*1 aware of the immigration consequences of
their convictions” when deciding whether guilty pleas. 322, enter 121 S.Ct.
2271; see Magana-Pizano also v. 603, Cir.1999) (“That F.3d charged
alien with a crime ... would fac
tor the consequences of con
viction in deciding whether to plead or
proceed well-documented.”). to trial
Extinguishing 212(c) the availability of
relief for pleaded aliens who guilty with expectation they eligible would be
for such upsets “familiar consider notice,
ations of fair reliance, reasonable
and settled expectations.” Cyr, St.
U.S. at 2271 (quoting S.Ct. Land
graf,
1483).
V
We hold that Cyr compels St. the result
in this case. To the extent that Samanie
go-Meraz conflicts with our holding today,
it is overruled. Aliens pleaded guilty
prior to the enactment of IMMACT and
who otherwise would have 212(c) relief but for the aggravated felon
bar, may 212(c) still relief.
REVERSED. PADILLA,
Francilia Petitioner, ASHCROFT,
John
General, Respondent.
No. 02-70430.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted March 2003. July
Filed *2 Counsel, Sandhu, Litigation Senior
Papu Wilson, Attorney, Office B. Earle and Division, De- Litigation, Civil Immigration DC, for Justice, Washington, partment respondent. GRABER, KOZINSKI, Before BERZON, Judges. Circuit GRABER; by Judge Opinion Judge BERZON. Concurrence GRABER, Judge: Circuit attempted Francilia Petitioner using fraudulent States United enter pursuant and was removed documents not af- that procedure an expedited illegally. reentered hearing. She ford a for an After she and Naturalization status, re- (“INS”) reinstated Service expedited to another pursuant moval order afford a that does procedure reinstatement, sought review was reinstat- arguing process. her ed violation deny petition to af- the failure demonstrate cannot her. hearing prejudiced ford a HISTORY AND PROCEDURAL FACTS national, Petitioner, a Guatemalan via States entry sought into Texas, Paso, El Bridge in Paseo del Norte Immigration officials in November forged were papers that her suspected questioning. her for detained immigration forms that the admitted substituted she had and that not hers owner. rightful for that of photo 8to removed ordered officers 1225(b)(1)(A.)(i), provides: officer determines an If arriving ... iswho an alien CA, Francisco, ... is inadmissible Byrne, San James M. 1182(a)(6)(C) [deeming inadmis- petitioner. attempt through If entry sible aliens who General finds that ... of misrepresentation] fraud or this alien has reentered the United States title, the officer order the alien shall after from the United States having departed voluntarily, *3 the hearing further or review unless removal, order of prior the order an to ap- alien indicates either intention original is reinstated from its asylum persecu- ... or a ply for fear date and is not subject re- being tion. reviewed, opened or the alien may not apply any relief expressed fraud and Petitioner admitted chapter, under this the alien shall be to apply asylum neither an intention removed under prior the order at Thus, persecution. nor a fear of INS offi- time reentry. after the § cers 1225’s ex- removed pedited procedure. implementing The regulation in rel- states day, part:
The the next Petitioner entered evant by swimming United across An alien who illegally reenters eventually the Rio Grande River. set- United States after been re- California, Francisco, tled and mar- San moved, having departed voluntarily, ried a United States citizen. exclusion, while an de- 2001, In April Petitioner filed for portation, or removal shall status, to take attempting from by reinstating the United States statutory a advantage oppor- window of prior order. The alien has no tunity Legal afforded hearing to a an immigration Act”). (“LIFE Family Equity Act The judge in such circumstances. LIFE Act offered aliens who had entered 241.8(a). § 8 C.F.R. inspection adjust a chance to their petition Petitioner filed a cor- habeas marriage on based to a United pus the district court. Pursuant to Cas- or legal States citizen resident. Pub.L. INS, 1037, tro-Cortez v. 239 F.3d 2763, 114 Stat. 2763A-324 (9th Cir.2001), parties stipulated (2000). The Act amended 8 U.S.C. petition should be transferred to this § to provide for of sta- granted stay court. We a of the reinstate- present tus for aliens who were physically ment order our review of pending the mer- States, a married to lawful its. permanent resident citi- or United States
zen, requisite and who had with within
filing relevant period. fees The STANDARD OF REVIEW April amendments extended to process We review de novo due period appli- within which to file challenges Ra decisions. cations. mirez-Alejandre Ashcroft, 320 F.3d In January of had an (9th Cir.2003) (en banc). prompted by interview adjustment-of-status application. During DISCUSSION interview, agent the INS discovered We deal here with be- Petitioner was to an order of the interaction removal. The ordered the re- tween two methods of removal. INS The moval provides expedited order reinstated under for the removal—with- provides: hearing—of out alien who is deemed 1997). (repealed not- attempted entry, 242.23 As upon C.F.R. inadmissible
to be
ed,
regulation
those
the current
denies
misrepresentation.
