UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________________
No. 01-60460
_____________________________________
Benjamin OJEDA-TERRAZAS,
also known as Benjamin T. Ojeda,
also known as Benjamin Ojeda,
Petitioner,
v.
John ASHCROFT,
United States Attorney General,
Respondent.
__________________________________________________
Petition for Review of an Order of the
Immigration and Naturalization Service.
__________________________________________________
May 9, 2002
Before ALDISERT*, DAVIS, and PARKER, Circuit Judges.
W. Eugene Davis, Circuit Judge:
Petitioner Benjamin Ojeda-Terrazas petitions for review of
an order of the Immigration and Naturalization Service (“INS”)
reinstating his prior deportation order under § 241(a)(5) of the
Immigration and Nationality Act (“INA”).1 Ojeda-Terrazas argues
*
Circuit Judge of the Third Circuit, sitting by
designation.
1
Immigration and Nationality Act § 241(a)(5), 8 U.S.C. §
1231(a)(5) (2001). For simplicity, after initial reference to the
United States Code section numbers, this opinion refers to the
provisions at issue as the parties do–by their INA or Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
that § 241(a)(5) does not apply retroactively to aliens who, like
Ojeda-Terrazas, illegally reentered the United States before the
statute’s effective date of April 1, 1997. Ojeda-Terrazas
further argues that § 241(a)(5)’s implementing regulations
violate his due process rights under the Fifth Amendment.
Because we conclude that § 241(a)(5) does not have an
impermissible retroactive effect as applied to Ojeda-Terrazas and
that the corresponding regulations do not violate any of his due
process rights, we deny Ojeda-Terrazas’ petition for review and
affirm the removal order.
I.
The facts in this case are not in dispute. Ojeda-Terrazas
is a citizen of Mexico. Some time before 1984, Ojeda-Terrazas
illegally entered the United States without inspection. On March
8, 1984, Ojeda-Terrazas was deported to Mexico through El Paso,
Texas. At that time, Ojeda-Terrazas was informed that if he
returned to the United States without permission, he could be
subject to criminal prosecution which could result in
imprisonment and/or a fine.
Nevertheless, Ojeda-Terrazas illegally reentered the United
States sometime in 1991. On May 14, 2001, the INS apprehended
Ojeda-Terrazas and served him with a Notice of Intent to
reinstate his March 8, 1984, deportation order. Ojeda-Terrazas
(“IIRIRA”) section numbers.
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then filed this petition for review.
II.
As an initial matter, this court must determine whether it
has jurisdiction to review the INS’ order reinstating Ojeda-
Terrazas’ previous deportation order. Both parties in this case
agree that INA § 242(a)-(b)2 grants this court jurisdiction to
review the reinstatement order, but not the merits of Ojeda-
Terrazas’ 1984 order of deportation which has been reinstated.3
That, of course, does not end our inquiry because this court must
satisfy itself that jurisdiction is proper.4
Section 242(a)-(b) of the INA grants the courts of appeals
subject matter jurisdiction over “final orders of removal.”5 At
the same time, INA § 241(a)(5) states, in relevant part, that a
“prior order of removal is reinstated from its original date and
is not subject to being reopened or reviewed.”6
Turning to the issue at hand, a reinstatement order is not
2
Immigration and Nationality Act § 242(a)-(b), 8 U.S.C. §
1252(a)-(b) (2001).
3
Id.
4
See Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th
Cir. 2001) (“It is true that subject-matter jurisdiction cannot be
created by waiver or consent. It is equally true that federal
courts must address jurisdictional questions whenever they are
raised and must consider jurisdiction sua sponte if not raised by
the parties.”).
5
INA § 242(a)-(b).
6
INA § 241(a)(5).
-3-
literally an “order of removal” because it merely reinstates a
previously issued order of removal or deportation. Nevertheless,
reinstatement of Ojeda-Terrazas’ previous deportation order is a
final order of the INS. A fair interpretation of § 242 grants
this court the authority to review the lawfulness of the
reinstatement order. However, § 241(a)(5) limits that review to
the reinstatement order itself; this court cannot “reopen or
review” the merits of Ojeda-Terrazas’ 1984 deportation order. We
conclude, therefore, that this court has jurisdiction to hear
Ojeda-Terrazas’ petition for review of the reinstatement order.7
III.
