F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 12 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
HUMBERTO FERNANDEZ-
VARGAS,
Petitioner,
No. 03-9610
v.
JOHN ASHCROFT, Attorney General,
Respondent. *
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
(BIA No. A-34-693-404)
Submitted on the briefs:
J. Chris Keen, Keen Law Offices, LLC, Provo, Utah, for Petitioner.
Papu Sandhu, Senior Litigation Counsel, Aviva L. Poczter, Attorney, United
States Department of Justice, Civil Division, Office of Immigration Litigation,
Washington, D.C., for Respondent.
Before McCONNELL , HOLLOWAY , and PORFILIO , Circuit Judges.
*
The government correctly points out in its brief that the Attorney General is
the only proper respondent in this case under 8 U.S.C. § 1252(b)(3)(a), and moves
that the caption be amended to remove Tom Ridge, the Department of Homeland
Security, and the Bureau of Immigration and Customs Enforcement, as parties.
The government’s motion is granted.
McCONNELL , Circuit Judge.
This case turns upon the application of two statutes. 1 The first statute is
§ 245(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1255(i),
which allows an alien who entered the United States without inspection to apply
to become an alien lawfully admitted for permanent residence, if a petition for
classification under INA § 204, 8 U.S.C. § 1154, (including a relative visa
petition) was filed on his or her behalf before April 30, 2001. 2
The second statute is INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (referred to at
times throughout as the “reinstatement statute”), which both (1) provides that a
prior order of removal may be reinstated against an alien who has illegally
re-entered the United States, and (2) bars that alien from applying for any form of
“relief” under Chapter 12 of U.S.C. Title 8. 3
INA § 241(a)(5) replaced the former
1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
2
We shall refer to the relevant statutory sections by both their INA and
U.S.C. section numbers in the first instance and, thereafter, only by the INA
section numbers.
3
INA § 241(a)(5) was enacted as part of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009-546
(continued...)
-2-
reinstatement provision, INA § 242(f), 8 U.S.C. § 1252(f) (repealed 1996), which,
among other differences, did not prohibit application for relief.
The parties ask us to decide two questions regarding these statutes: (1) Is
Petitioner Humberto Fernandez-Vargas’ (“Fernandez”) application to adjust status
under INA § 245(i) an application for “relief” barred by the reinstatement statute?
(2) If so, is this bar impermissibly retroactive when applied to Fernandez, a
previously deported immigrant who re-entered the country prior to the
reinstatement statute’s April 1, 1997, effective date?
Because the plain language of the reinstatement statute bars application for
any form of relief under Chapter 12 of U.S.C. Title 8, we hold that the
reinstatement statute bars Fernandez’ application to adjust status under INA
§ 245(i), 8 U.S.C. § 1255(i). Further, since both the filing of Fernandez’
application to adjust status, and the marriage upon which his application is based,
occurred after the effective date of the reinstatement statute, there is no
impermissible retroactive effect. Therefore, Fernandez’ petition for review is
denied.
3
(...continued)
(IIRIRA), effective April 1, 1997. See IIRIRA § 309(a); Arevalo v. Ashcroft ,
344 F.3d 1, 5 (1st Cir. 2003).
-3-
I. BACKGROUND
Fernandez, a native and citizen of Mexico, has been deported from the
United States on several occasions. Shortly after his last deportation in October
of 1981, Fernandez re-entered the United States without inspection and has lived
in this country ever since. On March 30, 2001, nearly four years after the April 1,
1997, effective date of the reinstatement statute, Fernandez married Rita
Fernandez, a United States citizen and, on May 30, 2001, he filed both a Form
I-212 Application for Permission to Reapply for Admission Into the United States
After Deportation or Removal (“Form I-212"), and an application to adjust his
status to that of a legal permanent resident. 4
Thereafter, apparently at an interview regarding his application, Fernandez
was arrested for being in the country illegally. The government reinstated the
1981 order of deportation and, on November 17, 2003, issued a warrant
commanding that Fernandez be taken into custody and removed from the United
States. Fernandez then filed his petition with this court, arguing his prior order of
4
Fernandez also claims that his wife filed a relative visa petition for him at
some point and that he was provided employment authorization due to his pending
adjustment application, although there is nothing in the record to support these
assertions. It does appear, however, that the government treated Fernandez’
adjustment application as if a relative visa petition had been filed on his behalf
prior to April 30, 2001, and the government does not dispute in its brief that such
a petition was filed.