due
1225(b)(1)(A).
8 C.F.R.
provides
The second
241.8(a).2
or-
reinstatement
hearing—if the alien later
der—without
Castro-Cortez,
In
we
“serious
expressed
States after reenter-
found
proce-
as to whether the INS’s
doubts”
1231(a)(5).
illegally. 8 U.S.C.
ing
imposing
orders
dures for
comports
process.
with due
1225(b)(1)(A)
seeks
and now
to reinstate
explicitly
did not decide wheth-
1231(a)(5).
removal under
process,
regulation
er the
violated
*4
Instead,
that
Id.
concluded
however.
we
not
challenge
Petitioner does
did not
reinstatement
did,
if she
the rein
initial removal. Even
they
in that
petitioners
to
case
statute,
interpreted
as
in our
statement
had
before
date of
reentered
the effective
law,
order either
case
bars review
Id.
relevant amendments.
directly
collaterally.
8 U.S.C.
1231(a)(5);
INS,
Alvarenga
Villalobos v.
issue
again
process
reserved the due
(9th Cir.2001).
1169, 1170-71
F.3d
peti-
271
in
Alvarenga Villalobos because
had
one full
tioner in that case
received
contrast,
By
jurisdic
we do have
hearing
imposed
and fair
before the INS
tion to review the reinstatement order.
chal-
first order of removal and was
Castro-Cortez,
F.3d at
The
239
1046.
validity
original
lenging
his
then, whether—accepting the
question,
is
Therefore,
only.
at
we
271 F.3d
requires
process
order as valid—due
already
petitioner
concluded that the
hearing upon
reinstatement of that or
process
received all the
that was due
der.
hearing.
Id.
Illegal
Reform and
The
Here,
reentered after
Petitioner
Act of 1996
Immigrant Responsibility
IIRIRA,
falls
the effective date
so she
(“IIRIRA”)
pro-
revised the
holding
outside the
Castro-Cortez. She
vision,
1252(f),
to its
8 U.S.C.
former
hearing
did
receive a
as to the
form,
at
current
codified
order,
so she
outside
falls
1231(a)(5).1
expand-
revisions both
Alvarenga
Howev-
holding of
Villalobos.
types
ed the
that can be reinstat-
of orders
er,
we still need
decide whether
to aliens
ed
limited the relief available
INS’s
be-
regulation
process,
offends due
whose orders are reinstated. Castro-Cor-
any preju-
cause Petitioner cannot show
tez, 239
implementing
F.3d at 1040. The
to
dice as a result of the INS’s failure
regulation
procedures
further altered
afford a
reinstating
to be
removal or-
followed
IIRIRA,
predicate
obtaining
ders.
“As a
re
Before the enactment
procedural
pro
had a
lief for a violation of
to reinstatement
immigration
hearing
judge.
rights
proceedings,
cess
exclusion,
p.
deportation,
quoted
1. The statute
above.
or removal
reinstated,
being
cannot
Petitioner
because,
Alvarenga
we
assuming
prejudice.
2. Even
v.
