Faiz-Mohammad, Khali v. Ashcroft, John ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1554
KHALID FAIZ-MOHAMMAD,
Petitioner,
v.
JOHN D. ASHCROFT, United States
Attorney General,
Respondent.
____________
On Review of a Final Order of the
Immigration and Naturalization Service.
No. A28-852-265
____________
ARGUED FEBRUARY 24, 2004—DECIDED JANUARY 26, 2005
____________
Before POSNER, RIPPLE and EVANS, Circuit Judges.
RIPPLE, Circuit Judge. 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 appli-
cation, the INS reinstated a prior deportation order and
directed that Mr. Faiz-Mohammad be removed. Mr. Faiz-
2 No. 03-1554
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-Mohammad 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-Mohammad 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 fol-
lowing year, Mr. Faiz-Mohammad married Tabassum Faiz-
Mohammad. At some point prior to institution of the pre-
sent removal proceedings, Mrs. Faiz-Mohammad became a
naturalized United States citizen.
On February 25, 1997, after Congress enacted the Illegal
Immigration Reform and Immigrant Responsibility Act
1
(“IIRIRA”), 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 I-485 application for adjustment
of status, a Form I-130 petition for alien relative signed by
Mrs. Faiz-Mohammad, and also a Form I-601 petition for
1
Congress enacted IIRIRA on September 30, 1996.
No. 03-1554 3
waiver of inadmissibility. It was necessary for Mr. Faiz-
Mohammad to file this last form because his prior fraudu-
lent conduct rendered him ineligible for adjustment of status
absent a waiver. See 8 U.S.C. §§ 1182(a)(6)(C)(i) & 1255(a).
The INS District Director denied Mr. Faiz-Mohammad’s
I-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-Mohammad’s appeal, 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-Mohammad had not sought such a waiver
(Form I-212), and this waiver must be adjudicated prior to
any consideration of Mr. Faiz-Mohammad’s Form I-601.
In compliance with this directive, Mr. Faiz-Mohammad
filed an I-212 waiver in February 2002. One year later, the
District Director denied Mr. Faiz-Mohammad’s Form I-212
waiver application on the ground that Mr. Faiz-Mohammad
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 I-212 waiver, the INS issued, pur-
4 No. 03-1554
2
suant to 8 U.S.C. § 1231(a)(5), a Form I-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 re-
instated 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, 344
F.3d 1, 10 (1st Cir. 2003).
2
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 chapter,
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).
No. 03-1554 5
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 Films
Products, 511 U.S. 244 (1994). Landgraf established a two-part
inquiry to determine whether a statute is retroactive. First,
the court must discern whether Congress has spoken to
3
whether the statute should have retroactive effect. “In
answering this question, courts should employ the custom-
ary rules of statutory construction, assaying the language of
the statute itself and then considering its structure and
purpose.” Arevalo, 344 F.3d at 10 (citing Lindh v. Murphy, 521
U.S. 320, 336 (1997)). If the statute is silent regarding
whether a specific provision is retroactive, the court next
must consider whether retroactive application of the statute
“would impair rights a party possessed when he acted,
[would] increase a party’s liability for past conduct, or [would]
impose new duties with respect to transactions already com-
pleted.” Landgraf, 511 U.S. at 280.
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, 239 F.3d 1037 (9th Cir. 2001), and Bejjani v. INS, 271
3
See Landgraf v. USI Films Prods., 511 U.S. 244, 257 (1994) (stating
that the Court’s first task was to discern whether the “statutory
text” manifests congressional intent to apply the act retroac-
tively).
6 No. 03-1554
F.3d 670 (6th Cir. 2002), respectively. Consequently, we look
first to these cases to inform our discussion.
In Castro-Cortez, the Ninth Circuit identified three rea-
sons—grounded in the statutory language—that evidenced
Congress’ clear intent that § 1231(a)(5) should not be ap-
plied retroactively “to aliens whose reentry occurred prior
to its enactment.” Castro-Cortez, 239 F.3d at 1051. First, the
Ninth Circuit noted, “[w]hen Congress in 1996 rewrote the
provision and codified it at INA § 241(a)(5), rather than
modifying the retroactivity language to specify the effective
date of IIRIRA, or even simply leaving the retroactivity
language as it was . . . it did the opposite. It eliminated the
4
retroactivity language completely.” Id. The Ninth Circuit
4
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 previ-
ously 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 deporta-
tion 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-Terrazas v.