-4-
deportation could not be reinstated without a decision being made on his
“pending” adjustment application.
In its brief, the United States claims that reinstatement of Fernandez’
deportation order was proper in that Fernandez was barred from applying for
adjustment of his immigration status. The government also claims that a decision
was made on Fernandez’ application and the administrative record does contain
an unsigned and undated letter from U.S. Citizenship and Immigration Services
(“USCIS”), a bureau of the Department of Homeland Security, purportedly
denying Fernandez’ application. One of the grounds for denial presented by the
government in its letter was that INA § 241(a)(5) prohibited Fernandez from
applying for or receiving relief. The letter also presented two other grounds for
denying adjustment: (1) that Fernandez had sought admission to the United States
by fraud or willful misrepresentation under INA § 212(a)(6)(C), 8 U.S.C.
§ 1182(a)(6)(C), and (2) that Fernandez was ineligible for admission under INA
§ 212(a)(9)(A)(i), 8 U.S.C. § 1182(a)(9)(A)(i), because he had been previously
deported and twenty years had not passed since his last removal. In his brief,
Fernandez questions whether this unsigned and undated denial letter was ever sent
and claims he did not learn of the letter’s existence until the production of the
administrative record for review.
-5-
II. DISCUSSION
Fernandez seeks review of the government’s reinstatement of his
deportation order, arguing (1) that the bar to relief found in INA § 241(a)(5) does
not prohibit his application for adjustment of status under INA § 245(i), and
(2) that if INA § 241(a)(5) does bar his application, the effect of the bar on him is
impermissibly retroactive. As for the letter denying his application, Fernandez
claims his inadmissibility under INA § 212(a)(6)(C) could have been waived
because denial of adjustment will cause his spouse extreme hardship, but that he
was prevented from applying for such a waiver by the reinstatement of the prior
deportation order. He also claims that his inadmissibility under INA
§ 212(a)(9)(A)(i) would have been waived if his Form I-212–which was not
addressed in the denial–had been granted. He argues that the reinstatement order
should be reversed and, essentially, that he should have the opportunity to have
his application for adjustment ruled upon once he has had a chance to properly
request waivers of the other possible grounds for denial. Even if, for the sake of
argument, we assume Fernandez qualified for waivers of the grounds for denial
found in INA § 212(a)(6)(C) and INA § 212(a)(9)(A)(i), and that he was
prevented from properly applying for and receiving these waivers by the
reinstatement of his prior order of deportation, we must still deny his petition
because we hold that the reinstatement statute barred Fernandez’ application to
-6-
adjust his immigration status, and that the bar is not an impermissible retroactive
effect on Fernandez.
A. Jurisdiction and Standard of Review
An order reinstating a prior removal order is the functional equivalent of a
final order of removal and, therefore, we have jurisdiction to review the
reinstatement order under INA § 242(b)(2), 8 U.S.C. § 1252(b)(2). Garcia-
Marrufo v. Ashcroft , 376 F.3d 1061, 1063 (10th Cir. 2004); Arevalo , 344 F.3d at
2. Although we defer to an agency’s interpretation of a statute when the statute is
ambiguous, here there is no ambiguity and we are instead faced with purely legal
questions, which we review de novo. Lattab v. Ashcroft , 384 F.3d 8, 14 (1st Cir.
2004); Arevalo , 344 F.3d at 9-10.
B. INA § 241(a)(5)’s Bar To Application For Relief
Fernandez’ argument is that his INA § 245(i) application to adjust status
was not barred by INA § 241(a)(5)’s bar to application and eligibility for “any
relief.” INA § 241(a)(5) 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 chapter , and the alien shall be removed under the prior
order at any time after the reentry.
-7-
INA § 241(a)(5) (emphasis added). INA § 245(i) provides that the Attorney
General may adjust the status of an alien physically present in the United States
who entered without inspection if the alien meets certain requirements, including
being “admissible to the United States for permanent residence.”