Ojeda-Terrazas next argues that INA § 241(a)(5) does not
apply retroactively to him because he illegally reentered the
United States in 1991, before the provision’s effective date of
April 1, 1997. This argument requires a brief overview and
history of reinstatement procedures under the INA.
A.
7
In reaching this conclusion, we join several other
circuits that have resolved this issue in favor of jurisdiction.
See Velaszuez-Gabriel v. Crocetti, 263 F.3d 102, 105 (4th Cir.
2001)(noting that the court of appeals “clearly [has] subject
matter jurisdiction” to review the lawfulness of the order
reinstating petitioner’s prior deportation under INA § 242(b));
Bejjani v. INS, 271 F.3d 670, 674 (6th Cir. 2001) (holding that INA
§ 242(b)granted that court jurisdiction to review the reinstatement
order); Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 863-68 (8th
Cir. 2002) (considering the merits of alien’s challenge to
reinstatement of previous removal order); Castro-Cortez v. INS, 239
F.3d 1037, 1043-45 (9 th Cir. 2001) (holding that the court had
jurisdiction to review the reinstatement order under INA §
242(a)(1)).
-4-
In 1991, when Ojeda-Terrazas illegally reentered the United
States, INA § 242(f) provided that, if any alien illegally
reentered the United Sates after deportation, “the previous order
of deportation shall be deemed to be reinstated from its original
date and such alien shall be deported under such previous order
at any time subsequent to such reentry.”8 The Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”),9 which became effective on April 1, 1997, made
dramatic changes to immigration law. Significant to this case,
IIRIRA replaced § 242(f) with a new, broader reinstatement
provision. The new reinstatement provision, § 241(a)(5), states:
If the Attorney General finds that an alien has reentered
the United States illegally after having been removed or
having departed voluntarily, under an order of removal, the
8
Immigration and Nationality Act § 242(f), 8 U.S.C. §
1252(f) (repealed 1996).
INA § 242(f) provided in full:
Should the Attorney General find that any alien has
unlawfully reentered the United States after having previously
departed or been deported pursuant to an order of deportation,
whether before or after June 27, 1952, on any ground described
in any of the paragraphs enumerated in subsection (e) of this
section [covering deportation based on various enumerated
reasons including commission of alien smuggling and other
criminal offenses], the previous order of deportation shall be
deemed to be reinstated from its original date and such alien
shall be deported under such previous order at any time
subsequent to such reentry. For the purposes of subsection
(e) of this section the date on which the finding is made that
such reinstatement is appropriate shall be deemed the date of
the final order of deportation.
9
Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (1996).
-5-
prior order of removal is reinstated from its original date
and is not subject to being reopened or reviewed, the alien
is not eligible and may not apply for any relief under this
chapter and the alien shall be removed under the prior order
at any time after reentry.10
In enacting § 241(a)(5), Congress’ intent was to streamline and
expedite existing procedures for removing illegal aliens, which
had become “cumbersome and duplicative.”11
Pursuant to § 241(a)(5), the INS promulgated regulations
outlining the procedures for reinstating an alien’s prior
deportation order. Under the regulations, the alien is not
entitled to a hearing before an immigration judge.12 Rather, an
INS officer determines (1) the identity of the alien; (2) whether
the alien was subject to a prior order of removal; and (3)
whether the alien unlawfully reentered the United States.13 The
alien then has an opportunity to make a statement.14 The officer
determines whether this statement warrants reconsideration.15
An alien who expresses a fear of persecution upon return to the
10
INA § 241(a)(5).
11
H.R. Rep. 104-469(I), 1996 WL 168955 at *107.
12
See 8 C.F.R. § 241.8(a).
13
See id. In a disputed case, the INS must verify the
identity of the alien by comparing the fingerprints of the alien
who was previously deported contained in INS records with those of
the alien who is the subject of the reinstatement proceedings. See
8 C.F.R. § 241.8(a)(2).
14
Id. at § 241.8(b).
