Labojewski, Rafal v. Gonzales, Alberto R. , 407 F.3d 814 ( 2005 )


Menu:
  •                             In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    Nos. 03-2755 & 04-1108
    RAFAL J. LABOJEWSKI,
    Petitioner,
    v.
    ALBERTO R. GONZALES,1
    Attorney General of the United States,
    Respondent.
    ____________
    Petition for Review of an Order of
    the Board of Immigration Appeals.
    No. A27-007-734
    ____________
    FAUSTINO CHAVEZ-SALDANA,
    Petitioner,
    v.
    ALBERTO R. GONZALES,
    Attorney General of the United States,
    Respondent.
    ____________
    Petition for Review of an Order of
    the Board of Immigration Appeals.
    No. A21-080-005
    ____________
    ARGUED NOVEMBER 10, 2004—DECIDED MAY 4, 2005
    ____________
    1
    Pursuant to FED. R. APP. P. 43(c), we have substituted Alberto
    R. Gonzales for John Ashcroft as the named respondent.
    2                                   Nos. 03-2755 & 04-1108
    Before COFFEY, RIPPLE, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. We have consolidated these immi-
    gration cases for decision on the question of whether the
    deportation reinstatement provision of the Illegal Immigration
    Reform and Immigrant Responsibility Act (“IIRIRA”),
    
    8 U.S.C. § 1231
    (a)(5), is impermissibly retroactive when
    applied to an alien who reentered the United States before
    but applied for adjustment of status after the Act’s effective
    date. This question was reserved in this court’s recent
    opinion in Faiz-Mohammad v. Ashcroft, 
    395 F.3d 799
     (7th
    Cir. 2005), which held that § 1231(a)(5) is impermissibly
    retroactive when applied to an alien who reentered the
    United States and applied for adjustment of status prior to
    IIRIRA’s effective date. We now hold that § 1231(a)(5) is not
    impermissibly retroactive when applied to an alien who
    reentered the United States before IIRIRA’s effective date
    but did not apply for adjustment of status until after the
    Act became effective.
    I. Background
    Rafal Labojewski, a citizen of Poland, entered the United
    States on a visitor’s visa in 1987. He overstayed the visa
    and on November 5, 1990, was ordered deported. He il-
    legally reentered the United States in 1992 or 1993 using a
    false passport and visa. In November 1994 Labojewski’s
    mother, a lawful permanent resident, filed an alien relative
    visa petition on his behalf, which was approved on May 2,
    1995. In September 2001 Labojewski applied for adjustment
    of status based upon his mother’s lawful permanent
    resident status. In this application Labojewski falsely
    answered “[n]o” to the question of whether he had ever been
    deported from the United States.
    Faustino Chavez-Saldana, a citizen of Mexico, entered the
    United States without inspection in May 1975. He was
    arrested and ordered removed in March 1976. He reentered
    Nos. 03-2755 & 04-1108                                      3
    illegally that same year using the alias “Joaquin Martinez-
    Flores.” He was arrested and voluntarily departed in
    October 1976. He again reentered illegally about a year later,
    this time using the alias “Alfredo Vasquez Casales.” He was
    arrested and deported in January 1978. Three months later,
    in April 1978, he reentered illegally, again using the name
    “Alfredo Vasquez Casales.” He was apprehended and
    deported in May 1978, after submitting a sworn statement
    that his true name was Alfredo Vasquez Casales and that
    he had never used any other name.
    Chavez-Saldana again reentered without inspection in
    June 1978, and this time was charged and convicted of
    violating 
    8 U.S.C. § 1326
     for illegal reentry after previous
    deportation. He was sentenced in the United States District
    Court for the Southern District of New York to a two-year
    term of imprisonment, suspended in favor of three years’
    probation, with the condition that he leave the United
    States and not return without permission. The sentence
    was entered on December 19, 1978; he was deported from
    New Orleans on December 28, 1978.
    Chavez-Saldana again reentered the United States with-
    out inspection in the early or mid-1990s—the government
    says it was April 1992, Chavez-Saldana says it was March
    1995. Chavez-Saldana claims that on July 20, 1996, his son,
    a United States citizen, filed an alien relative visa petition
    on his behalf, and further contends that the petition was
    approved on February 7, 1997. Neither the petition nor the
    approval is in the record, however, and thus it is unclear
    whether the visa petition disclosed Chavez-Saldana’s his-
    tory of illegal reentry and deportation or his use of aliases.
