United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 25, 2007
_____________________
Charles R. Fulbruge III
No. 05-60231 Clerk
______________________
ALEXIS SILVA ROSA,
Petitioner,
versus
ALBERTO R. GONZALES, UNITED STATES ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
________________________________________________
Before DAVIS, DENNIS, and PRADO, Circuit Judges.
DENNIS, Circuit Judge.
In this immigration case, the petitioner challenges the
Immigration and Customs Enforcement’s (“ICE”)1 reinstatement of a
previous removal order under 8 U.S.C. § 1231(a)(5) as impermissibly
retroactive.
We affirm the decision to reinstate the removal order, because
the application of 8 U.S.C. § 1231(a)(5) is not impermissibly
retroactive in this case. The statute does not impair any rights
1
ICE is a successor agency to the Immigration and
Naturalization Service (“INS”) after immigration enforcement
functions were transferred from the Department of Justice to the
Department of Homeland Security on March 1, 2003. Mortera-Cruz
v. Gonzales, 409 F.3d 246, 248 n.1 (5th Cir. 2005).
1
the petitioner possessed when he acted, increase his liability for
past conduct, or impose new consequences with respect to past
conduct already completed.
I. Facts and Procedural Background
Petitioner Alexis Silva Rosa,2 a citizen of Honduras, entered
the United States without inspection in 1990. He was apprehended
and, after a deportation hearing, ordered to be removed by the
Immigration and Naturalization Service (“INS”) a few months later.
Silva Rosa was deported to Honduras on May 16, 1990. In June 1990,
he again entered the United States without inspection. In January
1993, Silva Rosa married Julia Garza, a Mexican national and lawful
permanent resident of the United States. In August 1993, Garza
filed an immigrant relative visa petition on Silva Rosa’s behalf;
this petition was approved in March of 1994, but the visa was not
immediately available to him. Based on certain priority factors
and preferences for different classes of applicants, his visa would
only be immediately available to him at some indefinite point in
the future.
On September 30, 1996, Congress passed, and the President
signed into law, the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), Pub. L. 104-208, 110 Stat.
2
On certain documents, the petitioner’s last name is listed
as “Silva Rosa,” while on other documents, the name is listed as
“Sylva Rosa.” We will identify the petitioner as “Silva Rosa” in
this opinion.
2
3009-546. Section 305 of IIRIRA created Section 241(a)(5) in the
Immigration and Naturalization Act, codified at 8 U.S.C. §
1231(a)(5), which authorizes the Attorney General to reinstate a
prior removal order of an illegally reentered alien and to remove
the alien without additional administrative proceedings and limits
the opportunity for relief. The effective date of this statute was
April 1, 1997. IIRIRA’s reinstatement provision extended
previously inapplicable reinstatement procedures to aliens, like
Silva Rosa, who illegally reentered after being previously deported
solely based on their entry into the United States without
inspection. Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 296 (5th
Cir. 2002). For this class of aliens, IIRIRA’s reinstatement
provision also eliminates previously available discretionary
relief, such as an adjustment of status, when they are subject to
reinstated removal proceedings. See Morales-Izquierdo v. Gonzales,
486 F.3d 484, 494 (9th Cir. 2007).
His visa became immediately available to him in February 1998
after IIRIRA's effective date. In October 2000, Silva Rosa filed an
application for adjustment of status. In 2005, after hearing
nothing about his case, he went to an ICE office to inquire about
his case. At this point, ICE realized that Silva Rosa had been
previously deported and had illegally reentered the United States.
On February 22, 2005, ICE reinstated Silva Rosa’s prior order of
removal pursuant to 8 U.S.C. § 1231(a)(5).
3
Silva Rosa now petitions for review of the reinstatement of
the removal order under 8 U.S.C. § 1231(a)(5). He argues that
applying section 1231(a)(5) to him is impermissibly retroactive,
because he married a lawful permanent resident of the United States
and obtained an approved immigrant relative visa petition before
IIRIRA’s enactment. He argues he is now entitled to and had
reasonably expected an adjustment of status as relief against
removal, which was available to him under the state of the law pre-
IIRIRA. Such relief, he asserts, is a vested right or settled
expectation that, by virtue of section 1231(a)(5), has now been
impermissibly taken away.
II. Analysis
A. Standard of Review
This court has jurisdiction to review the reinstatement of a
deportation order. Ojeda-Terrazas, 290 F.3d at 295. Whether the
reinstatement provision of IIRIRA may be applied retroactively to
Silva Rosa is an issue of law that this court reviews de novo. See
Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 302 (5th Cir. 1999)
(citing Graham v. Johnson, 168 F.3d 762, 772 (5th Cir. 1999)).