Generally, a previously removed alien who illegally re-enters the United
States is permanently inadmissible to the United States under INA
§ 212(a)(9)(C)(i)(II), and therefore not eligible for adjustment of status under
INA § 245(i). See Berrum-Garcia, 2004 WL 2668797 at *6-*7 (“It is therefore
apparent to us that Congress did not consider those who reenter the United States
in defiance of a prior deportation order to be qualified for [INA § 245(i)’s]
amnesty.”). While a waiver of this permanent inadmissibility is available, that
waiver may only be sought following the completion of an unwaivable ten-year
period outside of the United States. INA § 212(a)(9)(C)(ii) ; Berrum-Garcia ,
2004 WL 2668797 at *6. Consequently, we find no inherent tension between the
allowance of adjustment of status to aliens admitted without inspection under INA
§ 245(i) and the bar to any relief to previously removed aliens who illegally
re-enter the United States under INA § 241(a)(5).
Fernandez cites Prado Hernandez v. Reno , 86 F. Supp. 2d 1037 (W.D.
Wash. 1999), to support his argument that he should be allowed to adjust his
status despite his previous removal order and subsequent illegal reentry. In Prado
-8-
Hernandez , the district court held that an application to adjust status under INA
§ 245(i), submitted before reinstatement of the alien’s previous deportation order,
was not a “request for relief” barred by INA § 241(a)(5), and that the alien was
entitled to have his adjustment application considered before the previous
deportation order was reinstated. 5
Id. at 1041-42. The district court held that the
adjustment application could not be considered a request for relief because, at the
time it was filed, the INS had not yet moved to reinstate the prior deportation
order and so there was no action from which to seek relief. Id. at 1041. The
district court also treated the reinstatement as a new deportation, id. (“Prado-
Herandez applied for adjustment of status before any deportation proceedings had
commenced.”), and held that the fact that the alien might be deportable under the
reinstatement statute did not make him ineligible for adjustment of status. Id. at
1041-42.
Here, like the alien in Prado Hernandez , Fernandez submitted his
adjustment application prior to reinstatement. We are not persuaded by the
decision in Prado Hernandez and decline to follow it in that the district court
apparently ignored the fact that the alien was not deportable but deported and was
5
In Prado-Hernandez , the previously removed alien submitted a Form I-212
along with his adjustment of status application. The government granted the
Form I-212 despite the fact that the alien had illegally re-entered the United
States. Id. at 1038, 1041 n.3.
-9-
ineligible for relief from that prior deportation under the reinstatement statute.
As this court has recently stated: “Petitioner’s argument that [INA § 241(a)(5)]
poses no bar to his efforts to obtain . . . adjustment of status is refuted by the
plain language of the statute.” Berrum-Garcia , 2004 WL 2668797 at *3. As
recognized by the First Circuit in Lattab , the plain language of the statute bars
“any relief,” including adjustment of status under INA § 245(i):
[the argument that INA § 241(a)(5)’s bar to relief does not apply to
applications for adjustment filed before reinstatement of the order of
deportation is] squarely foreclosed by the text of the statute. Section
241(a)(5) subjects an illegal reentrant to three independent
consequences: reinstatement of the prior deportation order,
ineligibility for any relief, and removal. Grammatically, section
241(a)(5) does not make ineligibility for relief dependent upon
reinstatement of the prior deportation order. And even if it did,
section 241(a)(5) expressly makes reinstatement retroactive to the
date of the original deportation order.
Lattab , 384 F.3d at 16; see also Flores v. Ashcroft , 354 F.3d 727, 730-31 (8th Cir.
2003) (holding that INA § 241(a)(5) bars adjustment of status under INA
§ 245(i)); Alvarez-Portillo v. Ashcroft , 280 F.3d 858, 862 (8th Cir. 2002) (finding
the argument that INA § 245(i) “conflicts with and supersedes” INA § 241(a)(5)
to be without merit and rejecting it without discussion). The fact that Fernandez
filed his application for adjustment of status prior to the reinstatement of his prior
removal order does not help him.
