924 F.3d 768
5th Cir.2019Background
- Terrazas, a Mexican national, had multiple illegal entries and a 1993 IJ removal order; he reportedly reentered shortly after that removal.
- He filed adjustment-of-status applications beginning in 1995; one was denied in 2001 for failure to prosecute after he and his putative spouse failed to appear before an IJ.
- DHS warned in 2011 that the 1993 removal order could be reinstated; DHS reinstated the 1993 order on August 25, 2012 under 8 U.S.C. § 1231(a)(5).
- Terrazas sought withholding/torture-protection review in 2017; an IJ affirmed a negative reasonable-fear determination and he was removed in July 2017.
- Terrazas challenged reinstatement as an impermissibly retroactive application of IIRIRA and separately argued his 1993 reentry was lawful because he was allegedly waved through at a border checkpoint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retroactive application of IIRIRA §1231(a)(5) | IIRIRA impermissibly applied because his adjustment application was pending pre-IIRIRA, so he would have been entitled to a new IJ hearing | IIRIRA may be applied; his adjustment application was denied in 2001 for failure to prosecute, so no vested right was impaired | Denied — not impermissibly retroactive because his 1995 application was denied in 2001 for failure to prosecute and was not pending at reinstatement |
| Lawfulness of reentry ("waved through" at checkpoint) | Terrazas contends he entered lawfully in 1993 at the Bridge of the Americas because border officials waved him through | Reentry was unlawful absent prior consent of the Attorney General to reapply for admission; record contains no such consent | Denied — reentry was unlawful because he lacked Attorney General permission and precedent forecloses his argument |
| Challenge to propriety of original 1993 removal | (advanced at oral argument) 1993 removal was improper; related to visa or eligibility issues | Issue not briefed; court should not consider arguments first raised at oral argument | Not considered — forfeited because raised first at oral argument |
Key Cases Cited
- Ponce-Osorio v. Johnson, 824 F.3d 502 (5th Cir. 2016) (circuit jurisdiction and limited review of reinstatement orders)
- Ojeda-Terrazas v. Ashcroft, 290 F.3d 292 (5th Cir. 2002) (IIRIRA reinstatement extends to prior-removed entrants; retroactivity analysis)
- Silva Rosa v. Gonzales, 490 F.3d 403 (5th Cir. 2007) (no vested adjustment right where visa unavailable; retroactivity upheld)
- Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) (IIRIRA §1231(a)(5) applies to pre-IIRIRA entrants; reserved narrow question about pending adjustment applications)
- Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (two-step test and presumption against retroactivity)
- Vartelas v. Holder, 566 U.S. 257 (2012) (presumption against retroactive application of statutes)
- Anderson v. Napolitano, 611 F.3d 275 (5th Cir. 2010) (reentry unlawful despite passport stamp; administrative findings conclusive)
- Martinez v. Johnson, 740 F.3d 1040 (5th Cir. 2014) (reentry unlawful where no prior consent; reinstatement upheld)
- Arsement v. Spinnaker Exploration Co., 400 F.3d 238 (5th Cir. 2005) (court will not consider issues first raised at oral argument)