B. Discussion
The question before this court is whether IIRIRA is
impermissibly retroactive as applied to Silva Rosa. To determine
whether a statute has an effect that is impermissibly retroactive,
we apply a two-step test. First, the court determines “whether
4
Congress has expressly prescribed the statute's proper reach.”
Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). This court,
in Ojeda-Terrazas, “conclude[d] that it is unclear whether Congress
intended that [8 U.S.C. § 1231(a)(5)] apply retroactively.” 290
F.3d at 300; see also Fernandez-Vargas v. Gonzales, 126 S. Ct.
2422, 2430 (2006) (“Common principles of statutory interpretation
fail to unsettle the apparent application of [8 U.S.C. §
1231(a)(5)] to any reentrant present in the country, whatever the
date of return.”).
Since the first step does not resolve the question, we proceed
to the second step, which analyzes “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.’”
Ojeda-Terrazas, 290 F.3d at 300 (quoting Landgraf, 511 U.S. at
280). The Supreme Court has described the imposition of new duties
on completed transactions also as the imposition of new burdensome
consequences or disabilities on past conduct. Fernandez-Vargas,
126 S. Ct. at 2432 & n.10. We have also noted that any retroactive
effect on “settled expectations” and “vested rights” may be
impermissible. See Ojeda-Terrazas, 290 F.3d at 301-302; Griffon v.
U.S. Dep’t. of Health and Human Servs., 802 F.2d 146, 153-154 (5th
Cir. 1986); see also Fernandez-Vargas, 126 S. Ct. at 2427-28.
Appellant makes two arguments regarding impermissible retroactive
5
effects; (1) the combination of his marriage to a lawful permanent
resident and an approved immigrant relative visa petition would
constitute a “vested right” or “settled expectation” that he is
still eligible to adjust status as relief from removal and (2) that
new consequences, i.e., the application of removal proceedings to
his class of aliens, are imposed on an already completed past
transaction, i.e., his illegal reentry into this country without
inspection. See Fernandez-Vargas, 126 S. Ct. at 2432 & n.10
(noting the two types of retroactivity claims).
1. Petitioner’s Marriage to A Lawful Permanent Resident and
Approved Immigrant Relative Visa Petition Does Not Create A Vested
Right or Settled Expectation.
The petitioner argues that the combination of his marriage to
a lawful permanent resident and an approved immigrant relative visa
petition constitutes a “vested right” or “settled expectation.”
As background, the process to obtain an adjustment of status
includes several steps. First, an alien has to establish his
eligibility and then he must actually apply. For the situation
here, an alien married to a lawful permanent resident, his spouse
must first file an immigrant relative visa petition. The petition
must then be approved. Once approved, the alien must wait until
the visa is available. Due to numerical limitations, visas are
made immediately available on a certain date based on several
priority factors and preferences. The alien is prima facie
eligible for the adjustment of status when his visa becomes
6
immediately available and the alien then applies for adjustment.
See generally 8 U.S.C. §§ 1151(b)(2)(A)(i), 1153(a)(2), 1255(a),
1255(i)(2); Diarra v. Gonzales, 137 F. App’x 627, 632 n.5 (5th Cir.
2005) (per curiam) (unpublished). Once an application is
submitted, the Attorney General can then decide whether to adjust
the alien’s status. 8 U.S.C. § 1255(a). The question before this
court is at what stage can an alien obtain a vested right or
settled expectation that he can adjust his status as relief from
removal.
The Eighth Circuit, in Alvarez-Portillo v. Ashcroft, concluded
that the retroactive application of IIRIRA impermissibly impacted
the reasonable expectation that an illegal alien could defend
against later removal by seeking an adjustment of status, where the
alien married a United States citizen. 280 F.3d 858, 866-867 (8th
Cir. 2002). The appellant heavily relies on Alvarez-Portillo to
argue that marriage to a lawful permanent resident would suffice to
create a “reasonable expectation” protected from IIRIRA’s
retroactive effect.
While the Supreme Court has not explicitly rejected Alvarez-
Portillo,3 the Court’s opinion in Fernandez-Vargas casts doubt on
3
The Court left open the question of “whether an alien's
marriage or application for adjustment of status before the
statute's effective date . . . renders the statute impermissibly
retroactive when it is applied to the alien.” Fernandez-Vargas,
126 S. Ct. at 2427 n.5 (citing Alvarez-Portillo, 280 F.3d at 862,
867); see also id. at 2433.
7
its continued validity. In fact, the Eighth Circuit recently noted
that Fernandez- Vargas effectively overruled Alvarez-Portillo’s
conclusion that marriage to a U.S. citizen by itself creates a
reasonable expectation of relief from removal that is protected
from IIRIRA’s reach. See Gonzalez v. Chertoff, 454 F.3d 813, 818
& n.4 (8th Cir. 2006); see also Valdez-Sanchez v. Gonzales, 485
F.3d 1084, 1089 n.4 (10th Cir. 2007).
