Velasquez-Gabriel v. INS , 263 F.3d 102 ( 2001 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FRANCISCO VELASQUEZ-GABRIEL, 
Petitioner,
v.
LOUIS D. CROCETTI, JR., District
Director for the Immigration and  No. 00-1755
Naturalization Service; U.S.
IMMIGRATION & NATURALIZATION
SERVICE; JOHN ASHCROFT, Attorney
General,
Respondents.

On Petition for Review of an Order
of the Board of Immigration Appeals.
(A70-669-804)
Argued: April 2, 2001
Decided: August 22, 2001
Before MOTZ and GREGORY, Circuit Judges, and
Frederic N. SMALKIN, United States District Judge
for the District of Maryland, sitting by designation.
Petition for review denied in part and dismissed in part. Judge Motz
wrote the opinion, in which Judge Gregory and Judge Smalkin joined.
COUNSEL
ARGUED: Jaime Wintheysen Aparisi, Silver Spring, Maryland, for
Petitioner. Papu Sandhu, Senior Litigation Counsel, Office of Immi-
2 VELASQUEZ-GABRIEL v. CROCETTI
gration Litigation, Civil Division, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Respondents. ON
BRIEF: David W. Ogden, Assistant Attorney General, Emily Anne
Radford, Assistant Director, Office of Immigration Litigation, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Respondents.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Francisco Velasquez-Gabriel challenges, as impermissibly retroac-
tive, the Immigration and Naturalization Service’s (INS) reinstate-
ment of his prior deportation pursuant to § 241(a)(5) of the
Immigration and Nationality Act (INA), 8 U.S.C. § 1231(a)(5) (Supp.
V 1999). We hold that § 241(a)(5) does not have a retroactive effect
on Velasquez-Gabriel and thus affirm reinstatement of the prior order
deporting him.
I.
Velasquez-Gabriel, a native and citizen of Guatemala, entered the
United States illegally in 1992. An immigration judge ordered him
deported on September 29, 1994; he was finally removed from the
United States on October 19, 1995. Upon his brief return to Guate-
mala, in November 1995, Velasquez-Gabriel divorced his Guatema-
lan wife of 23 years. Shortly thereafter, he illegally reentered the
United States and, on February 9, 1996, married Lorraine Boyce, a
United States citizen.
On September 30, 1996, Congress enacted major immigration
reform legislation, entitled the Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110
Stat. 3009-546 (1996). Title III, Subtitle A of IIRIRA instituted a
complete "Revision of Procedures for Removal of Aliens." 110 Stat.
3009-575. Congress included in that subtitle IIRIRA § 305(a), creat-
ing new § 241(a)(5) of the INA, which provides:
VELASQUEZ-GABRIEL v. CROCETTI 3
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), 8 U.S.C. § 1231(a)(5). The statute defines "order of
removal" as follows:
For purposes of carrying out the Immigration and National-
ity Act, as amended by this subtitle
....
(2) any reference in law to an order of removal shall be
deemed to include a reference to an order of exclusion and
deportation or an order of deportation.
IIRIRA § 309(d). Congress also stated that Subtitle A, which revised
the procedures for removing aliens, "shall take effect on" April 1,
1997. IIRIRA § 309(a).
In November 1997, more than seven months after § 241(a)(5) took
effect, Velasquez-Gabriel’s wife, Lorraine Boyce, filed a Form I-130
(Petition for Alien Relative) on his behalf and he simultaneously filed
a Form I-485 (Application to Adjust to Register Permanent Residence
or Adjust Status) based on his marriage to a United States citizen. On
March 17, 2000, the INS denied Velasquez-Gabriel’s application for
adjustment of status because he entered the United States without
inspection, citing INA § 212(a)(6)(A), 8 U.S.C. § 1182(a)(6)(A), and
reentered the United States illegally after previous removal, citing
INA § 212(a)(9)(A), 8 U.S.C. § 1182(a)(9)(A), and 8 C.F.R. § 241.8
(1999) (implementing § 241(a)(5)).
On May 16, 2000, Velasquez-Gabriel filed an Application for Per-
mission to Reapply for Admission Into the United States After Depor-
4 VELASQUEZ-GABRIEL v. CROCETTI
tation or Removal. On the same day, however, the INS reinstated
Velasquez-Gabriel’s prior order of deportation "in accordance with
section 241(a)(5) of the Immigration and Nationality Act (Act) and 8
C.F.R. 241.8." The immigration judge denied Velasquez-Gabriel’s
subsequent application for asylum, finding Velasquez-Gabriel did not
have a "reasonable fear" of persecution or torture; he does not seek
review of this ruling.
