M. Fatima Guijosa De Sandoval v. U.S. Atty. Gen.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-12223 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ February 27, 2006
THOMAS K. KAHN
BICE No. A74-275-828 CLERK

M. FATIMA GUIJOSA DE SANDOVAL,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of an Order of the
Bureau of Immigration and Customs Enforcement
_________________________

(February 27, 2006)

Before EDMONDSON, Chief Judge, BLACK and FAY, Circuit Judges.

BLACK, Circuit Judge:
 Petitioner M. Fatima Guijosa De Sandoval seeks review of an April 27,

2004, order issued by the U.S. Bureau of Immigration and Customs Enforcement

(BICE), reinstating her August 27, 1999, expedited removal order. In her petition,

Petitioner advances four arguments, each of which presents an issue of first

impression in our circuit: (1) the Attorney General exceeded his authority in

promulgating 8 C.F.R. § 241.8, which empowers an immigration officer, rather

than an immigration judge, to reinstate the previous removal order of an alien who

illegally reenters the United States; (2) § 1231(a)(5) is impermissibly retroactive

as applied to her, even though she illegally reentered the United States after that

statute took effect; (3) she is not subject to § 1231(a)(5) because that section

conflicts with and was superseded by § 1255(i); and (4) 8 C.F.R. § 241.8 violates

her procedural due process rights.1 We deny her petition.

I. BACKGROUND

The facts are not in dispute. Petitioner was born in Mexico in 1968 and

married her husband there in 1988. She first entered the United States without

1
Petitioner also makes various arguments related to her I-212 waiver of admissibility
application. According to 8 U.S.C. § 1252(b)(4)(A), “the court of appeals shall decide [an
alien’s petition] only on the administrative record on which the order of removal is based.”
Neither Petitioner’s I-212 application nor the U.S. Bureau of Customs and Immigration Services’
approval of that application are part of the administrative record. Although she moved to
supplement the administrative record, we denied her motion on March 30, 2005. Accordingly,
Petitioner’s I-212-related claims are not properly before this Court, and we will not address them.

2
inspection in approximately June 1995. On September 18, 1995, Petitioner’s

husband, then a lawful permanent resident of the United States, filed a visa

petition on her behalf, accompanied by Petitioner’s application for adjustment of

status. Although the visa petition was granted, Petitioner’s application for

adjustment of status was denied on January 8, 1996, because her priority date was

not yet current.

At some point in 1999, Petitioner returned to Mexico. On August 6, 1999,

she tried to reenter the United States using an Arrival/Departure Form with a

counterfeit parole stamp. The following day, after an interview with an

immigration officer in which she admitted using a counterfeit parole stamp, she

was ordered removed pursuant to the expedited removal proceedings set forth in 8

U.S.C. § 1225(b)(1).

In violation of her removal order, Petitioner reentered the United States

without inspection on or about August 8, 1999. On April 23, 2002, she filed a

second application for adjustment of status, based on the fact her husband became

a naturalized U.S. citizen on March 27, 2002. When she appeared for her April

27, 2004, interview with the U.S. Bureau of Customs and Immigration Services

(BCIS) regarding her second adjustment of status application, she was arrested by

BICE. The same day, BICE issued a Notice of Intent/Decision to Reinstate

3
Removal Order against Petitioner, indicating it was reinstating her August 7, 1999,

removal order. This petition for review followed.

II. STANDARD OF REVIEW

We review questions of statutory interpretation and other issues of law de

novo. See United States v. Trainor, 376 F.3d 1325, 1330 (11th Cir. 2004). When

reviewing an agency’s interpretation of a statute it administers, however, we apply

the two-step test articulated in Chevron U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984). See also Lewis v. Barnhart, 285 F.3d

1329, 1333 (11th Cir. 2002). The first step in the Chevron analysis requires us to

determine whether “Congress has directly spoken to the precise question at issue.”

Chevron, 467 U.S. at 842, 104 S. Ct. at 2781. If Congress clearly expressed its

purpose, and the agency’s regulation conflicts with this purpose, then we must set

aside the regulation. See id. at 843 n.9, 104 S. Ct. at 2781–82 n.9.

