Ixcot v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ABELINO FRANCISCO CHAY IXCOT, 
Petitioner, No. 09-71597
v.
 Agency No.
A029-283-431
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
February 10, 2011—Seattle, Washington

Filed June 1, 2011

Before: Betty B. Fletcher, Richard A. Paez, and
Sandra S. Ikuta, Circuit Judges.

Opinion by Judge B. Fletcher

7183
7186 CHAY IXCOT v. HOLDER

COUNSEL

Matt Adams, Northwest Immigrant Rights Project, Seattle,
Washington, for petitioner Abelino Francisco Chay Ixcot.

Andrew Jacob Oliveira and Michael Christopher Heyse, U.S.
Department of Justice, Office of Immigration Litigation,
Washington, DC, for respondent Eric H. Holder Jr.

OPINION

B. FLETCHER, Circuit Judge:

We must decide whether the reinstatement provision
enacted as part of the Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996 (“IIRIRA”), INA
 CHAY IXCOT v. HOLDER 7187
§ 241(a)(5), 8 U.S.C. § 1231(a)(5), applies retroactively to a
petitioner who applied for discretionary relief prior to
IIRIRA’s effective date. Following the First, Seventh, Tenth
and Eleventh Circuits, we hold that the application of INA
§ 241(a)(5), 8 U.S.C. § 1231(a)(5), is impermissibly retroac-
tive when applied to such petitioners. See Landgraf v. USI
Film Prods., 511 U.S. 244 (1994). Accordingly, we grant the
petition for review in part and remand for further proceedings.
Because we lack jurisdiction to review agency determinations
of eligibility for special rule cancellation of removal under
§ 203 of the Nicaraguan Adjustment and Central American
Relief Act of 1997 (NACARA),1 however, we deny the peti-
tion in part.

I.

Petitioner Francisco Abelino Chay Ixcot (“Chay”) is a
native and citizen of Guatemala. He entered the United States
without inspection on or about February 13, 1989, near San
Ysidro, California, and was immediately apprehended by the
Immigration and Naturalization Service (“INS”).2 At that
time, Chay claimed his name was Juan Mendez-Lopez, that
he was a native and citizen of El Salvador, and that he was
sixteen years old.

Chay was detained and placed in deportation proceedings3
1
NACARA, which is not codified in the U.S. Code, was signed into law
on November 19, 1997. See Pub. L. No. 105-100, 111 Stat. 2160,
2193-2201 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644,
2644-45 (1997).
2
The INS ceased to exist in 2003, and most of its functions were trans-
ferred to the Department of Homeland Security. See, e.g., Morales-
Izquierdo v. Gonzales, 486 F.3d 484, 489 n.7 (9th Cir. 2007) (en banc).
3
IIRIRA “replaced all references to ‘deportation’ with ‘removal.’ ”
Morales-Izquierdo, 486 F.3d at 488 n.3; see also, e.g., Mariscal-Sandoval
v. Ashcroft, 370 F.3d 851, 854 n.6 (9th Cir. 2004) (“The IIRIRA merged
deportation and exclusion proceedings into the broader category of
‘removal’ proceedings.”).
7188 CHAY IXCOT v. HOLDER
before an immigration judge (“IJ”). At the first deportation
hearing, the IJ agreed to continue the proceeding to afford
Chay an opportunity to find an attorney, and provided Chay
with an attorney information sheet containing the names and
phone numbers of lawyers who could be retained to assist
him.

Chay reappeared before the IJ during a group deportation
hearing a little over two weeks later. As before, he was with-
out counsel; when the IJ asked why this was so, Chay
explained that the lawyer he had contacted was unable to rep-
resent him. Chay again stated that his name was Juan
Mendez-Lopez, that he was a native and citizen of El Salva-
dor, and that he was sixteen years old, and admitted that he
had entered the United States without inspection. The IJ then
asked Chay whether he was afraid to return to El Salvador for
any reason. Chay answered “yes,” and explained that his fam-
ily was embroiled in a dispute with the owners of an apart-
ment building in which his family had rented certain units. On
the basis of this response, the IJ concluded that any issues
Chay might have if deported to El Salvador were “problems
of a personal nature” that could not support an asylum claim.

At the end of the hearing, the IJ ordered Chay and several
other individuals deported. Prior to concluding the hearing,
however, the IJ asked whether any person wished to appeal
his decision. The transcript of the hearing reflects that an
unnamed individual indicated an intent to appeal, and that the
IJ supplied this individual with an appeal form. Although the
transcript does not reflect whether this petitioner was Chay,
Chay did timely file a notice of appeal with the Board of
Immigration Appeals (“BIA”). The notice of appeal was
received March 18, 1989, and Chay was released from deten-
tion on March 23, 1989.

