Khalid Faiz-Mohammad, a native of Pakistan, applied to the former Immigration and Naturalization Service (“INS”) for an adjustment of status based on his marriage to a naturalized United States citizen. Without fully adjudicating Mr. Faiz-Mohammad’s application, the INS reinstated a prior deportation order and directed that Mr. Faiz-Mohammad be removed. Mr. Faiz-Mohammad timely appealed this final order of removal. We now reverse and remand for further proceedings.
I
BACKGROUND
A. Facts
Mr. Faiz-Mohammad first attempted to enter the United States in March 1988; he used a false passport bearing the name Rahimatullah Qamarden. Mr. Faiz-Mo-hammad was placed in exclusion proceedings and was ordered excluded pursuant to 8 U.S.C. § 1182, as an alien who had attempted to enter the United States by fraud. He was removed from the United States on May 7, 1988. According to the law in effect at the time, Mr. Faiz-Moham-mad was not permitted to reenter the United States for a period of one year.
Mr. Faiz-Mohammad reentered the United States on June 24, 1989, as a visitor; he used the alias Jaffar Rajan. The following year, Mr. Faiz-Mohammad married Tabassum Faiz-Mohammad. At some point prior to institution of the present removal proceedings, Mrs. Faiz-Mo-hammad became a naturalized United States citizen.
On February 25, 1997, after Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRI-RA”), 1 but before IIRIRA’s April 1, 1997 effective date, Mr. Faiz-Mohammad filed an application for adjustment of status with the Chicago office of the INS. Included in his submissions were a Form 1-485 application for adjustment of status, a Form 1-130 petition for alien relative signed by Mrs. Faiz-Mohammad, and also a Form 1-601 petition for waiver of inadmissibility. It was necessary for Mr. Faiz-Mohammad to file this last form because his prior fraudulent conduct rendered him ineligible for adjustment of status absent a waiver. See 8 U.S.C. §§ 1182(a)(6)(C)(i) & 1255(a).
*801 The INS District Director denied Mr. Faiz-Mohammad’s 1-601 waiver petition on the ground that Mr. Faiz-Mohammad “had failed to establish that extreme hardship would be imposed on a qualifying relative.” A.R. 22. Mr. Faiz-Mohammad appealed this decision to the Administrative Appeals Office (“AAO”) of the INS.
The AAO rejected Mr. Faiz-Moham-mad’s appеal, ordered the District Director’s decision withdrawn and remanded the case to the District Director for further proceedings. The AAO noted that IIRIRA had increased the waiting period for applying for re-admission from one year to five years. Because Mr. Faiz-Mohammad reentered the United States less than five years after his initial exclusion, he was required to seek permission to reenter from the Attorney General. Furthermore, although his failure to seek permission was waivable, Mr. Faiz-Moham-mad had not sought such a waiver (Form 1-212), and this waiver must be adjudicated prior to any consideration of Mr. Faiz-Mohammad’s Form 1-601.
In compliance with this directive, Mr. Faiz-Mohammad filed an 1-212 waiver in February 2002. One year later, the District Director denied Mr. Faiz-Moham-mad’s Form 1-212 waiver application on the ground that Mr. Faiz-Mohammád had “shown a blatant disregard for the immigration laws” and had “attempted to defraud the United States Government.” A.R. 51.
The day following the District Director’s denial of Mr. Faiz-Mohammad’s 1-212 waiver, the INS issued, pursuant to 8 U.S.C. § 1231(a)(5), 2 a Form 1-871 notice of intent to reinstate a prior order of deportation, specifically the order that resulted in Mr. Faiz-Mohammad’s May 7, 1988 departure from the United States. The form advised Mr. Faiz-Mohammad of his right to make a written or oral statement, which Mr. Faiz-Mohammad refused. Mr. Faiz-Mohammad also refused to sign the form. The INS then reinstated the prior order. This petition for review followed.
II
DISCUSSION
Mr. Faiz-Mohammad’s sole argument on appeal is that IIRIRA’s reinstatement provision, 8 U.S.C. § 1231(a)(5), which became effective on April 1, 1997, may not be applied retroactively to aliens who reentered the United States and applied for discretionary relief prior to IIRIRA’s effective date. The retroactivity of a statutory provision is a question of law that we review de novo:
See Arevalo v. Ashcroft,
A. Landgraf Analysis
To determine whether a particular statute — or provision of a statute — is retroactive, we must follow the guidelines set forth by the Supreme Court in
Landgraf v. USI Film Products,
1. Landgraf’s First Inquiry
With respect to 8 U.S.C. § 1231(a)(5), Mr. Faiz-Mohammad maintains that Congress did not intend for the provision to apply to conduct that occurred prior to the passage (or effective date) of IIRIRA. His argument tracks closely the reasoning of the Ninth and Sixth Circuits in
Castro-Cortez v. INS,
In
Castro-Cortez,
the Ninth Circuit identified three reasons — grounded in the statutory language — that evidenced Congress’ clear intent that § 1231(a)(5) should not be applied retroactively “to aliens whose reentry occurred prior to its enactment.”
