Ojeda-Terrazas v. Ashcroft

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________________

No. 01-60460
_____________________________________

Benjamin OJEDA-TERRAZAS,
also known as Benjamin T. Ojeda,
also known as Benjamin Ojeda,

Petitioner,

v.

John ASHCROFT,
United States Attorney General,

Respondent.

__________________________________________________

Petition for Review of an Order of the
Immigration and Naturalization Service.
__________________________________________________

May 9, 2002

Before ALDISERT*, DAVIS, and PARKER, Circuit Judges.

W. Eugene Davis, Circuit Judge:

Petitioner Benjamin Ojeda-Terrazas petitions for review of

an order of the Immigration and Naturalization Service (“INS”)

reinstating his prior deportation order under § 241(a)(5) of the

Immigration and Nationality Act (“INA”).1 Ojeda-Terrazas argues

*
Circuit Judge of the Third Circuit, sitting by
designation.
1
Immigration and Nationality Act § 241(a)(5), 8 U.S.C. §
1231(a)(5) (2001). For simplicity, after initial reference to the
United States Code section numbers, this opinion refers to the
provisions at issue as the parties do–by their INA or Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
that § 241(a)(5) does not apply retroactively to aliens who, like

Ojeda-Terrazas, illegally reentered the United States before the

statute’s effective date of April 1, 1997. Ojeda-Terrazas

further argues that § 241(a)(5)’s implementing regulations

violate his due process rights under the Fifth Amendment.

Because we conclude that § 241(a)(5) does not have an

impermissible retroactive effect as applied to Ojeda-Terrazas and

that the corresponding regulations do not violate any of his due

process rights, we deny Ojeda-Terrazas’ petition for review and

affirm the removal order.

I.

The facts in this case are not in dispute. Ojeda-Terrazas

is a citizen of Mexico. Some time before 1984, Ojeda-Terrazas

illegally entered the United States without inspection. On March

8, 1984, Ojeda-Terrazas was deported to Mexico through El Paso,

Texas. At that time, Ojeda-Terrazas was informed that if he

returned to the United States without permission, he could be

subject to criminal prosecution which could result in

imprisonment and/or a fine.

Nevertheless, Ojeda-Terrazas illegally reentered the United

States sometime in 1991. On May 14, 2001, the INS apprehended

Ojeda-Terrazas and served him with a Notice of Intent to

reinstate his March 8, 1984, deportation order. Ojeda-Terrazas

(“IIRIRA”) section numbers.

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then filed this petition for review.

II.

As an initial matter, this court must determine whether it

has jurisdiction to review the INS’ order reinstating Ojeda-

Terrazas’ previous deportation order. Both parties in this case

agree that INA § 242(a)-(b)2 grants this court jurisdiction to

review the reinstatement order, but not the merits of Ojeda-

Terrazas’ 1984 order of deportation which has been reinstated.3

That, of course, does not end our inquiry because this court must

satisfy itself that jurisdiction is proper.4

Section 242(a)-(b) of the INA grants the courts of appeals

subject matter jurisdiction over “final orders of removal.”5 At

the same time, INA § 241(a)(5) states, in relevant part, that a

“prior order of removal is reinstated from its original date and

is not subject to being reopened or reviewed.”6

Turning to the issue at hand, a reinstatement order is not

2
Immigration and Nationality Act § 242(a)-(b), 8 U.S.C. §
1252(a)-(b) (2001).
3
Id.
4
See Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th
Cir. 2001) (“It is true that subject-matter jurisdiction cannot be
created by waiver or consent. It is equally true that federal
courts must address jurisdictional questions whenever they are
raised and must consider jurisdiction sua sponte if not raised by
the parties.”).
5
INA § 242(a)-(b).
6
INA § 241(a)(5).

