

no longer entitled to a hearing before that reinstatement. That

consequence is insufficient to derail the application of the new

statute. As a general rule, the application of new procedural

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mechanisms to the adjudication of past conduct is not impermissibly

retroactive. Landgraf, 511 U.S. at 275. More to the point, we

previously have held that this precise procedural change falls

within that general rule, not within the long-odds exception to it.

See Arevalo, 344 F.3d at 13 (holding that "although aliens subject

to reinstatement of a previous deportation order had a right to .

. . a hearing before the passage of the IIRIRA, . . . that right

was procedural and, therefore, can be taken away retroactively").

Other courts agree. See, e.g., Ojeda-Terrazas v. Ashcroft, 290

F.3d 292, 301-02 (5th Cir. 2002); Alvarez-Portillo v. Ashcroft, 280

F.3d 858, 865 (8th Cir. 2002).

The petitioner nonetheless maintains that section

241(a)(5) ought not be applied to bar his application for

adjustment of status because at the time section 241(a)(5) took

effect, he planned to marry a United States citizen and thus become

eligible for lawful permanent resident status. He points to the

government's longstanding practice of allowing an alien illegally

present in the United States to seek adjustment of status following

marriage to a citizen and asserts that he was entitled to rely on

this praxis. This assertion comprises more cry than wool.

A statute only has an impermissibly retroactive effect

when it would change the legal consequences of actions actually

taken (or refrained from) prior to the statute's effective date.

See Landgraf, 511 U.S. at 280. Inchoate plans to act in the

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future, even when made in anticipation of the legal consequences of

those future actions, do not convey the type of settled expectation

that retroactivity analysis seeks to protect. See id. at 269

(noting that retroactive application of a statute is not

impermissible merely because that application "upsets expectations

based in prior law"). Because the petitioner did not marry (and

thus, did not qualify for adjustment of status) until more than two

years after IIRIRA's effective date, he cannot validly complain

about the elimination of his ability to apply for a future

adjustment of status. The decisive datum is that the petitioner

had no sufficiently settled expectation that he could adjust his

status at the time section 241(a)(5) took effect, because he was

not yet married. Thus, applying that provision to the petitioner

is not impermissibly retroactive.

There are two loose ends. First, the petitioner asserts

that because he applied for adjustment of status before the

government actually reinstated the prior order of deportation,

section 241(a)(5)'s bar to relief ought not to apply. We deem this

argument squarely foreclosed by the text of the statute. Section

241(a)(5) subjects an illegal reentrant to three independent

consequences: reinstatement of the prior deportation order,

ineligibility for any relief, and removal. Grammatically, section

241(a)(5) does not make ineligibility for relief dependent upon

reinstatement of the prior deportation order. And even if it did,

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section 241(a)(5) expressly makes reinstatement retroactive to the

date of the original deportation order.3

The second loose end is a bit different. In a post-

argument letter, see Fed. R. App. P. 28(j); 1st Cir. R. 28(j), the

petitioner attempted to embrace the recent decision in Perez-

Gonzalez v. Ashcroft, ___ F.3d ___ (9th Cir. 2004) [2004 WL

1801894]. That case involved the effect of a pending application

for permission to reenter the country, filed after the petitioner

illegally reentered, on the relief bar erected by section

241(a)(5). The Ninth Circuit stated that if the application were

approved, that approval would cure the illegal reentry and section

241(a)(5) would not apply. Id. at ___ [2004 WL 1801894, at *11].

The petitioner now seeks to avail himself of this possible escape

hatch.

In this case, unlike in Perez-Gonzalez, the petitioner

did not argue that approval of an application for permission to

reenter would cure his illegal reentry; nor did he argue, by

analogy, that the government's approval of his wife's "immediate

relative" petition should be accorded a similar effect. It is

readily apparent, then, that Perez-Gonzalez turns on a legal theory

never explored either in the petitioner's briefs to this court or

3
The petitioner's sole support for this argument derives from
the decision in Prado Hernandez v. Reno, 86 F. Supp. 2d 1037 (W.D.
Wash. 1999). We find that decision unpersuasive and decline to
follow it.