(continued...)
No. 03-1554 7
believed that the decision “to remove the retroactivity
language from this part of the statute provide[d] strong
support for the conclusion that [Congress] did not intend
that the revised provision be applied to reentries occurring
before the date of the statute’s enactment.” Id. The Ninth
Circuit’s second reason for concluding that § 1231(a)(5)
should not be applied retroactively was that, in several other
sections of IIRIRA, Congress explicitly “indicated that those
sections would apply to pre-enactment conduct”; that
Congress failed to do so with respect to § 1231(a)(5) “sup-
ports the view, by negative implication, that § 241(a)(5) does
not retroactively apply to aliens” who reentered after
4
(...continued)
Ashcroft, 290 F.3d 292 (5th Cir. 2002), the Fifth Circuit identified
three other key differences between the former and current
reinstatement provisions:
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 pre-
vious order of deportation was based on one of the enumer-
ated 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 im-
migration officer to determine . . . whether reinstatement is
proper. Under § 242(f), an immigration judge made the
determination.
Id. at 296.
8 No. 03-1554
IIRIRA was enacted. Id. Finally, the Ninth Circuit noted that
“congressional silence is instructive.” Id. at 1052. Because
“Congress is deemed to enact legislation with Landgraf’s
‘default rule’ in mind,” “silence provides useful evidence as
to intent for the first step of Landgraf’s two-part inquiry.” Id.
According to the Ninth Circuit, these statutory bases—
taken together—evidenced Congress’ clear intent that
5
§ 1231(a)(5) should not be applied retroactively.
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, Con-
gress “considered and rejected new language which would
have applied the new reinstatement provision to illegal
reentries which occurred before the date of enactment.”
Bejjani, 271 F.3d at 685. It concluded:
Congress is presumed 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 retroac-
tivity, 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
5
Consequently, the Ninth Circuit had no reason to engage in the
second part of the Landgraf analysis.
No. 03-1554 9
Circuits, every other circuit that has considered the retroac-
tivity 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,
381 F.3d 1277 (11th Cir. 2004); Arevalo, 344 F.3d 1; Avila-
Macias v. Ashcroft, 328 F.3d 108 (3d Cir. 2003); Ojeda-Terrazas
v. Ashcroft, 290 F.3d 292 (5th Cir. 2002); Alvarez-Portillo v.
Ashcroft, 280 F.3d 858 (8th Cir. 2002); Velasquez-Gabriel v.
Crocetti, 263 F.3d 102 (4th Cir. 2001). Indeed, evaluating the
same statutory arguments presented to, and accepted by, the
Sixth and Ninth Circuits, the Third Circuit has concluded
that “[w]hat is clear is that Congress’ intent with regard to
the temporal reach of Section 305(a)(5) of IIRIRA is not
clear.” Avila-Macias, 328 F.3d at 114 (emphasis in original).
For instance, with respect to the lack of retroactivity lan-
guage in § 1231(a)(5) compared to its predecessor, 8 U.S.C.
§ 1252(f) (repealed), the Eleventh Circuit has held that,
although this absence lends some weight to the argument
that § 1231(a)(5) should not be applied retroactively, “the
silence with which the retroactivity language was replaced
does not come close to being a clear statement of congressio-
nal intent.” Sarmiento Cisneros, 381 F.3d at 1282; see also
Avila-Macias, 328 F.3d at 113 (holding that the omission of
retroactivity language “does not constitute an express
mandate regarding the statute’s temporal reach”).
Other circuits similarly have rejected the “negative impli-
cation” 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, 328 F.3d at 113; see also Arevalo, 344
F.3d at 13 (“The problem is that many other sections of the
IIRIRA unequivocally state that they will apply only pro-
spectively . . . . Thus, the negative implication argument
10 No. 03-1554
could just as easily run the other direction.”).
Finally, other courts have not found compelling the ar-
gument that, “because Congress enacts legislation with the
Landgraf rule in mind, where it is silent it can be presumed
that it did not intend for it to be applied retrospectively.”
