Alfonso Portillo v. John Ashcroft

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 01-1430
___________

Alfonso Alvarez-Portillo, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Immigration
* and Naturalization Service.
John Ashcroft, et al., *
*
Respondents. *
*
___________

Submitted: September 10, 2001

Filed: February 13, 2002
___________

Before LOKEN and FAGG, Circuit Judges, and BOGUE,* District Judge.
___________

LOKEN, Circuit Judge.

Alfonso Alvarez-Portillo appeals the decision of the Immigration and
Naturalization Service (INS) reinstating his prior order of deportation and ordering
his removal under § 241(a)(5) of the Immigration and Nationality Act (INA), 8 U.S.C.
§ 1231(a)(5), enacted as part of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546

*
The HONORABLE ANDREW W. BOGUE, United States District Judge for
the District of South Dakota.
(1996).1 Section 241(a)(5) was enacted to expedite the removal of aliens who
illegally reenter this country after being deported. The issue before us is whether
§ 241(a)(5) may be applied to aliens such as Alvarez-Portillo who illegally reentered
before the statute’s enactment. Applying the retroactivity analysis of Landgraf v. USI
Film Products, 511 U.S. 244 (1994), we conclude that new procedures may be applied
to expedite all reinstatement proceedings commenced after the enactment of
§ 241(a)(5), but the substantive defenses to removal eliminated by § 241(a)(5) may
not be retroactively denied to aliens who illegally reentered prior to enactment.
Accordingly, we vacate the removal order and remand for further proceedings.

I. Background.

Alvarez-Portillo, a citizen of Mexico, illegally entered the United States in
November of 1993. After a full deportation hearing, he was deported to Mexico on
December 8, 1993. Twelve days later, he illegally reentered the United States. He
avoided INS detection for more than seven years, living and working under an
assumed name and marrying a United States citizen in November 1996. In February
2001, Alvarez-Portillo and his wife visited an INS district office to apply for an
adjustment of his status to permanent resident alien. Discovering his prior
deportation order, the INS took Alvarez-Portillo into custody, commenced this
proceeding under § 241(a)(5), reinstated the 1993 deportation order, and ordered his
immediate deportation to Mexico. Alvarez-Portillo appeals this final agency action,
arguing that the INS improperly applied § 241(a)(5) retroactively because his illegal
reentry occurred before the statute’s enactment. Alternatively, he argues that the

1
Immigration law can be confusing to the outsider because experts usually refer
to the statutes by their INA and IIRIRA section numbers, while most of us have
access only to the codified version of those statutes. With some reluctance, our
opinion will yield to this reality by referring to the statutes at issue by their INA and
IIRIRA section numbers, with an initial cross-reference to their very different section
numbers in Title 8 of the United States Code.
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agency’s procedures for implementing § 241(a)(5) violate his right to procedural due
process. Finally, Alvarez-Portillo argues that INA § 245(i), 8 U.S.C. § 1255(i),
conflicts with and supersedes § 241(a)(5); we reject this argument without discussion
as it is without merit.

II. IIRIRA Changes to Reinstatement and Removal.

To place the Landgraf retroactivity analysis in proper perspective, it is essential
to define the precise impact of the new statute. In December 1993, when Alvarez-
Portillo illegally reentered the country, and up until the effective date of IIRIRA, the
INA provided that, if a deported alien should illegally reenter, “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.” INA
§ 242(f), 8 U.S.C. § 1252(f) (1994). In practice, however, this strong language was
tempered by the statute’s limited scope. Section 242(f) applied only to aliens who
were initially deported for enumerated reasons (such as criminal offenses). It did not
apply to aliens such as Alvarez-Portillo who were deported for entering the country
without inspection; aliens in this category who illegally reentered were entitled to a
new deportation proceeding before again being deported.

In 1994, INA § 245 was amended to make aliens who were physically present
and had an immigrant visa immediately available eligible for a discretionary
adjustment of status to lawful permanent resident. See Pub. L. No. 103-317, Tit. V,
§ 506(b), (c), 108 Stat. 1765, 1766, codified at 8 U.S.C. § 1255(i) (1994). By
administrative practice, aliens in deportation proceedings were allowed to avoid
removal by seeking and obtaining an adjustment of status to lawful permanent
resident. See 8 C.F.R. § 242.17 (1995). Thus, after Alvarez-Portillo married a United
States citizen in 1996, if the INS had commenced a deportation proceeding under this
prior statutory regime for illegal reentry, his marriage would have made him a likely
candidate for adjustment of status to lawful permanent resident, though such relief

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was within the discretion of the Attorney General. See Matter of Garcia, 16 I&N
Dec. 653 (BIA 1978).