Castro-Cortez,
In reaching the same conclusion, the Sixth Circuit not only relied upon some of the reasons articulated above, it also was influenced by the fact that, in enacting IIRIRA, Congress “considered and rejected new language which would have applied the new reinstatement provision to illegal reentries which occurred before the date of enactment.”
Bejjani,
Congress is рresumed to be familiar with the judicial presumption against retroactive application, and thus Congress must explicitly provide for such. In the case of the INA’s reinstatement provision, Congress eliminated retroactive language from the prior version, rejected a proposed version of the reinstatement provision which included retroactive- language, and expressly provided the temporal scope for several provisions within Title III. Viewed in light of the presumption against retro-activity, Congress clearly did not intend for § 241(a)(5) to be applied to reentries which occurred prior to its effective date.
Id. at 687.
However, with the exception of the Ninth and Sixth Circuits, every other сircuit that has considered the retroactivity of § 1231(a)(5) has held that there is no clear indication of Congress’ intent regarding the provision’s retroactive effect.
See Sarmiento Cisneros v. United States Attorney General,
Other circuits similarly have rejected the “negative implication” argument accepted by the Ninth Circuit. According to the Third Circuit, “[t]he ‘negative implication’ argument fails because IIRIRA also contains sections in which Congress specified that the section did
not
apply to pre-enactment conduct.”
Avila-Macias,
Finally, other courts have not found compelling the argument that, “because Congress enacts legislation with the
Land-graf
rule in mind, where it is silent it can be presumed that it did not intend for it to be applied retrospectively.”
Avila-Macias,
There is no question that some statutory evidence points to the conclusion reached by the Ninth and Sixth Circuits that Congress may not have desired § 1231(a)(5) to be applied retroactively. However, we do not believe that this evidence is sufficient to meet the first prong of the
Landgraf
test. The Supreme Court has explained that “[t]he standard for finding such unambiguous direction is a demanding one. ‘[Cjases where this Court has found truly “retroactive” effect adequately authorized by statute have involved statutory language that was so clear that it could sustain only one interpretation.’ ”
INS v. St. Cyr,
As the majority of thе circuits have noted, there are valid arguments on both sides of the retroactivity issue. We believe that the majority of circuits have taken the approach most consistent with the Supreme Court’s view. We therefore hold that Congress did not evidence a clear intent with respect to whether § 1231(a)(5) should be applied retroactively to those who had reentered the country and had applied for discretionary relief prior to IIRIRA’s effective date. We therefore must proceed to the second step of the Landgraf analysis.
2. Landgraf’s Second Inquiry
In the second step of the Landgraf analysis, this court must
assess whether the operation of section 241(a)(5) in the instant case would impose new burdens or attach new legal consequences to the petitioner’s illegal reentry and-or her pending application for adjustment of status. This assessment depends on whether execution of the reinstatement order “takes away or impairs vested rights acquired under ex *805 isting laws, or creates a new obligation, imposes a new duty, or attaches a new disability” to the petitioner’s actions in a way that offends the fundamental principles of fair notice and reasonable expectation.
Arevalo,
The Supreme Court recently had occasion to apply the second part of the
Land-graf
test to a provision of IIRIRA in
INS v. St. Cyr,
IIRIRA’s elimination of any possibility of § 212(c) relief for рeople who entered into plea agreements with the expectation that they would be eligible for such relief clearly “ ‘attaches a new disability, in respect to transactions or considerations already past.’” [Landgraf,511 U.S. at 269 ,114 S.Ct. 1483 .] Plea agreements involve a quid pro quo between a criminal defendant and the government .... Given the frequency with which § 212(c) relief was granted in the years leading up to AEDPA and IIRIRA, preserving the possibility of such relief would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer instead of proceed to trial.
Id.
at 321-22,
the fact that § 212(c) relief is discretionary does not affect the prоpriety of our conclusion. There is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation. Prior to AEDPA and IIRIRA, aliens like St. Cyr had a significant likelihood of receiving § 212(c) relief. Because respondent, and other aliens like him, almost certainly relied upon that likelihood in deciding whether to forgo their right to a trial, the elimination of any possibility of § 212(c) relief by IIRIRA has an obvious and serious retroactive effect.