15
Id.
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country of removal is referred to an asylum officer.16 If that
officer determines his fear is reasonable, the alien may apply
for withholding of removal.17
The key differences between the current reinstatement
procedure under § 241(a)(5) and the former procedure under
repealed § 242(f) significant to this appeal are:
1. Section 241(a)(5) extends the reinstatement procedures
to those aliens, like Ojeda-Terrazas, whose initial
removals were based upon entry without inspection.
Under § 242(f), reinstatement was only available for
those aliens whose previous order of deportation was
based on one of the enumerated grounds (which did not
include lack of inspection). Therefore, under the old
statute, Ojeda-Terrazas would have been entitled to a
new deportation procedure rather than being limited to
the reinstatement procedure.
2. Section 241(a)(5) does not allow judicial review of the
underlying previous removal order, as discussed above.
Section 242(f), however, allowed the alien to attack
the merits of a previous removal order.
3. The regulations implementing § 241(a)(5) allow an
immigration officer to determine, following the three-
step analysis discussed above, whether reinstatement is
proper. Under § 242(f), an immigration judge made the
determination.
B.
We turn next to the question for decision in this case:
whether the current reinstatement procedure under § 241(a)(5)
applies retroactively to Ojeda-Terrazas. The landmark Supreme
16
Id. at § 241.8(e).
17
Id.
-7-
Court case, Landgraf v. USI Film Products,18 provides the
starting point of our analysis of whether § 241(a)(5) applies
retroactively. In Landgraf, the Supreme Court set forth a two-
step test to determine whether a federal statute applies
retroactively to conduct occurring before it was enacted.19
First, the court must “determine whether Congress has expressly
prescribed the statute’s proper reach.”20 In determining whether
Congress clearly expressed the temporal reach of the statute, the
court is not limited to the statute’s express language, but may
also use traditional tools of statutory construction.21 If
Congress has clearly expressed whether the statute should apply
retroactively, the inquiry ends.22
However, if the statute contains no clear indication of
Congress’ intent, the court must then determine whether applying
the new statute to past conduct “would have retroactive
effect.”23 A statute has an impermissible retroactive effect
when “it would impair rights a party possessed when he acted,
increase a party’s liability for past conduct, or impose new
18
511 U.S. 244 (1994).
19
Id. at 280.
20
Id.
21
See Lindh v. Murphy, 521 U.S. 320, 325-26 (1997).
22
See Landgraf, 511 U.S. at 280.
23
Id.
-8-
duties with respect to transactions already completed.”24 If the
court decides that the statute would have an impermissible
retroactive effect if applied to past conduct, Landgraf instructs
that the statute does not apply retroactively.25
1.
Proceeding under the Landgraf framework, we must first
determine whether Congress has clearly prescribed the temporal
reach of § 241(a)(5). While Ojeda-Terrazas contends that
Congress clearly expressed its intent that § 241(a)(5) apply only
prospectively, the INS argues that Congress clearly indicated
just the opposite--that the statute should apply retroactively.
Ojeda-Terrazas makes several arguments to advance his
reading of § 241(a)(5). First, Ojeda-Terrazas points out that
the former reinstatement statute, § 242(f), expressly provided
that the reinstatement procedure applied retroactively.26 He
maintains that the omission of any reference to retroactivity in
§ 241(a)(5) in contrast to § 242(f), indicates Congress’ clear
intent that the statute apply only prospectively. Next, Ojeda-
Terrazas argues that Congress’ inclusion of express language
24
Id.
25
Id.
26
See INA § 242(f) (repealed 1996) (stating that “. . . any
alien [who] has unlawfully reentered the United States after having
previously departed or been deported pursuant to an order of
deportation, whether before or after June 27, 1952,” is subject to
reinstatement) (emphasis added).
-9-
making retroactive other sections of the IIRIRA demonstrates, by
negative inference, that Congress intended that § 241(a)(5) not
apply retroactively.27 Finally, Ojeda-Terrazas asserts that
Congress’ silence regarding retroactivity is instructive. He
argues that Congress enacted IIRIRA against the backdrop of
Landgraf, and therefore, knew to use clear language if it
intended § 241(a)(5) to apply retroactively.
