Ixcot v. HolderIxcot v. Holder
OPINION
We must decide whether the reinstatement provision enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), INA § 241(a)(5),
Petitioner Francisco Abelino Chay Ixcot (“Chay”) is a native and citizen of Guatemala. He entered the United States without inspection on or about February 13, 1989, near San Ysidro, California, and was immediately apprehended by the Immigration and Naturalization Service (“INS”). 2 At that time, Chay claimed his name was Juan Mendez-Lopez, that he was a native and citizen of El Salvador, and that he was sixteen years old.
Chay was detained and placed in deportation proceedings 3 before an immigration judge (“IJ”). At the first deportation hearing, the IJ agreed to continue the proceeding to afford Chay an opportunity to find an attorney, and provided Chay with an attorney information sheet containing the names and phone numbers of lawyers who could be retained to assist him.
Chay reappeared before the IJ during a group deportation hearing a little over two weeks later. As before, he was without counsel; when the IJ asked why this was so, Chay explained that the lawyer he had contacted was unable to represent him. Chay again stated that his name was Juan Mendez-Lopez, that he was a native and citizen of El Salvador, and that he was sixteen years old, and admitted that he had entered the United States without inspection. The IJ then asked Chay whether he was afraid to return to El Salvador for any reason. Chay answered “yes,” and explained that his family was embroiled in a dispute with the owners of an apartment building in which his family had rented certain units. On the basis of this response, the IJ concluded that any issues Chay might have if deported to El Salvador were “problems of a personal nature” that could not support an asylum claim.
At the end of the hearing, the IJ ordered Chay and several other individuals deported. Prior to concluding the hearing, however, the IJ asked whether any person wished to appeal his decision. The transcript of the hearing reflects that an unnamed individual indicated an intent to appeal, and that the IJ supplied this individual with an appeal form. Although the transcript does not reflect whether this petitioner was Chay, Chay did timely file a notice of appeal with the Board of Immigration Appeals (“BIA”). The notice of appeal was received March 18, 1989, and Chay was released from detention on March 23,1989.
One year later, the Executive Office of Immigration Review (“EOIR”) served Chay with a copy of the IJ’s decision and the transcript of his deportation hearing. Chay was instructed to file his appeal brief by April 9,1990, but did not do so. Consequently, the BIA summarily dismissed Chay’s appeal on September 26,1990.
In April 1993, Chay filed an affirmative asylum application. The application was filed under his real name, indicated that he was a native and citizen of Guatemala, and stated that his year of birth was 1967.
4
As the basis for his asylum claim, Chay marked “political opinion” and explained
Chay’s asylum application languished some twelve years; there is no explanation for this extremely lengthy delay in its adjudication. In September 2005, Chay attended an interview for his pending asylum application and to determine whether he qualified for lawful permanent residence under NACARA. The Department of Homeland Security (“DHS”) concluded that Chay was ineligible for relief under NACARA because he had failed to register for the so-called
“ABC
benefits” under
American Baptist Churches v. Thorn-burgh,
Chay supplied DHS with additional information salient to his asylum application in December 2005, and, in February 2006, filed a request to add his wife and oldest child to his application. In July 2007, Chay and his wife attended another asylum interview, along with their immigration lawyer. Again, no decision was made.
Chay appeared for yet another asylum interview on May 19, 2009, once more accompanied by his wife and his immigration lawyer. At that time, an Immigration and Customs Enforcement (“ICE”) officer met Chay in the lobby and ran a fingerprint query, which matched a record belonging to Juan MendezALopez. Through an interpreter, Chay then submitted a sworn statement in which he admitted to having used an alias, and stated that he had never been informed that he previously had been ordered deported. When asked whether he had any fear of persecution or torture if removed from the United States, Chay answered “Yes, because my whole family was killed in Guatemala.” He stated that he had witnessed the deaths of his mother and father, and asserted “I would like to ask a chance to fight my case. I fear if I am removed I too will be killed in Guatemala.”
Thereafter, instead of adjudicating Chay’s pending asylum application, DHS processed Chay for reinstatement of the IJ’s 1989 order of deportation
7
pursuant to the post-IIRIRA reinstatement provision, INA § 241(a)(5),
II.
Chay argues that, because he submitted an affirmative application for asylum three years before IIRIRA was enacted,
8
DHS erred in retroactively applying IIRIRA’s reinstatement provision to him. The government contends that IIRIRA’s reinstatement provision can be applied to Chay because it does not affect any substantive rights, create any new liabilities, attach any new legal consequences, or take away any vested interests. Rather, according to the government, INA § 241(a)(5),
“We ... review de novo whether an application of IIRIRA is impermissibly retroactive.”