    On September 30, 1997, Chavez-Saldana applied for adjust-
    ment of status using the name “Faustino Chavez.” In his
    application he falsely answered “[n]o” to the question of
    whether he had ever been deported from the United States
    and also falsely answered “[n]o” to the question of whether
    4                                   Nos. 03-2755 & 04-1108
    he had ever sought entry into the United States by fraud or
    willful misrepresentation of material fact.
    On September 30, 1996—after Labojewski and Chavez-
    Saldana reentered the United States illegally but before they
    applied for adjustment of status—Congress adopted the
    IIRIRA. Pub. L. No. 104-208, 
    110 Stat. 3009
    -546 (1996). As
    is pertinent to these cases, IIRIRA created § 241(a)(5) of the
    Immigration and Nationality Act (“INA”), appearing at 
    8 U.S.C. § 1231
    (a)(5), which 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 re-
    moval, 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).
    This new provision, part of an attempt to streamline then-
    existing removal procedures, requires the summary rein-
    statement of a prior removal order of an illegal alien who
    reenters the United States illegally after previously having
    been deported for any reason. See Ojeda-Terrazas v. Ashcroft,
    
    290 F.3d 292
    , 296 (5th Cir. 2002). The old reinstatement
    provision—INA § 242(f), appearing at 
    8 U.S.C. § 1252
    (f)—
    authorized summary reinstatement only for those illegal
    aliens previously deported for specified reasons, such as
    commission of an aggravated felony. Id.; Arevalo v. Ashcroft,
    
    344 F.3d 1
    , 5 (1st Cir. 2003). In contrast, § 1231(a)(5)
    operates against all aliens who reenter illegally after prior
    removal, prohibiting any review of the merits of the prior
    removal order as well as any opportunity to seek adjust-
    ment of status, a form of discretionary relief previously
    Nos. 03-2755 & 04-1108                                              5
    available even to those who illegally reentered the United
    States. Faiz-Mohammad, 
    395 F.3d at 810
    ; Arevalo, 
    344 F.3d at 5
    .
    Also, pursuant to regulations implementing § 1231(a)(5),
    an illegal alien subject to reinstatement under the statute
    is not entitled to a hearing before an immigration judge on
    the issue of reinstatement of the prior removal order.2 In-
    stead, an immigration officer determines the alien’s identity,
    whether he or she was subject to a prior order of removal,
    and whether he or she unlawfully reentered the United States.
    
    8 C.F.R. § 241.8
    (a), (b); Ojeda-Terrazas, 
    290 F.3d at 296
    .
    The alien is provided an opportunity to make a statement;
    if the alien expresses fear of persecution if removed, the
    matter is referred to an asylum officer. 
    8 C.F.R. § 241.8
    (b),
    (e). Otherwise, if the foregoing predicate determinations are
    made, the prior order of removal is reinstated.
    IIRIRA became effective April 1, 1997. Chavez-Saldana
    applied for adjustment of status in September 1997;
    Labojewski applied for adjustment of status in
    September 2001. In the course of adjudicating Labojewski’s
    and Chavez-Saldana’s petitions to adjust status, the
    Department of Homeland Security determined that both
    aliens had reentered the United States illegally after having
    been removed. Accordingly, the Immigration and Customs
    Enforcement Bureau invoked § 1231(a)(5) and summarily
    ordered their prior removal orders reinstated. Labojewski
    and Chavez-Saldana petitioned for review in this court, rais-
    ing the sole issue of the retroactive effect of § 1231(a)(5).
    2
    We are aware that the Ninth Circuit has found that the regula-
    tions eliminating the alien’s right to a hearing before an immigration
    judge were ultra vires and violative of the INA. See Morales-
    Izquierdo v. Ashcroft, 
    388 F.3d 1299
    , 1304 (9th Cir. 2004). That
    issue is not presently before us, however, and we express no opin-
    ion on it.
    6                                    Nos. 03-2755 & 04-1108
    II. Analysis
    In Landgraf v. USI Film Prods., 
    511 U.S. 244
     (1994), the
    Supreme Court established a two-part inquiry to determine
    the permissibility of retroactive application of a statute.