Avila-Macias, 328 F.3d at 114. The Third Circuit explained
that “[t]his argument fails as well because it could just as
easily be argued that Congress remained silent in the ex-
pectation that courts would proceed to the second step of
the Landgraf analysis, determine whether the provision would
have a retroactive effect and, if it did, only then decline to
apply it retrospectively.” Id.; see also Sarmiento Cisneros, 381
F.3d at 1282-83 (quoting same).
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.
‘[C]ases where this Court has found truly “retroactive” ef-
fect adequately authorized by statute have involved statutory
language that was so clear that it could sustain only one
interpretation.’ ” INS v. St. Cyr, 533 U.S. 289, 316-17 (2001)
(quoting Lindh, 521 U.S. at 328 n.4). There is no clear indica-
tion in the statutory language that reveals whether Congress
intended § 1231 to apply retroactively, much less evidence
so clear as to lead to only one conclusion with respect to
congressional intent as to the retroactivity of § 1231(a)(5).
As the majority of the circuits have noted, there are valid
arguments on both sides of the retroactivity issue. We be-
lieve that the majority of circuits have taken the approach
most consistent with the Supreme Court’s view. We there-
No. 03-1554 11
fore hold that Congress did not evidence a clear intent with
respect to whether § 1231(a)(5) should be applied retroac-
tively 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 existing laws, or creates a new
obligation, imposes a new duty, or attaches a new dis-
ability” to the petitioner’s actions in a way that offends
the fundamental principles of fair notice and reasonable
expectation.
Arevalo, 344 F.3d at 13 (quoting Landgraf, 511 U.S. at 280).
The Supreme Court recently had occasion to apply the
second part of the Landgraf test to a provision of IIRIRA in
INS v. St. Cyr, 533 U.S. 289. At issue in St. Cyr was the
retroactivity of IIRIRA’s bar to discretionary relief for those
who had been convicted of certain crimes. The prior statute
did not impose a bar based on the type of crime alone, but
also on the length of sentence; it barred discretionary relief
only to individuals who had committed an aggravated fel-
ony and served a term of at least five years. Prior to the
enactment of IIRIRA, St. Cyr had pleaded guilty to a drug-
related crime. Later, when deportation proceedings were
12 No. 03-1554
instituted against St. Cyr, the Attorney General claimed that
discretionary relief was not available to the petitioner
because he had been convicted of a crime for which IIRIRA
barred discretionary relief. The Supreme Court held that
this provision of IIRIRA could not be applied retroactively
to the petitioner:
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 transac-
tions or considerations already past.’ ” [Landgraf, 511
U.S. at 269.] 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 (citations and footnotes omitted). Furthermore,
the Court noted that
the fact that § 212(c) relief is discretionary does not af-
fect the propriety of our conclusion. There is a clear dif-
ference, 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 (emphasis added; citations and footnotes omitted).
No. 03-1554 13
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, 263 F.3d 102, the petitioner reentered
the country illegally and married a United States citizen in
February 1996. In November 1997, after IIRIRA’s passage
(September 30, 1996) and effective date (April 1, 1997), he
applied for an adjustment of status based on his marriage to
a United States citizen. The Fourth Circuit, relying on
St. Cyr, rejected the petitioner’s claim that IIRIRA’s bar to
discretionary relief should not be applied to him because he
reentered the country and married his wife prior to IIRIRA’s
enactment:
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 on pre-IIRIRA law. . . .
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 [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 of-
fers no “detrimental reliance” of the sort which played
14 No. 03-1554
such a critical role in the St. Cyr and Tasios holdings.
Velasquez-Gabriel, 263 F.3d at 108-09 (emphasis in original).
Despite the difference between Velasquez-Gabriel and St.
Cyr, the Fourth Circuit ultimately did not rest its decision
on Velasquez-Gabriel’s lack of reliance. It explained:
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 retroac-
tively without discussing whether any party detri-
mentally relied on previous law). But we need not
decide that question because there is a far simpler rea-
son compelling our conclusion that the application 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 ob-
tain 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 ap-
plication to him “attaches new legal consequences to
events completed before its enactment.”
No. 03-1554 15
6
Id. at 109-10 (emphasis in original; citations omitted).
The Eighth Circuit addressed a very similar factual situ-
ation in Alvarez-Portillo, 280 F.3d 858. In that case, an alien
reentered the country illegally in 1993. In November 1996,
after IIRIRA’s passage, he married a United States citizen.
Nearly five years later—and long after IIRIRA’s 1997 effec-
tive date, the petitioner applied for an adjustment of status.