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literally an “order of removal” because it merely reinstates a

previously issued order of removal or deportation. Nevertheless,

reinstatement of Ojeda-Terrazas’ previous deportation order is a

final order of the INS. A fair interpretation of § 242 grants

this court the authority to review the lawfulness of the

reinstatement order. However, § 241(a)(5) limits that review to

the reinstatement order itself; this court cannot “reopen or

review” the merits of Ojeda-Terrazas’ 1984 deportation order. We

conclude, therefore, that this court has jurisdiction to hear

Ojeda-Terrazas’ petition for review of the reinstatement order.7

III.

Ojeda-Terrazas next argues that INA § 241(a)(5) does not

apply retroactively to him because he illegally reentered the

United States in 1991, before the provision’s effective date of

April 1, 1997. This argument requires a brief overview and

history of reinstatement procedures under the INA.

A.

7
In reaching this conclusion, we join several other
circuits that have resolved this issue in favor of jurisdiction.
See Velaszuez-Gabriel v. Crocetti, 263 F.3d 102, 105 (4th Cir.
2001)(noting that the court of appeals “clearly [has] subject
matter jurisdiction” to review the lawfulness of the order
reinstating petitioner’s prior deportation under INA § 242(b));
Bejjani v. INS, 271 F.3d 670, 674 (6th Cir. 2001) (holding that INA
§ 242(b)granted that court jurisdiction to review the reinstatement
order); Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 863-68 (8th
Cir. 2002) (considering the merits of alien’s challenge to
reinstatement of previous removal order); Castro-Cortez v. INS, 239
F.3d 1037, 1043-45 (9 th Cir. 2001) (holding that the court had
jurisdiction to review the reinstatement order under INA §
242(a)(1)).

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 In 1991, when Ojeda-Terrazas illegally reentered the United

States, INA § 242(f) provided that, if any alien illegally

reentered the United Sates after deportation, “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 The Illegal

Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”),9 which became effective on April 1, 1997, made

dramatic changes to immigration law. Significant to this case,

IIRIRA replaced § 242(f) with a new, broader reinstatement

provision. The new reinstatement provision, § 241(a)(5), states:

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

8
Immigration and Nationality Act § 242(f), 8 U.S.C. §
1252(f) (repealed 1996).

INA § 242(f) provided in full:

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 [covering deportation based on various enumerated
reasons including commission of alien smuggling and other
criminal offenses], 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. For the purposes of subsection
(e) of this section the date on which the finding is made that
such reinstatement is appropriate shall be deemed the date of
the final order of deportation.
9
Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (1996).

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 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 reentry.10

In enacting § 241(a)(5), Congress’ intent was to streamline and

expedite existing procedures for removing illegal aliens, which

had become “cumbersome and duplicative.”11

Pursuant to § 241(a)(5), the INS promulgated regulations

outlining the procedures for reinstating an alien’s prior

deportation order. Under the regulations, the alien is not

entitled to a hearing before an immigration judge.12 Rather, an

INS officer determines (1) the identity of the alien; (2) whether

the alien was subject to a prior order of removal; and (3)

whether the alien unlawfully reentered the United States.13 The

alien then has an opportunity to make a statement.14 The officer

determines whether this statement warrants reconsideration.15

An alien who expresses a fear of persecution upon return to the

10
INA § 241(a)(5).
11
H.R. Rep. 104-469(I), 1996 WL 168955 at *107.
12
See 8 C.F.R. § 241.8(a).
13
See id. In a disputed case, the INS must verify the
identity of the alien by comparing the fingerprints of the alien
who was previously deported contained in INS records with those of
the alien who is the subject of the reinstatement proceedings. See
8 C.F.R. § 241.8(a)(2).
14
Id. at § 241.8(b).
15
Id.

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country of removal is referred to an asylum officer.16 If that

officer determines his fear is reasonable, the alien may apply

for withholding of removal.17

The key differences between the current reinstatement

procedure under § 241(a)(5) and the former procedure under

repealed § 242(f) significant to this appeal are:

1. Section 241(a)(5) extends the reinstatement procedures
to those aliens, like Ojeda-Terrazas, whose initial
removals were based upon entry without inspection.
Under § 242(f), reinstatement was only available for
those aliens whose previous order of deportation was
based on one of the enumerated grounds (which did not
include lack of inspection). Therefore, under the old
statute, Ojeda-Terrazas would have been entitled to a
new deportation procedure rather than being limited to
the reinstatement procedure.