    “First, the court must discern whether Congress has spoken
    to whether the statute should have retroactive effect.” Faiz-
    Mohammad, 
    395 F.3d at
    801-02 (citing Landgraf, 
    511 U.S. at 257
    ). If Congress has clearly specified a statute’s re-
    troactive reach, then “there is no need to resort to judicial
    default rules.” Landgraf, 
    511 U.S. at 280
    . An expressly
    retroactive statute is given its intended retroactive effect
    unless there is a constitutional impediment to doing so. 
    Id. at 267-68
    .
    However, if Congress has not clearly spoken—if the
    statute is silent or ambiguous about its retroactive reach—
    then “the court must determine whether the new statute
    would have retroactive effect, i.e., whether it 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, 
    511 U.S. at 280
    .
    The Supreme Court acknowledged in Landgraf the
    inherent tension in retroactivity analysis, in that two well-
    established legal principles are in conflict. “The first is the
    rule that ‘a court is to apply the law in effect at the time it
    renders its decision.’ ” 
    Id. at 264
     (quoting Bradley v. Sch. Bd.
    of Richmond, 
    416 U.S. 696
    , 711 (1976)). The second is “the
    principle that the legal effect of conduct should ordinarily
    be assessed under the law that existed when the conduct
    took place.” 
    Id. at 265
    . The Court in Landgraf reconciled
    the conflict by deferring to Congress when it clearly ex-
    presses its intent that a statute is retroactive and applying
    a presumption against retroactivity when congressional
    intent is ambiguous.
    Nos. 03-2755 & 04-1108                                         7
    Accordingly, when it is unclear whether a statute is meant
    to be retroactive, “prospectivity remains the appropriate
    default rule.” 
    Id. at 272
    . The requirement of clear congres-
    sional intent “assures that Congress itself has affirmatively
    considered the potential unfairness of retroactive appli-
    cation” and “allocates to Congress responsibility for fun-
    damental policy judgments concerning the proper temporal
    reach of statutes.” 
    Id. at 272-73
    . Where Congress has not
    made a clear policy judgment about retroactivity, applying
    the presumption against retroactive legislation “accords
    with widely held intuitions about how statutes ordinarily
    operate” and “generally coincide[s] with legislative and
    public expectations.” 
    Id. at 272
    .
    The second step in the Landgraf test thus seeks to deter-
    mine whether a statute operates retroactively in the case
    before the court for purposes of triggering the presumption
    against retroactive application. The Court cautioned, how-
    ever, that “[a] statute does not operate ‘retrospectively’ merely
    because it is applied in a case arising from conduct antedat-
    ing the statute’s enactment . . . or upsets expectations based
    on prior law.” 
    Id. at 269
     (citation omitted). Indeed, the Court
    indicated that “application of new statutes passed after the
    events in suit is unquestionably proper in many situations.”
    
    Id. at 273
    .
    For example, “[w]hen the intervening statute authorizes
    or affects the propriety of prospective relief, application of
    the new provision is not retroactive.” 
    Id.
     Similarly, “statutes
    conferring or ousting jurisdiction, whether or not jurisdiction
    lay when the underlying conduct occurred or when suit was
    filed,” are not considered impermissibly retroactive. 
    Id.
     This
    is because “jurisdictional statutes ‘speak to the power of the
    court rather than to the rights or obligations of the parties.’
    ”
    
    Id. at 274
     (quoting Republic Nat’l Bank of Miami v. United
    States, 
    506 U.S. 80
    , 100 (1992) (Thomas, J., concurring)).
    Also, statutes altering procedural rules may be applied to
    8                                    Nos. 03-2755 & 04-1108
    conduct occurring and cases arising before their enactment
    “without raising concerns about retroactivity.” Id. at 275.
    Ultimately, “[t]he conclusion that a particular rule operates
    ‘retroactively’ comes at the end of a process of judgment
    concerning the nature and extent of the change in the law
    and the degree of connection between the operation of the
    new rule and a relevant past event.” Id. at 270. The second
    half of the Landgraf test thus focuses on “whether the new
    provision attaches new legal consequences to events com-
    pleted before its enactment.” Id. The analysis requires a
    “commonsense, functional judgment,” Martin v. Hadix, 
    527 U.S. 343
    , 357 (1999), and calls for an assessment of “familiar
    considerations of fair notice, reasonable reliance, and set-
    tled expectations” to determine whether a statute operates
    retroactively in the case before the court. Landgraf, 
    511 U.S. at 270
    .