Id.
at 325,
Courts of appeals considering whether § 1231(a)(5) has an impermissible retroactive effect have looked to St. Cyr for guidance. Their analyses are instructive.
In
Velasquez-Gabriel,
Ultimately, Velasquez-Gabriel’s case differs critically from St. Cyr .... Velasquez-Gabriel has shown neither a reasonable likelihood of success under pre-IIRIRA law nor a detrimental reliance *806 on pre-IIRIRA law.... Velasquez-Gabriel’s sole reliance argument is that he and his wife “relied to their detriment on petitioner’s аbility to adjust status in the United States when they were married, and may have chosen not to get married but proceed on a fiancee (K-l visa) or may not have married at all.” Brief of Petitioner at 23. This does not constitute detrimental reliance for purposes of assessing the retroactive effect of § 241(a)(5). In contrast to the aliens in St. Cyr and Tasios [v. Reno,204 F.3d 544 (4th Cir.2000)], Velasquez-Gabriel posits no way in which his marriage in “reliance” on preexisting law weakened his immigration status under the new law or hurt his chances of remaining in this country.... Accordingly, even if he could demonstrate a significant likelihood of receiving the relief he sought under the old law, he offers no “detrimental reliance” of the sort which played such a critical role in the St. Cyr and Tasios holdings.
Velasquez-Gabriel,
That Velasquez-Gabriel did not detrimentally rely on prior law may not, however, foreclose a claim that § 241(a)(5) nonetheless operates retroactively. See Hughes Aircraft Co. v. United States,520 U.S. 939 ,117 S.Ct. 1871 ,138 L.Ed.2d 135 (1997) (holding that the amended False Claims Act operated retroactively without discussing whether any party detrimentally relied on previous law). But we need not decide that question because there is a far simpler reason compelling our conclusion that the application of § 241(a)(5) is not im-permissibly retroactive in this case: not until well after § 241(a)(5) toоk effect did Velasquez-Gabriel apply to adjust his status or did his wife file for a visa petition on his behalf. In order to obtain an adjustment of status, an application must have been filed and an immigrant visa must be immediately available to the applicant, 8 U.S.C. § 1255(a)(3) (Supp. V 1999); Velasquez-Gabriel did not attempt to meet either of these requirements until after the effective date of § 241(a)(5).
Accordingly, Velasquez-Gabriel’s failure to apply to adjust his resident status before the new law took effect fatally undermines his contention that § 241(a)(5)’s application to him “attaches new legal consequences to events completed before its enactment.”
Id. at 109-10 (emphasis in original; citations omitted). 6
The Eighth Circuit addressed a very similar factual situation in
Alvarez-Portillo,
In Velasquez-Gabriel v. Crocetti, ... the Fourth Circuit concluded that § 241(a)(5) had no impermissible retroactive effect because the illegal reen-trant could have applied for adjustment of status before IIRIRA’s enactment, and therefore § 241(a)(5) did not attach new legal consequences to events completed before its enactment. We disagree. Hughes Aircraft held that the elimination of a substantive defense, without more, “attaches new legal consequences” to events completed prior to enactment that would give rise to liability under the new statute. That is precisely the effect of changing the law to provide that an illegal reentrant in a reinstatement proceeding under § 241(a)(5) “may not apply for any relief under this chapter.” Under prior law, Alvarez-Portillo had a reasonable expectation he could either file for a discretionary adjustment of status, or wait and seek the adjustment as a defense to a later deportation proceeding. He chose to wait, and § 241(a)(5) as applied by the INS has now deprived him of that defense. To this extent, we conclude the statute had an impermissiblе retroactive effect on his reinstatement and removal proceeding.
Alvarez-Portillo,
The Fifth Circuit was the next to consider the retroactive effect of § 1231(a)(5); however, it did so under factual circumstances different from those set forth above.
See Ojeda-Terrazas,
In this case, Ojeda-Terrazas was denied a hearing before an immigration judge, to which he was entitled under pre-IIRI-RA law. Instead, an immigration officer made all of the predicate findings necessary to reinstate his prior deportation order. Unlike the alien who entered a *808 plea agreement in St. Cyr, however, Ojeda-Terrazas had no reasonable expectation of having a hearing before an immigration judge rather than an INS official when he illegally reentered the United States in 1991. As Judge Fernandez states in his thoughtful dissent in Castro-Cortez v. INS, § 241(a)(5) “does not deal with any vested rights or settled expectations arising out of the alien’s wrongdoing. Nor does it impose any new duties or new liabilities.” We conclude, therefore, that § 241(a)(5) does not have an impermissible retroactive effect as applied to Ojeda-Terrazas. Accordingly, we hold that the INS properly applied § 241(a)(5) to Ojeda-Terrazas.