One year later, the Executive Office of Immigration
Review (“EOIR”) served Chay with a copy of the IJ’s deci-
sion and the transcript of his deportation hearing. Chay was
 CHAY IXCOT v. HOLDER 7189
instructed to file his appeal brief by April 9, 1990, but did not
do so. Consequently, the BIA summarily dismissed Chay’s
appeal on September 26, 1990.

In April 1993, Chay filed an affirmative asylum applica-
tion. The application was filed under his real name, indicated
that he was a native and citizen of Guatemala, and stated that
his year of birth was 1967.4 As the basis for his asylum claim,
Chay marked “political opinion” and explained that he was an
indigenous farmer from Guatemala whom guerrillas had
threatened with death when he had refused to help their cause
in the 1980s. Four months after Chay filed his asylum appli-
cation, in August 1993, he visited Guatemala for three weeks
to marry his fiancée.5 He then returned to the United States,
again entering without inspection.

Chay’s asylum application languished some twelve years;
there is no explanation for this extremely lengthy delay in its
adjudication. In September 2005, Chay attended an interview
for his pending asylum application and to determine whether
he qualified for lawful permanent residence under NACARA.
The Department of Homeland Security (“DHS”) concluded
that Chay was ineligible for relief under NACARA because
he had failed to register for the so-called “ABC benefits”
under American Baptist Churches v. Thornburgh, 760 F.
Supp. 796 (N.D. Cal. 1991).6 No decision was made on
Chay’s eligibility for asylum relief.
4
Since his deportation hearings, Chay has claimed consistently on offi-
cial documents that his year of birth is 1967, which would mean that he
was twenty-one years old, not sixteen, when he appeared before the IJ in
1989.
5
Chay’s wife now also resides in the United States. They have three
children. One is a citizen of Guatemala; the other two are U.S. citizens.
6
To be eligible for “special rule cancellation of removal” under
NACARA § 203, an alien, inter alia, must have registered as an ABC class
member. See 8 C.F.R. § 1240.61. As relevant here, a registered ABC class
member is any Guatemalan national who: (1) first entered the United
States on or before October 1, 1990 and (2) properly submitted an ABC
registration form to the INS on or before December 31, 1991. See id.
§ 240.60.
7190 CHAY IXCOT v. HOLDER
Chay supplied DHS with additional information salient to
his asylum application in December 2005, and, in February
2006, filed a request to add his wife and oldest child to his
application. In July 2007, Chay and his wife attended another
asylum interview, along with their immigration lawyer.
Again, no decision was made.

Chay appeared for yet another asylum interview on May
19, 2009, once more accompanied by his wife and his immi-
gration lawyer. At that time, an Immigration and Customs
Enforcement (“ICE”) officer met Chay in the lobby and ran
a fingerprint query, which matched a record belonging to Juan
Mendez-Lopez. Through an interpreter, Chay then submitted
a sworn statement in which he admitted to having used an
alias, and stated that he had never been informed that he pre-
viously had been ordered deported. When asked whether he
had any fear of persecution or torture if removed from the
United States, Chay answered “Yes, because my whole family
was killed in Guatemala.” He stated that he had witnessed the
deaths of his mother and father, and asserted “I would like to
ask a chance to fight my case. I fear if I am removed I too will
be killed in Guatemala.”

Thereafter, instead of adjudicating Chay’s pending asylum
application, DHS processed Chay for reinstatement of the IJ’s
1989 order of deportation7 pursuant to the post-IIRIRA rein-
statement provision, INA § 241(a)(5), 8 U.S.C. § 1231(a)(5),
and the attendant regulations, 8 C.F.R. § 241.8. The asylum
office simultaneously issued a letter advising Chay that, since
7
As DHS concedes, it erred in reinstating the IJ’s 1989 decision rather
than the BIA’s 1990 final order of removal. See 8 U.S.C. § 1101(a)(47)(B)
(defining “final” order of removal); 8 C.F.R. § 241.8 (setting out proce-
dural requirements for reinstatement under INA § 241(a)(5)); see also,
e.g., Lin v. Gonzales, 473 F.3d 979, 982-83 (9th Cir. 2007) (discussing
proper procedures for post-IIRIRA reinstatement of removal). In light of
our holding that IIRIRA’s reinstatement provision is impermissibly retro-
active as applied to Chay, we need not address the government’s conten-
tion that this error was harmless.
 CHAY IXCOT v. HOLDER 7191
his prior order of deportation had been reinstated, he was sta-
tutorily ineligible for any immigration relief.

One week later, Chay filed the instant petition for review.
We have jurisdiction to review final agency orders of
removal, including reinstatement orders, pursuant to INA
§ 242(a)(1), 8 U.S.C. § 1252(a)(1), subject to the standard
requirements for petitions for review, 8 U.S.C. § 1252(b).
“The proper standard of review in immigration proceedings
depends on the nature of the decision being reviewed.” Agui-
lar Gonzalez v. Mukasey, 534 F.3d 1204, 1208 (9th Cir.
2008). Pure questions of law raised in a petition for review are
reviewed de novo. Hamazaspyan v. Holder, 590 F.3d 744,
747 (9th Cir. 2009). Factual findings are reviewed for sub-
stantial evidence, see 8 U.S.C. § 1252(b)(4)(B); Hamaza-
spyan, 590 F.3d at 747, and “are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B).

