Jorge Rivera Vega v. Merrick Garland ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE RIVERA VEGA, No. 19-71750
Petitioner,
Agency No.
v. A022-870-507
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order
of an Immigration Judge
Argued and Submitted March 11, 2022
Pasadena, California
Filed July 8, 2022
Before: Sandra S. Ikuta, Kenneth K. Lee, and
Danielle J. Forrest, Circuit Judges.
Opinion by Judge Lee
2 RIVERA VEGA V. GARLAND
SUMMARY *
Immigration
Denying Jorge Rivera Vega’s petition for review of an
order of an Immigration Judge, the panel held that: 1) the
permanent inadmissibility bar of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
applied retroactively to Rivera Vega such that he was
ineligible for adjustment of status; 2) his prior removal order
was properly reinstated; 3) his statutory right to counsel in
reasonable fear proceedings was not violated; and 4) the IJ
properly rejected his claim for protection under the
Convention Against Torture (CAT).
Rivera Vega was deported in 1991, but illegally re-
entered the next week. In 2001, he applied for adjustment,
the United States Citizenship and Immigration Services
(USCIS) denied that application in 2019, and Rivera Vega’s
prior removal order was reinstated. An asylum officer then
determined that Rivera Vega lacked a reasonable fear of
persecution or torture if returned to Mexico, and an IJ
affirmed.
Before this court, Rivera Vega claimed that USCIS
erroneously concluded that he was statutorily ineligible for
adjustment. Because USCIS was required to decide his
adjustment application before his removal order could be
reinstated, the panel explained that, if USCIS erred as to
adjustment, the panel was required to vacate the
reinstatement order and remand to USCIS.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
RIVERA VEGA V. GARLAND 3
USCIS denied Rivera Vega’s adjustment application for
three reasons, the last of which being that he was
permanently inadmissible under 8 U.S.C.
§ 1182(a)(9)(C)(i)(II) and not eligible for a waiver of
inadmissibility. The inadmissibility bar of
§ 1182(a)(9)(C)(i)(II) was enacted as part of IIRIRA and
provides that any alien who is removed and later illegally re-
enters is permanently inadmissible. The panel explained that
each of the reasons proffered by USCIS, if valid,
independently barred Rivera Vega’s claim. The panel
observed that USCIS factually erred on its first two grounds,
but concluded that it lacked jurisdiction to review such
factual findings under Patel v. Garland, 142 S. Ct. 1614(2022), and therefore, his claim was independently barred on
those grounds. In the alternative, the panel concluded that
his claim would still be barred because the third reason for
denying adjustment was valid. In doing so, the panel
rejected his contention that the permanent inadmissibility
bar should not apply to individuals, like himself, who
illegally re-entered before IIRIRA’s effective date of April
1, 1997.
Specifically, the panel held that the permanent
inadmissibility bar applies retroactively to unlawful
reentries made before IIRIRA’s effective date—provided
the alien failed to apply for adjustment before that date—
because doing so does not impose a new legal consequence
based on past conduct. First, the panel explained that Rivera
Vega did not have a vested right in adjustment relief
because, before IIRIRA, he was eligible to adjust, but his
failure to do so before the effective date doomed his claim.
Second, IIRIRA imposed a new legal consequence on Rivera
Vega not for his pre-IIRIRA illegal reentry but because of
his illegal presence after IIRIRA; if he had departed the
country and remained abroad for ten years, he would have
4 RIVERA VEGA V. GARLAND
been eligible for a waiver of inadmissibility—and thus
adjustment—by the time USCIS decided his application.
Lastly, given IIRIRA’s aims of toeing a harder line on
immigration and limiting the availability of discretionary
relief, it would be anomalous for Rivera Vega to obtain,
through an immigration infraction, a perpetual right to seek
relief at his own convenience. Accordingly, the panel held
that USCIS correctly denied Rivera Vega’s application, and
his removal order was therefore properly reinstated.
As to his reasonable fear hearing, Rivera Vega argued
that his right to counsel was violated because the IJ
conducted his hearing without his counsel present. In
Orozco Lopez v. Garland, 11 F.4th 764 (9th Cir. 2021), this
court held that aliens are statutorily entitled to counsel, at no
expense to the government, at their reasonable fear hearings.
However, the court cabined this right to being notified of the
right to counsel and given the opportunity to obtain counsel.
The panel concluded that Rivera Vega’s right to counsel was
not violated, explaining that he knew of this right, he
received a notice advising him of his right to counsel, and
apparently retained an attorney for the hearing, but the
attorney failed to appear.