Congress took dramatic steps to change this legal landscape in IIRIRA,
replacing the little-used § 242(f) with new § 241(a)(5), a broader and far less
forgiving reinstatement-of-removal provision:

(5) 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
voluntarily, under an order of removal, the prior order of removal is
reinstated from its original date and is not subject to being reopened or
reviewed, the alien is not eligible and may not apply for any relief under
this chapter, and the alien shall be removed under the prior order at any
time after the reentry.

Congress’s intent is readily apparent from IIRIRA’s legislative history:

Existing procedures to deny entry to and to remove illegal aliens
from the United States are cumbersome and duplicative. Removal of
aliens who enter the United States illegally, even those who are ordered
deported after a full due process hearing, is an all-too-rare event.

H.R. Rep. 104-469(I), 1996 WL 168955 at *107;

Aliens who violate U.S. immigration law should be removed from
this country as soon as possible. Exceptions should be provided only in
extraordinary cases specified in the statute and approved by the Attorney
General. . . . The opportunity that U.S. immigration law extends to
aliens to enter and remain in this country is a privilege, not an
entitlement.

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S. Rep. 104-249, 1996 WL 180026 at *7. To implement this new statute, the INS
adopted a summary administrative reinstatement-of-removal procedure in which
“[t]he alien has no right to a hearing before an immigration judge,” an immigration
officer determines whether the alien is subject to reinstatement of a prior deportation
order, and the alien is entitled only to written notice and an opportunity to “make a
written or oral statement contesting the determination.” 8 C.F.R. § 241.8(a), (b).

Unlike the prior reinstatement provision, § 241(a)(5) applies to all previously
deported aliens, including Alvarez-Portillo, whose prior deportation was for entry
without inspection. Moreover, in a § 241(a)(5) proceeding, the alien may neither
attack the validity of the prior deportation order nor avoid removal by obtaining
discretionary relief such as an adjustment of status to lawful permanent resident. In
this case, an immigration officer acting pursuant to 8 C.F.R. § 241.8 determined that
Alvarez-Portillo was deported for entering the United States without inspection in
November 1993 and unlawfully reentered in December 1993. If he was subject to
reinstatement and removal in accordance with the new statute, the INS removal order
must be affirmed.

III. The Landgraf Analysis.

In Landgraf, the Supreme Court confirmed that, while Congress may make civil
legislation retroactive in most cases, the judicial presumption against retroactivity
may be overcome only by a clear expression of congressional intent. However, the
Court also recognized that “application of new statutes passed after the events in suit
is unquestionably proper in many situations,” even if the statute is silent as to its
temporal reach. 511 U.S. at 273. The resulting doctrinal tension led the Court to
articulate a two-part test for determining whether a subsequently-enacted federal
statute may govern the events at issue:

[T]he court’s first task is to determine whether Congress has expressly
prescribed the statute’s proper reach. If Congress has done so, of
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 course, there is no need to resort to judicial default rules. When,
however, the statute contains no such express command, the court must
determine whether the new statute would have retroactive effect, i.e.,
whether it would impair rights a party possessed when he acted, increase
a party’s liability for past conduct, or impose new duties with respect to
transactions already completed. If the statute would operate
retroactively, our traditional presumption teaches that it does not govern
absent clear congressional intent favoring such a result.

511 U.S. at 280. The question here is whether the INS decision summarily reinstating
Alvarez-Portillo’s prior deportation order and ordering his immediate removal under
§ 241(a)(5) passes muster under either part of this two-part test. As is often the case,
these are difficult inquiries.