II.

Chay argues that, because he submitted an affirmative
application for asylum three years before IIRIRA was enacted,8
DHS erred in retroactively applying IIRIRA’s reinstatement
provision to him. The government contends that IIRIRA’s
reinstatement provision can be applied to Chay because it
does not affect any substantive rights, create any new liabili-
ties, attach any new legal consequences, or take away any
vested interests. Rather, according to the government, INA
§ 241(a)(5), 8 U.S.C. § 1231(a)(5), “merely withdraws
[Chay’s] eligibility for a form of immigration relief which is
granted in the broad discretion of the adjudicator.”9
8
IIRIRA was enacted on September 30, 1996, but did not become effec-
tive and enforceable until April 1, 1997. See Fernandez-Vargas v. Gon-
zales, 548 U.S. 30, 45 (2006).
9
The government additionally asserts that Chay’s petition is without
merit because Chay abandoned his pending asylum application when he
7192 CHAY IXCOT v. HOLDER
“We . . . review de novo whether an application of IIRIRA
is impermissibly retroactive.” Hernandez de Anderson v.
Gonzales, 497 F.3d 927, 932 (9th Cir. 2007).

A.

[1] The Immigration and Nationality Act (INA), enacted in
1952, included a reinstatement provision, which stated in rele-
vant part:

Unlawful entry. Should the Attorney General find
that any alien has unlawfully reentered the United
States after having previously departed or been
deported pursuant to an order of deportation,
whether before or after June 27, 1952, on any ground
described in any of the paragraphs enumerated in
subsection (e) of this section, the previous order of
deportation shall be deemed to be reinstated from its
original date and such alien shall be deported under
such previous order at any time subsequent to such
reentry.

8 U.S.C. § 1252(f) (1994 ed.) (repealed 1996). This reinstate-
ment provision was limited: it applied only to those individu-
als “deported for engaging in certain unlawful activities—e.g.,
smuggling, marriage fraud, crimes of moral turpitude, multi-

returned to Guatemala to marry his fiancée. The government relies on 8
C.F.R. § 208.8 (1993), which stated:
An applicant who leaves the United States pursuant to advance
parole granted under 8 C.F.R. § 212.5(e) shall be presumed to
have abandoned his application under this section if he returns to
the country of claimed persecution unless he is able to establish
compelling reasons for having assumed the risk of persecution in
so returning.
By its plain terms, this provision is inapplicable to Chay, who never left
the United States pursuant to advance parole.
 CHAY IXCOT v. HOLDER 7193
ple criminal convictions, aggravated felonies, illegal drug use
or dealing, and terrorism activities.” Morales-Izquierdo, 486
F.3d at 494 n.11 (citing INA § 242, 8 U.S.C. § 1252 (1994
ed.) (repealed 1996)). Because Chay’s 1990 removal order
was based on his having entered the country without inspec-
tion, the pre-IIRIRA reinstatement provision did not apply to
him.

[2] In 1996, Congress enacted IIRIRA, which contained a
provision that “dramatically expanded the class of aliens sub-
ject to reinstatement, while narrowing the defenses available
in such proceedings.” Id. at 494; see also Arevalo v. Ashcroft,
344 F.3d 1, 5 (1st Cir. 2003) (enumerating material differ-
ences between pre- and post-IIRIRA reinstatement provi-
sions). The new reinstatement provision reads:

Reinstatement of removal orders against aliens
illegally reentering. If the Attorney General finds
that an alien has reentered the United States illegally
after having been removed or having departed volun-
tarily, 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.

INA § 241(a)(5), 8 U.S.C. § 1231(a)(5). Notwithstanding the
seemingly absolute bar on immigration relief for immigrants
subject to the post-IIRIRA reinstatement provision, however,
even aliens subject to the new statute

may seek withholding of removal under 8 U.S.C.
§ 1231(b)(3)(A) (2000 ed.) (alien may not be
removed to country if “the alien’s life or freedom
would be threatened in that country because of the
alien’s race, religion, nationality, membership in a
7194 CHAY IXCOT v. HOLDER
particular social group, or political opinion”), or
under 8 C.F.R. §§ 241.8(e) and 208.31 (2006) . . . .

Fernandez-Vargas, 548 U.S. at 35 n.4.10

B.

