Ixcot v. Holder
2011 U.S. App. LEXIS 10930
| 9th Cir. | 2011Background
- Chay Ixcot, a Guatemalan national, entered the U.S. without inspection in 1989 and underwent deportation proceedings; he claimed a false identity and age at first hearing but later provided an asylum claim based on political persecution (1993) and pursued NACARA relief with delays; in 2009 DHS reinstated the 1989 removal order under INA § 241(a)(5) after Chay admitted using an alias; the reinstatement barred most immigration relief but allowed some forms like withholding of removal in limited circumstances; the BIA and DHS proceeded with reinstatement instead of timely adjudicating the pending asylum application; Chay petitioned for review, challenging retroactive application of the reinstatement provision and seeking merits adjudication of his asylum claim; the court held INA § 241(a)(5) impermissibly retroactive as applied to Chay and vacated the reinstatement order, remanding for merits adjudication of asylum, while denying NACARA-203 relief review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is INA § 241(a)(5) impermissibly retroactive as applied to pre-enactment relief applications? | Chay contends retroactive effect violates Landgraf/St. Cyr. | Government argues no retroactive effect because no vested rights; provision merely bars discretionary relief. | Yes, impermissibly retroactive as applied. |
| Does the retroactive application affect eligible forms of relief or only the adjudication procedure? | Retroactivity disturbs substantive expectations by eliminating relief he sought. | Retroactivity affects only the manner of removal adjudication, not vested rights. | Retroactivity disturbs substantive relief; disallowed. |
| Should NACARA § 203 eligibility be reviewed here given the agency’s factual determinations? | Claims NACARA relief should be adjudicated on merits. | Lack of jurisdiction to review ABC benefits eligibility under NACARA § 203. | Jurisdiction lacking for NACARA merits; deny to that extent. |
| What is the proper remedy given retroactive illegality of reinstatement? | Vacate reinstatement and allow asylum adjudication on the merits. | Remedies limited to procedural retroactivity considerations. | Reinstatement vacated; asylum merits to be adjudicated. |
Key Cases Cited
- Landgraf v. USI Film Prods., 511 U.S. 244 (U.S. 1994) (two-step retroactivity test; express congressional intent and retroactive effect)
- Fernandez-Vargas v. Gonzales, 548 U.S. 30 (U.S. 2006) (Congress did not clearly express temporal reach; assess retroactivity on merits)
- Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003) (discretionary relief as a substantive right for retroactivity analysis)
- St. Cyr v. INS, 533 U.S. 289 (U.S. 2001) (reliance on discretionary relief relevant to retroactivity)
- Sarmiento Cisneros v. Attorney General, 381 F.3d 1277 (11th Cir. 2004) (retroactivity limits when relief was available pre-IIRIRA)
- Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003) (reiterates right to discretionary relief before retroactive changes)
- Faiz-Mohammad v. Ashcroft, 395 F.3d 799 (7th Cir. 2005) (retroactivity limits on post-IIRIRA reinstatement when relief already sought pre-enactment)
- Valdez-Sanchez v. Gonzales, 485 F.3d 1084 (10th Cir. 2007) (retroactivity and new disability analysis in pre-enactment relief contexts)