Hernandez de Anderson v. Gonzales,
A.
The Immigration and Nationality Act (INA), enacted in 1952, included a reinstatement provision, which stated in relevant part:
Unlawful entry. Should the Attorney General find that any alien has unlawfully reentered the United States after having previously departed or been deported pursuant to an order of deportation, whether before or after June 27, 1952, on any ground described in any of the paragraphs enumerated in subsection (e) of this section, the previous order of deportation shall be deemed to be reinstated from its original date and such alien shall be deported under such previous order at any time subsequent to such reentry.
In 1996, Congress enacted IIRIRA, which contained a provision that “dramatically expanded the class of aliens subject to reinstatement, while narrowing the defenses available in such proceedings.”
Id.
at 494;
see also Arevalo v. Ashcroft,
Reinstatement of removal orders against aliens illegally reentering. If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.
INA § 241(a)(5),
may seek withholding of removal under8 U.S.C. § 1231(b)(3)(A) (2000 ed.) (alien may not be removed to country if “the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion”), or under8 C.F.R. §§ 241.8(e) and 208.31 (2006)....
Fernandez-Vargas,
B.
“The Due Process Clause ... protects the interests in fair notice and repose that may be compromised by retroactive legislation .... ”
Landgraf,
In analyzing the retroactivity of a statute, we follow a two-step test.
Landgraf,
In
Fernandez-Vargas,
the Supreme Court examined INA § 241(a)(5),
Where, as here, congressional intent cannot be ascertained, we proceed to a second inquiry: whether the statute, as applied, would have a “retroactive effect.” A statute does not have such an effect “merely because it is applied in a case arising from conduct antedating the statute’s enactment.”
Landgraf,
C.
In 2006, the Supreme Court granted certiorari “to resolve a split among the Courts of Appeals over the application of [INA] § 241(a)(5) to an alien who reentered illegally before IIRIRA’s effective date.”
Fernandez-Vargas,
Fernandez-Vargas petitioned for review, arguing that, because his last reentry without inspection occurred before IIRIRA’s effective date, the controlling reinstatement provision was the repealed INA § 242(f), which meant that he remained eligible to apply for adjustment of status as the spouse of a U.S. citizen.
Id.
He further argued that the application of INA § 241(a)(5),
The Supreme Court disagreed, finding that the application of IIRIRA’s reinstatement provision was not impermissibly retroactive in Fernandez-Vargas’s case. In reaching this conclusion, the Supreme Court emphasized that Fernandez-Vargas had not applied for any relief from removal before IIRIRA’s effective date, despite having had the opportunity to do so. The Court explained:
The forms of relief identified by Fernandez-Vargas as rendered unavailable to him by [INA] § 241(a)(5) include cancellation of removal, see8 U.S.C. § 1229b(b) , adjustment of status, see § 1255, and voluntary departure, see § 1229c. These putative claims to relief are not “vested rights,” a term that describes something more substantial than inchoate expectations and unrealized opportunities.... Fernandez-Vargas’s claim to such relief was contingent, and it was up to him to take some action that would elevate it above the level of hope. It is not that these forms of relief are discretionary ... it is rather that before IIRIRA’s effective date Fernandez-Vargas never availed himself of them or took action that enhanced their significance to him in particular....
Id.
at 44 n. 10,
The holding in Femandez-Vargas is, by its express terms, limited to instances where an alien had been ordered deported and reentered without inspection but took no action to adjust status or obtain other relief from removal before IIRIRA’s effective date. Chay, by contrast, did file an affirmative application for asylum relief in 1993, well in advance of IIRIRA’s effective date.
D.
Although the Supreme Court has not addressed whether INA § 241(a)(5),
In
Arevalo,
the First Circuit held that INA § 241(a)(5),
The First Circuit granted the petition for review, concluding that Arevalo “can and does contest ... the sudden negation of her application for discretionary relief.” Id. at 14. The court held that “[t]he availability of relief (or, at least, the opportunity to seek it) is properly classified as a substantive right,” and that there was “no reason why the bar on applications for [discretionary] relief under [INA] section 241(a)(5) should be deemed an exception to this general rule.” Id. In response to the government’s argument “that the petitioner had no protectable interest in applying for relief because an adjustment of status was never a vested right,” the First Circuit held to the contrary, explaining:
We think that the INS circumscribes the enceinture[ 13 ] of relevant interests too grudgingly----the presumption against statutory retroactivity is not restricted to cases involving vested rights.... and most important, the petitioner in this case applied for adjustment of status before April 1, 1997 a fact that distinguishes her in a material way from the mine run of persons who appeal from the reinstatement of previous removal orders____ This is a salient distinction because applications for discretionary relief, once made, often become a source of expectation and even reliance.