On the other hand, if Congress has not directly addressed the issue, or the

statute’s language is ambiguous, then we must move to the second Chevron step

and decide “whether the agency’s [regulation] is based on a permissible

construction of the statute.” Id. at 843, 104 S. Ct. at 2782. To uphold an agency’s

statutory interpretation, we “need not conclude that the agency construction was

the only one it permissibly could have adopted . . . , or even the reading the court

4
would have reached if the question initially had arisen in a judicial proceeding.”

Id. at 843 n.11, 104 S. Ct. at 2782 n.11. Deference to an agency’s interpretation of

a statute “is especially appropriate in the immigration context where officials

‘exercise especially sensitive political functions that implicate questions of foreign

relations.’” INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S. Ct. 1439, 1445

(1999) (quoting INS v. Abudu, 485 U.S. 94, 110, 108 S. Ct. 904, 915 (1988)).

III. DISCUSSION

A. Did the Attorney General Exceed His Authority in Promulgating 8 C.F.R.
§ 241.8?

Petitioner argues 8 C.F.R. § 241.8 is ultra vires because it allows an

immigration officer to reinstate an illegal reentrant’s existing removal order

without providing the alien a hearing before an immigration judge. The Attorney

General promulgated 8 C.F.R. § 241.8 under 8 U.S.C. § 1231(a)(5). As part of the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),

Pub. L. No. 104-208, 110 Stat. 3009 (1996), Congress repealed § 1252(f),2 the

2
The former provision pertaining to the reinstatement of removal orders, § 1252(f)
(repealed 1996), stated in relevant part:
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, [for, inter alia, alien
smuggling, criminal offenses, failure to register and falsification of documents,
and national security grounds], 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.

5
former statute governing the reinstatement of removal orders, and replaced it with

§ 1231(a)(5). This new reinstatement statute provides:

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.

§ 1231(a)(5). Section 1231(a)(5) made three significant changes to its predecessor

statute. First, § 1231(a)(5) applies to all aliens who illegally reenter the United

States in violation of an existing removal order, whereas former § 1252(f) only

applied to a subset of illegal reentrants. Second, § 1231(a)(5) prohibits illegal

reentrants from seeking either reopening of their existing removal order or review

of their reinstatement order. Third, § 1231(a)(5) bars illegal reentrants from

applying for any form of relief provided in Chapter 12 of Title VIII.

According to the Attorney General, Congress enacted § 1231(a)(5) to

streamline and expedite the procedures for reinstating the removal orders of aliens

who illegally reenter the United States. Under the pre-IIRIRA regulation, 8 C.F.R.

§ 242.23 (repealed 1997), an illegal reentrant received a hearing before an

immigration judge, who determined (1) the alien’s identity, (2) whether the alien

had previously been removed, and (3) whether the alien illegally reentered the

6
United States. Following Congress’s enactment of § 1231(a)(5), however, the

Attorney General repealed 8 C.F.R. § 242.23 and promulgated 8 C.F.R. § 241.8 in

its place. Unlike the former regulation, 8 C.F.R. § 241.8(a) states “[a]n alien who

illegally reenters the United States after having been removed . . . has no right to a

hearing before an immigration judge.” Rather, an immigration officer makes the

three aforementioned fact findings and the ultimate decision of whether to issue a

reinstatement order. § 241.8(a)(1)–(3). The Attorney General asserts 8 C.F.R.

§ 241.8 comports with § 1231(a)(5)’s purpose of eliminating the delays of

affording previously removed aliens a hearing before an immigration judge each

time they illegally reenter the United States.

Petitioner counters the Attorney General’s reliance on § 1231(a)(5) by

pointing to § 1229a(a), which predates Congress’s enactment of IIRIRA. Section

1229a(a)(1) states “[a]n immigration judge shall conduct proceedings for deciding

the inadmissibility or deportability of an alien.”3 Furthermore, § 1229a(a)(3)

provides: “Unless otherwise specified in this chapter, a proceeding under this

section shall be the sole and exclusive procedure for determining whether an alien

3
Section 1229a(e)(2) explains that the terms “inadmissible” and “deportable” are subsets
of the term “removable.” Aliens who have been lawfully admitted to the United States are
removable on the grounds of deportability. In contrast, aliens who have not been lawfully
admitted to the United States—regardless of whether they entered illegally or were stopped at the
border—are removable on the grounds of inadmissibility. See Assa’ad v. U.S. Att’y Gen., 332
F.3d 1321, 1326 n.10 (11th Cir. 2003).