2. Section 241(a)(5) does not allow judicial review of the
underlying previous removal order, as discussed above.
Section 242(f), however, allowed the alien to attack
the merits of a previous removal order.

3. The regulations implementing § 241(a)(5) allow an
immigration officer to determine, following the three-
step analysis discussed above, whether reinstatement is
proper. Under § 242(f), an immigration judge made the
determination.

B.

We turn next to the question for decision in this case:

whether the current reinstatement procedure under § 241(a)(5)

applies retroactively to Ojeda-Terrazas. The landmark Supreme

16
Id. at § 241.8(e).
17
Id.

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Court case, Landgraf v. USI Film Products,18 provides the

starting point of our analysis of whether § 241(a)(5) applies

retroactively. In Landgraf, the Supreme Court set forth a two-

step test to determine whether a federal statute applies

retroactively to conduct occurring before it was enacted.19

First, the court must “determine whether Congress has expressly

prescribed the statute’s proper reach.”20 In determining whether

Congress clearly expressed the temporal reach of the statute, the

court is not limited to the statute’s express language, but may

also use traditional tools of statutory construction.21 If

Congress has clearly expressed whether the statute should apply

retroactively, the inquiry ends.22

However, if the statute contains no clear indication of

Congress’ intent, the court must then determine whether applying

the new statute to past conduct “would have retroactive

effect.”23 A statute has an impermissible retroactive effect

when “it would impair rights a party possessed when he acted,

increase a party’s liability for past conduct, or impose new

18
511 U.S. 244 (1994).
19
Id. at 280.
20
Id.
21
See Lindh v. Murphy, 521 U.S. 320, 325-26 (1997).
22
See Landgraf, 511 U.S. at 280.
23
Id.

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duties with respect to transactions already completed.”24 If the

court decides that the statute would have an impermissible

retroactive effect if applied to past conduct, Landgraf instructs

that the statute does not apply retroactively.25

1.

Proceeding under the Landgraf framework, we must first

determine whether Congress has clearly prescribed the temporal

reach of § 241(a)(5). While Ojeda-Terrazas contends that

Congress clearly expressed its intent that § 241(a)(5) apply only

prospectively, the INS argues that Congress clearly indicated

just the opposite--that the statute should apply retroactively.

Ojeda-Terrazas makes several arguments to advance his

reading of § 241(a)(5). First, Ojeda-Terrazas points out that

the former reinstatement statute, § 242(f), expressly provided

that the reinstatement procedure applied retroactively.26 He

maintains that the omission of any reference to retroactivity in

§ 241(a)(5) in contrast to § 242(f), indicates Congress’ clear

intent that the statute apply only prospectively. Next, Ojeda-

Terrazas argues that Congress’ inclusion of express language

24
Id.
25
Id.
26
See INA § 242(f) (repealed 1996) (stating that “. . . any
alien [who] 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,” is subject to
reinstatement) (emphasis added).

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making retroactive other sections of the IIRIRA demonstrates, by

negative inference, that Congress intended that § 241(a)(5) not

apply retroactively.27 Finally, Ojeda-Terrazas asserts that

Congress’ silence regarding retroactivity is instructive. He

argues that Congress enacted IIRIRA against the backdrop of

Landgraf, and therefore, knew to use clear language if it

intended § 241(a)(5) to apply retroactively.

On the other hand, the INS presents various arguments in

support of its position that § 241(a)(5) applies retroactively.