In determining whether § 1231(a)(5) could be applied ret-
roactively to the petitioner, the Eighth Circuit disagreed
with the Fourth Circuit’s analysis:
In Velasquez-Gabriel v. Crocetti, . . . the Fourth Circuit
concluded that § 241(a)(5) had no impermissible retro-
active effect because the illegal reentrant could have ap-
plied for adjustment of status before IIRIRA’s enact-
ment, and therefore § 241(a)(5) did not attach new legal
6
More recently in Olatunji v. Ashcroft, 387 F.3d 383, 394 (4th Cir.
2004), the Fourth Circuit made clear that subjective reliance on
prior law did not factor into its retroactivity analysis:
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 enact-
ments 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 party 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 nu-
anced than that statutes should not be held to apply retro-
actively. Anything more, in the face of complete congressio-
nal silence, is nothing but judicial legislation.
16 No. 03-1554
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 en-
actment 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 re-
lief 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 impermissi-
ble retroactive effect on his reinstatement and removal
proceeding.
Alvarez-Portillo, 280 F.3d at 867. Thus, the Eighth Circuit
concluded that, because Alvarez-Portillo had reentered the
United States and married a United States citizen prior to
IIRIRA’s effective date, Alvarez-Portillo was eligible, as of
that date, for an adjustment of status. Consequently,
§ 1231(a)(5) could not operate retroactively to deprive him
of the right to apply for that discretionary relief.
The Fifth Circuit was the next to consider the retroactive
effect of § 1231(a)(5); however, it did so under factual cir-
cumstances different from those set forth above. See Ojeda-
Terrazas, 290 F.3d 292. In Ojeda-Terrazas, the petitioner,
a citizen of Mexico, had entered the United States illegally
in 1984 and was deported that same year. He illegally reen-
tered the United States in 1991. In 2001, the INS apprehended
him and served him with a notice of intent to reinstate the
prior deportation order. At the time that Ojeda-Terrazas
was served with the reinstatement notice, he apparently had
No. 03-1554 17
7
not submitted an application for adjustment of status.
Consequently, if § 1231(a)(5) were applied retroactively to
the petitioner, it would not affect any pending applications
for relief; instead, it would affect only the way in which his
deportation was adjudicated, namely without a hearing
before an Immigration Judge (“IJ”). See supra notes 2 and 3.
The Fifth Circuit determined that the mere loss of the pro-
cedural guarantee of a hearing before an IJ did not upset an
alien’s rights in such a way as to prevent § 1231(a)(5) from
being applied retroactively:
In this case, Ojeda-Terrazas was denied a hearing before
an immigration judge, to which he was entitled under
pre-IIRIRA law. Instead, an immigration officer made
all of the predicate findings necessary to reinstate his
prior deportation order. Unlike the alien who entered a
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 Cas-
tro-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.
7
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.
18 No. 03-1554
8
Id. at 301-02 (footnotes omitted). 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) impermis-
9
sibly retroactive.
Finally, the First Circuit, in a case very similar to that of
Mr. Faiz-Mohammad, determined that § 1231(a)(5) could
8
See also Avila-Macias v. Ashcroft, 328 F.3d 108, 114 (3d Cir. 2003).
In that case, there was no evidence that the alien either reentered
the country prior to IIRIRA’s effective date or that he applied for
an adjustment of status at any time:
Avila-Macias claims that applying these new rules to him
would be impermissibly retroactive because he “had no no-
tice, 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 be entitled to a
hearing at which he could contest the legality of his underly-
ing 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.
9
Accord Lattab v. Ashcroft, 384 F.3d 8, 15 (1st Cir. 2004) (“[T]he
only consequence that IIRIRA added to the petitioner’s illegal re-
entry was procedural: he was subject to having his prior de-
portation order peremptorily reinstated and was no longer enti-
tled to a hearing before that reinstatement. That consequence is
insufficient to derail application of the new statute. As a general
rule, the application of new procedural mechanisms to the adju-
dication of past conduct is not impermissibly retroactive.”).
No. 03-1554 19
not be applied retroactively to the petitioner. In Arevalo, 344
F.3d 1, the petitioner illegally reentered the United States in
1990. In August 1990, the petitioner’s father, a legal per-
manent resident, filed a visa petition on her behalf, which
was approved. Subsequently, in March of 1996, Arevalo
applied for an adjustment of status. Six years later, the INS
notified Arevalo that it would not entertain her application.