Id. at 301-02 (footnotes omitted). 8 Thus, according to the Fifth Circuit, the fact that § 1231(a)(5) deprived a petitioner of a removal hearing before an IJ did not disturb the type of settled expectations that rendered § 1231(a)(5) impermissibly retroactive. 9
Finally, the First Circuit, in a case very similar to that of Mr. Faiz-Mohammad, determined that § 1231(a)(5) could not be applied retroactively to the petitioner. In
Arevalo,
The INS objects that, unlike the petitioner in St. Cyr, the petitioner here can show neither a cognizable reliance interest in this right nor a settled expectation based on it.... We think that the INS circumscribes the enceinture of relevant interests too grudgingly.
First, the array of pertinent interests listed in Landgraf, Hughes Aircraft, and other influentiаl precedents is not exhaustive but merely illustration by sy-necdoche. Such listings “simply de-scriben several ‘sufficient,’ as opposed to ‘necessary,’ conditions for finding ret-roactivity.” St. Cyr,533 U.S. at 320 n. *809 46,121 S.Ct. 2271 . Second, the presumption against statutory retroactivity is not restricted to cases involving vested rights. Third, 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. See Velasquez-Gabriel,263 F.3d at 109-10 (noting that no application for status adjustment had been made before IIRIRA’s effective date despite more than adequate time to do so) .... In the latter genus of cases, it is not рossible to complain that section 241(a)(5) appends new legal consequences to an event (the filing of an application for discretionary relief) occurring before its effective date. See Velasquez-Gabriel,263 F.3d at 110 . This is a salient distinction because applications for discretionary relief, once made, often become a source of expectation and even reliance.
.... The petitioner already had filed for relief when Congress amended the statute. Discarding her application now would deprive her both of a right that she once had and of the reasonable expectation that she would have the opportunity to convince the Attorney General to grant her relief. As the Supreme Court recently stated, “[tjhere is a clear difference, for the purposes of retroac-tivity analysis, between facing possible deportation and facing certain deportation.” St. Cyr,533 U.S. at 325 ,121 S.Ct. 2271 .
Id. at 14-15 (emphasis in original; citations omitted). Thus, because Arevalo applied for discretionary relief prior to IIRI-RA’s effective date, she had a legitimate expectation that her application would be considered by the Attorney General. Applying § 1231(a)(5) to Arevalo would upset that legitimate expectation; consequently, applying § 1231(a)(5) to the petitioner would have an impermissible retroactive effect.
B. Application
Although the factual circumstances of each of these cases differ from one another and from that of Mr. Faiz-Mohammad, the courts’ approaches to the retroactivity question is similar. The courts have looked to whether § 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 IIRI-RA’s effective date,
10
no “settled expectations” were disturbed, and, therefore no impermissible retroactive effect occurred.
See Lattab v. Ashcroft,
Here, Mr. Faiz-Mohammad both reentered the United States and applied for adjustment of status prior to IIRIRA’s effective date. At the time that he made his application, Mr. Faiz-Mohammad,
*810
therefore, had the right to have his adjustment of status adjudicated, including the waivers of inadmissibility necessary to his application. Although he had no guarantee of a favorable decision, the second step of
Landgraf
does not address only the “tak[ing] away or impairing] of vested rights”; it also asks whether retroactive applicatiоn would “create[] a new obligation, impose[ ] a new duty, or attach[ ] a new disability.”
Landgraf,
Conclusion
For the foregoing reasons, we reverse the decision of the INS and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED
Notes
. Congress enacted IIRIRA on September 30, 1996.
. 8 U.S.C. § 1231(a)(5) provides:
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 chaрter, and the alien shall be removed under the prior order at any time after the reentry.
Although we refer to this provision as 8 U.S.C. § 1231(a)(5), opinions of other courts cited herein may refer to this provision either as IIRIRA § 305(a)(5) or Immigration and Nationality Act ("INA”) § 241(a)(5).
.