[3] “The Due Process Clause . . . protects the interests in
fair notice and repose that may be compromised by retroac-
tive legislation . . . .” Landgraf, 511 U.S. at 266. “The Legis-
lature’s unmatched powers allow it to sweep away settled
expectations suddenly and without individualized consider-
ation. Its responsivity to political pressures poses a risk that
it may be tempted to use retroactive legislation as a means of
retribution against unpopular groups or individuals.” Id.; see
also INS v. St. Cyr, 533 U.S. 289, 315 & n.39 (2001).

In analyzing the retroactivity of a statute, we follow a two-
step test. Landgraf, 511 U.S. at 280. We must first assess
whether Congress expressed its intention as to the temporal
reach of the legislation. Id.; see also St. Cyr, 533 U.S. at 316
(“A statute may not be applied retroactively, however, absent
a clear indication from Congress that it intended such a
10
The regulations also make clear that IIRIRA’s reinstatement provision
does not bar immigration relief in the form of withholding of removal. See
8 C.F.R. § 241.8(e).
Moreover, under 8 C.F.R. § 208.31, “any alien . . . whose deportation,
exclusion, or removal order is reinstated under [INA §] 241(a)(5) who, in
the course of the administrative removal or reinstatement process,
expresses a fear of returning to the country of removal” is to be “referred
to an asylum officer for a reasonable fear determination,” which is typi-
cally “conducted within 10 days of the referral.” Id. § 208.31(a)-(b). If the
asylum officer determines that the alien does, in fact, have a reasonable
fear of persecution or torture, he is to refer the alien’s case to an immigra-
tion judge, who is to determine the alien’s eligibility for withholding of
removal. Any such adjudication may be appealed to the BIA. Id.
§ 208.31(e). Upon the alien’s request, an IJ may review an asylum offi-
cer’s determination that the alien does not have a reasonable fear of perse-
cution or torture. Id. § 208.31(f)-(g).
 CHAY IXCOT v. HOLDER 7195
result.”). “The standard for finding such unambiguous direc-
tion is a demanding one.” St. Cyr, 533 U.S. at 316. “In the
absence of language” directly on point, “we [must] try to
draw a comparably firm conclusion about the temporal reach
specifically intended by applying ‘our normal rules of con-
struction.’ ” Fernandez-Vargas, 548 U.S. at 37 (quoting Lindh
v. Murphy, 521 U.S. 320, 326 (1997)). In the immigration
context, where there exists a “longstanding principle of con-
struing any lingering ambiguities in deportation statutes in
favor of the alien,” the demand for a clear statement from
Congress takes on added importance. St. Cyr, 533 U.S. at 320
(citation omitted). “If there is such a clear indication from
Congress, our analysis under Landgraf ends because ‘it is
beyond dispute that, within constitutional limits, Congress has
the power to enact laws with retrospective effect.’ ” Her-
nandez de Anderson, 497 F.3d at 935 (quoting St. Cyr, 533
U.S. at 316).

In Fernandez-Vargas, the Supreme Court examined INA
§ 241(a)(5), 8 U.S.C. § 1231(a)(5), and concluded that Con-
gress had not expressly prescribed the new reinstatement pro-
vision’s temporal reach.11 See 548 U.S. at 38-42;12 see also,
11
Notably, although Congress did consider including language that
would apply the reinstatement provision retroactively to reentries that
occurred before its enactment, the version of the statute ultimately enacted
omitted any such retroactive language. Compare H.R. Rep. No. 104-469(I)
at 416-17 (Mar. 4, 1996) (containing no retroactive language) with S. Rep.
No. 104-249 at 118 (Apr. 10, 1996) (containing the following language:
“whether before or after the date of enactment of this Act”) and H.R. Rep.
No. 104-828 at 54 (Sept. 24, 1996) (agreeing to recommend the House
version of the new reinstatement provision, which omitted expressly retro-
active language). Congress’s intent in omitting this language, however, is
not entirely clear. See Fernandez-Vargas, 548 U.S. at 39 & n.7 (discussing
one theory in support of the omission while avoiding the conclusion that
the omission was deliberate). Therefore, the legislative history of the pro-
vision is not probative on this matter.
12
Fernandez-Vargas thus abrogated our circuit’s prior holding that
“Congress intended [INA] § 241(a)(5) to encompass only post-enactment
reentries.” Castro-Cortez v. INS, 239 F.3d 1037, 1052 (9th Cir. 2001).
7196 CHAY IXCOT v. HOLDER
e.g., Arevalo, 344 F.3d at 13 (“What comes through loud and
clear is that Congress failed to specify the temporal reach of
the INA’s reinstatement provision . . . . To sum up, [§]
241(a)(5) is hopelessly unclear as to whether it applies to
those who illegally reentered the United States before April 1,
1997.”). Accordingly, “we may readily dispose of Landgraf’s
first step.” Hernandez de Anderson, 497 F.3d at 936.