Rather, Velasquez-Gabriel petitions this court to review and
reverse the INS’s May 16, 2000 order reinstating the 1994 order
deporting him.1 For the reasons that follow, we deny his petition.
II.
At the outset, we dispose of two preliminary matters.
First, we note that, as the INS concedes, we clearly have subject
matter jurisdiction in this case. Congress has expressly provided that
aliens seeking to challenge an "order of removal" may file a petition
for review with "the court of appeals for the judicial circuit in which
the immigration judge completed the proceedings." See INA § 242(b),
8 U.S.C. § 1252(b) (Supp. V 1999).
Second, contrary to Velasquez-Gabriel’s suggestion, his status as
a "deported" rather than a "removed" alien does not render
§ 241(a)(5) of the INA (§ 305(a) of the IIRIRA) inapplicable to him.
Although Velasquez-Gabriel acknowledges that IIRIRA § 309(d)(2)
expands the definition of removal in § 241(a)(5) to include deporta-
tion, he suggests that § 309(d)(2) applies only to those "removal" pro-
ceedings ongoing at the time of IIRIRA’s enactment.
1
Velasquez-Gabriel also seeks direct review of the INS’s March 17,
2000 order denying status adjustment. We lack jurisdiction to review a
denial of status adjustment, see INA § 242(a)(2)(B), 8 U.S.C.
§ 1252(a)(2)(B) ("[N]o court shall have jurisdiction to review . . . any
judgment regarding the granting of relief under section . . . 1255."); INA
§ 245, 8 U.S.C. § 1255 (governing "[a]djustment of status of nonimmi-
grant to that of person admitted for permanent residence"), and therefore
dismiss this portion of the petition.
VELASQUEZ-GABRIEL v. CROCETTI 5
That theory finds no support in the plain language of § 309(a),
which states that Subtitle A "and the amendments made by this subti-
tle shall take effect on the first day of the first month beginning more
than 180 days after the date of the enactment of this Act [April 1,
1997]." Section 309(c) establishes transitional rules for ongoing pro-
ceedings, but there is no indication that § 309(d) is also a transitional
rule that applies solely to ongoing, not post-enactment, proceedings.
In fact, such a reading would eviscerate IIRIRA’s streamlined
removal procedures by resurrecting the distinctions between "re-
moval," "deportation," and "exclusion" that § 309(d)(2) sought to
abolish. See United States v. Lopez-Gonzalez, 183 F.3d 933, 934 (9th
Cir. 1999) (holding that IIRIRA "eliminate[d] the previous legal dis-
tinction between deportation, removal and exclusion"); see also INS
v. St. Cyr, ___ U.S. ___, 121 S. Ct. 2271, 2287 (2001) (noting that
IIRIRA substituted "the term ‘removal’ . . . for ‘deportation’").
Velasquez-Gabriel’s contention also contradicts the relevant regula-
tion, which applies § 241(a)(5) to "an order of exclusion, deportation,
or removal." 8 C.F.R. § 241.8(a) (1999). Accordingly, we reject it.
We now turn to Velasquez-Gabriel’s principal argument.
III.
Velasquez-Gabriel contends that Congress did not intend INA
§ 241(a)(5) "to apply retroactively to pre-IIRIRA deportation orders,"
and that, even if the statute’s temporal reach is ambiguous, to apply
it to him would have an impermissible retroactive effect. To resolve
this question, we must first ascertain "whether Congress expressly
prescribed the statute’s reach." Landgraf v. USI Film Prods., 511 U.S.
244, 280 (1994). "If there is no congressional directive on the tempo-
ral reach of a statute, we determine whether the application of the
statute to the conduct at issue would result in a retroactive effect. If
so, then in keeping with our ‘traditional presumption’ against retroac-
tivity, we presume that the statute does not apply to that conduct."
Tasios v. Reno, 204 F.3d 544, 547-48 (4th Cir. 2000) (quoting Martin
v. Hadix, 527 U.S. 343 (1999)).
We held this case in abeyance, awaiting the Supreme Court’s deci-
sion in INS v. St. Cyr, which provides substantial guidance as to sev-
eral of the retroactivity questions presented here. In St. Cyr, the Court
6 VELASQUEZ-GABRIEL v. CROCETTI
rejected the INS’s contention that Congress clearly intended to apply
retroactively IIRIRA’s repeal of former INA § 212(c), see IIRIRA
§ 304(b), which provided for a discretionary waiver of deportation
even for those aliens that had committed certain aggravated felonies.
