Arevalo v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-1135

GLORIA AREVALO,

Petitioner,

v.

JOHN ASHCROFT, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF A FINAL ORDER OF
THE IMMIGRATION AND NATURALIZATION SERVICE

Before

Selya, Circuit Judge,
R. Arnold,* Senior Circuit Judge,
and Lipez, Circuit Judge.

Anthony Drago, Jr., with whom Anthony Drago, Jr., P.C. was on
brief, for petitioner.
Papu Sandhu, Senior Litigation Counsel, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
with whom Robert D. McCallum, Jr., Assistant Attorney General, and
Emily Anne Radford, Associate Director, Civil Division, were on
brief, for respondent.

August 29, 2003

__________
*The Hon. Richard S. Arnold, of the Eighth Circuit, sitting by
designation.
 SELYA, Circuit Judge. This appeal poses two questions,

both of first impression in this circuit, arising out of Congress's

1996 revision of the immigration laws. First, we must determine

what standard the new law requires us to apply when considering

whether to grant stays of removal pending appeal (we use the terms

"removal" and "deportation" interchangeably in this opinion).

After studying the question, we hold that under the new law such

stays are guided by essentially the same standard that informs the

grant or denial of preliminary injunctions. Second, we must decide

whether the neoteric statutory procedures for reinstating previous

removal orders can be applied retroactively to an illegal reentrant

who had requested discretionary relief before those procedures took

effect. We hold that they cannot. Our reasoning follows.

I. STATUTORY FRAMEWORK

In laying the foundation for our consideration of this

petition, we first limn the applicable statutory framework. We

then undertake to describe the facts at hand. Only after we have

set the stage do we turn to the issues that confront us.

On September 30, 1996, Congress enacted the Illegal

Immigration Reform and Immigrant Responsibility Act (IIRIRA) in a

comprehensive effort to strengthen and tighten the immigration

laws.1 See Pub. L. 104-208, 110 Stat. 3009-546 (1996); see also

1
Courts frequently refer to the immigration statutes and the
amendments thereto by their Immigration and Nationality Act (INA)
and IIRIRA sections rather than by their United States Code

-2-
INS v. St. Cyr, 533 U.S. 289, 317 (2001) (describing the overall

effect of the IIRIRA); Bejjani v. INS, 271 F.3d 670, 683 (6th Cir.

2001) (similar). In doing so, Congress repealed and amended

various parts of the Immigration and Nationality Act (INA),

including the provision on reinstatement of orders of deportation

for those who illegally reenter the United States. See IIRIRA §

305(a)(3) (codified as amended at INA § 241, 8 U.S.C. § 1231

(2002)) (replacing INA § 242(f), 8 U.S.C. § 1252(f)). These

changes became effective on April 1, 1997. See IIRIRA § 309(a).

The new reinstatement provision, replicated in the

margin,2 differs from its predecessor in a number of material

respects. Compare INA § 241(a)(5), with INA § 242(f) (repealed

1996). First, the current provision expands the category of

sections. To mitigate confusion, all citations to INA and IIRIRA
sections will therefore include initial cross-references to their
corresponding sections in the Code but will appear thereafter only
as citations to their respective session laws.
2
The statute reads:

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 Act, and the alien shall be removed
under the prior order at any time after the
reentry.

INA § 241(a)(5).

-3-
illegal reentrants who may be subject to reinstatement of a

previous deportation order. Whereas its immediate ancestor

authorized reinstatement only for those who had been deported for

certain enumerated reasons (e.g., persons convicted of aggravated

felonies), the new provision authorizes reinstatement of prior

removal orders for all illegal reentrants previously deported for

any reason. See Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 296 (5th

Cir. 2002) (describing operation of reinstatement procedures under

the IIRIRA); Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 862-63

(8th Cir. 2002) (same).

Second, persons subject to reinstatement of a previous

deportation order no longer are entitled to a hearing before an

immigration judge (with its concomitant right to counsel and

opportunity to develop an administrative record). Compare 8 C.F.R.

§ 241.8(a)&(b) (2003), with 8 C.F.R. § 242.23 (removed 1997).

Instead, the Immigration and Naturalization Service (INS) may

employ a summary administrative procedure in which an immigration

official, not a judge, makes all the necessary determinations

concerning the decision to recommence deportation.3 An alien is

3
Congress recently abolished the INS as an independent agency
within the Department of Justice and transferred its functions to
the newly established Department of Homeland Security. See
Homeland Security Act, Pub. L. 107-296, § 471, 116 Stat. 2135, 2205
(codified as amended at 6 U.S.C. § 291(a)) (2002). The INS
functions relevant to this case, including the adjudication of
asylum claims, now reside in the Bureau of Citizenship and
Immigration Services within the Department of Homeland Security.
Because the petitioner was detained before this change took place,

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allowed only to "make a written or oral statement contesting the

[immigration official's] determination." 8 C.F.R. § 241.8(b).