7
may be . . . removed from the United States.” Petitioner contends § 1229a(a) sets

forth the procedures applicable to all aliens—i.e., those who are removable in the

first instance and those who reenter the United States in violation of an existing

removal order. And because § 1231(a)(5) does not expressly strip illegal

reentrants of their right to a hearing before an immigration judge, Petitioner asserts

§ 1229a(a) still requires these aliens to receive such a hearing. Accordingly,

Petitioner contends the Attorney General exceeded his authority by promulgating

8 C.F.R. § 241.8.

Two circuits have held 8 C.F.R. § 241.8 constitutes a lawful exercise of the

Attorney General’s authority.4 In Lattab v. Ashcroft, the First Circuit determined

4
Although the Ninth and Sixth Circuits also analyzed whether 8 C.F.R. § 241.8 is ultra
vires, neither of these circuits established binding precedent on the issue. In Morales-Izquierdo
v. Ashcroft, a three-judge panel held that § 1229a(a) unambiguously requires a hearing before an
immigration judge for all aliens who reenter the United States in violation of an existing removal
order, and 8 C.F.R. § 241.8 therefore violated § 1229a(a). 388 F.3d 1299, 1305 (9th Cir. 2004).
On September 12, 2005, however, the Ninth Circuit granted rehearing en banc on Morales-
Izquierdo, stating “[t]he three-judge panel opinion shall not be cited as precedent by or to this
court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.”
423 F.3d 1118, 1118–19 (9th Cir. 2005). At the time of our opinion in this appeal, the Ninth
Circuit’s en banc proceedings in Morales-Izquierdo are stayed pending further order. See 432
F.3d 1112, 1112 (9th Cir. 2006).
After the three-judge panel’s Morales-Izquierdo decision, but before the Ninth Circuit
granted rehearing en banc in that case, the Sixth Circuit also addressed the validity of 8 C.F.R.
§ 241.8. See Tilley v. Chertoff, 144 Fed. Appx. 536, 539–40 (6th Cir. 2005). The Sixth Circuit
expressly rejected the Ninth Circuit panel’s holding in Morales-Izquierdo, and concluded
§ 1231(a)(5) unambiguously empowers the Attorney General to strip illegal reentrants of a
hearing before an immigration judge. Id. at 540. As an unpublished opinion, however, Tilley
lacks precedential authority and is not binding on the Sixth Circuit. See 6th Cir. R. 206(c);
United States v. Webber, 208 F.3d 545, 551 n.3 (6th Cir. 2000).

8
§§ 1229a(a) and 1231(a)(5) were ambiguous regarding the procedures owed to

illegal reentrants, and the Attorney General’s interpretation of these statutes under

8 C.F.R. § 241.8 was permissible. 384 F.3d 8, 19–20 (1st Cir. 2004).

Subsequently, in Ochoa-Carrillo v. Gonzales, the Eighth Circuit agreed with the

First Circuit’s conclusion, holding: “[T]he answer is clear—8 C.F.R. § 241.8 is a

valid interpretation of [§ 1231(a)(5)].” ___ F.3d ___, No. 04-2038, 2006 WL

335457, at *3 (8th Cir. Feb. 15, 2006). Thus, both circuits rejected the argument

that 8 C.F.R. § 241.8 is ultra vires.

For the following reasons, we join the First and Eighth Circuits in holding

the Attorney General did not exceed his authority in promulgating 8 C.F.R.

§ 241.8. Under the first step of Chevron’s two-step analysis, we conclude

§§ 1229a(a) and 1231(a)(5) are at best ambiguous regarding the procedures

applicable to aliens who reenter the United States in violation of an existing

removal order. As an initial matter, we note the text and structure of §§ 1229a(a)

and 1231(a)(5) evince Congress’s desire to distinguish removal proceedings,

which can lead to an alien’s removal in the first instance, from reinstatement

proceedings, which can lead to the enforcement of an existing removal order.