On the other hand, the INS presents various arguments in
support of its position that § 241(a)(5) applies retroactively.
First, the INS points to § 241(a)(5)’s plain language stating
that reinstatement applies to any alien who “has reentered the
United States illegally.”28 The INS contends that this use of
the past tense clearly contemplates past action. The INS also
invokes Chevron, U.S.A. v. Natural Resources Defense Council,29
for the proposition that this court must defer to its
interpretation of the IIRIRA’s retroactive effect, absent
congressional intent to the contrary, as long as it is
27
See IIRIRA § 321 (“the term [aggravated felony] applies
regardless of whether the conviction was entered before, on, or
after the date of enactment of this paragraph); § 347(c) (exclusion
because of unlawful voting applies to any alien who illegally voted
“before, on or after the date of enactment of this Act”); § 351(c)
(specifying that the section “shall apply to applications for
waivers filed before, on, or after the date of the enactment of
this Act”).
28
INA § 241(a)(5) (emphasis added).
29
467 U.S. 837, 843 (1984).
-10-
reasonable.30
Although the Supreme Court has not addressed the precise
issue of whether § 241(a)(5) applies retroactively, it did
consider whether another IIRIRA provision applied retroactively
in INS v. St. Cyr.31 In St. Cyr, the Court considered the
retroactive effect of IIRIRA § 304(b), which replaced former §
212(c).32 Under § 212(c), the Attorney General had broad
discretion to waive deportation orders of resident aliens.33 The
newly-enacted § 304(b), however, excluded aliens convicted of
aggravated felonies from the class of aliens to whom the Attorney
General could waive deportation.34 Before the effective date of
IIRIRA, St. Cyr, an alien, pled guilty to a criminal charge that
made him deportable.35 Under pre-IIRIRA law, the Attorney
30
The INS also argues that IIRIRA’s effective date of April
1, 1997, coupled with the statute’s “savings clause,” which
provides that IIRIRA’s new rules do not apply to cases pending at
the time of the statute’s enactment, see IIRIRA § 309(c)(1)(B),
indicates that the pending cases encompassed by the savings clause
are the only ones that are exempt from § 241(a)(5). This argument
is meritless. The Supreme Court rejected this very argument in INS
v. St. Cyr, 533 U.S. 289, 317-18, 121 S.Ct. 2271, 2288-89 (2001)
(stating that IIRIRA’s savings clause “does not communicate with
unmistakable clarity Congress’ intention to apply its repeal of §
212(c) [another IIRIRA provision] retroactively”). See also
Velasquez-Gabriel, 263 F.3d 102, 106 (4th Cir. 2001).
31
533 U.S. 289, 121 S.Ct. 2271 (2001).
32
Id.
33
Id. at 295–96.
34
Id. at 297.
35
Id. at 293.
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General had discretion to waive his deportation, but under new §
304(b), the Attorney General had no authority to grant St. Cyr a
waiver.36
The Court held that the statute did not apply
retroactively.37 Following Landgraf’s two-part test, the Court
first found that Congress’ intent regarding the retroactivity of
§ 304(b) was unclear.38 The Court stated that Landgraf’s first
step is satisfied only where the “statutory language [is] so
clear that it could sustain only one interpretation.”39 The
Court stated that § 304(b) contained no such clear statement of
Congress’ intent to apply the statute retroactively.40 The
Court reasoned that neither IIRIRA’s effective date nor its
comprehensive nature clearly indicated that Congress intended the
provision to be retroactive.41 The Court also explained that
“Congress’ willingness, in other sections of IIRIRA, to indicate
unambiguously its intention to apply specific provisions
retroactively” supported its conclusion that the temporal reach
36
Id.
37
Id. at 326.
38
Id. at 315-20.
39
Id. at 317 (quoting Lindh v. Murphy, 521 U.S. 320, 328
n.4 (1997)).
40
Id. at 320.
41
Id. at 317-18.