Third, a person facing reinstatement of an earlier

deportation order may neither attack the validity of the earlier

order nor endeavor to avoid removal by obtaining discretionary

relief (apart from asylum). INA § 241(a)(5). By contrast, the

pre-IIRIRA regime allowed those in deportation proceedings to

request an adjustment of status (although granting the request lay

within the discretion of the Attorney General). See 8 C.F.R. §

242.17(a) (removed 1997). Even those reentering the United States

illegally could seek such an adjustment. See INA § 245(i) (8

U.S.C. § 1255(i)) (repealed 1996); 8 C.F.R. §§ 245.1, 245.10

(1996).

II. THE FACTS

The petitioner in this case first arrived in the United

States in 1986 under the pseudonym "Maria Guadalupe Sillas-

Mendoza." She was soon apprehended by the INS and, because she had

entered without the documentation necessary for legal admission, an

immigration judge ordered her deported to her native Guatemala. In

1990, the petitioner illegally reentered the United States, this

time using the name "Gloria Arevalo." She has remained here from

we continue to refer to the agency as the INS. We note, however,
that our jurisdiction derives from INA § 242(b)(2) (8 U.S.C. §
1252(b)(2)) (2003), so the proper respondent is the United States
Attorney General, see INA § 242(b)(3)(A) (8 U.S.C. § 1252(b)(3)(A))
(2003).

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that time forward and given birth to two children (both of whom are

American citizens).

In August of 1990, the petitioner's father, a legal

permanent resident, filed a visa petition on her behalf. The INS

approved that petition and issued an employment authorization card

(a so-called "green card") to the petitioner. In March of 1996,

the petitioner applied for adjustment of status to become a legal

permanent resident and tendered the requisite fee. See INA §

245(i). On her application, she falsely swore that she had never

been deported from the United States.

Proceedings on the petitioner's application for

adjustment of status lagged for almost six years. Finally,

fingerprint analysis revealed that she had previously been deported

under a different name. The INS sent the petitioner a letter in

January of 2002, notifying her of its discovery and advising her

that it would not entertain her application for adjustment of

status. The INS did nothing further, however, until January 17,

2003, when it detained the petitioner. Acting under the INA's

current reinstatement provision, see supra note 2, the INS then

resurrected the previous order of deportation and instructed the

petitioner that she had no right either to seek a hearing before an

immigration judge or to apply for discretionary relief.

The petitioner repaired to the United States District

Court for the District of Massachusetts, challenging the Attorney

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General's authority summarily to reinstate the previous order of

deportation. The district court, concluding that it lacked subject

matter jurisdiction over most of the petitioner's claims,

transferred the case to us. See 28 U.S.C. § 1631 (allowing inter-

court transfers to cure lack of jurisdiction). Acting under INA §

242(b)(3)(B) (8 U.S.C. § 1252(b)(3)(B)) (2003), we temporarily

stayed the petitioner's deportation and set a briefing schedule.

We heard oral argument on June 4, 2003, and took the matter under

advisement.

III. THE STAY

The stay of the order of deportation remains in effect.

The INS challenges it, asserting that its issuance was predicated

upon an improper legal standard. We do not agree.

Before Congress enacted the IIRIRA, an alien seeking

review of a deportation order was entitled to an automatic stay

pending the completion of that review. See INA § 106(a)(3) (8

U.S.C. § 1105a(a)(3)) (repealed 1996). The IIRIRA altered that

paradigm: INA § 242(b)(3)(B) requires a review-seeker to ask the

reviewing court for a stay of removal. But section 242(b)(3)(B)

does not specify the standard that a court should use in deciding

whether to grant a stay.

To fill this vacuum, the INS invites us to turn to a

neighboring subsection, namely, INA § 242(f)(2) (8 U.S.C. §

1252(f)(2)) (2003). That subsection provides:

-7-
 Notwithstanding any other provision of law, no
court shall enjoin the removal of any alien
pursuant to a final order under this section
unless the alien shows by clear and convincing
evidence that the entry or execution of such
order is prohibited as a matter of law.

INA § 242(f)(2). According to the INS, a stay is an injunction,

and, thus, the review-seeker cannot obtain a stay unless she can

show the illegality of the removal order by clear and convincing

evidence. We decline the INS's invitation to treat a temporary

stay on a par with a permanent injunction.

Although this is a matter of first impression in this

court, the case law in other circuits provides a modicum of

guidance. In Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir. 2001) (en

banc), the Ninth Circuit rejected the INS's proposal that the clear

and convincing evidence standard should apply to a stay of removal

pendente lite. The court instead adopted the preliminary

injunction standard. Id. at 483. Under this quadral standard, a

petitioner must demonstrate (1) that she is likely to succeed on

the merits of her underlying objection; (2) that she will suffer

irreparable harm absent the stay; (3) that this harm outweighs any

potential harm fairly attributable to the granting of the stay; and

(4) that the stay would not disserve the public interest.

The Ninth Circuit's holding has been embraced in opinions

published by both the Second and Sixth Circuits. See Mohammed v.

Reno, 309 F.3d 95, 98-100 (2d Cir. 2002); Bejjani, 271 F.3d at 687-

88. The Seventh Circuit reached the same conclusion in an

-8-
unpublished opinion. See Lal v. Reno, 221 F.3d 1338 (7th Cir.