First, the INS points to § 241(a)(5)’s plain language stating

that reinstatement applies to any alien who “has reentered the

United States illegally.”28 The INS contends that this use of

the past tense clearly contemplates past action. The INS also

invokes Chevron, U.S.A. v. Natural Resources Defense Council,29

for the proposition that this court must defer to its

interpretation of the IIRIRA’s retroactive effect, absent

congressional intent to the contrary, as long as it is

27
See IIRIRA § 321 (“the term [aggravated felony] applies
regardless of whether the conviction was entered before, on, or
after the date of enactment of this paragraph); § 347(c) (exclusion
because of unlawful voting applies to any alien who illegally voted
“before, on or after the date of enactment of this Act”); § 351(c)
(specifying that the section “shall apply to applications for
waivers filed before, on, or after the date of the enactment of
this Act”).
28
INA § 241(a)(5) (emphasis added).
29
467 U.S. 837, 843 (1984).

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reasonable.30

Although the Supreme Court has not addressed the precise

issue of whether § 241(a)(5) applies retroactively, it did

consider whether another IIRIRA provision applied retroactively

in INS v. St. Cyr.31 In St. Cyr, the Court considered the

retroactive effect of IIRIRA § 304(b), which replaced former §

212(c).32 Under § 212(c), the Attorney General had broad

discretion to waive deportation orders of resident aliens.33 The

newly-enacted § 304(b), however, excluded aliens convicted of

aggravated felonies from the class of aliens to whom the Attorney

General could waive deportation.34 Before the effective date of

IIRIRA, St. Cyr, an alien, pled guilty to a criminal charge that

made him deportable.35 Under pre-IIRIRA law, the Attorney

30
The INS also argues that IIRIRA’s effective date of April
1, 1997, coupled with the statute’s “savings clause,” which
provides that IIRIRA’s new rules do not apply to cases pending at
the time of the statute’s enactment, see IIRIRA § 309(c)(1)(B),
indicates that the pending cases encompassed by the savings clause
are the only ones that are exempt from § 241(a)(5). This argument
is meritless. The Supreme Court rejected this very argument in INS
v. St. Cyr, 533 U.S. 289, 317-18, 121 S.Ct. 2271, 2288-89 (2001)
(stating that IIRIRA’s savings clause “does not communicate with
unmistakable clarity Congress’ intention to apply its repeal of §
212(c) [another IIRIRA provision] retroactively”). See also
Velasquez-Gabriel, 263 F.3d 102, 106 (4th Cir. 2001).
31
533 U.S. 289, 121 S.Ct. 2271 (2001).
32
Id.
33
Id. at 295–96.
34
Id. at 297.
35
Id. at 293.

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General had discretion to waive his deportation, but under new §

304(b), the Attorney General had no authority to grant St. Cyr a

waiver.36

The Court held that the statute did not apply

retroactively.37 Following Landgraf’s two-part test, the Court

first found that Congress’ intent regarding the retroactivity of

§ 304(b) was unclear.38 The Court stated that Landgraf’s first

step is satisfied only where the “statutory language [is] so

clear that it could sustain only one interpretation.”39 The

Court stated that § 304(b) contained no such clear statement of

Congress’ intent to apply the statute retroactively.40 The

Court reasoned that neither IIRIRA’s effective date nor its

comprehensive nature clearly indicated that Congress intended the

provision to be retroactive.41 The Court also explained that

“Congress’ willingness, in other sections of IIRIRA, to indicate

unambiguously its intention to apply specific provisions

retroactively” supported its conclusion that the temporal reach

36
Id.
37
Id. at 326.
38
Id. at 315-20.
39
Id. at 317 (quoting Lindh v. Murphy, 521 U.S. 320, 328
n.4 (1997)).
40
Id. at 320.
41
Id. at 317-18.