Id.
(citations omitted). Significantly, the Supreme Court acknowledged but did not overrule or otherwise opine on the holding in
Arevalo
in
Fernandez-Vargas. See
Thereafter, in August 1998, the government mailed Sarmiento a notice of intent to rescind adjustment of status, and in June 2003, ICE issued a notice of intent to reinstate Sarmiento’s 1996 deportation order pursuant to INA § 241(a)(5),
The Eleventh Circuit granted Sarmiento’s petition for review and vacated the reinstatement order. Applying the Supreme Court’s reasoning in St. Cyr, the court explained:
Before the IIRIRA, an alien who had been previously deported and illegally reentered the United States was eligible for the discretionary relief of adjustment of status under 8 U.S.C. [§ ] 1255(i). See8 U.S.C. § 1255 ®. Although the pre-IIRIRA statute empowered the Attorney General to reinstate deportation orders, the authority was limited to a small group of aliens of which Sarmiento was not a member. See8 U.S.C. § 1252(f) (repealed 1996). The IIRIRA eliminated the availability of any relief for an alien who illegally reenters the United States and broadened the applicability of the [reinstatement] statute to all aliens. See 8 U.S.C. [§ ] 1231(a)(5).... The IIRIRA, therefore, created a new disability for Sarmiento.
As it had done in
Arevalo,
the government argued that, because the relief which the petitioner sought was discretionary, it was akin to “an act of grace” that could not serve as “a defense to removal.”
Id.
at 1284. In response, the Eleventh Circuit explained that the Supreme Court had “rejected this reasoning in
St. Cyr,”
when it held that courts “must consider an ‘alien’s reasonable reliance on the continued availability of discretionary relief from deportation when deciding whether the elimination of such relief has a retroactive effect.’ ”
Id.
(quoting
St. Cyr,
The Seventh Circuit followed the First and the Eleventh in
Faiz-Mohammad v. Ashcroft,
The courts have looked to whether [INA § 241(a)(5), 8 U.S.C.]§ 1231(a)(5) disturbs the petitioner’s substantive rights or expectations. When retroactive application has affected only the way in which a petitioner’s deportation is adjudicated, because, for instance, the petitioner failed to apply for discretionary relief prior to IIRIRA’s effective date, no “settled expectations” were disturbed, and, therefore no impermissible retroactive effect occurred. However, when retroactive application not only affected the way in which the petitioner’s deportation was adjudicated, but also affected the substantive relief that was available to the petitioner, [INA§ 241(a)(5), 8 U.S.C.] § 1231(a)(5) could not be applied retroactively.
Id. at 809 (footnote and citations omitted). Applying this framework, the Seventh Circuit held that, since Faiz-Mohammad had reentered the United States and applied for adjustment of status prior to IIRIRA’s effective date, he “had the right to have his adjustment of status adjudicated, including the waivers of inadmissibility necessary to his application.” Id. at 810.
The Seventh Circuit acknowledged that Faiz-Mohammad “had no guarantee of a favorable decision,” but explained that the second prong of the Landgraf inquiry “also asks whether retroactive application [of a statute] would create a new obligation, impose a new duty, or attach a new disability.” Id. (citation and punctuation omitted). Because the new reinstatement provision “prevents aliens who previously have been deported from applying for discretionary relieff, t]his change constitutes a ‘new disability’ that did not exist prior to IIRIRA’s passage.” Id. The application of this provision to an immigrant like FaizMohammad, therefore, was impermissibly retroactive under Landgraf. Id.
The Tenth Circuit is the most recent to have addressed this issue on comparable facts. In
Valdez-Sanchez v. Gonzales,
[W]e agree with our sister circuits that when application of IIRIRA § 241(a)(5) disturbs an alien’s substantive rights or expectations, such as the substantive relief available to the Petitioner in this case, DHS may not apply it retroactively. Like the aliens in the cases from the First, Seventh, and Eleventh Circuits, Petitioner applied for discretionary relief in the form of an adjustment of status prior to IIRIRA’s enactment, relief that was available to him at the time. Section 241(a)(5) eliminates the possibility of such relief and thus, retroactive application of § 241(a)(5) attached a new disability. The new disability attached to a completed transaction because Petitioner had applied for relief prior to IIRIRA’s enactment. When such a retroactive effect exists, Landgraf requires us to apply our traditional presumption against retroactive application of the statute.
Id. at 1090-91 (citations omitted).