A. Part One. The issue under part one of the Landgraf analysis is whether we
need not invoke the judicial presumption because the statute answers the retroactivity
issue by prescribing that § 241(a)(5) either does or does not apply to aliens who
illegally reentered prior to its enactment. Though § 241(a)(5) is silent as to its
temporal reach, the INS argues that inferences may be drawn from other IIRIRA
provisions, such as § 309, the general effective date section, to find the “unambiguous
directive” that Landgraf requires for express retroactivity. 511 U.S. at 263. In our
view, the Supreme Court rejected this contention in its recent decision in INS v. St.
Cyr, 121 S. Ct. 2271 (2001). St. Cyr dealt with § 304(b) of IIRIRA, which repealed
former 8 U.S.C. § 1182(c). The Court concluded that Congress had not made
§ 304(b) expressly retroactive to aliens such as St. Cyr:

The 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, forecloses the conclusion that, in enacting § 304(b), Congress
itself has affirmatively considered the potential unfairness of retroactive
application and determined that it is an acceptable price to pay for the
countervailing benefits.
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121 S. Ct. at 2290 (citations and quotations omitted). We conclude this reasoning
applies equally to § 241(a)(5).

After rejecting the INS’s argument for express retroactivity, the Supreme Court
in St. Cyr moved directly to part two of the Landgraf analysis. However, Alvarez-
Portillo argues that, despite Congress’s silence as to the temporal reach of
§ 241(a)(5), normal principles of statutory interpretation reveal a clear intent that the
statute not apply to aliens who illegally reentered prior to IIRIRA’s effective date.
Three circuits have now considered this contention, reaching different conclusions.
Panels of the Ninth and Sixth Circuits agree with Alvarez-Portillo, relying on the fact
that the prior reinstatement provision, § 242(f), expressly stated that it applied to
aliens whose deportation orders were entered before its effective date, Congress
deleted this express retroactivity declaration in § 241(a)(5), and Congress included
express retroactivity provisions in other sections of IIRIRA whereas § 241(a)(5) is
silent as to its temporal reach. See Castro-Cortez v. INS, 239 F.3d 1037, 1050-52
(9th Cir. 2001); Bejjani v. INS, 271 F.3d 670, 684-87(6th Cir. 2001).

In our view, this analysis is faulty because it assumes Congress intended to
expressly resolve the question of retroactivity one way or the other. We think it more
likely that Congress decided to allow the presumption of non-retroactivity -- the
“judicial default rule” as the Supreme Court described it in Landgraf and Lindh v.
Murphy, 521 U.S. 320, 325 (1997) -- to resolve the issue. Congress knew that
§ 241(a)(5) both extended the reinstatement procedure to additional classes of illegal
reentrants and made significant substantive and procedural changes to the
reinstatement procedure. Congress also knew that the presumption only applies when
a new statute has a “retroactive effect” -- the issue in the second part of the Landgraf
analysis -- and that changes in procedural rules are usually but not always applied
retroactively, that is, to proceedings pending on the date of enactment. See Martin
v. Hadix, 527 U.S. 343, 358-59 (1999); Landgraf, 511 U.S. at 275 & n.29. In these

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circumstances, we agree with the Fourth Circuit that Congress by its silence has not
“unambiguously indicated either that § 241(a)(5) applies to all aliens or that it applies
only to aliens that reentered the country after the statute’s effective date.” Velasquez-
Gabriel v. Crocetti, 263 F.3d 102, 108 (4th Cir. 2001). Therefore, we must proceed
to the second part of the Landgraf analysis, as the Supreme Court did in both Martin,
527 U.S. at 356-57, and St. Cyr, 121 S. Ct. at 2290.2

B. Part Two. The second part of the Landgraf test asks whether applying a
new statute to prior conduct “would have retroactive effect.” 511 U.S. at 280. This
inquiry is essential because, “[e]ven absent specific legislative authorization,
application of new statutes passed after the events in suit is unquestionably proper in
many situations.” Id. at 273. The determination of whether the presumption against
retroactivity should be invoked

demands a commonsense, functional judgment about whether the new
provision attaches new legal consequences to events completed before its
enactment. A statute has retroactive effect when it takes away or impairs
vested rights acquired under existing laws, or creates a new obligation,
imposes a new duty, or attaches a new disability, in respect to transactions or
considerations already past.

St. Cyr, 121 S. Ct. at 2290-91 (quotations omitted).