2000) (unpublished table opinion). The Eleventh Circuit, however,

has adopted the clear and convincing evidence standard in this

context. See, e.g., Weng v. United States Atty. Gen., 287 F.3d

1335, 1340 (11th Cir. 2002). For the reasons that follow, we

adhere to the majority view.

We start — as we must — with the language of the statute

itself. The subsection immediately preceding INA § 242(f)(2)

establishes the Supreme Court's exclusive jurisdiction "to enjoin

or restrain the operation of the provisions of [this subchapter]."

INA § 242(f)(1) (8 U.S.C. § 1252(f)(1)) (2003). In

contradistinction, subsection (f)(2) employs only the term

"enjoin." Even though courts frequently use the terms "enjoin" and

"restrain" interchangeably, this linguistic shift makes it appear

likely that Congress intended the words "enjoin" and "restrain" to

have different meanings. Otherwise, the use of the word "restrain"

in subsection (f)(1) would be pointless — a circumstance that would

put the subsection at odds with the venerable rule that statutes

should be interpreted, whenever possible, to give every word and

phrase some operative effect.4 See Walters v. Metro. Educ.

4
In point of fact, subsection (b)(3) uses the word "stay"
rather than either "enjoin" or "restrain," see INA § 242(b)(3)(B)
(stating that service of a petition for judicial review "does not
stay the removal of an alien"), making it even less likely that
this subsection was intended to incorporate the language of
subsection (f)(2).

-9-
Enters., 519 U.S. 202, 209 (1997) (explaining this point); United

States v. Ven-Fuel, Inc., 758 F.2d 741, 751-52 (1st Cir. 1985)

(same). The most sensible way to give operative effect to both

words in this statutory scheme is to treat the word "enjoin" as

referring to permanent injunctions and the word "restrain" as

referring to temporary injunctive relief (such as a stay). This

distinction between "enjoin" and "restrain" mirrors an identical

distinction expressly made in the Hobbs Act, 28 U.S.C. §

2349(a)&(b) — a statute that INA § 242(a)(1) explicitly

incorporates. See Maharaj v. Ashcroft, 295 F.3d 963, 965 (9th Cir.

2002).

Moreover, courts long have employed the conventional

preliminary injunction test in considering requests for

discretionary stays of deportation. See, e.g., Michael v. INS, 48

F.3d 657, 662 n.4 (2d Cir. 1995); Ignacio v. INS, 955 F.2d 295, 299

& n.5 (5th Cir. 1992) (per curiam). We believe that if Congress

had wanted to break from the routine of the past and apply a

heightened standard to stays pending appeal, it most likely would

have included such a standard in INA § 242(b)(3) itself. Cf.

Precision Indus., Inc. v. Qualitech Steel SBQ, LLC (In re Qualitech

Steel Corp.), 327 F.3d 537, 548 (7th Cir. 2003) (refusing to

interpolate limitations from one statutory section into a different

section when the legislature itself did not do so). In the absence

of such a specific directive, reading INA § 242(f)(2) in a more

-10-
circumspect manner follows the path demarcated by the Supreme Court

in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S.

471, 482-87 (1999), in which the Court indicated that section 242

should be construed narrowly (in part because the execution of

removal orders is juridically distinct from the merits of those

orders).

Perhaps most important, we recognize that extending

subsection (f)(2)'s stringent clear and convincing evidence

standard to stays pending appeal under subsection (b)(3)(B) would

result in a peculiar situation in which adjudicating a stay request

would necessitate full deliberation on the merits of the underlying

case and, in the bargain, require the alien to carry a burden of

proof higher than she would have to carry on the merits. This

Kafkaesque design is counterintuitive. Typically, stays are

granted or denied without a full adjudication on the merits, based

in part on the likelihood — not the certainty — of eventual

success. See, e.g., Acevedo-Garcia v. Vera-Monroig, 296 F.3d 13,

16 (1st Cir. 2002); see generally 11A Charles Alan Wright et al.,

Federal Practice & Procedure § 2947, at 122 (2d ed. 2003). The

reading of the statute advanced by the petitioner and adopted in

Andreiu and its progeny comports with this conventional approach.

The INS's reading, on the other hand, creates a severe anomaly.

The anomaly is magnified when one considers the barebones

administrative record from which appellate judges must work in

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deportation cases. See INA § 242(b)(4)(A) (8 U.S.C. § 1252

(b)(4)(A)) (2003) ("[T]he court of appeals shall decide the

petition only on the administrative record on which the order of

removal is based.").5 It is trite, but true, that courts are bound

to interpret statutes whenever possible in ways that avoid absurd

results. United States v. Wilson, 503 U.S. 329, 334 (1992);

Atlantic Fish Spotters Ass'n v. Evans, 321 F.3d 220, 225 (1st Cir.

2003). That prudential rule seems apposite here.