[4] Where, as here, congressional intent cannot be ascer-
tained, we proceed to a second inquiry: whether the statute, as
applied, would have a “retroactive effect.” A statute does not
have such an effect “merely because it is applied in a case
arising from conduct antedating the statute’s enactment.”
Landgraf, 511 U.S. at 269. Instead, the question is whether
the statute’s application “would impair rights a party pos-
sessed when he acted, increase a party’s liability for past con-
duct, or impose new duties with respect to transactions
already completed.” Landgraf, 511 U.S. at 280. In making
this determination, we are “informed and guided by familiar
considerations of fair notice, reasonable reliance, and settled
expectations,” and exercise “a commonsense, functional judg-
ment about whether [IIRIRA] attaches new legal conse-
quences to events completed before its enactment.” St. Cyr,
533 U.S. at 321 (quoting Martin v. Hadix, 527 U.S. 343,
357-58 (1999) (internal quotation marks omitted)). If we find
that the statute does create a retroactive effect, the “traditional
presumption teaches that [the statute] does not govern absent
clear congressional intent favoring such a result.” Landgraf,
511 U.S. at 280.

C.

In 2006, the Supreme Court granted certiorari “to resolve
a split among the Courts of Appeals over the application of
[INA] § 241(a)(5) to an alien who reentered illegally before
IIRIRA’s effective date.” Fernandez-Vargas, 548 U.S. at 36.
Humberto Fernandez-Vargas, a citizen of Mexico, had
entered and reentered the United States several times without
 CHAY IXCOT v. HOLDER 7197
inspection in the 1970s and early 1980s. A deportation order
was entered against him in 1981, after which Fernandez-
Vargas committed his last reentry without inspection, in 1982.
He lived in Utah for over twenty years, fathering a U.S. citi-
zen son in 1989 and marrying his son’s mother, also a U.S.
citizen, in 2001. Fernandez-Vargas’s wife then filed a
relative-visa petition on his behalf, and he filed an application
to adjust his status to that of lawful permanent resident. This
sequence of events, however, alerted the authorities to
Fernandez-Vargas’s unlawful presence in the United States,
and in November 2003, the government commenced proceed-
ings under INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), to rein-
state the 1981 deportation order. Id. at 35-36.

Fernandez-Vargas petitioned for review, arguing that,
because his last reentry without inspection occurred before
IIRIRA’s effective date, the controlling reinstatement provi-
sion was the repealed INA § 242(f), which meant that he
remained eligible to apply for adjustment of status as the
spouse of a U.S. citizen. Id. He further argued that the appli-
cation of INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), to bar his
adjustment of status would be impermissibly retroactive.

The Supreme Court disagreed, finding that the application
of IIRIRA’s reinstatement provision was not impermissibly
retroactive in Fernandez-Vargas’s case. In reaching this con-
clusion, the Supreme Court emphasized that Fernandez-
Vargas had not applied for any relief from removal before
IIRIRA’s effective date, despite having had the opportunity to
do so. The Court explained:

The forms of relief identified by Fernandez-Vargas
as rendered unavailable to him by [INA] § 241(a)(5)
include cancellation of removal, see 8 U.S.C.
§ 1229b(b), adjustment of status, see § 1255, and
voluntary departure, see § 1229c. These putative
claims to relief are not “vested rights,” a term that
describes something more substantial than inchoate
7198 CHAY IXCOT v. HOLDER
expectations and unrealized opportunities . . . .
Fernandez-Vargas’s claim to such relief was contin-
gent, and it was up to him to take some action that
would elevate it above the level of hope. It is not that
these forms of relief are discretionary . . . it is rather
that before IIRIRA’s effective date Fernandez-
Vargas never availed himself of them or took action
that enhanced their significance to him in particular
.. ..

Id. at 44 n.10 (emphases added; citations omitted); see also id.
at 46 (Alternatively, Fernandez-Vargas “could have married
the mother of his son and applied for adjustment of status dur-
ing that period, in which case he would at least have had a
claim (about which we express no opinion) that proven reli-
ance on the old law should be honored by applying the pre-
sumption against retroactivity.”).

The holding in Fernandez-Vargas is, by its express terms,
limited to instances where an alien had been ordered deported
and reentered without inspection but took no action to adjust
status or obtain other relief from removal before IIRIRA’s
effective date. Chay, by contrast, did file an affirmative appli-
cation for asylum relief in 1993, well in advance of IIRIRA’s
effective date.

D.

[5] Although the Supreme Court has not addressed
whether INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), is imper-
missibly retroactive in cases such as Chay’s, every circuit that
has considered this question has held that the reinstatement
provision cannot be so applied. So do we.