First, § 1229a(a) falls under a section entitled “Removal proceedings,” which sets

forth the procedures an immigration judge must follow in adjudicating an alien’s

9
removability. Section 1231(a)(5), on the other hand, falls under a section entitled

“Detention and removal of aliens ordered removed,” which details the Attorney

General’s authority to enforce existing removal orders. See Lattab, 384 F.3d at 18

(“[T]he placement of the reinstatement provision in a separate section logically

can be understood as indicating a congressional intention to treat reinstatement

determinations differently from first-instance determinations of removability.”).

Second, §§ 1229a(a) and 1231(a)(5) speak to different officials. While

§ 1229a(a)(1) expressly requires an “immigration judge” to conduct removal

proceedings, § 1231(a)(5) charges the “Attorney General” with reinstating existing

removal orders. This distinction suggests Congress knew how to mandate a

hearing before an immigration judge, but chose not to do so in the context of

reinstatement orders. Third, § 1231(a)(5), unlike § 1229a(a), deprives aliens of

any relief, reopening, or review at the reinstatement stage.

As the Attorney General compellingly argues, the foregoing analysis

indicates §§ 1229a(a) and 1231(a)(5) “pertain to different proceedings and orders,

by different officials, with different opportunities to apply for relief, reopening,

and review.” Section 1229a(a) indisputably requires an immigration judge to

conduct hearings to determine whether aliens are removable in the first instance.

Thus, all aliens who illegally reenter the United States have already received a

10
hearing before an immigration judge under § 1229a(a). Rather than expressly

providing these aliens a time-consuming hearing each and every time they illegally

reenter, Congress empowered the Attorney General to swiftly reinstate an illegal

reentrant’s existing removal order under § 1231(a)(5). In turn, the Attorney

General assigned this ministerial task to immigration officers, who (1) determine

an alien’s identity, the existence of a prior removal order, and whether the alien

has illegally reentered the United States, and (2) reinstate the existing removal

order where appropriate. Accordingly, we could arguably end our analysis here,

as there is substantial support for the argument 8 C.F.R. § 241.8 comports with

both §§ 1229a(a) and 1231(a)(5).

Other aspects of Chapter 12 of Title VIII, however, give us pause. Section

1229a(a) states “[a]n alien placed in proceedings under this section may be

charged with any applicable ground of inadmissibility under section 1182(a).”

§ 1229a(a)(2) (emphasis added). One of the grounds for “inadmissibility” listed

under § 1182(a) is that the alien reentered the United Sates in violation of an

existing removal order. § 1182(a)(9)(C). This cross-reference to § 1182(a)

appears to blur the otherwise clear distinction between removal proceedings and

reinstatement proceedings. If § 1182(a) indicates reinstatement proceedings are

essentially indistinguishable from removal proceedings, then § 1229a(a) would

11
grant illegal reentrants a hearing before an immigration judge “unless otherwise

specified” in § 1231(a)(5). See § 1229a(a)(1), (3). Section 1231(a)(5) neither

expressly deprives illegal reentrants of a hearing before an immigration judge nor

specifies an alternative procedure. In contrast, § 1225(b)(1)(A)(i) states aliens

who arrive in the United States without proper documentation shall be removed

“without further hearing or review,” and § 1225(a)(2) expressly provides

stowaways are ineligible for “a hearing under section 1229a.” Considering

§§ 1225(b)(1)(A)(i) and 1225(a)(2), it is feasible to conclude Congress knew how

to strip illegal reentrants of a hearing before an immigration judge, but opted

against doing so in § 1231(a)(5). See Lattab, 384 F.3d at 19. Therefore,

§ 1229a(a) arguably requires an immigration judge to determine whether a

reinstatement order should issue each time an alien illegally reenters the United

States.

Unfortunately, the legislative history underlying IIRIRA provides us little

guidance as to whether illegal reentrants must receive a hearing before an

immigration judge. On the one hand, the legislative history indicates Congress

sought to reform the pre-IIRIRA reinstatement procedures to operate in a

streamlined, expedited fashion. See, e.g., H.R. Rep. No. 104-469, pt. 1, at 13

(1996) (“Aliens who are ordered removed . . . [and] seek reentry . . . are subject to

12
immediate removal under the prior order.”); id. at 107 (“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.”); S. Rep. No. 104-249, at 7 (1996) (“Aliens who violate U.S. immigration

law should be removed from this country as soon as possible.”); see also Lattab,

384 F.3d at 18, 19. On the other hand, “[m]uch like the statute itself, the

legislative history . . . does not address procedural questions with either clarity or

specificity.” Lattab, 384 F.3d at 19. Thus, while the legislative history supports

the Attorney General’s efforts to streamline and expedite the reinstatement

process, it is ultimately unhelpful in discerning the specific procedures Congress

envisioned.

