39 F.4th 1146
9th Cir.2022Background
- Rivera Vega, a Mexican national, was removed in January 1991, re-entered unlawfully about a week later, and remained in the U.S. for decades.
- He filed an adjustment-of-status application in 2001 and an I-212 waiver application in 2004; USCIS later (and erroneously at times) described procedural events affecting his applications.
- USCIS initially denied adjustment on April 16, 2019, citing (1) a purported 2010 reinstatement of the 1991 removal order, (2) a ten-year inadmissibility bar, and (3) permanent inadmissibility under 8 U.S.C. § 1182(a)(9)(C)(i)(II). The first two factual predicates were mistaken.
- DHS reinstated Rivera Vega’s removal order on May 17, 2019; he was interviewed for reasonable-fear purposes, proceeded without counsel at the IJ hearing, the IJ found no reasonable fear or torture risk, and Rivera Vega was removed June 14, 2019.
- Rivera Vega petitioned for review challenging USCIS’s denial(s), the reinstatement decision, and the IJ’s reasonable-fear/CAT determination. The Ninth Circuit held that § 1182(a)(9)(C)(i)(II) applies retroactively to pre-IIRIRA reentries when the alien failed to seek adjustment before IIRIRA’s effective date, rejected the counsel and CAT claims, and denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1182(a)(9)(C)(i)(II) (permanent inadmissibility for removed aliens who re-enter) applies to reentries before IIRIRA’s effective date | Rivera Vega: applying the provision retroactively is impermissible because his reentry occurred pre-IIRIRA | Government: statute is silent as to temporal reach and retroactive application is permissible; alien had no vested right because he did not apply before IIRIRA | Held: Applies retroactively where alien did not apply for adjustment before IIRIRA became effective; Rivera Vega permanently inadmissible because he filed in 2001. |
| Whether USCIS’s April 16, 2019 denial (and its statutory reasoning) properly supported DHS’s May 17, 2019 reinstatement | Rivera Vega: April 16 denial mistakenly found statutory ineligibility and so reinstatement based on it must be vacated | Government: even if some factual findings were erroneous, Patel restricts courts from reviewing factual determinations in discretionary relief; independent legal ground (permanent inadmissibility) supports denial | Held: Court reviews April 16 order for legal error; factual errors are non-reviewable under Patel, and the permanent-inadmissibility ground independently supports denial and reinstatement. |
| Whether Rivera Vega’s statutory right to counsel at a reasonable-fear hearing was violated when his attorney did not appear | Rivera Vega: proceeding without counsel violated statutory right to counsel and denied relief | Government: alien was informed of the right, had counsel at earlier stages, IJ gave opportunity to secure counsel, and time constraints allowed proceeding | Held: No violation—notice and opportunity to obtain counsel satisfied; IJ did not need to delay under the ten-day rule. |
| Whether IJ erred by failing to consider government acquiescence for CAT relief | Rivera Vega: IJ required state actor torture and ignored government acquiescence to private-actor torture | Government: petitioner failed to show past torture or a reasonable possibility of future torture; government acquiescence irrelevant if no reasonable possibility of torture | Held: IJ’s factual finding that petitioner lacked past torture/persecution is supported by substantial evidence; CAT claim denied and government-acquiescence issue need not be considered. |
Key Cases Cited
- Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) (IIRIRA reinstatement provision applies to pre-effective-date reentries where applicant did not seek relief before the effective date)
- Patel v. Garland, 142 S. Ct. 1614 (2022) (courts lack jurisdiction to review factual findings made in discretionary-relief proceedings under §1255)
- INS v. St. Cyr, 533 U.S. 289 (2001) (adjustment of status is discretionary relief and historical principles on retroactivity)
- Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (two-step retroactivity analysis: statutory text then whether new law attaches new legal consequences)
- Vartelas v. Holder, 566 U.S. 257 (2012) (retroactivity presumption and review framework)
- Morales-Izquierdo v. DHS, 600 F.3d 1076 (9th Cir. 2010) (challenge to adjustment denial may be treated as challenge to reinstatement where relief is inextricably linked)
- Montoya v. Holder, 744 F.3d 614 (9th Cir. 2014) (no vested right to adjust status absent application before IIRIRA effective date)
- Almendarez-Torres v. United States, 523 U.S. 224 (1998) (use of statutory titles and statutory interpretation principles)
- Nuru v. Gonzales, 404 F.3d 1207 (9th Cir. 2005) (evaluation of past torture as a factor in assessing future torture for CAT claims)