See St. Cyr, 121 S. Ct. at 2290. The Court further held that this repeal
had a retroactive effect on aliens that pled guilty to one of those speci-
fied crimes in reliance on the availability and reasonable likelihood
of obtaining a discretionary deportation waiver. See id. at 2293. With
these holdings in mind, we turn to the case at hand.
A.
Although § 241(a)(5) does not explicitly state whether it applies
retroactively or prospectively, the INS and Velasquez-Gabriel each
contend that Congress unambiguously defined the statute’s temporal
application.
1.
The INS asserts that Congress clearly indicated, in IIRIRA, that
§ 241(a)(5) is to apply to all aliens, including those, like Velasquez-
Gabriel, who illegally reentered the United States prior to the effec-
tive date of that statute. The INS maintains that the comprehensive
nature of IIRIRA’s revision, the statute’s general effective date, the
presence of transitional rules, and the prospective nature of immigra-
tion deportation proceedings require this conclusion.
The Supreme Court’s recent analysis in St. Cyr forecloses all of
these arguments. See St. Cyr, 121 S. Ct. at 2287-90.2 The St. Cyr
Court concluded that despite these very features, § 304(b) of IIRIRA
2
St. Cyr also precludes the INS’s contention that we should defer to the
Board of Immigration Appeals’s alleged retroactive application of
§ 241(a)(5). See St. Cyr, 121 S. Ct at 2290 n.45 ("We only defer, how-
ever, to agency interpretations of statutes that, applying the normal ‘tools
of statutory construction,’ are ambiguous. Because a statute that is
ambiguous with respect to retroactive application is construed under our
precedent to be unambiguously prospective, there is, for Chevron pur-
poses, no ambiguity in such a statute for an agency to resolve.") (cita-
tions omitted).
VELASQUEZ-GABRIEL v. CROCETTI 7
was ambiguous and "the longstanding principle of construing any lin-
gering ambiguities in deportation statutes in favor of the alien . . .
forecloses the conclusion that, in enacting § 304(b), Congress itself
has affirmatively considered the potential unfairness of retroactive
application and determined that it is an acceptable price to pay for the
counteracting benefits." Id. at 2290 (internal quotation marks omit-
ted).
2.
Velasquez-Gabriel’s contrary argument is equally untenable.
Velasquez-Gabriel acknowledges that Congress failed to insert any
express statement as to whether § 241(a)(5) applies to those aliens
that reentered the country prior to the statute’s effective date. He
notes, however, that Congress did expressly state that several other
provisions of Title III of IIRIRA apply retroactively. See, e.g.,
IIRIRA § 321(c) ("The amendments made by this section [amending
the definition of aggravated felony] shall apply to actions taken on or
after the date of the enactment of this Act, regardless of when convic-
tion occurred.") (emphasis added); IIRIRA § 322(c) ("The amend-
ments [defining conviction and sentences] . . . shall apply to
convictions and sentences entered before, on, or after the date of the
enactment of this Act.") (emphasis added); IIRIRA § 324(c) ("The
amendment [regarding penalties for reentry of deported aliens] . . .
shall apply to departures that occurred before, on, or after the date of
the enactment of this Act, but only with respect to entries (and
attempted entries) occurring on or after such date.") (emphasis
added); IIRIRA § 347(c) ("The amendments made by this section
[regarding the removal of aliens who have unlawfully voted] shall
apply to voting occurring before, on, or after the date of the enactment
of this Act") (emphasis added).
According to Velasquez-Gabriel, because Congress explicitly man-
dated that these provisions of the statute apply to pre-enactment con-
duct, a court must make a negative inference as to § 241(a)(5). That
is, since Congress failed to include a similar express mandate with
respect to § 241(a)(5), he contends that a court must infer that the leg-
islature intended § 241(a)(5) to apply only to reentries that occurred
8 VELASQUEZ-GABRIEL v. CROCETTI
after its enactment. See Lindh v. Murphy, 521 U.S. 320, 329 (1997).
This argument fails for two reasons.