-12-
of IIRIRA was unclear.42 Proceeding then to Landgraf’s second
step, discussed more thoroughly below, the Court found that the
statute had an impermissible retroactive effect, and therefore,
did not apply retroactively to St. Cyr.43
Although the Supreme Court has not addressed the issue at
hand, other circuits have specifically considered the
retroactivity of § 241(a)(5) and have reached different results
under the first prong of the Landgraf test. The Sixth and Ninth
Circuits have held that § 241(a)(5) does not apply retroactively,
finding that the provision clearly indicates Congress’ intention
not to apply the provision retroactively.44 In reaching this
result, both courts relied primarily on Congress’ elimination of
the explicit retroactive language contained in § 242(f); the
legislative history; and congressional silence on retroactivity
of the provision.45 Based on their findings of a clear
congressional statement that § 241(a)(5) does not apply
42
Id. at 318-19.
43
Id. at 325-26.
44
See Bejjani v. INS, 271 F.3d 670, 687 (6th Cir. 2001)
(decided post-St. Cyr); Castro-Cortez, 239 F.3d 1037, 1053 (9th
Cir. 2001) (decided pre-St. Cyr).
45
Bejjani, 271 F.3d at 684-87; Castro-Cortez, 239 F.3d at
1050-52.
However, while the Ninth Circuit credited the negative
inference argument arising from Congress’ inclusion of express
retroactive provisions in other parts of IIRIRA, Castro-Cortez, 239
F.3d at 1051-52, the Fourth Circuit did not, finding that such
language was located in other provisions of IIRIRA that addressed
completely distinct subject matters. Bejjani, 271 F.3d at 685-86.
-13-
retroactively, these courts did not reach Landgraf’s second step.
The Fourth and Eighth Circuits have reached a different
result, however, and have held that Congress’ intent on whether §
241(a)(5) applies retroactively is unclear.46 Both courts relied
on various arguments advanced by the parties in this case to
support their finding that congressional intent is ambiguous.47
Therefore, these courts proceeded to analyze the retroactivity of
§ 241(a)(5) under the second prong of the Landgraf test.
In light of the Supreme Court’s ruling in St. Cyr, we join
the Fourth and Eighth Circuits in holding that Congress did not
clearly indicate whether it intended to apply § 241(a)(5)
retroactively. In St. Cyr, the Supreme Court considered many
arguments identical to those advanced by the parties in this case
and, nevertheless, concluded that it was unclear whether Congress
intended the IIRIRA provision at issue in that case to be
retroactive.48 In particular, the Supreme Court reasoned that
Congress’ clear statement in other IIRIRA provisions that those
provisions applied retroactively, the effective date of the
statute, and the inclusion of the saving provision did not make
Congress’ statement sufficiently clear to satisfy Landgraf’s
46
See Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 108 (4th
Cir. 2001) (decided post-St. Cyr.); Alvarez-Portillo v. Ashcroft,
280 F.3d 858, 865 (8th Cir. 2002) (decided post-St. Cyr).
47
Velasquez-Gabriel, 263 F.3d at 106-08; Alvarez-Portillo,
280 F.3d at 864-65.
48
533 U.S. at 317-20.
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first step.49
Section 241(a)(5) does differ from the IIRIRA provision at
issue in St. Cyr in significant ways, however. First, as Ojeda-
Terrazas points out, the predecessor of § 241(a)(5) explicitly
stated that it applied retroactively. At the same time, however,
as the INS points out, § 241(a)(5) states that an alien who “has
reentered the United States illegally after having been removed
or having departed voluntarily” is subject to reinstatement of a
prior deportation order.50 Congress could have stated, but did
not, that an alien who reenters the United States illegally may
have a prior order reinstated under § 241(a)(5). Nevertheless,
in St. Cyr, the Supreme Court made clear that “[t]he presumption
against retroactive application of ambiguous statutory
provisions, buttressed by ‘the longstanding principle of
construing any lingering ambiguities in deportation statutes in
favor of the alien’” must be considered when determining the
retroactivity of IIRIRA provisions.51 For all of these reasons,
we are satisfied that the language of § 241(a)(5) is not “so
clear that it could sustain only one interpretation.”52
49
Id.
50
INA § 241(a)(5).