[INA § 241(a)(5)] states not only that an illegal reentrant “may not
apply” for relief, but also that he is “not eligible” for relief. Once
-10-
Petitioner’s prior removal order has been reinstated, he no longer
qualifies for any relief under the INA, regardless of whether his
applications for relief were filed before or after the reinstatement
decision is made. The timing of Petitioner’s applications is simply
immaterial.
Berrum-Garcia , 2004 WL 2668797 at *4.
Further, Fernandez relied on INA § 245(i), as revised by the Legal
Immigration Family Equity Act and the LIFE Act Amendments of 2000, in
applying to adjust his status. 6
Congress’ understanding that the reinstatement
statute barred adjustment of status is clear from the Life Act Amendments, in
which Congress expressly excluded certain classes of aliens from the bar of INA
§ 241(a)(5):
In the same 2000 amendments that extended the application period
for LIFE Act relief, Congress expressly excluded certain classes of
aliens from the bar of [the reinstatement statute]. The amendments
revised section 202 of the Nicaraguan Adjustment and Central
American Relief Act and section 902(a) of the Haitian Refugee
Immigration Fairness Act of 1998 to exempt aliens described in those
acts who apply for adjustment of status from reinstatement pursuant
to [the reinstatement statute]. In other words, when Congress
intended to exempt certain groups of aliens from the sweep of the
reinstatement statute, it knew how to do so.
Padilla v. Ashcroft , 334 F.3d 921, 925 (9th Cir. 2003). Congress would not have
specified that adjustment of status and waiver of “‘the grounds of inadmissibility
6
The Legal Immigration Family Equity Act or “LIFE Act”, Pub. L. No.
106-553, 114 Stat. 2762A-143 through 149 (2000) and the LIFE Act Amendments
of 2000, Pub. L. No 106-554, 114 Stat. 2763A-324 through 328 (2000).
-11-
under subparagraphs (A) and (C) of [INA § 212(a)(9)]’” were available to
previously removed aliens in these specific classes, and that “‘the provisions of
[INA § 241(a)(5) should] not apply’” to such aliens, if adjustment of status and
waiver were available to all previously removed aliens. See Berrum-Garcia , 2004
WL 2668797 at *7 (quoting Pub. Law No. 106-554 App. D, § 1505, 114 Stat.
2763A-326). Since Fernandez does not fall within the exempted classes of aliens,
his application is barred by INA § 241(a)(5).
C. No Impermissible Retroactive Effect of INA § 241(a)(5).
Consequently, we must turn to Fernandez’ argument that INA § 241(a)(5)’s
bar of his application for adjustment is an impermissible retroactive effect of the
revised reinstatement statute. Although, until now, we have not addressed the
temporal scope of INA § 241(a)(5), it is clear that “the presumption against
retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal
doctrine centuries older than our Republic.” Landgraf v. USI Film Prods. ,
511 U.S. 244, 265 (1994); see also Jurado-Gutierrez v. Greene , 190 F.3d 1135,
1148 (10th Cir. 1999) (“The presumption against retroactivity remains the
appropriate default rule.”) (quotation omitted). While Congress has the power,
within constitutional limits, to enact laws with retroactive effect, since there are
inherent dangers in retroactive legislation, a statute may not be applied
-12-
retroactively unless Congress clearly intended such a result. INS v. St. Cyr ,
533 U.S. 289, 316 (2001).
The reinstatement statute differed from the previous statute in at least three
ways.
First, under the old regime only illegal reentrants who had previously
been deported on certain specified grounds (e.g., conviction for an
aggravated felony) were subject to having their original deportation
orders reinstated. Under section 241(a)(5), however, all illegal
reentrants now face the prospect of such reinstatement. Second,
under the earlier system an alien had a right to a hearing, presided
over by an immigration judge, before reinstatement of the prior
deportation order became a fait accompli. Under the regulations
implementing section 241(a)(5), however, there is no longer a right
to such a hearing (or to any hearing, for that matter). Third,
preexisting law allowed an illegal reentrant to attempt to fend off
execution of a reinstated deportation order by petitioning for
discretionary relief in the form of an adjustment of his status to that
of an alien lawfully admitted for permanent residence. Conversely,
section 241(a)(5) pretermits an illegal reentrant's ability to apply for
any relief under the INA.