As evident, the most salient fact in these cases is whether an alien filed for relief before IIRIRA’s effective date and was awaiting the adjudication of that pending application when the government sought to reinstate an order of deportation under IIRIRA’s reinstatement provision. 14
Like the petitioners in
Arevalo, Sarmiento Cisneros, Faiz-Mohammad,
and
Valdez-Sanchez,
Chay reentered without inspection and applied for relief from removal before IIRIRA took effect. The primary factual difference between those eases and Chay’s situation is that Chay filed for asylum rather than adjustment of status. This difference is immaterial, because the central inquiry under
Landgraf
and
St. Cyr
is not the particular form of relief sought, nor whether that form of relief is discretionary, but whether the application of a new statute “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.”
Landgraf,
IIRIRA’s new reinstatement provision dramatically expanded the scope of reinstatement while simultaneously barring individuals subject to reinstatement from virtually every form of immigration relief.
See, e.g., Morales-Izquierdo,
Although we cannot determine whether Chay is entitled to a grant of asylum relief, we can and do decide that he is entitled to an adjudication of his asylum application— pending now for eighteen years — on its merits.
See St. Cyr,
III.
Chay additionally argues that he has a right to have his eligibility for NA-CARA relief adjudicated on the merits before he may be removed. The government responds that, because DHS determined that Chay did not register for the so-called
“ABC
benefits” as required to be eligible for “special rule cancellation of removal” under NACARA § 203,
see
IV.
Following our sister circuits, we hold that the application of INA § 241(a)(5),
This panel retains jurisdiction over all further appeals in this matter.
Petition GRANTED in part, DENIED in part and REMANDED.
Notes
. NACARA, which is not codified in the U.S.Code, was signed into law on November 19, 1997. See Pub.L. No. 105-100, 111 Stat. 2160, 2193-2201 (1997), amended by Pub.L. No. 105-139, 111 Stat. 2644, 2644-45 (1997).
. The INS ceased to exist in 2003, and most of its functions were transferred to the Department of Homeland Security.
See, e.g., Morales-Izquierdo v. Gonzales,
. IIRIRA "replaced all references to ‘deportation’ with 'removal.' ”
Morales-Izquierdo,
. Since his deportation hearings, Chay has claimed consistently on official documents that his year of birth is 1967, which would mean that he was twenty-one years old, not sixteen, when he appeared before the IJ in 1989.
. Chay's wife now also resides in the United States. They have three children. One is a citizen of Guatemala; the other two are U.S. citizens.
. To be eligible for “special rule cancellation of removal” under NACARA § 203, an alien,
inter alia,
must have registered as an
ABC
class member.
See
. As DHS concedes, it erred in reinstating the IJ’s 1989 decision rather than the BIA’s 1990 final order of removal.
See
. IIRIRA was enacted on September 30, 1996, but did not become effective and enforceable until April 1, 1997.
See Fernandez-Vargas v. Gonzales,
. The government additionally asserts that Chay’s petition is without merit because Chay abandoned his pending asylum application when he returned to Guatemala to marry his fiancée. The government relies on
An applicant who leaves the United States pursuant to advance parole granted under8 C.F.R. § 212.5(e) shall be presumed to have abandoned his application under this section if he returns to the country of claimed persecution unless he is able to establish compelling reasons for having assumed the risk of persecution in so returning.
By its plain terms, this provision is inapplicable to Chay, who never left the United States pursuant to advance parole.
. The regulations also make clear that IIRIRA’s reinstatement provision does not bar immigration relief in the form of withholding of removal.
See
Moreover, under
. Notably, although Congress did consider including language that would apply the reinstatement provision retroactively to reentries that occurred before its enactment, the version of the statute ultimately enacted omitted any such retroactive language.
Compare
H.R.Rep. No. 104-469(1) at 416-17 (Mar. 4, 1996) (containing no retroactive language)
with
S.Rep. No. 104-249 at 118 (Apr. 10, 1996) (containing the following language: "whether before or after the date of enactment of this Act”)
and
H.R.Rep. No. 104-828 at 54 (Sept. 24, 1996) (agreeing to recommend the House version of the new reinstatement provision, which omitted expressly retroactive language). Congress’s intent in omitting this language, however, is not entirely clear.
See Fernandez-Vargas,
.
Fernandez-Vargas
thus abrogated our circuit’s prior holding that "Congress intended [INA] § 241(a)(5) to encompass only post-enactment reentries.”
Castro-Cortez v. INS,
. Enceinture is likely derived from the French word enceinte, defined as “the structures or area protected by an encircling fortification.” See Webster's II New Riverside University Dictionary (1994).
. Although the Second and Eighth Circuits recently held that INA § 241(a)(5),
In
Herrera-Molina v. Holder,
In
Molina Jerez v. Holder,
. Our circuit has not decided whether INA § 241(a)(5),