51
533 U.S. at 320 (citing INS v. Cardoza-Fonseca, 480 U.S.
421, 449 (1987).
52
St. Cyr, 533 U.S. at 317 (quoting Lindh v. Murphy, 521
U.S. 320, 328 n.4 (1997)).
-15-
Therefore, we hold that Congress did not indicate with sufficient
clarity whether § 241(a)(5) applies retroactively to satisfy the
first step of Landgraf.53
2.
Because we conclude that it is unclear whether Congress
intended that § 241(a)(5) apply retroactively, we must now
determine whether application of the provision to Ojeda-Terrazas
has an impermissible retroactive effect. Under Landgraf’s second
step, the court must determine whether the statute, if applied
retroactively, “would impair rights a party possessed when he
acted, increase a party’s liability for past conduct, or impose
new duties with respect to transactions already completed.”54 If
53
Another argument that deserves separate attention at this
point is the INS’ assertion that once this court has decided that
the statute is ambiguous as to whether it applies retroactively, it
must defer to the INS’ interpretation of the statute under Chevron.
467 U.S. 837. First, the INS has not pointed this court to any
official interpretation of § 241(a)(5) which states that that
provision applies retroactively. Assuming there was one, however,
St. Cyr forecloses this argument as well. In St. Cyr, the Court
found that Congress had not clearly expressed whether the IIRIRA
provision at issue in that case applied retroactively. 533 U.S. at
320. The INS advanced the same Chevron argument as it does here.
Id. at 320 n.45. The Court rejected this argument, however, and
proceeded to analyze the retroactivity of the statute under the
second step of the Landgraf test. Id. The Court stated that
“[b]ecause a statute that is ambiguous with respect to retroactive
application is construed under our precedent to be unambiguously
prospective, there is, for Chevron purposes, no ambiguity in such
a statute for an agency to resolve.” Id. (citation omitted).
54
Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994).
-16-
so, the statute does not apply retroactively.55
In St. Cyr, discussed above, the Court analyzed the IIRIRA
provision at issue under the second prong of the Landgraf test
after finding that Congress had not clearly dictated the temporal
reach of the IIRIRA provision at issue.56 The Court stated that
whether a statute has a retroactive effect under Landgraf “should
be informed and guided by ‘familiar considerations of fair
notice, reasonable reliance, and settled expectations.’”57 The
Court explained that “[p]lea agreements involve a quid pro quo
between a criminal defendant and the government.”58 The Court
then reasoned that when St. Cyr entered the plea agreement for
his conviction, he was “acutely aware of the immigration
consequences of [his] conviction[].”59 The Court found that
aliens, like St. Cyr, who entered plea agreements with the
government before the IIRIRA became effective “almost certainly”
relied upon the likelihood of receiving a discretionary waiver of
deportation from the Attorney General--a possibility that the new
IIRIRA provision eliminated--when deciding to forgo their right
55
Id.
56
533 U.S. at 321-26.
57
Id. at 321 (internal citations omitted).
58
Id.
59
Id. at 322.
-17-
to a trial.60 For these reasons, the Court held that the newly
enacted IIRIRA provision had an impermissible retroactive
effect.61
In contrast, writing for the Eighth Circuit, Judge Loken
held in Alvarez-Portillo62 that most of § 241(a)(5) had no such
retroactive effect.63 The court found that § 241(a)(5)’s denial
of a hearing before an immigration judge did not have a
retroactive effect because “[i]llegal reentrants have no
entitlement to such delays and no reasonable expectation that
prior inefficiencies in the administration of our immigration
laws would continue indefinitely.”64 Likewise, the court found
that § 241(a)(5)’s extension of the reinstatement procedures to
illegal reentrants whose prior deportation was based on entry
without inspection did not have an impermissible retroactive
effect.65 Judge Loken wrote that “[n]o illegally reentering
alien has a reasonable expectation that his prior deportation
order will not be reinstated for purposes of effecting a second
60
Id. at 325.
61
Id.
62
Alvarez-Portillo v. Ashcroft, 280 F.3d 858 (8th Cir.
2002).
63
Id. at 865-67.
64
Id. at 866.
65
Id. at 865.