Because § 241(a)(5) altered the prior reinstatement procedure in many ways,
an initial question is whether any retroactive effect would make the entire statute
inapplicable to aliens in Alvarez-Portillo’s position. We think not. In Landgraf, the

2
Though the Supreme Court in St. Cyr did not discuss this issue, it affirmed a
Second Circuit opinion that expressly rejected the contention that “the absence of
specific retrospective language . . . requires the court to infer by negative implication
that Congress clearly intended IIRIRA § 304 to apply prospectively.” St. Cyr v. INS,
229 F.3d 406, 416 n.5 (2d Cir. 2000).
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Court interpreted the instruction in the Civil Rights Act of 1991 that its provisions
were to take effect upon enactment “to mean that courts should evaluate each
provision of the Act in light of ordinary judicial principles concerning the application
of new rules to pending cases and preenactment conduct.” 511 U.S. at 280 (emphasis
added). Section 309(a) of IIRIRA contains the same instruction. The principle that
each statutory change should be separately analyzed for retroactive effect is
particularly important for statutes, such as § 241(a)(5), that include both procedural
and substantive changes to prior law. Accordingly, we will examine each change to
determine whether its application to Alvarez-Portillo would result in an impermissible
retroactive effect under part two of the Landgraf analysis.

1. Section 241(a)(5) extended the reinstatement procedure to Alvarez-Portillo
and other illegal reentrants whose initial deportation order was based upon entry
without inspection. Whether a removal proceeding commenced after IIRIRA’s
effective date results in a new deportation order, or the reinstatement of the prior
order, is a change that is entirely procedural and prospective. No illegally reentering
alien has a reasonable expectation that his prior deportation order will not be
reinstated for purposes of effecting a second removal. Thus, INS properly sought
Alvarez-Portillo’s removal by means of a § 241(a)(5) reinstatement proceeding.

2. Section 241(a)(5) provides that, in a reinstatement proceeding, “the prior
order of removal . . . is not subject to being reopened or reviewed.” Again, this
change is entirely procedural and prospective. Illegally reentering aliens have no
reasonable expectation that they will be entitled to collaterally attack their prior, final
deportation orders in a subsequent removal proceeding.

3. The INS has construed § 241(a)(5) as mandating a more streamlined
reinstatement procedure. Therefore, its implementing regulation provides the alien
with notice and an opportunity to be heard but authorizes an immigration officer to
make the required fact findings and enter a reinstatement order in summary fashion.

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8 C.F.R. § 241.8. This is clearly a permissible interpretation of the statute that is
entitled to substantial judicial deference. See Escudero-Corona v. INS, 244 F.3d 608,
612 (8th Cir. 2001). Once again, it is a prospective change in the applicable removal
procedures. In IIRIRA, Congress intended to reduce the delays incident to removing
aliens who have illegally reentered. Illegal reentrants have no entitlement to such
delays and no reasonable expectation that prior inefficiencies in the administration
of our immigration laws would continue indefinitely. Thus, there is no impermissible
retroactive effect when INS conducts reinstatement proceedings commenced after
IIRIRA’s enactment using the procedures adopted to implement § 241(a)(5), even if
the substantive issue is whether preenactment conduct warrants an alien’s removal.

4. That brings us to the most critical issue raised by this appeal, whether the
provision in § 241(a)(5) that an alien subject to reinstatement “may not apply for any
relief under this chapter” results in an impermissible retroactive effect when applied
to an illegal reentrant such as Alvarez-Portillo, who illegally reentered prior to
IIRIRA’s enactment. The INS argues that reinstatement of removal cannot have a
retroactive effect because Alvarez-Portillo had no vested right to remain in the United
States, § 241(a)(5) did not impose a new legal duty or attach new legal consequences
to his prior illegal reentry, and his removal or deportation is prospective in nature.
These arguments have some force. See Castro-Cortez, 239 F.3d at 1053-54
(Fernandez, J. dissenting). But we conclude they are contrary to the decision in
Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939 (1997).