In Fernandez-Vargas, the Court noted that any expected relief
from removal under a “reasonable expectation” or “vested rights”
theory must be “something more substantial than inchoate
expectations and unrealized opportunities.” Fernandez-Vargas, 126
S. Ct. at 2432 n.10. This court has never determined whether a
marriage to a lawful permanent resident and an approved immigrant
relative visa petition give rise to any vested right or settled
expectations of relief from removal. Nevertheless, for
continuances of removal proceedings based on an alien’s petition
for adjustment of status, we note that the right to adjust status
and relief from removal are not vested when an applicant only
completes the first of several steps to become eligible for
discretionary relief, such as filing a labor certification
petition. Ahmed v. Gonzales, 447 F.3d 433, 437-439 (5th Cir.
2006). Silva Rosa similarly did no more than the first step
towards an adjustment of status with his approval of an immigrant
relative visa petition before the effective date of IIRIRA. As
8
with the alien in Ahmed, Silva Rosa was not yet eligible to apply
for an adjustment of status. Id. at 438 & n. 3 (noting that Ahmed
still needed to complete several steps, including having a visa
available to him, before establishing eligibility to apply). In
Silva Rosa’s case, his visa was not yet available. An adjustment
of status application could not have been filed until the visa
became available. 8 U.S.C. § 1255(i)(2). Silva Rosa’s visa did
not become available until after IIRIRA’s effective date.
Therefore, Silva Rosa was not eligible to apply for an adjustment
of status before IIRIRA’s effective date, and, thus, rights to an
adjustment of status could not vest before IIRIRA’s effective date.
Just as in Ahmed, where the initial steps towards eligibility
for adjustment of status could not postpone the application of
removal proceedings, Silva Rosa’s preliminary steps can not
postpone the application of changes in the law to his ongoing
illegal presence.4
Adjustment of status is discretionary and Silva Rosa could not
have any settled expectations on when relief would be forthcoming
and under what legal conditions. Marriage to a legal permanent
resident, like employment, can only create reasonable expectations
4
As with Ahmed, we leave open the possibility that
establishing eligibility or significant progress past the first
stages would be sufficient to vest rights either in a continuance
or retroactivity context. Cf. Ahmed, 447 F.3d at 438-439 & n.3
(emphasizing that petitioner only was at the “first preliminary
step”).
9
in establishing the eligibility for an adjustment of status
application. These reasonable expectations only apply to the
alien’s successful passage through the preliminary stages of the
adjustment of status process at some indefinite point in the
future. Before obtaining eligibility to file an application and
without actually filing the application, an ineligible alien’s
expectation that a yet unfiled application would produce an
ultimately favorable result at a specified time is unreasonable and
unjustified. Compare Ahmed, 447 F.3d at 437-39 & n.3, with Diarra,
137 F. App’x at 632 n.5; see also Gonzalez, 454 F.3d at 818 & n.4;
Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 109-110 (4th Cir.
2001).
Here, Silva Rosa’s visa became immediately available only after
IIRIRA’s effective date, and he was therefore eligible to apply for
status adjustment only after IIRIRA came into effect, which he did
in 2000.5 Therefore, without establishing eligibility to submit an
application before IIRIRA, Silva Rosa only had “inchoate
expectations” that a favorable adjustment of status decision would
issue before IIRIRA’s effective date.
5
Silva Rosa’s expectations concerning the availability of
relief under the Legal Immigration Family Equity (LIFE) Act of
2000, Pub. L. 106-553, 114 Stat. 2762A-143, and the LIFE
Amendments of 2000, Publ L. 106-554, 114 Stat. 2763A-314, after
the effective date of IIRIRA are irrelevant to the issue in this
case, which concerns IIRIRA’s potential impermissible retroactive
effects on his “settled expectations” that existed prior to
IIRIRA’s effective date.