If more were needed — and we doubt that it is — a survey

of the IIRIRA amendments reveals that INA § 242(b)(3)(B) employs

language identical to that used in IIRIRA § 309(c)(4)(F), which

regulates stays pending appeal in so-called transitional cases

(cases pending as of the IIRIRA's effective date). In acting under

IIRIRA 309(c)(4)(F), courts unhesitatingly have used the

preliminary injunction standard in deciding whether to grant or

deny a stay. See, e.g., Sofinet v. INS, 188 F.3d 703, 706 (7th

Cir. 1999); Abbassi v. INS, 143 F.3d 513, 514 (9th Cir. 1998). We

think it highly probable that IIRIRA § 309(c)(4)(F) carries the

language and effect of INA § 242(b)(3)(B) backward in time.

In reaching these conclusions, we acknowledge that the

Eleventh Circuit has interpreted INA § 242(f)(2) in line with the

5
The administrative record may be particularly scanty in cases
such as the petitioner's. Under INA § 241(a)(5), aliens are no
longer afforded an opportunity for a hearing. See Bejjani, 271
F.3d at 675-76.

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INS's view, and that a tougher standard for obtaining stays while

awaiting judicial review of removal orders may be philosophically

in keeping with the overall goals of the IIRIRA amendments. See,

e.g., Weng, 287 F.3d at 1340. But the change from automatic stays

(the pre-IIRIRA regime) to stays granted only upon making the four-

part preliminary injunction showing is itself a significant

tightening of the law and, thus, is consistent with the fundamental

policies undergirding the IIRIRA amendments. We reject an

interpretive rule that would require courts invariably to construe

all immigration statutes in the most draconian manner that their

words conceivably could support.

In sum, we hold that the applicable standard for

evaluating requests for stays pending review of final orders of

removal is the four-part algorithm used for preliminary

injunctions. See Ross-Simons of Warwick, Inc. v. Baccarat, Inc.,

102 F.3d 12, 15 (1st Cir. 1996) (describing the four-part standard

for preliminary injunctions); Narragansett Indian Tribe v.

Guilbert, 934 F.2d 4, 5 (1st Cir. 1991) (same). As can readily be

gleaned from our ensuing discussion of the reinstatement provision,

see infra Part IV, the stay previously granted in this case easily

meet those requirements.

IV. THE MERITS

The petitioner claims that because she reentered the

United States and applied for adjustment of status before the

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IIRIRA's effective date, that statute cannot be used as a vehicle

for reinstating the previous deportation order (and, thus,

abrogating her right to seek an adjustment of status). Before

considering the merits of the petitioner's claim, we pause to

clarify certain threshold matters.

A. Jurisdiction and Standard of Review.

There is little doubt that we have appellate jurisdiction

over the reinstatement of an order to deport an illegal reentrant.

The reinstatement itself operates as the functional equivalent of

a final order of removal. While we cannot revisit the validity of

the original deportation order, see INS § 241(a)(5), we do have the

authority to determine the appropriateness of its resurrection.

See Ojeda-Terrazas, 290 F.3d at 294-95 (collecting cases); see also

INA § 242(b)(2).

The petitioner's claim is based on the theory that the

INS's invocation of the new reinstatement provision was

impermissibly retroactive. That raises a question as to what

standard of review applies to our retroactivity analysis. The INS

asserts that we owe it deference as the agency in charge of

administering the INA. See INS v. Aguirre-Aguirre, 526 U.S. 415,

425 (1999); see generally Chevron U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 865 (1984). We disagree.

We defer to an agency's interpretation of a statute only

when the statute is ambiguous. See Chevron, 467 U.S. at 843. But

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when a statute is silent as to its temporal reach and a court is

called upon to construe it, under legal precedents, in order to

decide whether it should be interpreted retrospectively or

prospectively with regard to a particular antecedent event, there

is no occasion for Chevron deference. See St. Cyr, 533 U.S. at 320

n.45 (explaining that for Chevron purposes, there is "no ambiguity

. . . for an agency to resolve"); Bejjani, 271 F.3d at 679-80

(rejecting the INS's claim of Chevron deference in interpreting

section 241(a)(5)); Velasquez-Gabriel v. Crocetti, 263 F.3d 102,

106 n.2 (4th Cir. 2001) (same). After all, courts, rather than

agencies, are best equipped to make the constitutionally tinged

judgment calls inherent in retroactivity determinations. See Pak

v. Reno, 196 F.3d 666, 675 n.10 (6th Cir. 1999); Sandoval v. Reno,

166 F.3d 225, 239-40 (3d Cir. 1999); Goncalves v. Reno, 144 F.3d

110, 127 (1st Cir. 1998).

We note, moreover, that we do not review here an INS

decision to grant or deny the petitioner an adjustment of status.

The INS may be quite right that such decisionmaking is committed to

the Attorney General's discretion (and, as such, is largely

unreviewable). See Jay v. Boyd, 351 U.S. 345, 353 (1956); Carranza

v. INS, 277 F.3d 65, 71-72 (1st Cir. 2002). Rather, we review in

this proceeding the INS's unilateral determination that Congress

intended to make INA § 241(a)(5) effective even as to applications

for discretionary relief that were pending at the time of its

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enactment (and, if so, whether that gives the statute an

impermissibly retroactive cast). This inquiry raises pure

questions of law. See Mattis v. Reno, 212 F.3d 31, 35 (1st Cir.