Hughes Aircraft involved a qui tam action brought under the False Claims Act
against a government subcontractor accused of filing false claims in connection with
Air Force contracts. All the relevant conduct occurred at a time when the False
Claims Act barred qui tam suits based on information already in the government’s
possession. Before the lawsuit was brought, however, the Act was amended to
disallow defenses premised on the government’s possession of the information. See
31 U.S.C. § 3730(e)(4)(A). The qui tam relator in Hughes Aircraft argued that this

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amendment should apply because it imposed no new duties with respect to
transactions already completed, created no new cause of action, and did not increase
the defendant’s potential liability for making a false claim. Applying Landgraf, the
Supreme Court rejected this contention, concluding that the statute eliminating this
disclosure defense would have an impermissible retroactive effect if applied in a case
where the alleged false claims and the disclosures to the government occurred before
enactment. See 520 U.S. at 951-52.

The retroactive effect issue in this case is virtually identical to the issue decided
in Hughes Aircraft. Alvarez-Portillo, who was deported and illegally reentered in late
1993, married a United States citizen in 1996, prior to the effective date of
§ 241(a)(5). At that time, long-standing INS practice created a reasonable
expectation that he could defend against later deportation or removal by seeking a
discretionary adjustment of status to lawful permanent resident. The presumption
against retroactivity of civil statutes is based in part on principles reflected in the Ex
Post Facto Clause, Article I, § 10, cl. 1, of the Constitution. Landgraf, 511 U.S. at
266. A core ex post facto principle is that a new statute may not deprive a criminal
defendant of a defense available at the time his alleged crime was committed. See
Collins v. Youngblood, 497 U.S. 37, 52 (1990). Hughes Aircraft confirmed that this
principle is fully applicable in defining impermissible retroactive effects in civil cases
under part two of the Landgraf analysis. And St. Cyr established that a retroactive
effect is impermissible even if its only impact is on relief that was discretionary under
prior immigration law. “There is a clear difference,” the Court explained, “between
facing possible deportation and facing certain deportation.” 121 S. Ct. at 2293, citing
Hughes Aircraft.

In Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 108-110 (4th Cir. 2001), the
Fourth Circuit concluded that § 241(a)(5) had no impermissible retroactive effect
because the illegal reentrant could have applied for adjustment of status before
IIRIRA’s enactment, and therefore § 241(a)(5) did not attach new legal consequences

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to events completed before its enactment. We disagree. Hughes Aircraft held that
the elimination of a substantive defense, without more, “attaches new legal
consequences” to events completed prior to enactment that would give rise to liability
under the new statute. That is precisely the effect of changing the law to provide that
an illegal reentrant in a reinstatement proceeding under § 241(a)(5) “may not apply
for any relief under this chapter.” Under 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. He chose to wait,
and § 241(a)(5) as applied by the INS has now deprived him of that defense. To this
extent, we conclude the statute had an impermissible retroactive effect on his
reinstatement and removal proceeding.

IV. Conclusion and Procedures on Remand.

In addition to arguing for non-retroactivity, Alvarez-Portillo urges us to
conclude that the INS procedures for implementing § 241(a)(5) deprived him of
procedural due process. Given our decision that further proceedings are necessary
to remedy an impermissible retroactive effect, we decline to reach this issue.

“Due process is flexible and calls for such procedural protections as the
particular situation demands.” Matthews v. Eldridge, 424 U.S. 319, 334 (1976)
(quotation omitted). 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. Accord Alvarenga-Villalobos v. Ashcroft, 271
F.3d 1169, 1173-74 (9th Cir. 2001); see The Japanese Immigrant Case, 189 U.S. 86,
101-02 (1903). On the other hand, we have now concluded that limiting the issues
in this fashion resulted in an impermissible retroactive effect when applied to
Alvarez-Portillo. Expanding the relevant inquiry on remand may well require

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adjusting the process that is due. That question is best addressed in the first instance
by the affected agency. As the Supreme Court said in rather similar circumstances
in Landon v. Plasencia, 459 U.S. 21, 34-35 (1982):

The role of the judiciary is limited to determining whether the
procedures meet the essential standard of fairness under the Due Process
Clause and does not extend to imposing procedures that merely displace
congressional choices of policy. . . . Congress did not intend to require
the use of deportation procedures in cases such as this one. Thus, it
would be improper simply to impose deportation procedures here
because the reviewing court may find them preferable.

For the foregoing reasons, we grant Alvarez-Portillo’s petition for review,
vacate the INS removal-through-reinstatement order dated February 12, 2001, and
remand to the INS for further proceedings not inconsistent with this opinion.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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