-13-
at oral argument. The usual rule, applicable here, is that new

theories cannot be raised in a post-argument Rule 28(j) filing.

United States v. Nason, 9 F.3d 155, 163 (1st Cir. 1993). It is

arguable that this theory has been waived; at best, it has been

forfeited. See Bennett v. City of Holyoke, 362 F.3d 1, 9 (1st Cir.

2004).

Of course, a forfeited argument occasionally can be

resurrected under the plain error doctrine. See, e.g., United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). But that

doctrine contains fairly rigorous criteria. See, e.g., id. It

requires, at a bare minimum, that the complaining party point to a

"clear or obvious" error. Id. Here, however, we have grave doubts

about the correctness of the Perez-Gonzalez court's conclusion. It

seems to us that permission to reenter, like adjustment of status,

is relief under the INA, which section 241(a)(5) precludes an

illegal reentrant from seeking. Furthermore, we find it difficult

to accept the Ninth Circuit's heavy reliance on regulations that

antedate IIRIRA in interpreting the reach of section 241(a)(5). We

are, therefore, unable to find a clear or obvious error in ICE's

decisionmaking.

Although that ends this phase of our analysis, we add a

coda. We hold today only that application of section 241(a)(5) to

deprive an alien who illegally reentered the country before

IIRIRA's effective date of the ability to apply for relief for

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which the alien did not theretofore qualify is not impermissibly

retroactive. We do not purport to decide the retroactive

application of section 241(a)(5) to all aliens who reentered

illegally before April 1, 1997, nor do we address the case of an

alien illegally present in the United States who had a potential

defense to deportation before IIRIRA took effect but had not yet

applied for relief when IIRIRA eliminated that defense. We leave

these questions for future cases, pausing only to remind the reader

that application of retroactivity principles requires "commonsense,

functional judgment[s]," Hadix, 527 U.S. at 357, and that each case

should be assessed on its own facts.

B. Ultra Vires.

Having determined that the application of section

241(a)(5) to the petitioner's circumstances does not have an

impermissibly retroactive effect, we next consider the petitioner's

claim that 8 C.F.R. § 241.8, which implements section 241(a)(5), is

at variance with the procedures stipulated in INA § 240, 8 U.S.C.

§ 1229a. This question engenders review under a familiar two-part

paradigm. See generally INS v. Aguirre-Aguirre, 526 U.S. 415, 424

(1999); Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 842-43 (1984). Under that paradigm, we first

determine whether Congress has spoken clearly on the precise

question. Chevron, 467 U.S. at 842-43. If it has, we will enforce

Congress's instructions. Id. at 842. If it has not, we will defer

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to the administering agency's construction of the statute so long

as that construction is reasonable. Id. at 843.

The challenged regulation provides for reinstatement of

a prior deportation order without first affording an alien a

hearing before an immigration judge. 8 C.F.R. § 241.8. The

petitioner contrasts this spartan regime with INA § 240, which sets

forth the procedures to be followed when determining removability

in the first instance. In general, section 240 entitles aliens to

be represented by counsel, to be heard by an immigration judge, to

adduce evidence, and to cross-examine adverse witnesses. That

section further provides:

Unless otherwise specified in this chapter, a
proceeding under this section shall be the
sole and exclusive procedure for determining
whether an alien may be . . . removed from the
United States . . . .

8 U.S.C. § 1229a(a)(3). The petitioner says that summary

reinstatement of a deportation order sets up a parallel procedure

for removal and thus conflicts with the quoted statute. In the

petitioner's view, this renders the regulation ultra vires.

The government retorts that summary reinstatement of a

deportation order is not beyond the Attorney General's statutory

authority because INA § 241(a)(5) provides an explicit,

congressionally sanctioned alternative to the otherwise exclusive

procedure delineated in section 240. The government seeds its

argument with persistent references to the legislative history.