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of IIRIRA was unclear.42 Proceeding then to Landgraf’s second

step, discussed more thoroughly below, the Court found that the

statute had an impermissible retroactive effect, and therefore,

did not apply retroactively to St. Cyr.43

Although the Supreme Court has not addressed the issue at

hand, other circuits have specifically considered the

retroactivity of § 241(a)(5) and have reached different results

under the first prong of the Landgraf test. The Sixth and Ninth

Circuits have held that § 241(a)(5) does not apply retroactively,

finding that the provision clearly indicates Congress’ intention

not to apply the provision retroactively.44 In reaching this

result, both courts relied primarily on Congress’ elimination of

the explicit retroactive language contained in § 242(f); the

legislative history; and congressional silence on retroactivity

of the provision.45 Based on their findings of a clear

congressional statement that § 241(a)(5) does not apply

42
Id. at 318-19.
43
Id. at 325-26.
44
See Bejjani v. INS, 271 F.3d 670, 687 (6th Cir. 2001)
(decided post-St. Cyr); Castro-Cortez, 239 F.3d 1037, 1053 (9th
Cir. 2001) (decided pre-St. Cyr).
45
Bejjani, 271 F.3d at 684-87; Castro-Cortez, 239 F.3d at
1050-52.
However, while the Ninth Circuit credited the negative
inference argument arising from Congress’ inclusion of express
retroactive provisions in other parts of IIRIRA, Castro-Cortez, 239
F.3d at 1051-52, the Fourth Circuit did not, finding that such
language was located in other provisions of IIRIRA that addressed
completely distinct subject matters. Bejjani, 271 F.3d at 685-86.

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retroactively, these courts did not reach Landgraf’s second step.

The Fourth and Eighth Circuits have reached a different

result, however, and have held that Congress’ intent on whether §

241(a)(5) applies retroactively is unclear.46 Both courts relied

on various arguments advanced by the parties in this case to

support their finding that congressional intent is ambiguous.47

Therefore, these courts proceeded to analyze the retroactivity of

§ 241(a)(5) under the second prong of the Landgraf test.

In light of the Supreme Court’s ruling in St. Cyr, we join

the Fourth and Eighth Circuits in holding that Congress did not

clearly indicate whether it intended to apply § 241(a)(5)

retroactively. In St. Cyr, the Supreme Court considered many

arguments identical to those advanced by the parties in this case

and, nevertheless, concluded that it was unclear whether Congress

intended the IIRIRA provision at issue in that case to be

retroactive.48 In particular, the Supreme Court reasoned that

Congress’ clear statement in other IIRIRA provisions that those

provisions applied retroactively, the effective date of the

statute, and the inclusion of the saving provision did not make

Congress’ statement sufficiently clear to satisfy Landgraf’s

46
See Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 108 (4th
Cir. 2001) (decided post-St. Cyr.); Alvarez-Portillo v. Ashcroft,
280 F.3d 858, 865 (8th Cir. 2002) (decided post-St. Cyr).
47
Velasquez-Gabriel, 263 F.3d at 106-08; Alvarez-Portillo,
280 F.3d at 864-65.
48
533 U.S. at 317-20.

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first step.49

Section 241(a)(5) does differ from the IIRIRA provision at

issue in St. Cyr in significant ways, however. First, as Ojeda-

Terrazas points out, the predecessor of § 241(a)(5) explicitly

stated that it applied retroactively. At the same time, however,

as the INS points out, § 241(a)(5) states that an alien who “has

reentered the United States illegally after having been removed

or having departed voluntarily” is subject to reinstatement of a

prior deportation order.50 Congress could have stated, but did

not, that an alien who reenters the United States illegally may

have a prior order reinstated under § 241(a)(5). Nevertheless,

in St. Cyr, the Supreme Court made clear that “[t]he presumption

against retroactive application of ambiguous statutory

provisions, buttressed by ‘the longstanding principle of

construing any lingering ambiguities in deportation statutes in

favor of the alien’” must be considered when determining the

retroactivity of IIRIRA provisions.51 For all of these reasons,

we are satisfied that the language of § 241(a)(5) is not “so

clear that it could sustain only one interpretation.”52

49
Id.
50
INA § 241(a)(5).
51
533 U.S. at 320 (citing INS v. Cardoza-Fonseca, 480 U.S.
421, 449 (1987).
52
St. Cyr, 533 U.S. at 317 (quoting Lindh v. Murphy, 521
U.S. 320, 328 n.4 (1997)).