2000); LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998).

Accordingly, we proceed to the retroactivity issue, employing de

novo review.

B. Retroactivity.

The Supreme Court has prescribed the proper rubric by

which a court should determine whether a statute enacted after a

particular event can nonetheless direct the legal consequences of

that event.6 See Landgraf v. USI Film Prods., 511 U.S. 244, 280

(1994); see also St. Cyr, 533 U.S. at 316, 320 (applying the

Landgraf rubric in the immigration context). As in all cases of

statutory construction, the initial question involves the extent to

which the legislature has spoken to the matter. Martin v. Hadix,

527 U.S. 343, 352 (1999); Associated Fisheries, Inc. v. Daley, 127

F.3d 104, 112 (1st Cir. 1997). This is particularly apropos with

respect to retroactivity: "a requirement that Congress first make

6
In criminal cases, other rubrics may apply (e.g., the Double
Jeopardy Clause or the Ex Post Facto Clause). Despite its grave
consequences, however, deportation constitutes a matter of civil
rather than criminal procedure. Harisiades v. Shaughnessy, 342
U.S. 580, 594-95 (1952); Seale v. INS, 323 F.3d 150, 159 (1st Cir.
2003). Thus, neither the Double Jeopardy Clause nor the Ex Post
Facto Clause are relevant to deportation proceedings. See Breed v.
Jones, 421 U.S. 519, 528 (1975) (discussing Double Jeopardy
Clause); Galvan v. Press, 347 U.S. 522, 530-31 (1954) (discussing
Ex Post Facto Clause).

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its intention clear helps ensure that Congress itself has

determined that the benefits of retroactivity outweigh the

potential for disruption or unfairness." Landgraf, 511 U.S. at

268.

In answering this question, courts should employ the

customary rules of statutory construction, assaying the language of

the statute itself and then considering its structure and purpose.

Lindh v. Murphy, 521 U.S. 320, 326 (1997); Landgraf, 511 U.S. at

262.

If the statute itself does not sufficiently denote the

temporal reach of its provisions, further inquiry follows a well-

trod path. When a new statute is silent as to how (if at all) it

applies to antecedent conduct, an inquiring court must proceed to

examine whether application of the statute in that fashion would

create an impermissibly retroactive effect, that is, whether such

an application "would impair rights a party possessed when he

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

duties with respect to transactions already completed." Landgraf,

511 U.S. at 280. If such ramifications loom, the default rule is

that the statute should not be construed to regulate the past

conduct. Hughes Aircraft Co. v. United States ex rel. Schumer, 520

U.S. 939, 946 (1997); United States v. Puerto Rico, 287 F.3d 212,

217 (1st Cir. 2002). Here, then, our retroactivity analysis must

focus on the repercussions of the recently enacted statute vis-à-

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vis persons situated similarly to the petitioner in relevant

respects. McAndrews v. Fleet Bank, 989 F.2d 13, 16 (1st Cir.

1993).

The mere fact that a new statute has some retroactive

effect does not make the answer to this inquiry a foregone

conclusion. A new law is not impermissibly retroactive simply

because subsequent proceedings under that law's authority implicate

past events. Puerto Rico, 287 F.3d at 217. "[A]pplication of new

statutes passed after the events in suit is unquestionably proper

in many situations." Landgraf, 511 U.S. at 273; accord St. Cyr,

533 U.S. at 315. The statute's temporal reach becomes unacceptable

only when its retrospective application would significantly impair

existing substantive rights and thereby disappoint legitimate

expectations. Gen. Motors Corp. v. Romein, 503 U.S. 181, 191

(1992); McAndrews, 989 F.2d at 15.

Although pristine in theory, distinctions between

permissible and impermissible effects are often fuliginous in

practice. That potential difficulty argues for close scrutiny of

a new law in its diverse applications. Landgraf, 511 U.S. at 270;

Pratt v. United States, 129 F.3d 54, 59 n.4 (1st Cir. 1997). Such

scrutiny demands "a common sense, functional judgment about whether

the new provision attaches new legal consequences" to a past event

— a judgment "informed and guided by familiar considerations of

fair notice, reasonable reliance, and settled expectations."

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Martin, 527 U.S. at 357-58 (citations and internal quotation marks

omitted).

In examining the text of a statute, we recognize that, as

a general rule, the benchmark for finding unambiguous temporal

scope is quite high. See id. at 354-55 (intimating that nothing

less than phrases such as "shall apply to all proceedings pending

on or commenced after the date of enactment" can make a statute

unambiguously retroactive); see also St. Cyr, 533 U.S. at 316. A

series of courts have ruled that the wording of section 241(a)(5)

fails to achieve this benchmark. See, e.g., Alvarez-Portillo, 280

F.3d at 864; Bejjani, 271 F.3d at 680; Velasquez-Gabriel, 263 F.3d

at 106. Although IIRIRA § 309(a) establishes an effective date of

April 1, 1997 for Title III-A (the title in which section 241

resides), it too fails to provide the necessary guidance.7 See St.