That
as
Villalobos
show
is so
above,
(9th Cir.2001),
not chal-
emphasized
271 F.3d
1174
in-
have
she does
241.8(a)
removal;
lenge
original
hearing
terprets
require
a full
con-
C.F.R.
help
respect
original
cerning
hearing
and fair
it therefore could not
her.
alien must show that the
preju-
violation
Terrazas
Ashcroft,
290 F.3d
him”
diced
or her. Ramirez-Alejandre,
Cir.2002).
vant determinations” underlying a rein married to citizens, United States ap Castro-Cortez, statement order. plied within the relevant time. Although (1) at 1048. She admits that is the she fully complied with proce those (2) alien previously removed and *5 dures, she still is not eligible for relief for (3) who reentered the United States ille two reasons. gally. A hearing before an immigration
judge, therefore, could not help her be First, the bar to relief in the reinstate- cause those are the only three elements at provision, ment § 8 U.S.C. con- issue in determining whether a reinstate trols. In the same 2000 amendments that ment order 1231(a)(5) is valid. Section extended application period for LIFE provides that an alien who meets those Act Congress expressly excluded criteria flatly “is not eligible” for other certain classes of aliens from the bar of relief. 1231(a)(5). § The amendments revised section 202 the Nicaraguan Adjustment Our holding today comports with that of and Central American Relief Act and sec- the other circuits to have considered the 902(a) tion of the Refugee Haitian Immi- issue. similarly, Most in Gomez-Chavez v. gration Fairness Act of 1998 to exempt Perryman, Cir. aliens in described those acts who apply 2002), petition filed, cert. 71 U.S.L.W. for for of status from reinstate- (U.S. 2003) (No. Mar. 02-1529), pursuant ment 1231(a)(5). §to In other the Seventh Circuit considered the due words, when Congress intended to exempt process argument of an alien who had certain groups aliens from the sweep of through the abbreviated statute, it knew how to procedures § 1225(b)(1), in reentered ille do so. Petitioner does not fall within the gally, and had the order reinstated classes that Congress elected to exclude. 1231(a)(5)’s under summary procedures. We therefore conclude that Congress in- The Seventh Circuit held that due process no tended exemption case. Petitioner’s was offended because the alien had conceded all three of the relevant Second, criteria ineligible Petitioner is for relief underlying a reinstatement order. under the LIFE Act if even she were not 801-02. Further factfinding was unneces subject to reinstatement. The Act LIFE sary because there “simply disput no required applicants be ad- otherwise ed facts that could make a difference” to missible to the United States. 8 U.S.C. petitioner. 802; 1255(i) Ojedar- (1999). accord Petitioner is inadmissible 1231(a)(5)as in 8 U.S.C. 1182(a)(6)(C)(i),3 contained relief 8to
pursuant peti- denying for ground alternative who seek inadmissible deems which part enacted as provision, That tion. misrepresentation. through admission Immi- Reform Illegal DENIED. PETITION (“IIRI- of 1996 Act Responsibility grant 110 Stat. RA”), Pub. L. concurring: BERZON, Judge, Circuit harmony 1996), read must be (Sept. I majority’s result. I concur 8 U.S.C. amended subsequently at the was inadmissible Padilla agree 1255(i), L. No. see Pub. was reinstated. order time her 1997), (Nov. 26, under 2440, 2458 111 Stat. adjust- for application denial applied Padilla that Padilla correctly stated of status ment I would case appropriate In an status. that, depor- following “inadmissible was opportunity agency permit tation, re-entered [she] two stat- these the intersection consider permission agency utory provisions. Absent 1182(a)(9)(A)(ii) See General.”1 la- is that interpretation my guidance, (i) [‘Ar- in clause described (“Any alien given should section ter-enacted ordered ... has been riving aliens’] who 1231(a)(5),not obli- alongside section effect any other adjust- it. terated inadmissible.”). A ... of law provision the former of status ment for en- permission request reinstated her removal 212.2(e),2 212.2(a); §§ see 8 C.F.R. try, was therefore latter. inadmissibility Padilla’s cured might have by section barred applying relief reentry, no but *6 illegal her on premised or- not been with the dis- filed ever was request applied. time she at the dered result, has As a trict director. fail- by the prejudiced that she shown is silent The reinstatement the hearing prior to a to afford ure adjust- for applications prior how about reinstatement, identi- she treated. are to of status ment opposing for plausible a claim fy a suggests history of IIRIRA legislative reinstatement. to after, not filed applications with concern is reinstat- before, of removal prior a however, majority’s the with disagree, I to the ed: (and on bar reliance agency’s) the 212.2(e) applicant “An states: 8 C.F.R. provision states:
3. That section 245 under adjustment of for status who, willfully by or fraud Any alien chapter must this part 245 of Act and fact, seeks a material misrepresenting entry for permission to request has (or sought procure or has procure application for his conjunction with or documentation, visa, or other a procured) request made is adjustment of status. This other into admission reapply, permission filing application for chapter is in- this under provided benefit director district Form admissible. alien re- place where the over the jurisdiction 245 of section application under If the sides. Padilla, due to her argues INS 1. The renewed, initiated, or is Act has entry, inad- attempt at fraudulent initial immigra- proceeding before an pending 1182(a)(6)(C)(i). under missible refer must judge, district director tion given by entry was not a reason Fraudulent judge ad- for 1-212 to Form application denying agency Padilla's for added.) (Emphasis judication.” status. for If an aben reenters the United States numerous other limitations and statutory after having been removed or cross-references in INA 245 in general departed voluntarily under an order of and Section in particular.” 245® removal, order of removal is 1041 n. 4. reinstated and the alien shall be re- The government argues against this moved prior order, reading of 1231(a)(5) on the shall not be to review. The ahen ground that the wording of amendments to for rehef Legal Immigration Family Equity under the INA. (“LIFE”) Act demonstrates that Congress Report Conference H.R. 104-828 (Sept. 1231(a)(5) intended section to cut off rehef 1996), (1996) Cong. H10,897 (em- Rec. to an individual who has filed an apphca- added). phasis adjustment tion for to rein- I find persuasive therefore the analysis statement. amendments, These see P.L. on question this in Prado Hernandez v. §§ 1503(c)(2); 1505(a)(1)(B); Reno, F.Supp.2d (W.D.Wash.1999). 1505(b)(1)(B), 114 Stat. 2763A325; Prado Hernandez held that the can 2763A326; (Dec. 21, 2763A327 2000), made and should consider on its fully- merits exceptions Nicaraguans, Haitians, and perfected apphcation for adjustment of members of two class action groups as status filed before proceed- follows: 241(a)(5) “Section of the Immigra- ings are instigated. tion and Nationality Act [8 U.S.C. Hernandez, Prado Padilla, like was de- 1231(a)(5)] shah not apply with respect tained making apphcation for ad- after to an alien who is applying for adjustment justment of status. The court stated: of status this section.” Prado Hernandez’s request adjudica- This language precludes removal under tion of apphcation his adjustment 1231(a)(5) of the covered groups status [...] does not constitute chal- applications while adjustment lenge to his deportability under INA status are pending. It does not address 241(a)(5) 1231(a)(5)] [8 U.S.C. or a the availability of status vel collateral attack on the prior order of *7 non, or the INS’s authority to refrain from deportation. Nor can apphcation removal while a poten- a request deemed for rehef depor- from tially apphcation meritorious for adjust- tation; Prado Hernandez applied for ment of pending, status is should agen- adjustment status any deporta- cy choose do so. These LIFE Act tion proceedings had commenced. [... ] amendments therefore fail to answer the Here, the INS did not move to reinstate statutory interpretation question before prior deportation order until after us. Prado Hernandez apphed for ad-
justment of status. The language of My adjustment conclusion that proper 241(a)(5), therefore, Section is no bar to applications should not be cast aside considering the apphcation. by a subsequent reinstatement order does added). (emphasis Further, case, in this however. Padilla absence, “[t]he in Section [8 U.S.C. failed to submit a cognizable apphcation § 1255®], of a cross-reference to Section for of status because she never 241(a)(5) or other language adjust barring requested the necessary permission to ment to aliens reentered after entry. And, due to her inad- deportation significant in light of the missibility, she has not demonstrated concur the denial I therefore
prejudice. petition. Bryant, and Charles BRYANT
Chase
Plaintiffs-Appellants, DISTRICT SCHOOL
INDEPENDENT COUNTY, GARVIN I-38 OF
NO. Wynne
OKLAHOMA, known also Defendant-Ap Schools, Public
wood
pellee.
No. 02-6212. Appeals, Court Circuit.
Tenth 2, 2003.
July