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Therefore, we hold that Congress did not indicate with sufficient

clarity whether § 241(a)(5) applies retroactively to satisfy the

first step of Landgraf.53

2.

Because we conclude that it is unclear whether Congress

intended that § 241(a)(5) apply retroactively, we must now

determine whether application of the provision to Ojeda-Terrazas

has an impermissible retroactive effect. Under Landgraf’s second

step, the court must determine whether the statute, if applied

retroactively, “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.”54 If

53
Another argument that deserves separate attention at this
point is the INS’ assertion that once this court has decided that
the statute is ambiguous as to whether it applies retroactively, it
must defer to the INS’ interpretation of the statute under Chevron.
467 U.S. 837. First, the INS has not pointed this court to any
official interpretation of § 241(a)(5) which states that that
provision applies retroactively. Assuming there was one, however,
St. Cyr forecloses this argument as well. In St. Cyr, the Court
found that Congress had not clearly expressed whether the IIRIRA
provision at issue in that case applied retroactively. 533 U.S. at
320. The INS advanced the same Chevron argument as it does here.
Id. at 320 n.45. The Court rejected this argument, however, and
proceeded to analyze the retroactivity of the statute under the
second step of the Landgraf test. Id. The Court stated that
“[b]ecause a statute that is ambiguous with respect to retroactive
application is construed under our precedent to be unambiguously
prospective, there is, for Chevron purposes, no ambiguity in such
a statute for an agency to resolve.” Id. (citation omitted).

54
Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994).

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so, the statute does not apply retroactively.55

In St. Cyr, discussed above, the Court analyzed the IIRIRA

provision at issue under the second prong of the Landgraf test

after finding that Congress had not clearly dictated the temporal

reach of the IIRIRA provision at issue.56 The Court stated that

whether a statute has a retroactive effect under Landgraf “should

be informed and guided by ‘familiar considerations of fair

notice, reasonable reliance, and settled expectations.’”57 The

Court explained that “[p]lea agreements involve a quid pro quo

between a criminal defendant and the government.”58 The Court

then reasoned that when St. Cyr entered the plea agreement for

his conviction, he was “acutely aware of the immigration

consequences of [his] conviction[].”59 The Court found that

aliens, like St. Cyr, who entered plea agreements with the

government before the IIRIRA became effective “almost certainly”

relied upon the likelihood of receiving a discretionary waiver of

deportation from the Attorney General--a possibility that the new

IIRIRA provision eliminated--when deciding to forgo their right

55
Id.
56
533 U.S. at 321-26.
57
Id. at 321 (internal citations omitted).
58
Id.
59
Id. at 322.

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to a trial.60 For these reasons, the Court held that the newly

enacted IIRIRA provision had an impermissible retroactive

effect.61

In contrast, writing for the Eighth Circuit, Judge Loken

held in Alvarez-Portillo62 that most of § 241(a)(5) had no such

retroactive effect.63 The court found that § 241(a)(5)’s denial

of a hearing before an immigration judge did not have a

retroactive effect because “[i]llegal reentrants have no

entitlement to such delays and no reasonable expectation that

prior inefficiencies in the administration of our immigration

laws would continue indefinitely.”64 Likewise, the court found

that § 241(a)(5)’s extension of the reinstatement procedures to

illegal reentrants whose prior deportation was based on entry

without inspection did not have an impermissible retroactive

effect.65 Judge Loken wrote that “[n]o illegally reentering

alien has a reasonable expectation that his prior deportation

order will not be reinstated for purposes of effecting a second

60
Id. at 325.
61
Id.
62
Alvarez-Portillo v. Ashcroft, 280 F.3d 858 (8th Cir.
2002).
63
Id. at 865-67.
64
Id. at 866.
65
Id. at 865.