Cyr, 533 U.S. at 317 ("[A] statement that a statute will become

effective on a certain date does not even arguably suggest that it

has any application to conduct that occurred at an earlier date.")

(citations and internal quotation marks omitted).

Attempting to show congressional intent, the INS points

to section 241(a)(5)'s use of the perfective participle "has

reentered" rather than the present tense "reenters or attempts to

7
The so-called savings clause, IIRIRA § 309(c)(1), is of
little help. That clause states that the amendments promulgated
under Title III-A shall not control removal proceedings pending on
April 1, 1997. Here, however, the INS did not reinstate the
previous deportation order until 2003.

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reenter" seen, for example, in INA § 212(a)(9)(C)(ii) (8 U.S.C. §

1182(a)(9)(C)(ii)) (2003) (defining classes of aliens who are

inadmissible). This gambit fails for two reasons. First, section

212(a)(9)(C)(ii) regulates an alien's admissibility (i.e., her

ability to enter the country lawfully), whereas section 241(a)(5)

relates to an alien's removability (i.e., her liability for

deportation). See Rosales-Garcia v. Holland, 322 F.3d 386, 391 n.1

(6th Cir. 2003); Almon v. Reno, 192 F.3d 28, 30 (1st Cir. 1999).

For that reason, it was logical for Congress to vary the tenses in

the statutes accordingly. One cannot read anything further into

these contrasting linguistic choices. Accord Ojeda-Terrazas, 290

F.3d at 300 (finding that this difference in language "is not so

clear that it could sustain only one interpretation") (citation and

internal quotation marks omitted). Second, this distinction

between sections 241 and 212 addresses, if anything, the relative

effects of time of reentry; it does not speak at all to the

potential effect of when an application for discretionary relief

was filed.

For her part, the petitioner would have us read section

241(a)(5) prospectively based upon its legislative history.

Section 242(f), the reinstatement provision's pre-IIRIRA

embodiment, contained an express retroactivity proviso permitting

the Attorney General to reinstate deportation orders for those

illegally reentering the United States "after having previously

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departed or been deported . . . whether before or after June 27,

1952." In drafting the new reinstatement provision, Congress

declined to carry forward this concept. In that process, it

rejected drafts that included explicit retroactivity language. See

H.R. Rep. No. 104-469(I), at 416-17 (1996), 1996 WL 168955; S. Rep.

No. 104-249, at 118 (1996), 1996 WL 180026. On this basis, the

petitioner asserts that Congress must have meant the new

reinstatement provision to apply only to reentries occurring after

its effective date.

We are not as sanguine about this theory as the

petitioner. Although Congress is presumed to be aware of the law's

general aversion to retroactivity, see Castro-Cortez v. INS, 239

F.3d 1037, 1052 (9th Cir. 2001), it must also be presumed to know

that some Landgraf inquiries come out the other way. Hence,

Congress's failure to include explicit reach-back language in the

current version of the reinstatement provision, without more, lacks

decretory significance. Cf. Rivers v. Roadway Exp., Inc., 511 U.S.

298, 307-09 (1994) (declining to attribute dispositive effect to

the pretermission of retroactivity language in the final draft of

the "make and enforce contracts" provision of the Civil Rights Act

of 1991); Landgraf, 511 U.S. at 262-63 (noting the same phenomenon

with respect to the damages provision of the Civil Rights Act of

1991). At most, legislative histories of this type tell us that

while Congress may have thought retroactivity to be an important

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topic, it could not muster a clear consensus on the subject. See

Rivers, 511 U.S. at 309.

The petitioner also asseverates that we can draw a

favorable conclusion from a comparison of INA § 241(a)(5) with

other sections of the IIRIRA. She points out that some sections do

provide expressly for retroactive application to particular events

transpiring before April 1, 1997. See, e.g., IIRIRA § 321(b)

(defining aggravated felony); id. § 342(b) (discussing incitement

of terrorism as a ground for exclusion); id. § 347(c) (discussing

unlawful voting as a ground for exclusion). By negative

implication, she asks that we assume that Congress intended section

241(a)(5) to apply only in a prospective manner. See INS v.

Cardoza-Fonseca, 480 U.S. 421, 432 (1987) ("Where Congress includes

particular language in one section of a statute but omits it in

another section . . . it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or

exclusion.") (citation and internal quotation marks omitted). The

problem is that many other sections of the IIRIRA unequivocally

state that they will apply only prospectively. See, e.g., IIRIRA

§ 344(c) (dealing with false claims of citizenship as a ground for

exclusion); id. § 352(b) (dealing with renouncing citizenship for

tax purposes as a ground for exclusion). Thus, the negative

implication argument could just as easily run in the other

direction. Courts should be reluctant to impute any meaning to

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disparities between statutory sections that were not drafted with

each other in mind. Martin, 527 U.S. at 356-57; Lindh, 521 U.S. at

330. In this instance, then, we unhesitatingly endorse the wise

judgment of the Fourth Circuit that "the sometimes retrospective,

sometimes prospective provisions that surround [the statute]

unveil[] the Janus-like faces of Congress, but leave[] its mind

concealed." Tasios v. Reno, 204 F.3d 544, 549 (4th Cir. 2000).