    When these cases were argued, this circuit had not yet
    addressed whether Congress intended § 1231(a)(5) to apply
    retroactively. We have since done so. In Faiz-Mohammad,
    we followed the approach of a majority of the circuits and
    held that congressional intent is unclear as to the retroac-
    tive reach of § 1231(a)(5). Faiz-Mohammad, 
    395 F.3d at 804
    . Accordingly, we move directly to the second step in the
    Landgraf analysis, which asks whether application of
    § 1231(a)(5) would have an impermissibly retroactive effect
    if applied to Labojewski and Chavez-Saldana—that is,
    whether application of the deportation reinstatement provi-
    sion to either petitioner 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, 
    511 U.S. at 280
    ; Faiz-
    Mohammad, 
    395 F.3d at 802
    .
    Applying this test in Faiz-Mohammad, we held that
    § 1231(a)(5) would have an impermissibly retroactive effect
    if applied to an alien who reentered the United States and
    Nos. 03-2755 & 04-1108                                        9
    applied for adjustment of status prior to IIRIRA’s effective
    date. Faiz-Mohammad, 
    395 F.3d at 809-10
    . Our decision in
    Faiz-Mohammad took note of INS v. St. Cyr, 
    533 U.S. 289
    (2001), in which the Supreme Court applied the second step
    of the Landgraf test to a different provision in IIRIRA and
    found it impermissibly retroactive.
    At issue in St. Cyr was the section of IIRIRA that elimi-
    nated the Attorney General’s discretion under INA § 212(c)
    to grant a waiver of deportation to persons who had been
    convicted of certain crimes; the earlier provision barred
    discretionary relief to persons who had been convicted of
    certain crimes and served a term of at least five years.
    St. Cyr, 
    533 U.S. at 297
    . The petitioner in St. Cyr had
    pleaded guilty to a state charge of selling a controlled sub-
    stance, which made him deportable. This was pre-IIRIRA,
    and under then-existing law, St. Cyr would have been eligi-
    ble for a discretionary waiver of deportation. Post-IIRIRA,
    however, he was ineligible for discretionary relief. 
    Id. at 293
    .
    Removal proceedings were initiated after IIRIRA’s effective
    date.
    Analyzing the case under the second step in the Landgraf
    test, the Supreme Court held in St. Cyr that the new statute
    was impermissibly retroactive under the circumstances of
    the case, where the defendant alien had pleaded guilty with
    the expectation that he would be eligible for discretionary
    waiver. Plea agreements, the Court observed, “involve a
    quid pro quo between a criminal defendant and the gov-
    ernment” whereby the defendant waives his constitutional
    rights in order to obtain “some perceived benefit” from the
    government. 
    Id. at 322
    . The Court noted that “as a general
    matter, alien defendants considering whether to enter into
    a plea agreement are acutely aware of the immigration con-
    sequences of their convictions,” and that prior to IIRIRA,
    “preserving the possibility of [discretionary] relief would have
    been one of the principal benefits sought by defendants in
    deciding whether to accept a plea offer or instead to proceed
    10                                   Nos. 03-2755 & 04-1108
    to trial.” 
    Id.
     The Court also noted that discretionary relief
    was frequently granted. Therefore, when discretionary relief
    was no longer available after IIRIRA’s enactment, the plea
    deal previously struck by the alien suddenly became worth
    less. Thus, in St. Cyr, the “relevant past event” for purposes
    of Landgraf retroactivity analysis was the alien defendant’s
    agreement to plead guilty with the settled and reasonable
    expectation of continued eligibility for discretionary waiver
    of deportation. The Court held that “IIRIRA’s elimination
    of any possibility of § 212(c) relief for people 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.’ ” Id. at 321 (citing Landgraf, 
    511 U.S. at 269
    ).
    We noted in Faiz-Mohammed that cases in other circuits
    addressing the retroactive effect of § 1231(a)(5)’s reinstate-
    ment provision have “looked to St. Cyr for guidance.” Faiz-
    Mohammed, 
    395 F.3d at 805
    . Canvassing the circuits, we dis-
    cerned a generally consistent approach: “When retroactive
    application has affected only the way in which a petitioner’s
    deportation is adjudicated, because, for instance, the peti-
    tioner failed to apply for discretionary relief prior to
    IIRIRA’s effective date, no ‘settled expectations’ were
    disturbed.” 