In Arevalo, the First Circuit held that INA § 241(a)(5), 8
U.S.C. § 1231(a)(5), “would, if given retroactive effect,
unfairly attach new legal consequences to the petitioner’s pre-
existing application for an adjustment of status.” 344 F.3d at
 CHAY IXCOT v. HOLDER 7199
16. In that case, the petitioner arrived in the United States
without inspection in 1986 using a pseudonym. She was
apprehended and ordered deported to her native Guatemala.
Id. at 5-6. In 1990, she reentered, again without inspection,
using a different name. Her father, a lawful permanent resi-
dent, filed a visa petition on her behalf in August 1990, and
in March 1996, she applied for adjustment of status. On that
application, Arevalo falsely swore that she had never been
deported from the United States. Id. at 6. In 2002, upon dis-
covery of her prior deportation, government authorities
informed Arevalo that her application for adjustment of status
would not be considered. Then, in January 2003, the govern-
ment detained Arevalo and commenced reinstatement pro-
ceedings against her pursuant to INA § 241(a)(5), 8 U.S.C.
§ 1231(a)(5). Id.

The First Circuit granted the petition for review, conclud-
ing that Arevalo “can and does contest . . . the sudden nega-
tion of her application for discretionary relief.” Id. at 14. The
court held that “[t]he availability of relief (or, at least, the
opportunity to seek it) is properly classified as a substantive
right,” and that there was “no reason why the bar on applica-
tions for [discretionary] relief under [INA] section 241(a)(5)
should be deemed an exception to this general rule.” Id. In
response to the government’s argument “that the petitioner
had no protectable interest in applying for relief because an
adjustment of status was never a vested right,” the First Cir-
cuit held to the contrary, explaining:

We think that the INS circumscribes the encein-
ture[13] of relevant interests too grudgingly . . . . the
presumption against statutory retroactivity is not
restricted to cases involving vested rights . . . . and
most important, the petitioner in this case applied for
13
Enceinture is likely derived from the French word enceinte, defined
as “the structures or area protected by an encircling fortification.” See
WEBSTER’S II NEW RIVERSIDE UNIVERSITY DICTIONARY (1994).
7200 CHAY IXCOT v. HOLDER
adjustment of status before April 1, 1997 a fact that
distinguishes her in a material way from the mine
run of persons who appeal from the reinstatement of
previous removal orders . . . . This is a salient dis-
tinction because applications for discretionary relief,
once made, often become a source of expectation
and even reliance.

Id. (citations omitted). Significantly, the Supreme Court
acknowledged but did not overrule or otherwise opine on the
holding in Arevalo in Fernandez-Vargas. See 548 U.S. at 36
n.5 (citing Arevalo).

In Sarmiento Cisneros v. Attorney General, 381 F.3d 1277
(11th Cir. 2004), the petitioner, a native and citizen of Mex-
ico, overstayed his tourist visa and was deported in October
1996. He reentered without inspection the next month, and, in
March 1997, married a U.S. citizen. His wife immediately
filed a visa petition for an alien relative on Sarmiento’s
behalf, and he applied for adjustment of status. Both the visa
petition and the application to adjust status were approved. Id.
at 1279.

Thereafter, in August 1998, the government mailed Sar-
miento a notice of intent to rescind adjustment of status, and
in June 2003, ICE issued a notice of intent to reinstate Sar-
miento’s 1996 deportation order pursuant to INA § 241(a)(5),
8 U.S.C. § 1231(a)(5). Id.

The Eleventh Circuit granted Sarmiento’s petition for
review and vacated the reinstatement order. Applying the
Supreme Court’s reasoning in St. Cyr, the court explained:

Before the IIRIRA, an alien who had been previ-
ously deported and illegally reentered the United
States was eligible for the discretionary relief of
adjustment of status under 8 U.S.C. [§] 1255(i). See
8 U.S.C. § 1255(i). Although the pre-IIRIRA statute
 CHAY IXCOT v. HOLDER 7201
empowered the Attorney General to reinstate depor-
tation orders, the authority was limited to a small
group of aliens of which Sarmiento was not a mem-
ber. See 8 U.S.C. § 1252(f) (repealed 1996). The
IIRIRA eliminated the availability of any relief for
an alien who illegally reenters the United States and
broadened the applicability of the [reinstatement]
statute to all aliens. See 8 U.S.C. [§] 1231(a)(5). . .
. The IIRIRA, therefore, created a new disability for
Sarmiento.

381 F.3d at 1283-84.

As it had done in Arevalo, the government argued that,
because the relief which the petitioner sought was discretion-
ary, it was akin to “an act of grace” that could not serve as “a
defense to removal.” Id. at 1284. In response, the Eleventh
Circuit explained that the Supreme Court had “rejected this
reasoning in St. Cyr,” when it held that courts “must consider
an ‘alien’s reasonable reliance on the continued availability of
discretionary relief from deportation when deciding whether
the elimination of such relief has a retroactive effect.’ ” Id.
(quoting St. Cyr, 533 U.S. at 324). St. Cyr held that “[t]here
is a clear difference, for the purposes of retroactivity analysis,
between facing possible deportation and facing certain depor-
tation.” 533 U.S. at 325. Given this precedent, the Eleventh
Circuit concluded that the fact “[t]hat adjustment of status
relief is discretionary does not defeat Sarmiento’s argument
that section 1231(a)(5) has an impermissible retroactive effect
when applied to him.” Sarmiento Cisneros, 381 F.3d at 1284
(citing Arevalo, 344 F.3d at 15).