The parties make other arguments, but none is convincing.

What comes through loud and clear is that Congress failed to

specify the temporal reach of the INA's reinstatement provision.

Nor did Congress seed the statute with telltale clues; after

careful perscrutation of section 241(a)(5)'s text, history, and

structure, we conclude that the statute leaves uncertain whether it

should be read to occupy the field even when an application for

adjustment of status was already on record at the time the statute

took effect. Although Congress devised the IIRIRA as a detailed

and comprehensive plan to strengthen the immigration laws, see Am.-

Arab Anti-Discrim. Comm., 525 U.S. at 486; Bartoszewska-Zajac v.

INS, 237 F.3d 710, 712 (6th Cir. 2001), the comprehensiveness of

the statutory scheme says very little about Congress's desires

anent the retroactivity vel non of the statute's individual

provisions.

To sum up, section 241(a)(5) is hopelessly unclear as to

whether it applies to those who illegally reentered the United

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States before April 1, 1997. A fortiori, it is all the more

tenebrous as to whether it affects those who not only reentered but

also applied for adjustment of status before that crucial date. In

view of this rampant uncertainty, we must proceed to the second

half of the Landgraf model and assess whether the operation of

section 241(a)(5) in the instant case would impose new burdens or

attach new legal consequences to the petitioner's illegal reentry

and-or her pending application for adjustment of status. See

Landgraf, 511 U.S. at 269-70. This assessment depends on whether

execution of the reinstatement order "takes away or impairs vested

rights acquired under existing laws, or creates a new obligation,

imposes a new duty, or attaches a new disability" to the

petitioner's actions in a way that offends the fundamental

principles of fair notice and reasonable expectation. Id.

(citation and internal quotation marks omitted).

Perhaps the easiest place to start is to note that this

case does not entail a challenge to the Attorney General's raw

power to disallow the petitioner access to a new deportation

hearing; although aliens subject to reinstatement of a previous

deportation order had a right to such a hearing before the passage

of the IIRIRA, see 8 C.F.R. § 242.23, that right was procedural,

and, therefore, can be taken away retroactively. See Ojeda-

Terrazas, 290 F.3d at 301-02 (explaining that illegal reentrants

cannot entertain any reasonable expectation of having a hearing

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before an immigration judge); Alvarez-Portillo, 280 F.3d at 865

(similar); see also Landgraf, 511 U.S. at 275 (remarking "the

diminished reliance interests in matters of procedure"); United

States v. Thurston, ___ F.3d ___, ___ (1st Cir. 2003) [No. 02-1966,

slip op. at 46] (stating that "procedural changes that do not

affect substantial rights are not usually considered

[impermissibly] retroactive").

What the petitioner can and does contest, however, is the

sudden negation of her application for discretionary relief. The

availability of relief (or, at least, the opportunity to seek it)

is properly classified as a substantive right. See Carranza, 277

F.3d at 71-72 (holding that a current statutory grant of

opportunity for discretionary relief from deportation is a

substantive right); Goncalves, 144 F.3d at 128 (finding loss of

opportunity for discretionary relief from deportation under INA §

212(c) (8 U.S.C. § 1182(c)) (repealed 1996) affected substantive

rights); cf. Hughes Aircraft, 520 U.S. at 951 (stating that changes

in whether a claim may be brought at all affect substantive

rights). We see no reason why the bar on applications for relief

under section 241(a)(5) should be deemed an exception to this

general rule. Accord Alvarez-Portillo, 280 F.3d at 867; Castro-

Cortez, 239 F.3d at 1052 n.17.

The INS objects that, unlike the petitioner in St. Cyr,

533 U.S. at 321-23, the petitioner here can show neither a

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cognizable reliance interest in this right nor a settled

expectation based on it. Warming to the task, the INS insists that

the petitioner had no protectible interest in applying for relief

because an adjustment of status was never a vested right. We think

that the INS circumscribes the encincture of relevant interests too

grudgingly.

First, the array of pertinent interests listed in

Landgraf, Hughes Aircraft, and other influential precedents is not

exhaustive but merely illustration by synecdoche. Such listings

"simply describe[] several 'sufficient,' as opposed to 'necessary,'

conditions for finding retroactivity." St. Cyr, 533 U.S. at 320

n.46. Second, the presumption against statutory retroactivity is

not restricted to cases involving vested rights. Landgraf, 511

U.S. at 275 n.29; Goncalves, 144 F.3d at 130. Third, and most

important, the petitioner in this case applied for 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. See Velasquez-Gabriel,

263 F.3d at 109-10 (noting that no application for status

adjustment had been made before IIRIRA's effective date despite

more than adequate time to do so); see also Jurado-Gutierrez v.