    Id. at 809
    . Thus, the First, Fourth, and Fifth
    Circuits have held that § 1231(a)(5) does not have an
    impermissibly retroactive effect when applied to aliens who
    reentered this country before but did not apply for adjust-
    ment of status until after IIRIRA’s effective date, or did not
    apply for discretionary relief at all. Lattab v. Ashcroft, 
    384 F.3d 8
    , 13-16 (1st Cir. 2004); Velasquez-Gabriel v. Crocetti,
    
    263 F.3d 102
    , 109-110 (4th Cir. 2001) (“Velasquez-Gabriel’s
    failure to apply to adjust his resident status before the new
    law took effect fatally undermines his contention that [its]
    application to him ‘attaches new legal consequences to
    events completed before its enactment.’ ” (quoting St. Cyr,
    
    533 U.S. at 321
    )); Ojeda-Terrazas, 
    290 F.3d at 301-02
    .
    Nos. 03-2755 & 04-1108                                       11
    However, where an alien reentered the United States and
    applied for adjustment of status before IIRIRA’s effective
    date, the First and Eleventh Circuits have held that
    § 1231(a)(5) is impermissibly retroactive. Arevalo, 
    344 F.3d at 15
     (“The petitioner already had filed for relief when
    Congress amended the statute. Discarding her application
    now would deprive her both of a right she once had and of
    the reasonable expectation that she would have the oppor-
    tunity to convince the Attorney General to grant her relief.”);
    Cisneros v. U.S. Attorney General, 
    381 F.3d 1277
    , 1284 (11th
    Cir. 2004) (“The retroactive application of section 1231(a)(5)
    would attach this new disability to a completed transaction,
    because [Cisneros] applied for discretionary relief in the
    form of an adjustment of status before the effective date of
    the IIRIRA.”). We reached the same conclusion in Faiz-
    Mohammad. Because “Mr. Faiz-Mohammad both 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.” Faiz-Mohammad, 
    395 F.3d at 809-10
    . Because § 1231(a)(5) eliminated discretionary
    relief eligibility for aliens who illegally reentered after a
    previous order of removal, application of § 1231(a)(5) would
    have impaired a right that Faiz-Mohammad possessed at
    the time he filed his application and would have attached a
    “new disability” to his pending application that did not exist
    prior to IIRIRA’s passage. Accordingly, we held that
    § 1231(a)(5) was impermissibly retroactive and could not be
    applied in Faiz-Mohammad’s case. Id. at 810.
    Only the Eighth Circuit has held that § 1231(a)(5) is
    impermissibly retroactive when applied to an alien who
    illegally reentered the United States before but applied for
    adjustment of status after IIRIRA’s effective date. Alvarez-
    Portillo v. Ashcroft, 
    280 F.3d 858
    , 866-67 (8th Cir. 2002).
    The court reasoned that under “long-standing INS practice”
    the petitioner “had a reasonable expectation he could either
    file for a discretionary adjustment of status, or wait and seek
    12                                  Nos. 03-2755 & 04-1108
    the adjustment as a defense to a later deportation proceed-
    ing.” 
    Id. at 867
    . Applying § 1231(a)(5), the court said, would
    deprive him of that defense to deportation. In a footnote in
    Faiz-Mohammad, we noted the Eighth Circuit’s departure
    from the approach taken by the other circuits that have
    addressed this question. Faiz-Mohammad, 
    395 F.3d at 809, n.10
    . However, “[b]ecause Mr. Faiz-Mohammad both
    reentered the United States and applied for adjustment
    of status prior to IIRIRA’s effective date,” we declined to
    consider “whether some lesser action on the part of the
    petitioner would alter our retroactivity analysis.” 
    Id.
    This case presents the question expressly reserved in that
    footnote in Faiz-Mohammad. We now adopt the majority
    approach and hold that § 1231(a)(5) is not impermissibly
    retroactive when applied to an alien who illegally reentered
    the United States before but applied for adjustment of status
    after IIRIRA’s effective date. In this situation, there is no
    “reasonable reliance” in the St. Cyr/Landgraf sense be-
    cause the petitioners did not act to their detriment based on
    the potential for discretionary relief and did not sacrifice
    any right in reliance on a settled expectation that they
    would be eligible for adjustment of status. And because
    Labojewski and Chavez-Saldana did not petition for ad-
    justment of status until after the effective date of IIRIRA,
    application of § 1231(a)(5) to their post-IIRIRA petitions
    does not impair rights they possessed when they applied or
    impose a new disability on an already-completed transac-
    tion in the Faiz-Mohammad/Landgraf sense.