Lattab , 384 F.3d at 12-13 (citations omitted).
A three-step test governs the determination of whether INA § 241(a)(5)
may be applied to bar Fernandez’ adjustment application.
First, the court must determine whether Congress has expressly
prescribed [INA § 241(a)(5)’s] proper reach . . . . Second, if
Congress has not expressly addressed the question, we employ the
normal rules of statutory construction to ascertain the statute’s
temporal scope . . . . Finally, if the court cannot ascertain
congressional intent, we consider whether the statute has a
retroactive effect . . . . If a retroactive effect exists, it triggers the
-13-
traditional judicial presumption against retroactivity and the new law
will not be applied.
Jurado-Gutierrez , 190 F.3d at 1148 (quotations omitted). 7
1. Did Congress expressly prescribe INA § 241(a)(5)’s proper temporal
reach?
Here, INA § 241(a)(5) contains no explicit provision as to its proper
temporal reach, and the normal rules of statutory construction must therefore be
employed to attempt to ascertain congressional intent. Velasquez-Gabriel v.
Crocetti , 263 F.3d 102, 106 (4th Cir. 2001) (“Although § 241(a)(5) does not
explicitly state whether it applies retroactively or prospectively, the [parties] each
contend that Congress unambiguously defined the statute’s temporal
application.”).
2. Can congressional intent regarding INA § 241(a)(5)’s proper temporal
reach be determined by application of the rules of statutory construction?
7
In Landgraf , the Supreme Court set forth a two-step retroactivity test: first,
a court must determine whether congressional intent regarding temporal scope is
evident from the statute; second, if congressional intent is not evident, the court
must proceed to determine whether the new statute would have a retroactive
effect. Landgraf , 511 U.S. at 280. The three-step retroactivity test set forth in
Jurado-Gutierrez is a result of the Supreme Court’s clarification in Lindh v.
Murphy , 521 U.S. 320, 326 (1997) , that the normal rules of statutory construction
apply to the determination that must be made under the first step of the Landgraf
test.
-14-
A number of our sister circuits have considered whether application of the
rules of statutory construction reveals an unambiguous congressional intent as to
the INA § 241(a)(5)’s temporal scope, and have reached differing conclusions.
On one hand, the Ninth and Sixth Circuits, applying the normal rules of
statutory construction, determined that Congress unambiguously intended for INA
§ 241(a)(5) to be applied only to previously deported aliens who re-entered the
country after the effective date of the statute. Castro-Cortez v. INS , 239 F.3d
1037, 1050-53 (9th Cir. 2001) (“[Section 241(a)(5)] applies only to aliens who
re-enter the United States after IIRIRA’s effective date.”); Bejjani v. INS , 271
F.3d 670, 676-77 (6th Cir. 2001) (same).
On the other hand, the First, Third, Fourth, Fifth, Eighth, and Eleventh
Circuits (“majority circuits”) have determined that application of the normal rules
of statutory construction does not reveal unambiguous congressional intent as to
the temporal scope of INA § 241(a)(5). Sarmiento Cisneros v. United States
Attorney Gen. , 381 F.3d 1277, 1283 (11th Cir. 2004); Arevalo , 344 F.3d at 12-13;
Avila-Macias v. Ashcroft , 328 F.3d 108, 114 (3d Cir. 2003); Ojeda-Terrazas v.
Ashcroft , 290 F.3d 292, 299 (5th Cir. 2002); Alvarez-Portillo , 280 F.3d at 865;
Velasquez-Gabriel , 263 F.3d at 108.
Fernandez cites to Castro-Cortez and Bejjani as support for his argument
that INA § 241(a)(5) should not bar his application because his last illegal entry
-15-
into the United States occurred in 1981, well before the reinstatement statute’s
effective date. He does not, however, address the refutation of the holdings in
those cases by the majority of the circuits.