10
When an alien establishes eligibility and actually submits an
application for adjustment of status before IIRIRA, our sister
circuits have generally concluded that the application suffices as
a “completed transaction,” and therefore IIRIRA cannot
impermissibly apply to these applications retroactively. See
Valdez-Sanchez, 485 F.3d at 1090-91 (“Like the aliens in the cases
from the First, Seventh, and Eleventh 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.”) (emphasis added). The Eighth Circuit in Gonzalez now
seems to also adhere to this approach. See Gonzalez, 454 F.3d at
818 (“Also like Fernandez-Vargas, Gonzalez had a six-month grace
period between the passage of IIRIRA and its effective date in
which he ‘could have ended his illegal presence’ or applied for
adjustment of status based on his 1993 marriage.”) (quoting
Fernandez-Vargas, 126 S. Ct. at 2432) (emphasis added). In this
case, Silva Rosa did not submit an application before IIRIRA’s
effective date, but only obtained an approved immigrant relative
visa petition that was not immediately available. Any preliminary
steps, such as an approved immigrant relative visa petition in this
case, are not equivalent to an actual application and do not give
rise to any vested rights or settled expectations. See Labojewski
v. Gonzales, 407 F.3d 814, 822 (7th Cir. 2005) (“Although the
filing of a visa application is a prerequisite to the filing of an
11
application for adjustment of status, it is not the equivalent of
an adjustment of status application and is not the sort of
‘completed transaction’ that gives rise to vested rights or settled
expectations for purposes of the presumption against
retroactivity.”). The Fourth Circuit reached the same conclusion
we reach here on fairly similar facts. See Velasquez-Gabriel, 263
F.3d at 109.
2. IIRIRA does not create new consequences with regard to any
past completed transactions in this case, such as an illegal
reentry into the United States.
While Fernandez-Vargas left open the previous issue, the
Supreme Court directly confronted this issue. In Fernandez-Vargas,
like Silva Rosa, the petitioner reentered the United States after
he was deported. Fernandez-Vargas, 126 S. Ct. at 2427. Living here
for over 20 years he married a U.S. citizen in 2001 after IIRIRA’s
effective date. Id. He filed for adjustment of status in 2001, at
which point the Government reinstated removal proceedings against
him. Id. He argued unsuccessfully that IIRIRA is impermissibly
retroactive because IIRIRA created harsher penalties for a past
completed act, his illegal act of reentry. Id. at 2432 & n.10.
Silva Rosa makes a similar argument here suggesting that IIRIRA’s
harsher legal regime, i.e., no adjustment of status defense and
other procedural processes, is a new duty or burdensome consequence
for his past illegal reentry. The Supreme Court rejected this
argument. Instead, Fernandez-Vargas holds that IIRIRA does not
12
retroactively affect the past act of illegal reentry into this
country, but rather focuses on the alien’s continued illegal
presence post-entry. 126 S. Ct. at 2432-33. The Supreme Court
notes:
[8 U.S.C. 1231(a)(5)] does not penalize an alien for the
reentry (criminal and civil penalties do that); it
establishes a process to remove him under the prior order
at any time after the reentry. . . Thus, it is the
conduct of remaining in the country after entry that is
the predicate action; the statute applies to stop an
indefinitely continuing violation that the alien himself
could end at any time by voluntarily leaving the country.
Id. at 2432 (citations and internal quotations omitted). Therefore,
IIRIRA does not impermissibly attach new consequences to a
completed past act, i.e., an illegal reentry, but rather, with fair
notice, changes the legal regime for an alien’s ongoing violation.
Id. at 2432-33 & n.11.
Accordingly, Silva Rosa cannot also have any settled
expectation that his statutory rights and obligations solely attach
to his act of illegal reentry and the state of law at that time.
Cf. id. His continued illegal presence incurs continued and
changing legal consequences, duties, and rights. See id.
Therefore, when IIRIRA was enacted, a grace period was provided
before IIRIRA’s harsher legal regime was applied to these ongoing
violations. During that grace period, Silva Rosa “not only [could]
have chosen to end his continuing violation and his exposure to the
less favorable law, he even had an ample warning that the new law
13
could be applied to him and ample opportunity to avoid that very
possibility by leaving the country and ending his violation in the
period between enactment of [8 U.S.C. § 1231(a)(5)] and its
effective date.” Fernandez-Vargas, 126 S. Ct. at 2432. While
Silva Rosa may have had limited options to alleviate the impact of
IIRIRA’s less favorable regime, he at least had the notice and
opportunity to pursue those options.
Therefore, IIRIRA does not impose any new consequences on his
past act, i.e., his illegal re-entry, but rather gave advance
notice on the changing legal regime attached to his continuing
violation, i.e., his continued illegal presence in this country.
IIRIRA’s grace period provided the opportunity to pursue any
options, such as vesting any available rights,6 to alleviate the
impact of the new law on his situation. See id. at 2432-433. Thus,
Silva Rosa can not now argue that reinstatement of the order is
impermissibly retroactive.
Conclusion
For the these reasons, Silva Rosa’s petition for review is
DENIED. The order for removal is AFFIRMED.
6
As noted in the previous section, Silva Rosa could not
vest any rights or have any settled expectations with regard to
preserving his ability to adjust status before the change in law.
He did have other, though admittedly harsh, options. He could
have, as suggested in Fernandez-Vargas, ended his illegal
presence and left the United States. See 126 S. Ct. at 2432.
14