The Seventh Circuit followed the First and the Eleventh in
Faiz-Mohammed v. Ashcroft, 395 F.3d 799 (7th Cir. 2005).
Reviewing relevant precedent, the court explained:

The courts have looked to whether [INA § 241(a)(5),
8 U.S.C.] § 1231(a)(5) disturbs the petitioner’s sub-
7202 CHAY IXCOT v. HOLDER
stantive rights or expectations. When retroactive
application has affected only the way in which a
petitioner’s deportation is adjudicated, because, for
instance, the petitioner failed to apply for discretion-
ary relief prior to IIRIRA’s effective date, no “set-
tled expectations” were disturbed, and, therefore no
impermissible retroactive effect occurred. However,
when retroactive application not only affected the
way in which the petitioner’s deportation was adju-
dicated, but also affected the substantive relief that
was available to the petitioner, [INA § 241(a)(5), 8
U.S.C.] § 1231(a)(5) could not be applied retroac-
tively.

Id. at 809 (footnote and citations omitted). Applying this
framework, the Seventh Circuit held that, since Faiz-
Mohammad had reentered the United States and applied for
adjustment of status prior to IIRIRA’s effective date, he “had
the right to have his adjustment of status adjudicated, includ-
ing the waivers of inadmissibility necessary to his applica-
tion.” Id. at 810.

The Seventh Circuit acknowledged that Faiz-Mohammed
“had no guarantee of a favorable decision,” but explained that
the second prong of the Landgraf inquiry “also asks whether
retroactive application [of a statute] would create a new obli-
gation, impose a new duty, or attach a new disability.” Id.
(citation and punctuation omitted). Because the new reinstate-
ment provision “prevents aliens who previously have been
deported from applying for discretionary relief[, t]his change
constitutes a ‘new disability’ that did not exist prior to
IIRIRA’s passage.” Id. The application of this provision to an
immigrant like Faiz-Mohammad, therefore, was impermiss-
ibly retroactive under Landgraf. Id.

The Tenth Circuit is the most recent to have addressed this
issue on comparable facts. In Valdez-Sanchez v. Gonzales,
485 F.3d 1084 (10th Cir. 2007), as in Sarmiento Cisneros, the
 CHAY IXCOT v. HOLDER 7203
petitioner had reentered without inspection prior to IIRIRA’s
enactment date, married a U.S. citizen, applied for adjustment
of status, and received approval from the INS. Id. at 1086.
Reviewing the various precedents discussed supra, the court
concluded:

[W]e agree with our sister circuits that when applica-
tion of IIRIRA § 241(a)(5) disturbs an alien’s sub-
stantive rights or expectations, such as the
substantive relief available to the Petitioner in this
case, DHS may not apply it retroactively. Like the
aliens in the cases from the First, Seventh, and Elev-
enth Circuits, Petitioner applied for discretionary
relief in the form of an adjustment of status prior to
IIRIRA’s enactment, relief that was available to him
at the time. Section 241(a)(5) eliminates the possibil-
ity of such relief and thus, retroactive application of
§ 241(a)(5) attached a new disability. The new dis-
ability attached to a completed transaction because
Petitioner had applied for relief prior to IIRIRA’s
enactment. When such a retroactive effect exists,
Landgraf requires us to apply our traditional pre-
sumption against retroactive application of the stat-
ute.

Id. at 1090-91 (citations omitted).

[6] As evident, the most salient fact in these cases is
whether an alien filed for relief before IIRIRA’s effective date
and was awaiting the adjudication of that pending application
when the government sought to reinstate an order of deporta-
tion under IIRIRA’s reinstatement provision.14
14
Although the Second and Eighth Circuits recently held that INA
§ 241(a)(5), 8 U.S.C. § 1231(a)(5), is not impermissibly retroactive, they
did so in materially distinguishable circumstances.
In Herrera-Molina v. Holder, 597 F.3d 128 (2d Cir. 2010), the Second
Circuit denied a petition for review where the petitioner did not apply for
7204 CHAY IXCOT v. HOLDER
E.

[7] Like the petitioners in Arevalo, Sarmiento Cisneros,
Faiz-Mohammad, and Valdez-Sanchez, Chay reentered with-
out inspection and applied for relief from removal before
IIRIRA took effect. The primary factual difference between
those cases and Chay’s situation is that Chay filed for asylum
rather than adjustment of status. This difference is immaterial,
because the central inquiry under Landgraf and St. Cyr is not
the particular form of relief sought, nor whether that form of
relief is discretionary, but whether the application of a new
statute “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.” Land-
graf, 511 U.S. at 280.

