744 F.3d 614
9th Cir.2014Background
- Montoya, a Mexican national, entered and remained in the U.S. illegally after an order of removal in 1996.
- Her Form I-130 was filed by her U.S. citizen brother in 1997 and approved, placing her on a visa waiting list.
- IIRIRA took effect on April 1, 1997, altering reinstatement of removal orders and restricting relief.
- DHS reinstated Montoya's prior removal order on August 24, 2011 while she was on the waiting list.
- Montoya challenged the reinstatement as impermissibly retroactive to pre-enactment actions.
- The court analyzes retroactivity and vesting rights to determine if the post-enactment provisions apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1231(a)(5) retroactivity applies to Montoya | Montoya asserts retroactive effect harms pre-enactment actions. | Reinstatement provisions apply to continuing violators regardless of filing date. | Retroactivity permitted; prescribes post-enactment application. |
| Whether filing/approval of I-130 before the Act creates a vested right | Pre-enactment I-130 yields a vested right to apply for adjustment. | I-130 approval alone does not create a vested right to adjust status. | No vested right from pre-enactment I-130 alone. |
| What constitutes a vesting action under retroactivity standards | Any pre-enactment action that enhances rights counts. | Vesting requires actions elevating expectations beyond mere hope. | Pre-enactment actions here do not vest the right to apply for adjustment. |
Key Cases Cited
- Fernandez-Vargas v. Gonzales, 548 U.S. 30 (U.S. 2006) (retroactivity framework for immigration statutes; vesting standards)
- Ixcot v. Holder, 646 F.3d 1202 (9th Cir. 2011) (pre-enactment actions affect retroactivity; contrast with Fernandez-Vargas)
- Matter of Hashmi, 24 I. & N. Dec. 785 (BIA 2009) (I-130 is a first step; does not itself vest adjustment rights)
- Silva Rosa v. Gonzales, 490 F.3d 403 (5th Cir. 2007) (filing/approval of I-130 not enough for vested right)
- Labojewski v. Gonzales, 407 F.3d 814 (7th Cir. 2005) (I-130 approval does not create vested rights to adjustment)