In summary, the text and structure of §§ 1229a(a) and 1231(a)(5) suggest

Congress enacted § 1231(a)(5) to establish a streamlined, expedited reinstatement

process that empowers the Attorney General to determine immigration officers

should conduct the relevant proceedings. Nevertheless, other aspects of Chapter

12 of Title VIII indicate Congress may have enacted § 1231(a)(5) to amend parts

of the reinstatement process while maintaining illegal reentrants’ receipt of a

hearing before an immigration judge. Based on these countervailing

13
considerations, we conclude, under the first Chevron step, §§ 1229a(a) and

1231(a)(5) are at best ambiguous regarding the procedures for reinstating an

illegal reentrant’s existing removal order.

Turning to the second step of the Chevron analysis, we must defer to the

Attorney General’s interpretation of §§ 1229a(a) and 1231(a)(5) so long as his

interpretation is a permissible construction of the statute. As discussed above,

§§ 1229a(a) and 1231(a)(5)’s text and structure signal Congress’s purpose of not

only differentiating reinstatement procedures from removal procedures, but also

making reinstatement procedures function more swiftly. Moreover, § 1231(a)(5)’s

“elimination of any exogenous defense to reinstatement significantly narrows the

range of issues to be adjudicated, thereby limiting the value of additional

procedures.” Lattab, 384 F.3d at 20. We thus conclude the Attorney General’s

decision under 8 C.F.R. § 241.8 to allow immigration officers to carry out the

ministerial task of reinstating existing removal orders constitutes a permissible

interpretation of §§ 1229a(a) and 1231(a)(5). See id. Accordingly, we hold the

Attorney General did not overstep his authority in promulgating 8 C.F.R. § 241.8,

and illegal reentrants, like Petitioner, are not entitled to a hearing before an

immigration judge.

14
B. Is § 1231(a)(5) Impermissibly Retroactive as Applied to Petitioner?

Petitioner next argues § 1231(a)(5) has an impermissible retroactive effect

as applied in her case. In Landgraf v. USI Film Prods., 511 U.S. 244, 114 S. Ct.

1483 (1994), the Supreme Court set forth a two-step test for determining a

statute’s temporal reach. First, the court must “determine whether Congress has

expressly prescribed the statute’s proper reach. If Congress has done so . . . there

is no need to resort to judicial default rules.” Id. at 280, 114 S. Ct. at 1505. If the

statute does not specify the statute’s temporal reach, then the court must move to

the second step and determine whether the statute would have an impermissible

retroactive effect as applied. Id. “The inquiry into whether a statute operates

retroactively demands a commonsense, functional judgment about ‘whether the

new provision attaches new legal consequences to events completed before its

enactment.’” Martin v. Hadix, 527 U.S. 343, 357–58, 119 S. Ct. 1998, 2006

(1999) (quoting Landgraf, 511 U.S. at 270, 114 S. Ct. at 1499). Moreover, the

analysis of whether a particular statute acts retroactively “should be informed and

guided by ‘familiar considerations of fair notice, reasonable reliance, and settled

expectations.’” Id. at 358, 119 S. Ct. at 2006 (quoting Landgraf, 511 U.S. at 270,

114 S. Ct. at 1499).

15
 In Sarmiento Cisneros v. U.S. Att’y Gen., we held Congress did not clearly

express an intent to apply § 1231(a)(5) retroactively. 381 F.3d 1277, 1283 (11th

Cir. 2004). Thus, we moved to the second step of the Landgraf analysis and

inquired as to whether § 1231(a)(5) was impermissibly retroactive as applied to

the petitioner. Id. Prior to April 1, 1997, aliens, like the petitioner in Sarmiento

Cisneros, who illegally reentered the United States were eligible for the

discretionary relief of adjustment of status. The petitioner illegally reentered the

country on November 25, 1996, and applied for an adjustment of status on

March 27, 1997. Id. at 1279. When IIRIRA took effect on April 1, 1997,

however, aliens who illegally reentered the country could no longer seek

adjustment of status. Thus, “[t]he application of section 1231(a)(5) to [the

petitioner] impaired his right to seek relief because it revoked his eligibility [for

adjustment of status] and subjected him to automatic reinstatement of his order of

removal.” Id. at 1284. We concluded § 1231(a)(5)’s elimination of the

availability of relief attached a “new disability to a completed transaction” and

would have an impermissible retroactive effect if applied to the petitioner. Id.