    We disagree with the Eighth Circuit that illegal reentry
    by itself is enough to trigger the presumption against retro-
    activity. We decline to recognize as “reasonable” any claimed
    reliance on the perpetual availability of discretionary ad-
    justment of status from the moment an alien contemplates
    illegal reentry. See Arevalo, 
    344 F.3d at 15
     (petitioner could
    not “reasonably rely on the availability of discretionary
    relief when pondering whether to reenter this country
    illegally”).
    Nos. 03-2755 & 04-1108                                       13
    Labojewski and Chavez-Saldana also argue that the alien
    relative visa petitions filed on their behalf should be deemed
    to create the sort of vested rights and settled expectations
    that the presumption against retroactive legislation is in-
    tended to protect.3 We disagree. Although the filing of a visa
    application is a prerequisite to the filing of an application
    for adjustment of status, it is not the equivalent of
    an adjustment of status application and is not the sort of
    “completed transaction” that gives rise to vested rights or
    settled expectations for purposes of the presumption against
    retroactivity. It is, in fact, some steps removed from the
    filing of an application for adjustment of status, which was
    the point at which we concluded in Faiz-Mohammad that
    adjudicatory rights and expectations arose for purposes of
    retroactivity analysis.4 Faiz-Mohammad, 398 F.3d at 809-
    10.
    Under pre-IIRIRA law, an alien who illegally reentered
    would be eligible to adjust status only if he demonstrated
    that (1) he had filed an application to adjust status, (2) he
    was eligible to receive an immigrant visa, and (3) an immi-
    grant visa was immediately available to him at the time the
    adjustment application was filed. 
    8 U.S.C. § 1255
    (a), (i)
    (1994). An approved visa petition is not a visa, but, rather, is
    “merely a preliminary step in the visa application process.
    It does not guarantee that a visa will be issued, nor does it
    grant the alien any right to remain in the United States.”
    Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 
    736 F.2d 3
     As we have noted, the record in Chavez-Saldana’s case does not
    contain a copy of an alien relative visa petition.
    4
    To the extent the petitioners complain that IIRIRA or its com-
    panion regulations eliminated their right to a hearing before an
    immigration judge, their claims fail because procedural changes
    of this nature are not generally considered to be impermissibly
    retroactive. See Landgraf, 
    511 U.S. at 275
    ; Arevalo, 
    344 F.3d at
    13-14 (citing cases).
    14                                      Nos. 03-2755 & 04-1108
    1305, 1308 (9th Cir. 1984) (citing Joseph v. Landon, 
    679 F.2d 113
    , 115 (7th Cir. 1982)). “An initial approval of a visa
    ‘petition does not alone give the beneficiary of the petition
    an immediate right to an immigrant visa.’ ” Joseph, 
    679 F.2d at 115
     (quoting DiFigueroa v. INS, 
    501 F.2d 191
    , 193
    (7th Cir. 1974)). An approved visa petition thus cannot be
    considered a “completed act” to which vested rights attach
    for purposes of the presumption against retroactivity.
    Accordingly, we conclude that § 1231(a)(5) does not operate
    in an impermissibly retroactive fashion when applied against
    an alien who illegally reentered the United States before
    but did not apply for adjustment of status until after
    IIRIRA’s effective date.5 Both petitioners had fair notice on
    September 30, 1996, when IIRIRA was enacted, that they
    would no longer be eligible for discretionary adjustment of
    status as of April 1, 1997, and that they would be subject to
    summary reinstatement of their prior orders of removal
    based upon their illegal reentry. Because they did not file for
    adjustment of status until well after IIRIRA’s effective date,
    they cannot claim that § 1231(a)(5) impairs any vested rights,
    increases their liability, or attaches new legal consequences
    to acts already completed before the new law was enacted.
    The petitions for review are therefore DENIED.
    5
    This conclusion makes it unnecessary for us to consider the
    Attorney General’s alternate arguments that these petitioners
    would be inadmissible because of immigration fraud, 
    8 U.S.C. § 1182
    (a)(6)(C)(i), or pursuant to the previous five- or current ten-
    year bar to admissibility, 
    8 U.S.C. § 1182
    (a)(6)(B) (1994), 
    8 U.S.C. § 1182
    (a)(9)(C)(II).
    Nos. 03-2755 & 04-1108                               15
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—5-4-05
    16   Nos. 03-2755 & 04-1108