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Those references indicate (or so the government says) that Congress

intended aliens who reentered the country illegally after once

having been deported to be treated as a separate class and removed

expeditiously. See, e.g., H.R. Rep. No. 104-469, pt. 1, at 13

(1996) (explaining that "if aliens who are ordered removed . . .

seek reentry they are subject to immediate removal under the prior

order").

The petitioner's argument has a veneer of plausibility.

After all, the decision to reinstate a prior deportation order is

to some extent a determination as to whether an alien may be

removed from the United States. Cf. Arevalo, 344 F.3d at 9

(holding, albeit in the context of appellate jurisdiction, that

"reinstatement itself operates as the functional equivalent of a

final order of removal"). This carapace, however, is easily

pierced. Considering section 240 in the context of the INA as a

whole, we conclude that its application to the reinstatement of

earlier deportation orders is at best uncertain.

For one thing, section 240 is primarily concerned with

proceedings to determine whether aliens are excludable or

deportable on one of the bases enumerated in INA §§ 212 and 237, 8

U.S.C. §§ 1182 and 1227. See 8 U.S.C. § 1229a(a)(2) ("An alien

placed in proceedings under this section may be charged with any

applicable ground of inadmissibility under [section 212] or any

ground of deportability under [section 237]."). In contrast,

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section 241 deals specifically with aliens who already have been

ordered removed, and the placement of the reinstatement provision

in a separate section logically can be understood as indicating a

congressional intention to treat reinstatement determinations

differently from first-instance determinations of removability.

Cf. Alexander v. Sandoval, 532 U.S. 275, 288-91 (2001) (relying in

part on the separation of substantive standards and regulatory

authority into different sections of a single statute to find that

Congress intended to create a private right of action to enforce

the former, but not the latter).

For another thing, when Congress enacted IIRIRA, it

plainly was dissatisfied with the performance of the former

reinstatement provision, which had "fallen into desuetude."

Castro-Cortez v. INS, 239 F.3d 1037, 1040 n.1 (9th Cir. 2001).

Congress apparently believed that the reinstatement regime should

be altered dramatically, Alvarez-Portillo, 280 F.3d at 863, and

reformed to function swiftly and simply. See, e.g., S. Rep. 104-

249, at 7 (1995) ("Aliens who violate U.S. Immigration law should

be removed from this country as soon as possible."); H.R. Rep. No.

104-469, supra, at 134 (calling pre-IIRIRA procedures "cumbersome

and duplicative," and positing that IIRIRA would correct these

flaws). We think it unarguable that Congress intended IIRIRA to

strengthen the reinstatement provision and to make it operate more

efficiently. Viewed against this backdrop, it seems reasonable

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that, rather than spelling out procedural changes by statute,

Congress may have expected the Attorney General to reevaluate the

implementation of the reinstatement statute and to set in place a

regulatory regimen that would further these goals.

That said, we find the government's statutory

interpretation no more compelling. The text of section 241(a)(5)

simply will not bear the weight that the Attorney General tries to

pile upon it. To say, as does section 241(a)(5), that an alien

"shall be removed under the prior order at any time after . . .

reentry" says nothing about how the government may go about

determining either the existence of a prior order or the fact of an

illegal reentry. See Castro-Cortez, 239 F.3d at 1048. Nor does

section 241(a)(5)'s bar on seeking relief from reinstatement of an

earlier order necessarily indicate an intention that the prior

order be reinstated peremptorily.

The INA, taken as a whole, highlights this lack of

certitude. When compared with other provisions explicitly

authorizing alternative procedures, section 241(a)(5) looks even

less like an explicit authorization. For example, section 235 of

the INA, 8 U.S.C. § 1225, provides for summary removal proceedings

for certain aliens upon their arrival in the United States. To

take one case, that section provides that aliens who arrive without

proper documentation shall be removed "without further hearing or

review." Id. § 1225(b)(1)(i). In a similar vein, stowaways are

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expressly ineligible for "a hearing under [section 240]." Id. §

1225(a)(2). The absence of comparably explicit language in section

241(a)(5) reinforces our intuition that we should not read that

section as evincing congressional intent to mandate summary

procedures for reinstating prior deportation orders.