-18-
removal.”66
We agree. In this case, Ojeda-Terrazas was denied a hearing
before an immigration judge, to which he was entitled under pre-
IIRIRA law. Instead, an immigration officer made all of the
predicate findings necessary to reinstate his prior deportation
order. Unlike the alien who entered a plea agreement in St. Cyr,
however, Ojeda-Terrazas had no reasonable expectation of having a
hearing before an immigration judge rather than an INS official
when he illegally reentered the United States in 1991. As Judge
Fernandez states in his thoughtful dissent in Castro-Cortez v.
INS,67 § 241(a)(5) “does not deal with any vested rights or
settled expectations arising out of the alien’s wrongdoing. Nor
does it impose any new duties or new liabilities.”68 We
conclude, therefore, that § 241(a)(5) does not have an
impermissible retroactive effect as applied to Ojeda-Terrazas.
66
Id. The only portion of the provision that the court
found to have an impermissible retroactive effect was § 241(a)(5)’s
elimination of the “long-standing INS practice” that an illegal
alien could “defend against later deportation or removal by seeking
a discretionary adjustment of statutes to lawful permanent
resident,” where, the alien, as the one involved in that case,
married a United States citizen. Id. at 866-67. The court held
that “[u]nder prior law, Alvarez-Portillo had a reasonable
expectation he could either file for a discretionary adjustment of
status, or wait and seek the adjustment as a defense to a later
deportation proceeding.” Id. at 867.
67
239 F.3d 1037, 1053 (9th Cir. 2001) (Fernandez, J.,
dissenting).
68
Id. at 1056.
-19-
Accordingly, we hold that the INS properly applied § 241(a)(5) to
Ojeda-Terrazas.
IV.
Finally, Ojeda-Terrazas argues that the INS regulations
implementing § 241(a)(5) violate his due process rights because
the reinstatement procedure denies him the opportunity to develop
a record, have an attorney present, and have an immigration judge
decide his case.69 In light of our conclusion that § 241(a)(5)
applies retroactively to Ojeda-Terrazas, we must now address this
issue.
The Fifth Amendment guarantees aliens due process of law in
deportation hearings.70 However, to succeed on a collateral
attack of a deportation order on due process grounds, an alien
must first demonstrate that he has suffered actual prejudice.71
In this case, Ojeda-Terrazas has conceded his identity, that he
was subject to a prior deportation order, and that he illegally
reentered the United States. In so doing, Ojeda-Terrazas has
conceded that all the predicate findings that the immigration
officer made to reinstate Ojeda-Terrazas’ 1984 deportation order
were true. Ojeda-Terrazas does not assert that, if given the
69
See 8 C.F.R. § 241.8.
70
See Reno v. Flores, 507 U.S. 292, 306 (1993).
71
See United States v. Encarnacion-Galvez, 964 F.2d 402,
407 (5th Cir. 1992); Anwar v. INS, 116 F.3d 140, 144 (5th Cir.
1997) (“Due process challenges to deportation proceedings require
an initial showing of substantial prejudice.”).
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procedural safeguards he seeks, the result in this case would be
any different.72 Therefore, we hold that Ojeda-Terrazas has not
alleged that he suffered any actual prejudice as a result of the
new reinstatement procedures, and therefore, we do not reach the
merits of Ojeda-Terrazas’ due process claim.
V.
In conclusion, we hold that INA § 242(a)-(b) grants this
court jurisdiction to hear Ojeda-Terrazas’ petition for review of
the reinstatement order. We also hold that INA § 241(a)(5)
applies retroactively to Ojeda-Terrazas. Although, under
Landgraf, the language of § 241(a)(5) does not clearly indicate
whether Congress intended the provision to apply retroactively,
there is no impermissible retroactive effect in this case.
Finally, because we decide that Ojeda-Terrazas has not alleged
actual prejudice resulting from the application of § 241(a)(5) to
him, we do not further consider the merits of his due process
claim. Ojeda-Terrazas’ petition for review is, therefore,
denied.
PETITION DENIED.
72
Furthermore, Ojeda-Terrazas has not alleged that he fears
persecution upon his return to Mexico.
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