Jose Ortega v. Eric Holder, Jr.
2014 U.S. App. LEXIS 5893
| 9th Cir. | 2014Background
- Jose Ortega, a Mexican national, illegally entered the U.S. in August 1984, was ordered deported on August 21, 1984, returned to Mexico, and re-entered on August 25, 1984.
- In December 1984 Ortega fraudulently married a U.S. citizen and applied to adjust status after an I-130 was filed; the marriage and petition were later withdrawn and his adjustment application was denied in 1987.
- Ortega remained in the U.S. unlawfully until December 1, 2009, when his 1984 deportation order was reinstated.
- The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) changed reinstatement law, expanding eligibility and largely eliminating relief; 8 U.S.C. § 1231(a)(5) bars relief applications after reinstatement.
- Ortega challenged post‑IIRIRA reinstatement as an impermissible retroactive application that eliminated his right to renew relief; Ninth Circuit reviewed retroactivity de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether applying 8 U.S.C. § 1231(a)(5) to Ortega is impermissibly retroactive | Ortega: IIRIRA retroactively eliminated his ability to renew his adjustment application—violates nonretroactivity because it cancels vested rights | Government: IIRIRA applies to continuing violators and does not impair any vested right because Ortega took no pre‑Act steps to vest relief | Held: No retroactivity violation; Ortega had no vested right and did not take pre‑Act action to elevate his expectation of relief |
Key Cases Cited
- Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) (IIRIRA reinstatement provision does not create new consequences for continuing violators)
- Ixcot v. Holder, 646 F.3d 1202 (9th Cir. 2011) (pre‑Act, pending application can create vested expectation preventing retroactive application)
- I.N.S. v. St. Cyr, 533 U.S. 289 (2001) (presumption against retroactivity grounded in fair notice, reasonable reliance, settled expectations)
- Valencia-Alvarez v. Gonzales, 469 F.3d 1319 (9th Cir. 2006) (standard of review for retroactivity claims is de novo)