The legislative history marshaled by the government does

not save the day. Although that history tends to cast doubt on the

petitioner's assessment of the statutory scheme, see text supra, it

is in the end inconclusive. Much like the statute itself, the

legislative history indicates a general intent that illegal

reentrants be removed expeditiously, but it does not address

procedural questions with either clarity or specificity. The

committee report quoted extensively by the government illustrates

this point: although stating that "[e]xisting procedures to deny

entry to and remove illegal aliens from the United States are

cumbersome and duplicative," H.R. Rep. 104-469, supra, at 134, it

neither explicates nor endorses any particular procedures for

reinstating removal orders. Given this indeterminacy, we decline

to read a procedural mandate into section 241(a)(5).

The bottom line is that we find the INA ambiguous with

regard to the procedures to be used when the government, in the

post-IIRIRA era, seeks to reinstate a prior removal order against

an illegal reentrant. Because the statutory scheme lacks clarity

in this respect, we answer the first Chevron question in the

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negative and proceed to the second Chevron question. At that

stage, we assay the government's implementation of the statute, as

expressed in its rulemaking, mindful that we must defer to that

rulemaking as long as we find it reasonable. Aguirre-Aguirre, 526

U.S. at 424; Chevron, 467 U.S. at 843. We have little difficulty

in concluding that the government's interpretation satisfies this

condition.

As said, the legislative history shows that Congress, in

enacting IIRIRA, sought to make the removal of illegal reentrants

more expeditious. Providing a mechanical procedure for the

reinstatement of prior orders is entirely consistent with this

purpose. Moreover, we agree with the Eighth Circuit that the

elimination of any exogenous defense to reinstatement significantly

narrows the range of issues to be adjudicated, thereby limiting the

value of additional procedures. See Alvarez-Portillo, 280 F.3d at

868 ("The streamlined notice and opportunity to be heard afforded

illegal reentrants under 8 C.F.R. § 241.8 seem quite appropriate

when the only issues to be determined are those establishing the

agency's right to proceed under § 241(a)(5) — the alien's identity,

the existence of a prior removal order, and whether the alien has

unlawfully reentered."). For these reasons, we conclude that it is

reasonable to interpret the INA, as amended by IIRIRA, as giving

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the government authority to craft a streamlined procedure for the

reinstatement of earlier deportation orders.4

C. Due Process.

The petitioner next essays a constitutional challenge.

He posits that even if the summary reinstatement procedure is not

ultra vires, it nonetheless fails to pass muster under the Due

Process Clause of the Fifth Amendment.5

4
We need not address the reasonableness of the particular
summary reinstatement procedure adopted by the government. While
the petitioner has challenged the constitutionality of those
procedures, see infra Part III(C), he has not challenged their
reasonableness. In all events, there was no conceivable error in
the reinstatement of the petitioner's original deportation order.
Consequently, we leave an assessment of the reasonableness of the
specific procedures adopted by the government for another day.
5
If a constitutional challenge of this sort were to hold
water, that doubtless would affect our judgment on the second step
of the Chevron pavane. An interpretation of a statute that is
unconstitutional, is by definition unreasonable. U.S. West, Inc.
v. FCC, 182 F.3d 1224, 1231 (10th Cir. 1999).
One member of the panel questions whether the statute (section
241(a)(5)) should be construed under the first step of Chevron to
avoid a lurking constitutional issue. See, e.g., St. Cyr, 533 U.S.
at 299-300 ("[I]f an otherwise acceptable construction of a statute
would raise serious constitutional problems, and where an
alternative interpretation of the statute is 'fairly possible,' we
are obligated to construe the statute to avoid such problems."
(quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)) (citation
omitted)); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &
Constr. Trades Council, 485 U.S. 568, 574-75 (1988) (construing a
statute to avoid serious constitutional problems in step one of the
Chevron analysis). Since this issue has not been fully developed
by the parties and since, in all events, we do not reach the
constitutional question, see text supra, we have no occasion to
reach this question. Thus, we leave open the possibility that the
rule of avoidance might lead to a different statutory construction.