See Landgraf v. USI Film Prods.,
. Prior to the passage of IIRIRA, the reinstatement provision was located at 8 U.S.C. § 1252(f), INA § 242(f), and stated as follows:
(f) Unlawful reentry
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. For the purposes of subsection (e) of this section the date on which the finding is made that such reinstatement is appropriate shall be deemed the date of the final order of deportation.
8 U.S.C. § 1252(f) (1996) (emphasis added). As indicated, the former reinstatement provision contained a clear statement of retroactivity.
The presence, or absence, of retroactivity language is not the only difference between the two provisions. In
Ojeda-Teirazas v. Ashcroft,
1. Section 241(a)(5) extends the reinstatement procedures to those aliens, like Ojeda-Terrazas, whose initial removals were based upon entry without inspection. Under § 242(f), reinstatement was only available for those aliens whose previous order of deportation was based on one of the enumerated grounds (which did not include lack of inspection). Therefore, under the old statute, Ojeda-Terrazas would have been entitled to a new deportation procedure rather than being limited to the reinstatement procedure.
2. Section 241(a)(5) does not allow judicial review of the underlying previous removal order, as discussed above. Section 242(f), however, allowed the alien to attack the merits of a previous removal order.
3. The regulations implementing § 241(a)(5) allow an immigration officer to determine ... whether reinstatement is *803 proper. Under § 242(f), an immigration judge made the determination.
Id. at 296.
. Consequently, the Ninth Circuit had no reason to engage in the second part of the Land-graf analysis.
. More recently in
Olatunji v. Ashcroft,
Whether the particular petitioner did or did not subjectively rely upon the prior statute or scheme has nothing whatever to do with Congress' intent .... It is one thing to indulge the supportable presumption that Congress intends its enactments not to operate retroactively; it is another altogether to indulge the quite different, and unsupported and unsupportable, presumption that Congress so intends, but only where the particular petitioning parly can prove that he subjectively relied on the prior statute to his detriment. In other words, where Congress has apparently given no thought to the question of retroactivity whatever, there is no basis for inferring that Congress’ intent was any more nuanced than that statutes should not be held to apply retroactively. Anything more, in the face of complete congressional silence, is nothing but judicial legislation.
. The case is completely silent on the subject of adjustment of status. Therefore, it is not clear whether Ojeda-Terrazas was ineligible for an adjustment of status or whether he was eligible for this type of relief, but simply had failed to apply for it.
.
See also Avila-Macias v. Ashcroft,
Avila-Macias claims that applying these new rules to him would be impermissibly retroactive because he "had no notice, before leaving the United States, of the consequences of an illegal reentry.” Brief at 18. If he had reentered prior to the effective date of IIRIRA, he could at least plausibly argue that he did so believing (1) that he would bе entitled to a hearing at which he could contest the legality of his underlying deportation order and (2) that he would be entitled to apply for discretionary relief. He does not argue that he reentered before IIRIRA's effective date, however. Applying IIRIRA to him — an alien who was deported prior to its effective date, but who reentered afterwards — does not have an impermissible retroactive effect because the consequences of an illegal reentry at the time that he reentered are the consequences he faces now.
.
Accord Lattab v. Ashcroft,
. As noted previously, the Eighth Circuit does not require that the petitioner have applied for relief prior to IIRIRA's effective date, only that the petitioner have reentered the United States and became eligible for discretionary relief prior to that time.
See Alvarez-Portillo v. Ashcroft,
. The Government argues that, even if § 1231(a)(5) cannot operate retroactively to prevent Mr. Faiz-Mohammad.from applying for relief, the administrative determination nevertheless should be affirmed on the ground that Mr. Faiz-Mohammad received an adverse determination on his 1-212 waiver, and, absent this waiver, he may not be granted an adjustment of status. Regulations provide that a Form 1-212 waiver petition must be made with "the district director having jurisdiction over the place where the alien resides." 8 C.F.R. § 1212.2(e). However, the same regulation further provides that, "[i]f the application under section 245 of the Act [adjustment of status] has been initiated,
renewed,
or is pending in a proceeding before an immigration judge, the district director must refer the Form 1-212 to the immigration judge for adjudication.”
Id.
(emphasis added). Furthermore, it is clear that, although the regulations do not provide for an administrative appeal or grant an affirmative right to proceed before an IJ, they do provide that the alien "retains the right to renew his or her application in proceedings under 8 CFR part 1240 [removal proceeding].” 8 C.F.R. § 245.2. Thus, the regulations grant Mr. Faiz-Mohammad the right to have an IJ review the waiver determination when the IJ considers his application for discretionaiy relief.
Cf. Lopez-Flores v. Dep’t of Homeland Sec.,