Unlike the petitioner in Sarmiento Cisneros, Petitioner’s relevant conduct

transpired after IIRIRA took effect on April 1, 1997. Specifically, Petitioner

illegally reentered the United States on August 8, 1999, and submitted her

16
application for adjustment of status on April 23, 2002.5 Accordingly, when she

decided to reenter the United States illegally, she was on notice of § 1231(a)(5)’s

elimination of the availability of adjustment of status. Petitioner thus cannot claim

§ 1231(a)(5)’s bar to relief attached a new disability to a completed transaction,

and her retroactivity claim must fail. Therefore, we join at least four other circuits

in holding § 1231(a)(5) does not have an impermissible retroactive effect when

applied to an alien who illegally reentered the United States in violation of an

existing removal order after IIRIRA’s April 1, 1997, effective date. See Warner v.

Ashcroft, 381 F.3d 534, 538 (6th Cir. 2004); Perez-Gonzalez v. Ashcroft, 379 F.3d

783, 787 (9th Cir. 2004); Avila-Macias v. Ashcroft, 328 F.3d 108, 114 (3d Cir.

2003); Lopez v. Heinauer, 332 F.3d 507, 512 (8th Cir. 2003).

C. Does § 1255(i) Conflict with and Supersede § 1231(a)(5)?

Petitioner next asserts she is eligible for adjustment of status under

§ 1255(i) because that section conflicts with and supersedes § 1231(a)(5)’s bar to

5
Petitioner asserts she “was vested with the right to apply for adjustment of status in the
United States . . . when her husband filed his petition for alien relative on her behalf on
September 18, 1995.” The filing of this petition, she argues, gave her “a reasonable expectation
that when she reentered the United States . . . she would be forgiven for entering the country
without inspection pursuant to § [1255](i).” This argument lacks merit. On January 8, 1996, an
immigration officer denied Petitioner’s September 18, 1995, application for adjustment of status;
therefore, contrary to Petitioner’s assertions, this application did not provide her any vested
rights. For purposes of this appeal, Petitioner’s only relevant application for adjustment of status
was filed on April 23, 2002—i.e., over five years after IIRIRA’s effective date.

17
relief. Again, § 1231(a)(5), which Congress enacted on September 30, 1996,

states aliens who reenter the United States in violation of an existing removal

order are “not eligible and may not apply for any relief under this chapter.”

Section 1255(i) allows certain classes of illegal aliens, including those who are

spouses of U.S. citizens, to petition for adjustment of status. On November 27,

1997, Congress amended § 1255(i) to permit aliens to apply for adjustment of

status as long as a visa petition had been filed on their behalf before January 14,

1998.

Petitioner points out § 1255(i) does not expressly preclude relief for aliens

who have previously received removal orders. She contends this silence suggests

Congress wanted to allow all previously removed aliens to seek adjustment of

status under § 1255(i). Furthermore, she argues, the fact Congress amended

§ 1255(i) in November 1997—i.e., over one year after it enacted

§ 1231(a)(5)—indicates § 1255(i) postdates and supersedes § 1231(a)(5). And

because her husband filed a visa petition on her behalf before January 14, 1998,

Petitioner claims she is eligible for adjustment of status under § 1255(i).

We disagree. First, there is no meaningful conflict between the plain

language of § 1231(a)(5) and that of § 1255(i). Aliens who have never before

been removed from the United States may apply for adjustment of status under

18
§ 1255(i). Section 1231(a)(5) simply strips illegal reentrants of their ability to

apply for adjustment of status under § 1255(i). The fact that § 1231(a)(5)

prohibits a subset of aliens from applying for adjustment of status under § 1255(i)

does not create a conflict between § 1231(a)(5) and § 1255(i).