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 We decline to address the merits of this argument. It is

beyond peradventure that before a petitioner in an immigration case

may advance a procedural due process claim, he must allege some

cognizable prejudice fairly attributable to the challenged process.

See, e.g., Ojeda-Terrazas, 290 F.3d at 302; Bernal-Vallejo v. INS,

195 F.3d 56, 64 (1st Cir. 1999). That prerequisite is absent here.

The petitioner does not dispute that when he left the

United States in 1996, his departure constituted a self-

deportation. Nor does he contest that he reentered the country

illegally in 1997. Thus, the petitioner effectively has admitted

all the facts necessary to warrant reinstatement of the original

deportation order. It follows inexorably that he cannot show

prejudice attributable to the government's use of a summary process

in his case. Ojeda-Terrazas, 290 F.3d at 302. Consequently, we

are without authority to reach his due process initiative.6

6
Although this case does not provide a vehicle for testing the
merits of the constitutional claim, we do not mean to imply that
the claim is insubstantial. The summary reinstatement process
offers virtually no procedural protections. The regulation grants
aliens to whom it applies nothing more than a chance to make a
statement opposing reinstatement to an immigration officer (not to
a judge). It guarantees the alien no notice before reinstatement
of a prior deportation order, affords him no real opportunity to
contest the facts underlying the reinstatement, and contemplates no
presentation of evidence. See generally 8 C.F.R. § 241.8. While
judicial review of reinstatement orders is available in the courts
of appeals, see 8 U.S.C. § 1252, that review may not be adequate
when the alien has not been given a meaningful opportunity to
develop an administrative record.

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 D. Section 245(i).

Finally, the petitioner suggests that even if section

241(a)(5) is generally enforceable, he remains eligible to seek

adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i).

Because this suggestion rests on a matter of statutory

construction, we undertake de novo review. Strickland v. Comm'r,

Me. Dep't of Human Servs., 96 F.3d 542, 545 (1st Cir. 1996).

INA § 245(i) allows certain classes of illegal aliens,

including those who are spouses of United States citizens, to

petition for adjustment of status. The petitioner posits that the

availability of relief under section 245(i), especially in light of

Congress's reenactment of that provision in 2000, conflicts with

section 241(a)(5)'s bar on relief. He then invites us to resolve

this perceived conflict by holding that section 245(i) effectively

trumps section 241(a)(5), thus permitting an alien subject to the

latter provision to apply for adjustment of status under the former

provision.

The short answer to this invitation is that the

petitioner has erected a straw man: there is no meaningful

conflict between sections 241(a)(5) and 245(i). Section 241(a)(5)

only bars aliens who have illegally reentered the United States

after having previously been deported from applying for relief.

Many aliens illegally present in the United States (perhaps most

such aliens) have never before been deported, and nothing in

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section 241(a)(5) prevents them from seeking adjustments of status

under section 245(i). The mere fact that section 241(a)(5)

precludes a subset of aliens from taking advantage of section

245(i) does not create a conflict. Cf. Hughes v. Att'y Gen., 377

F.3d 1258, 1268 (11th Cir. 2004) (finding no conflict, for

preemption purposes, when a federal statute only applied to a

subset of activity regulated by the state statute, and the conduct

in question fell outside that subset). We hold, therefore, that

section 245(i) creates no impediment to the government's

application of section 241(a)(5) in this case. Accord Alvarez-

Portillo, 280 F.3d at 862.

IV. CONCLUSION

We need go no further. IIRIRA has tightened the screws

on deportation proceedings in a variety of ways, and persons of

good will can disagree as to the policy judgments that those

stringencies reflect. Such judgments are, however, for the

Congress, not for the courts. See, e.g., Plumley v. S. Container,

Inc., 303 F.3d 364, 375 (1st Cir. 2002). Our task is simply to

interpret Congress's handiwork and measure the end product against

appropriate legal and constitutional benchmarks. Having performed

that task, we are constrained to reject the instant petition.

The petition for review is denied and dismissed.

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