First, although Congress certainly made several provisions in Title
III explicitly retroactive, it also expressly provided that other provi-
sions apply only prospectively. See, e.g., IIRIRA § 352(b) ("The
amendment made by subsection (a) [excluding aliens who have
renounced citizenship for tax reasons] shall apply to individuals who
renounce United States citizenship on and after the date of the enact-
ment of this Act.") (emphasis added). See also IIRIRA § 105(c) ("The
amendments made by subsection (a) [regarding civil penalties for ille-
gal entry] shall apply to illegal entries or attempts to enter occurring
on or after the first day of the sixth month beginning after the date
of the enactment of this Act."). As such, IIRIRA is not an instance in
which Congress specifically stated that one provision applies retroac-
tively, thus leading a court to the logical inference that Congress’s
silence in other, closely related provisions indicated a contrary inten-
tion. Cf. Lindh, 521 U.S. at 326-27. Rather, as in Tasios, "[o]ur exam-
ination of the sometimes retrospective, sometimes prospective
provisions that surround [the statute] unveils the Janus-like faces of
Congress, but leaves its mind concealed." Tasios, 204 F.3d at 549.
Moreover, all of the expressly retroactive statutory provisions on
which Velasquez-Gabriel relies appear in separate, unrelated subtitles
of the act. See id. Specifically, they are contained in Subtitle B,
IIRIRA §§ 321-334, 110 Stat. 3009-627 to 3009-635 (Criminal Alien
Provisions), and Subtitle C, IIRIRA §§ 341-353, 110 Stat. 3009-635
to 3009-641 (Revision of Grounds for Exclusion and Deportation), of
IIRIRA, Title III. Those subtitles govern different conduct and have
no relation to the comprehensive revision of removal procedures con-
tained in Subtitle A, which are at issue in this case. Unlike Subtitles
B and C, Subtitle A includes a general effective date that applies to
almost all of its provisions. See IIRIRA § 309(a). Thus, it is not sur-
prising that many sections of Subtitles B and C have their own effec-
tive dates and § 241(a)(5) does not. The mere fact that the individual
effective date provisions in Subtitles B and C contain express tempo-
ral restrictions sheds no light on Congress’s intent regarding
§ 241(a)(5)’s application to pre-enactment reentries.3
3
Relying heavily on the "negative implication" analysis in Lindh, the
Ninth Circuit recently held that Congress did not intend to apply
VELASQUEZ-GABRIEL v. CROCETTI 9
3.
For these reasons, we must reject both the INS’s and Velasquez-
Gabriel’s contentions. Because we cannot conclude that Congress
unambiguously indicated either that § 241(a)(5) applies to all aliens
or that it applies only to aliens that reentered the country after the stat-
ute’s effective date, we must proceed to the second step of the retro-
activity analysis and determine whether § 241(a)(5) operates in an
impermissibly retroactive manner when applied to Velasquez-Gabriel.
B.
"The inquiry into whether a statute operates retroactively demands
a commonsense, functional judgment about ‘whether the new provi-
sion attaches new legal consequences to events completed before its
enactment.’" St. Cyr, 121 S. Ct. at 2290 (quoting Martin, 527 U.S. at
357-58 (quoting Landgraf, 511 U.S. at 270)). A court must bear in
mind that "[a] statute does not operate ‘retrospectively’ merely
because it is applied in a case arising from conduct antedating the
statute’s enactment . . . or upsets expectations based in prior law,"
Landgraf, 511 U.S. at 269 (citation omitted), and that normally "a
court is to apply the law in effect at the time it renders its decision,"
id. at 264. The Supreme Court has "repeatedly counseled" that "the
judgment whether a particular statute acts retroactively should be
informed and guided by familiar considerations of fair notice, reason-
able reliance, and settled expectations," St. Cyr, 121 S. Ct. at 2291
(internal quotation marks omitted); "individuals should have an
opportunity to know what the law is and to conform their conduct
accordingly," Tasios, 204 F.3d at 550 (quoting Landgraf, 511 U.S. at
263).
§ 241(a)(5) to pre-enactment reentries. See Castro-Cortez v. INS, 239
F.3d 1037, 1050-52 (9th Cir. 2001). Our reading of Lindh, however, is
more limited, especially in interpreting statutory provisions that "address
distinct subject matters" and where Congress has included both retroac-
tive and prospective provisions in contrast to the "neat distinction"
between silence and the clear statement of retroactivity presented in
Lindh. Tasios, 204 F.3d at 548-49.
10 VELASQUEZ-GABRIEL v. CROCETTI
Velasquez-Gabriel asserts that § 241(a)(5) has an impermissibly
retroactive effect on him because it impairs a right he possessed prior
to its enactment, see Landgraf, 511 U.S. at 280, i.e., the right to
request adjustment of his immigration status based on his marriage to
a United States citizen.