Second, when Congress has wanted to exclude a subset of aliens from

§ 1231(a)(5)’s bar to relief, it has expressly done so. In the LIFE Act

Amendments of 2000, for example, Congress specifically stated § 1231(a)(5)’s bar

to relief did not apply to certain Nicaraguan, Cuban, and Haitian aliens applying

for adjustment of status under § 1255(i). See Pub. L. No. 106-554, § 1505, 114

Stat. 2763A-326 (2000). When Congress amended § 1255(i) in November 1997,

on the other hand, it did not expressly exempt aliens in Petitioner’s situation from

§ 1231(a)(5)’s bar to relief. See Pub. L. No. 105-119, § 111, 111 Stat. 2440, 2458

(1997). Based on these considerations, at least five circuits have held § 1231(a)(5)

bars illegal reentrants from seeking an adjustment of status under § 1255(i). See

Fernandez-Vargas v. Ashcroft, 394 F.3d 881, 884–86 (10th Cir. 2005); Lattab,

384 F.3d at 21; Warner, 381 F.3d at 540; Padilla v. Ashcroft, 334 F.3d 921, 925

(9th Cir. 2003); Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 862 (8th Cir. 2002).

We join these other circuits, and Petitioner’s argument on this issue therefore must

fail.

19
D. Does 8 C.F.R. § 241.8 Violate Petitioner’s Procedural Due Process Rights?

According to Petitioner, 8 C.F.R. § 241.8 violates her procedural due

process rights because it does not provide her the right to a neutral judge, to appeal

BICE’s decision to the BIA, to be represented by counsel, to develop a record, or

to receive adequate notice of BICE’s intended actions. The Due Process Clause of

the Fifth Amendment prohibits the government from depriving a person of life,

liberty, or property, without due process of law. U.S. Const. amend. V. To

establish a procedural due process violation, an alien must show the government’s

asserted error caused her substantial prejudice. Gonzalez-Oropeza v. U.S. Att’y

Gen., 321 F.3d 1331, 1333 (11th Cir. 2003).

Petitioner fails to show how the additional procedures she demands would

have changed the result in her case because she has admitted all of the facts

necessary to warrant reinstatement of the original removal order under

§ 1231(a)(5). Specifically, she admits (1) she is an alien, (2) who was previously

deported, and (3) who illegally reentered the United States. Even if Petitioner had

received all of the additional procedural protections she requests, therefore, her

existing removal order still would have been reinstated. Accordingly, Petitioner

has not shown BICE’s alleged errors caused her substantial prejudice, and her

procedural due process claim must fail. At least eight other circuits have rejected

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the procedural due process claim of an illegal reentrant who admitted all the facts

necessary to warrant reinstatement of his or her existing removal order. See

Lattab, 384 F.3d at 20–21; Warner, 381 F.3d at 539; Flores v. Ashcroft, 354 F.3d

727, 730 (8th Cir. 2003); Padilla, 334 F.3d at 924–25; Duran-Hernandez v.

Ashcroft, 348 F.3d 1158, 1162–63 (10th Cir. 2003); Ojeda-Terrazas v. Ashcroft,

290 F.3d 292, 302 (5th Cir. 2002); Gomez-Chavez v. Perryman, 308 F.3d 796,

801–02 (7th Cir. 2002).

IV. CONCLUSION

Each of Petitioner’s four claims lack merit. First, because §§ 1229a(a) and

1231(a)(5) are ambiguous regarding the procedures for reinstating an existing

removal order and the Attorney General’s interpretation of these statutes under 8

C.F.R. § 241.8 is permissible, Petitioner was not entitled to a hearing before an

immigration judge. Second, the fact she illegally reentered the United States after

IIRIRA’s effective date means § 1231(a)(5) did not have an impermissible

retroactive effect as applied to her. Third, § 1255(i) neither conflicts with nor

supersedes § 1231(a)(5); thus, § 1231(a)(5) bars her from seeking an adjustment of

status. Fourth, Petitioner failed to show BICE’s alleged procedural errors caused

her substantial prejudice, so her procedural due process challenge to 8 C.F.R.

§ 241.8 must fail. Accordingly, we deny her petition.

PETITION DENIED.

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