In Castro-Cortez , the Ninth Circuit relied on three arguments in reaching
its holding:
First, the court noted that Congress eliminated the retroactivity
language from the statute and stated that "Congress's decision to
remove the retroactivity language from this part of the statute
provides strong support for the conclusion that it did not intend that
the revised provision be applied to reentries occurring before the date
of the statute's enactment." Second, the court concluded, by negative
implication, that, because Congress had specified in several other
sections of the IIRIRA whether the section would apply retroactively,
the failure to provide for retroactive application in [INA § 241(a)(5)]
indicated that Congress did not intend for that section to apply
retroactively. Third, the court stated that "Congress is deemed to
enact legislation with Landgraf ’s 'default rule' [against retroactivity]
in mind. . . . Accordingly, silence provides useful evidence as to
intent for the first step of Landgraf ’s two-part inquiry.
Sarmiento Cisneros , 381 F.3d at 1282 (quotations omitted); accord Castro-
Cortez , 239 F.3d at 1051-52. The Sixth Circuit relied on much the same
arguments in reaching its holding in Bejjani , noting further that Congress did not
simply remove the previous retroactivity language, it specifically rejected drafts
of the new statute that included such language. See Bejjani , 271 F.3d at 684-87.
But the Sixth Circuit also found the Ninth Circuit’s negative implication argument
to be unpersuasive. Id.
-16-
The majority circuits have disagreed with the reasoning of the Ninth and
Sixth Circuits, generally finding that: (1) while Congress’s elimination of the
previous retroactivity language lends weight to the argument that Congress
intended the statute to apply only prospectively, the silence that replaced that
retroactivity language cannot be considered a clear statement of congressional
intent; 8 (2) no negative implication may be drawn from the fact that some sections
of IIRIRA require application to pre-enactment conduct, when other IIRIRA
sections prohibit application to pre-enactment conduct, 9
and (3) although
Congress is deemed to act with the Landgraf “default rule” in mind, an equally
valid conclusion is that Congress remained silent in expectation that the courts
would proceed to determine, on a case-by-case basis, whether the statute would
have an impermissible retroactive effect. 10
8
Sarmiento Cisneros , 381 F.3d at 1282; Avila-Macias , 328 F.3d at 113.
9
Sarmiento Cisneros , 381 F.3d at 1282 (“The sometimes retrospective,
sometimes prospective provisions that surround the statute unveil the Janus-like
faces of Congress, but leave its mind concealed.” (quotation omitted)); Arevalo ,
344 F.3d at 13 (considering the sometimes retrospective, sometimes prospective
provisions, “the negative implication argument could just as easily run in the
other direction”); Avila-Macias , 328 F.3d at 113; Velasquez-Gabriel , 263 F.3d
at 107.
10
Sarmiento Cisneros , 381 F.3d at 1282-83; Arevalo , 344 F.3d at 12
(“Although Congress is presumed to be aware of the law’s general aversion to
retroactivity . . . it must also be presumed to know that some Landgraf inquiries
come out the other way.” (internal citation omitted)); Avila-Macias , 328 F.3d at
114.
-17-
The majority circuits’ findings must be considered alongside the Supreme
Court’s decision in INS v. St. Cyr , 533 U.S. 289 (2001). In St. Cyr , the Supreme
Court considered the retroactive effect of the replacement of former INA § 212(c)
(giving the Attorney General broad discretion to waive deportation orders of
resident aliens) with IIRIRA § 304(b) (removing aliens convicted of aggravated
felonies from the class of aliens eligible for waiver). St. Cyr , 533 U.S. at 297.
The government argued that application of the rules of statutory construction
revealed Congress’s unambiguous intent that IIRIRA § 304(b) was to apply to all
removals following the statute’s effective date. Id. at 315. Specifically, the
government argued that: (1) IIRIRA was so comprehensive a statute that
Congress must have intended that “the provisions of the old law should no longer
be applied at all”; (2) that the effective date of the statute is, in and of itself, an
indicator that Congress intended the statute to be applied retroactively; and (3)
that the “saving provision” in IIRIRA § 309(c)(1)–which states the amendments
were not to apply to proceedings that began before the effective date–implies that
the amendments were to apply to all proceedings commenced after the effective
date. Id. at 317-18 (quotation omitted).