[8] IIRIRA’s new reinstatement provision dramatically
expanded the scope of reinstatement while simultaneously
barring individuals subject to reinstatement from virtually
every form of immigration relief. See, e.g., Morales-
Izquierdo, 486 F.3d at 494. We therefore follow our sister cir-
cuits and hold that the post IIRIRA reinstatement provision is
impermissibly retroactive under Landgraf when applied to an
immigrant, such as Chay, who applied for immigration relief
prior to IIRIRA’s effective date. Chay’s petition for review is,

adjustment of status until after IIRIRA’s effective date. See id. at 135 (dis-
tinguishing Valdez-Sanchez, Faiz-Mohammad, Sarmiento Cisneros, and
Arevalo).
In Molina Jerez v. Holder, 625 F.3d 1058 (8th Cir. 2010), the govern-
ment had fully adjudicated the petitioner’s applications for asylum and
NACARA relief before moving to reinstate a pre-IIRIRA removal order
pursuant to the new INA § 241(a)(5), 8 U.S.C. § 1231(a)(5). See id. at
1061-66. Applying Fernandez-Vargas, the Eighth Circuit concluded that,
because DHS had adjudicated the petitioner’s asylum claim prior to mov-
ing to reinstate removal, the application of INA § 241(a)(5), 8 U.S.C.
§ 1231(a)(5), was not impermissibly retroactive. Id. at 1069-70.
 CHAY IXCOT v. HOLDER 7205
accordingly, granted in part. The reinstatement order entered
pursuant to INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) is vacated.15

[9] Although we cannot determine whether Chay is enti-
tled to a grant of asylum relief, we can and do decide that he
is entitled to an adjudication of his asylum applica-
tion—pending now for eighteen years—on its merits. See St.
Cyr, 533 U.S. at 307 (“Traditionally, courts recognized a dis-
tinction between eligibility for discretionary relief, on the one
hand, and the favorable exercise of discretion, on the other
hand.”); see also, e.g., Arevalo, 344 F.3d at 15 (“A right to
seek relief is analytically separate and distinct from a right to
the relief itself. Consequently, an alien is not precluded from
having a vested right in a form of relief merely because the
relief itself is ultimately at the discretion of the Executive
Branch.” (citations omitted)).

III.

[10] Chay additionally argues that he has a right to have
his eligibility for NACARA relief adjudicated on the merits
before he may be removed. The government responds that,
because DHS determined that Chay did not register for the so-
called “ABC benefits” as required to be eligible for “special
rule cancellation of removal” under NACARA § 203, see 8
C.F.R. § 1240.61, this court lacks jurisdiction over Chay’s
NACARA claim. We agree. IIRIRA expressly precludes fed-
eral courts from reviewing the agency’s factual determination
that an immigrant is ineligible for ABC benefits or special rule
15
Our circuit has not decided whether INA § 241(a)(5), 8 U.S.C.
§ 1231(a)(5) allows the reinstatement of the BIA’s 1990 order against
Chay after his pending application for asylum has been adjudicated on its
merits, and we express no view on the propriety of such action. Compare
Molina Jerez, 625 F.3d at 1069-70 (indicating such a course of action
raises no retroactivity concerns) with Arevalo, 344 F.3d at 16 (“The INS,
of course, is free (again, consistent with this opinion) to resume the pro-
cessing of the petitioner’s application for adjustment of status and to go
forward with a new round of removal proceedings.”).
7206 CHAY IXCOT v. HOLDER
cancellation of removal under NACARA § 203. See, e.g.,
Lanuza v. Holder, 597 F.3d 970, 971 (9th Cir. 2010) (per
curiam) (“Section 309(c)(5)(C)(ii) [of IIRIRA] provides that
‘[a] determination by the Attorney General as to whether an
alien satisfies the requirements of clause (i) is final and shall
not be subject to review by any court.’ Therefore, we lack
jurisdiction to determine [petitioner’s] statutory eligibility for
NACARA § 203 relief.” (citation omitted)); Molina Jerez,
625 F.3d at 1069 (“Whether [petitioner] registered for ABC
benefits in a timely manner is a purely factual issue over
which this court lacks jurisdiction.” (citation omitted)).
Accordingly, we deny Chay’s petition for review to the extent
that he asks us to remand to DHS to reevaluate his eligibility
for special rule cancellation of removal under NACARA
§ 203.

IV.

Following our sister circuits, we hold that the application
of INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), is impermissibly
retroactive when applied to immigrants who were deported
but reentered and filed for immigration relief prior to
IIRIRA’s effective date. We therefore grant Chay’s petition
for review in part and vacate the reinstatement order entered
against him. As we lack jurisdiction over the factual predicate
of Chay’s NACARA § 203 claim, we deny the petition for
review in part.

This panel retains jurisdiction over all further appeals in
this matter.

Petition GRANTED in part, DENIED in part and
REMANDED.