Again, St. Cyr provides significant assistance in resolving the ques-
tion. On one hand, St. Cyr precludes the government’s contention that
Velasquez-Gabriel cannot prevail because the relief he seeks was
vested within the discretion of the INS or because he "cannot demon-
strate that he had any vested right to adjust his status." Brief of
Respondent at 40. The St. Cyr Court stated that the discretionary
nature of the relief sought "d[id] not affect" its holding that the statute
had an impermissibly retroactive effect, explaining that "[t]here is a
clear difference, for the purposes of retroactivity analysis, between
facing possible deportation and facing certain deportation." 121 S. Ct.
at 2293. On the other hand, in reaching this decision, the St. Cyr
Court heavily relied on two factors not present here: (1) "aliens like
St. Cyr had a significant likelihood of receiving" the relief they
sought under the old law and (2) they "almost certainly relied upon
that likelihood" to their detriment. Id. These two factors similarly
formed the basis for our retroactivity holding in Tasios. 204 F.3d at
551-52.
Ultimately, Velasquez-Gabriel’s case differs critically from St. Cyr
and Tasios in both respects. Velasquez-Gabriel has shown neither a
reasonable likelihood of success under pre-IIRIRA law nor a detri-
mental reliance on pre-IIRIRA law. Assuming for purposes of this
appeal that, as Velasquez-Gabriel maintains, the INS prevented him
from demonstrating the likelihood of receiving relief by refusing to
permit him to offer any evidence on this point, nothing prevented him
from articulating facts constituting his asserted detrimental reliance.
Yet, Velasquez-Gabriel’s sole reliance argument is that he and his
wife "relied to their detriment on petitioner’s ability 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-1 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, Velasquez-
Gabriel posits no way in which his marriage in "reliance" on preexist-
VELASQUEZ-GABRIEL v. CROCETTI 11
ing law weakened his immigration status under the new law or hurt
his chances of remaining in this country. Simply stating that he relied
to his detriment proves nothing. Accordingly, even if he could dem-
onstrate 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.
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 (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 appli-
cation of § 241(a)(5) is not impermissibly retroactive in this case: not
until well after § 241(a)(5) took 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).
Velasquez-Gabriel and Boyce married on February 9, 1996. Con-
gress did not enact IIRIRA until seven months later, on September 30,
1996. Section 241(a)(5) did not take effect for another six months
after that. See IIRIRA § 309(a). Thus, Boyce and Velasquez-Gabriel
were married for more than a year before § 241(a)(5) took effect, but
she did not file a visa petition for him and he did not apply to adjust
his status until November 1997, more than a year after IIRIRA was
passed, even though he was represented by counsel the entire time.
See Brief of Petitioner at 23. ("After petitioner’s reentry . . . he sought
the advice of counsel and counsel advised him that he would in fact
be eligible to adjust his status based upon his marriage to a United
States citizen. That was the state of the law on February 9, 1996,
when the petitioner was married.").
Velasquez-Gabriel does not suggest, let alone contend, that he had
insufficient time to apply for a status adjustment. Cf. Brown v. Ange-
lone, 150 F.3d 370, 374 (4th Cir. 1998) (holding that denial of habeas
12 VELASQUEZ-GABRIEL v. CROCETTI
petition was impermissibly retroactive because even though the peti-
tion was filed after enactment of the new law, it did not provide "a
reasonable time after the effective date . . . in which to initiate
action"). Indeed, he states that immigration counsel represented him
since at least 1996 and informed him of his rights under pre-IIRIRA
law. Velasquez-Gabriel obviously had considerable "opportunity to
know what the law [was] and to conform [his] conduct accordingly."
Tasios, 204 F.3d at 550 (quoting Landgraf, 511 U.S. at 265).
Accordingly, Velasquez-Gabriel’s failure to apply to adjust his res-
ident status before the new law took effect fatally undermines his con-
tention that § 241(a)(5)’s application to him "attaches new legal
consequences to events completed before its enactment." St. Cyr, 121
S. Ct. at 2290 (emphasis added).
IV.
For the foregoing reasons, we deny Velasquez-Gabriel’s petition to
review the INS’s reinstatement of the prior order deporting him and
dismiss his appeal of the INS’s denial of his application to adjust his
status.4
PETITION FOR REVIEW DENIED IN PART AND
DISMISSED IN PART
4
Although Velasquez-Gabriel mentions the Due Process Clause in
passing, he does not articulate any constitutional challenge to
§ 241(a)(5), thus we express no opinion on that issue.