The Supreme Court, after noting that “[c]ases where this Court has found
truly ‘retroactive’ effect adequately authorized by statute have involved statutory
language that was so clear that it could sustain only one interpretation[,]” id. at
-18-
316-17, went on to hold that none of the arguments set forth by the government
were sufficient reason to find unambiguous congressional intent regarding the
section’s temporal scope, especially when Congress unambiguously indicated its
intent as to temporal scope in other sections of IIRIRA. Id. at 317-20; see also
Ojeda-Terrazas , 290 F.3d at 299-300 (“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 first step.”).
In light of the Supreme Court’s holding in St. Cyr , we agree with the
reasoning of the majority circuits and join them in holding that Congress’s failure
to expressly state that the reinstatement statute applied to aliens who re-entered
the country prior to its effective date, does not mean Congress therefore
unambiguously intended for the statute not to apply to these aliens.
Consequently, we must determine whether INA § 241(a)(5)’s bar of Fernandez’
adjustment application is an impermissible retroactive effect of that statute.
3. Would the application of INA § 241(a)(5) have an impermissible
retroactive effect in this case?
“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.” Sarmiento
-19-
Cisneros , 381 F.3d at 1282 (quotation omitted). “A provision has a retroactive
effect if it, for example, ‘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.’” Jurado-Gutierrez , 190 F.3d at 1148 (quoting
Landgraf , 511 U.S. at 280). In this case, the enactment of INA § 241(a)(5) did
not attach new legal consequences to events previously completed.
We recognize that a number of cases have held that barring an application
for adjustment under INA § 241(a)(5) is an impermissible retroactive effect where
the adjustment application was filed before the effective date of IIRIRA. See
Sarmiento Cisneros , 381 F.3d at 1284; Arevalo , 344 F.3d at 14 (“[A]pplications
for discretionary relief, once made, often become a source of expectation and
even reliance.”). 11
In this case, since Fernandez’ marriage and the filing of his
11
Further, in Alvarez-Portillo , the Eighth Circuit held INA § 241(a)(5)’s bar
had an impermissible retroactive effect when applied to an alien who had both
re-entered the United States and married a United States citizen prior to April 1,
1997, notwithstanding the fact that his adjustment application was not filed until
2001. Alvarez-Portillo , 280 F.3d at 861. The Eighth Circuit held that, at the time
Alvarez-Portillo was married, “long-standing INS practice created a reasonable
expectation that he could defend against later deportation or removal by seeking a
discretionary adjustment of status to lawful permanent resident[,]” and the
elimination of this defense, without more, was an attachment of a new legal
consequence to events completed before the enactment of IIRIRA. Id. at 867; see
also Lopez-Flores v. Dep’t of Homeland Sec. , 387 F.3d 773, 775-76 (8th Cir.
2004) (holding reinstatement had impermissible retroactive effect when alien had
re-entered U.S. and employer had filed an application for work authorization
before effective date of IIRIRA). Without expressing an opinion as to the
(continued...)
-20-
adjustment application did not occur until 2001, the only event completed before
April 1, 1997, was his illegal re-entry into the United States. In other words, on
the day the reinstatement statute came into effect, Fernandez had no protectable
expectation of being able to adjust his status. It would be a step too far to hold
that simply by re-entering the country, Fernandez created a settled expectation
that if he did marry a U.S. citizen, he might then be able to adjust his status and
defend against removal. “Inchoate plans to act in the future, even when made in
anticipation of the legal consequences of those future actions, do not convey the
type of settled expectation that retroactivity analysis seeks to protect.” Lattab ,
384 F.3d at 16 (holding that a plan to marry a United States’ citizen and then
apply for adjustment of status was not a settled expectation). As with the alien in
Lattab : “[w]hile section 241(a)(5) barred [Fernandez] from applying for any
affirmative relief (such as an adjustment of status) from and after April 1, 1997,
that change was inconsequential because there was no relief for which [he] could
then have qualified.” Id. at 15.
(...continued)
11
correctness of the decision reached in Alvarez-Portillo , we note Fernandez’
marriage did not occur until 2001.
-21-
III. CONCLUSION
Because we find (1) that INA § 241(a)(5) bars an application for
adjustment of status under INA § 245(i), and (2) that such a bar is not an
impermissible retroactive effect of INA § 241(a)(5) when applied to Fernandez,
the petition for review is DENIED.
-22-