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removal.”66

We agree. In this case, Ojeda-Terrazas was denied a hearing

before an immigration judge, to which he was entitled under pre-

IIRIRA law. Instead, an immigration officer made all of the

predicate findings necessary to reinstate his prior deportation

order. Unlike the alien who entered a plea agreement in St. Cyr,

however, Ojeda-Terrazas had no reasonable expectation of having a

hearing before an immigration judge rather than an INS official

when he illegally reentered the United States in 1991. As Judge

Fernandez states in his thoughtful dissent in Castro-Cortez v.

INS,67 § 241(a)(5) “does not deal with any vested rights or

settled expectations arising out of the alien’s wrongdoing. Nor

does it impose any new duties or new liabilities.”68 We

conclude, therefore, that § 241(a)(5) does not have an

impermissible retroactive effect as applied to Ojeda-Terrazas.

66
Id. The only portion of the provision that the court
found to have an impermissible retroactive effect was § 241(a)(5)’s
elimination of the “long-standing INS practice” that an illegal
alien could “defend against later deportation or removal by seeking
a discretionary adjustment of statutes to lawful permanent
resident,” where, the alien, as the one involved in that case,
married a United States citizen. Id. at 866-67. The court held
that “[u]nder prior law, Alvarez-Portillo had a reasonable
expectation he could either file for a discretionary adjustment of
status, or wait and seek the adjustment as a defense to a later
deportation proceeding.” Id. at 867.

67
239 F.3d 1037, 1053 (9th Cir. 2001) (Fernandez, J.,
dissenting).
68
Id. at 1056.

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Accordingly, we hold that the INS properly applied § 241(a)(5) to

Ojeda-Terrazas.

IV.

Finally, Ojeda-Terrazas argues that the INS regulations

implementing § 241(a)(5) violate his due process rights because

the reinstatement procedure denies him the opportunity to develop

a record, have an attorney present, and have an immigration judge

decide his case.69 In light of our conclusion that § 241(a)(5)

applies retroactively to Ojeda-Terrazas, we must now address this

issue.

The Fifth Amendment guarantees aliens due process of law in

deportation hearings.70 However, to succeed on a collateral

attack of a deportation order on due process grounds, an alien

must first demonstrate that he has suffered actual prejudice.71

In this case, Ojeda-Terrazas has conceded his identity, that he

was subject to a prior deportation order, and that he illegally

reentered the United States. In so doing, Ojeda-Terrazas has

conceded that all the predicate findings that the immigration

officer made to reinstate Ojeda-Terrazas’ 1984 deportation order

were true. Ojeda-Terrazas does not assert that, if given the

69
See 8 C.F.R. § 241.8.
70
See Reno v. Flores, 507 U.S. 292, 306 (1993).
71
See United States v. Encarnacion-Galvez, 964 F.2d 402,
407 (5th Cir. 1992); Anwar v. INS, 116 F.3d 140, 144 (5th Cir.
1997) (“Due process challenges to deportation proceedings require
an initial showing of substantial prejudice.”).

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procedural safeguards he seeks, the result in this case would be

any different.72 Therefore, we hold that Ojeda-Terrazas has not

alleged that he suffered any actual prejudice as a result of the

new reinstatement procedures, and therefore, we do not reach the

merits of Ojeda-Terrazas’ due process claim.

V.

In conclusion, we hold that INA § 242(a)-(b) grants this

court jurisdiction to hear Ojeda-Terrazas’ petition for review of

the reinstatement order. We also hold that INA § 241(a)(5)

applies retroactively to Ojeda-Terrazas. Although, under

Landgraf, the language of § 241(a)(5) does not clearly indicate

whether Congress intended the provision to apply retroactively,

there is no impermissible retroactive effect in this case.

Finally, because we decide that Ojeda-Terrazas has not alleged

actual prejudice resulting from the application of § 241(a)(5) to

him, we do not further consider the merits of his due process

claim. Ojeda-Terrazas’ petition for review is, therefore,

denied.

PETITION DENIED.

72
Furthermore, Ojeda-Terrazas has not alleged that he fears
persecution upon his return to Mexico.

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