Greene, 190 F.3d 1135, 1147 n.11 (10th Cir. 1999) (noting that no

application for waiver of deportation had been filed before

effective date of AEDPA); Wright v. Ouellette, 171 F.3d 8, 11 (1st

-26-
Cir. 1999) (noting that motion to reopen was filed after AEDPA's

effective date). In the latter genus of cases, it is not possible

to complain that section 241(a)(5) appends new legal consequences

to an event (the filing of an application for discretionary relief)

occurring before its effective date. See Velasquez-Gabriel, 263

F.3d at 110. This is a salient distinction because applications

for discretionary relief, once made, often become a source of

expectation and even reliance. See, e.g., Mattis, 212 F.3d at 37;

Bowen v. Hood, 202 F.3d 1211, 1220-22 (9th Cir. 2000) (per curiam);

Wallace v. Reno, 194 F.3d 279, 287 (1st Cir. 1999).

While aliens like the petitioner here, unlike the

petitioner in St. Cyr, cannot reasonably rely on the availability

of discretionary relief when pondering whether to reenter this

country illegally, we nonetheless must look at the impact of the

new law on the specific individual. See Hughes Aircraft, 520 U.S.

at 947-48; Mattis, 212 F.3d at 37. The petitioner already had

filed for relief when Congress amended the statute. Discarding her

application now would deprive her both of a right that she once had

and of the reasonable expectation that she would have the

opportunity to convince the Attorney General to grant her relief.

As the Supreme Court recently stated, "[t]here is a clear

difference, for the purposes of retroactivity analysis, between

facing possible deportation and facing certain deportation." St.

Cyr, 533 U.S. at 325.

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 Contrary to the INS's position, we do not think it is

significant that adjustment of status is a discretionary form of

relief. A right to seek relief is analytically separate and

distinct from a right to the relief itself. United States ex rel.

Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954); Mayers v. INS,

175 F.3d 1289, 1301 n.15 (11th Cir. 1999). 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. Goncalves, 144 F.3d at 130.

As a final matter the INS pounces on the petitioner's use

of an alias and posits that she cannot be heard to complain of her

loss of the right to apply for discretionary relief because of her

"unclean hands." This argument is wide of the mark. "The doctrine

of unclean hands only applies when the claimant's misconduct is

directly related to the merits of the controversy between the

parties [and] 'in some measure affect[s] the equitable relations

between the parties in respect of something brought before the

court for adjudication.'" Texaco P.R., Inc. v. Dep't of Consumer

Affairs, 60 F.3d 867, 880 (1st Cir. 1995) (quoting Keystone Driller

Co. v. Gen. Excavator Co., 290 U.S. 240, 245 (1933)). Although the

petitioner's dissembling may very well come back to haunt her when

the merits of her application for an adjustment of status are

considered, we fail to see how this prevarication relates to the

issue of whether section 241(a)(5) applies retroactively to her.

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 For the reasons stated, we conclude that the text of

section 241(a)(5) is uncertain as to the statute's temporal scope,

and that the statute, applied as the INS urges, would have an

unfairly retroactive effect on the petitioner's rights and

expectations. Under these circumstances, the presumption against

retroactivity endures. See Landgraf, 511 U.S. at 265. We

therefore vacate the INS's unilateral decision to reinstate the

petitioner's previous deportation order.8

V. HABEAS RELIEF

One final issue remains. The petitioner originally asked

the district court, among other things, for a writ of habeas corpus

ordering her immediate release from detention. See 28 U.S.C. §

2241(a). This request was properly filed with the district court.

See, e.g., Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001); Vasquez

v. Reno, 233 F.3d 688, 690 (1st Cir. 2000). The district court

nevertheless refrained from ruling upon the petitioner's habeas

claim, recognizing that the propriety of detention depended in

large part on questions of law over which this court — and only

this court — had jurisdiction. See INA § 242(b)(2) (8 U.S.C. §

1252(b)(2)) (2003) (limiting to courts of appeals all jurisdiction

over final orders of removal); see also Castro-Cortez, 239 F.3d at

8
In view of this holding, we need not probe more deeply the
petitioner's alternative argument that the Due Process Clause also
bars the unilateral reinstatement of the previous deportation
order.

-29-
1047 (explaining that federal courts should exercise habeas

jurisdiction only when all other judicial and administrative

avenues have been exhausted). We have now answered those

questions. Accordingly, we retransfer this case to the district

court for further proceedings on the remnant habeas claim. See 28

U.S.C. § 2241(b); see also Carranza, 277 F.3d at 67.

VI. CONCLUSION

We need go no further. We uphold the stay of deportation

previously granted and rule that the recent changes to the

reinstatement provision of the INA would, if given retroactive

effect, unfairly attach new legal consequences to the petitioner's

preexisting application for an adjustment of status. We therefore

hold that the new reinstatement provision cannot be applied in this

instance. Accordingly, we vacate the reinstatement of the original

removal order and transfer what remains of the petition to the

district court for further proceedings consistent with this

opinion. The INS, of course, is free (again, consistent with this

opinion) to resume the processing of the petitioner's application

for adjustment of status and to go forward with a new round of

removal proceedings.

It is so ordered.

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