The INS subsequently invoked § 1231(a)(5) to resurrect her
prior deportation order and detained Arevalo pending re-
moval. The First Circuit concluded that applying § 1231(a)(5)
to Arevalo would have an impermissible retroactive effect.
It explained:
The INS objects that, unlike the petitioner in St. Cyr,
the petitioner here can show neither a cognizable re-
liance 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 influential precedents is not
exhaustive but merely illustration by synecdoche. Such
listings “simply describe[ ] several ‘sufficient,’ as op-
posed to ‘necessary,’ conditions for finding retroactivity.”
St. Cyr, 533 U.S. at 320 n.46. 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
possible to complain that section 241(a)(5) appends new
20 No. 03-1554
legal consequences to an event (the filing of an applica-
tion 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 applica-
tion 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 re-
cently stated, “[t]here is a clear difference, for the pur-
poses of retroactivity analysis, between facing possible
deportation and facing certain deportation.” St. Cyr, 533
U.S. at 325.
Id. at 14-15 (emphasis in original; citations omitted). Thus,
because Arevalo applied for discretionary relief prior to
IIRIRA’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 sim-
ilar. 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
No. 03-1554 21
petitioner’s deportation is adjudicated, because, for instance,
the petitioner failed to apply for discretionary relief prior to
10
IIRIRA’s effective date, no “settled expectations” were
disturbed, and, therefore no impermissible retroactive effect
occurred. See Lattab v. Ashcroft, 384 F.3d 8, 13 (1st Cir. 2004);
Ojeda-Terrazas, 290 F.3d at 301-02. However, when retroac-
tive 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,
§ 1231(a)(5) could not be applied retroactively.
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, 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
impair[ing] of vested rights”; it also asks whether retroac-
tive application would “create[ ] a new obligation, impose[ ]
a new duty, or attach[ ] a new disability.” Landgraf, 511 U.S.
at 280. Section 1231(a)(5) prevents aliens who previously
have been deported from applying for discretionary relief.
This change constitutes a “new disability” that did not exist
10
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, 280 F.3d 858 (8th Cir. 2002). Because
Mr. Faiz-Mohammad both reentered the United States and ap-
plied for adjustment of status prior to IIRIRA’s effective date, we
have no occasion to consider whether some lesser action on the
part of the petitioner would alter our retroactivity analysis.
22 No. 03-1554
prior to IIRIRA’s passage. See Arevalo, 344 F.3d at 15(“Discarding her application now would deprive her both
of a right that she once had and of the reasonable expecta-
tion that she would have the opportunity to convince the
Attorney General to grant her relief.”); Alvarez-Portillo, 280
F.3d at 867 (holding that elimination of possibility of
discretionary relief, even if raised as a defense in a removal
proceeding, resulted in an impermissible retroactive effect
on the alien). Consequently, because § 1231(a)(5) operates to
“impair rights [Mr. Faiz-Mohammad] possessed when he
acted,” Landgraf, 511 U.S. at 280, namely his ability to apply
for discretionary relief, § 1231(a)(5) may not be applied
11
retroactively to Mr. Faiz-Mohammad.
11
The Government argues that, even if § 1231(a)(5) cannot
operate retroactively to prevent Mr. Faiz-Mohammad from ap-
plying for relief, the administrative determination nevertheless
should be affirmed on the ground that Mr. Faiz-Mohammad re-
ceived an adverse determination on his I-212 waiver, and, absent
this waiver, he may not be granted an adjustment of status. Reg-
ulations provide that a Form I-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 regu-
lation 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 I-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 regula-
tions grant Mr. Faiz-Mohammad the right to have an IJ review
the waiver determination when the IJ considers his application
(continued...)
No. 03-1554 23
Conclusion
For the foregoing reasons, we reverse the decision of the
INS and remand for further proceedings consistent with this
opinion.
REVERSED and REMANDED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
11
(...continued)
for discretionary relief. Cf. Lopez-Flores v. Dep’t of Homeland Sec.,
387 F.3d 773, 776-77 (8th Cir. 2004) (acknowledging an alien’s
ability to seek an I-212 waiver before an IJ).
USCA-02-C-0072—1-26-05