Lastly, Rivera Vega claimed that the IJ erred in
adjudicating his claim for CAT relief by requiring that the
feared torturer be a government official and ignoring the
possibility of mere government acquiescence to torture
conducted by a private actor. However, the panel explained
that, if an alien fails to show a reasonable possibility of
future torture, then government acquiescence is irrelevant.
Here, the IJ concluded that Rivera Vega had not even
suffered past persecution, let alone torture, because the only
time he was harmed in Mexico was when he was assaulted
RIVERA VEGA V. GARLAND 5
outside a bar in 1976. The panel concluded that this finding
was supported by substantial evidence.
COUNSEL
Megan Brewer (argued) and Stacy Tolchin, Law Offices of
Stacy Tolchin, Pasadena, California, for Petitioner.
Jaclyn E. Shea (argued), Trial Attorney; Derek C. Julius,
Assistant Director; Brian Boynton, Acting Assistant
Attorney General; Criminal Immigration Team, Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
OPINION
LEE, Circuit Judge:
This case involves facts spanning over three decades, a
tortuous procedural history, and inexplicable factual errors
made by the United States Citizenship and Immigration
Services (USCIS). But ultimately the outcome hinges on
whether we apply retroactively a provision in the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA) preventing “inadmissible” aliens from
adjusting their status to lawful permanent residents. If it
applies retroactively, petitioner Jorge Rivera Vega—who is
considered “inadmissible” because he re-entered unlawfully
after being removed in 1991—cannot seek adjustment of his
immigration status.
We hold that IIRIRA’s permanent inadmissibility
provision applies retroactively because doing so does not
6 RIVERA VEGA V. GARLAND
impose a new legal consequence based on past conduct.
Rivera Vega had no vested right to the discretionary relief of
adjustment of immigration status because he failed to timely
seek such relief. And the IIRIRA provision does not
penalize Rivera Vega’s pre-IIRIRA act of unlawfully re-
entering the United States but rather the post-IIRIRA
conduct of illegally remaining here. We thus deny the
petition.
BACKGROUND
Decades ago, Jorge Rivera Vega, a native of Mexico,
unlawfully entered the United States but was deported on
January 30, 1991. Just a week later, however, Rivera Vega
illegally re-entered the United States and remained off the
radar of immigration authorities for decades. In 2001, he
sought discretionary relief to adjust his status and become a
lawful permanent resident.
But Rivera Vega’s potential path to becoming a lawful
permanent resident was not so straightforward. Typically,
an alien who enters the United States illegally may be
removed from the country after a hearing before an
Immigration Judge (IJ). 8 U.S.C. §§ 1182, 1227, 1229a;
8 C.F.R. § 1240.1(a)(1). If he re-enters unlawfully,
however, the prior removal order may be reinstated via a
summary proceeding without a hearing. 8 U.S.C.
§ 1231(a)(5); 8 C.F.R. § 241.8(a). And important here, once
a removal order is reinstated, an alien is generally precluded
from seeking “any relief.” 8 U.S.C. § 1231(a)(5). That
would have seemingly precluded Rivera Vega from seeking
adjustment of status to a lawful permanent resident.
But until a reinstatement order has issued, an alien can
still seek discretionary relief to become a lawful permanent
resident. If granted, such relief would forgive his prior
RIVERA VEGA V. GARLAND 7
immigration violations and shield him from removal. See
8 U.S.C. § 1255(i); see also Patel v. Garland, __ U.S.__,
142 S. Ct. 1614, 1619 (2022) (the granting of adjustment of
status is “a matter of grace” committed to the discretion of
the Attorney General. (quoting INS v. St. Cyr, 533 U.S. 289,
308 (2001))). Here, despite USCIS’s initial insistence that
the reinstatement order had been issued in 2010, it had not.
But it still was not clear sailing for Rivera Vega. An
alien must meet certain statutory criteria to be eligible for
discretionary relief of adjustment of status. The criteria
changed when Congress enacted IIRIRA, which was passed
on September 30, 1996 and became effective on April 1,
1997. See Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33,
45 (2006) (citing Pub. L. 104-208, div. C, 110 Stat. 3009-
546). IIRIRA made it harder for aliens to adjust their
immigration status. Id. at 33–35. For example, an alien is
ineligible for status adjustment if he falls into one of the
many classes of “inadmissible” aliens created by IIRIRA,
including unlawfully re-entering the United States after
being removed. See 8 U.S.C. § 1182. Rivera Vega thus
would be an “inadmissible” alien under IIRIRA. But that
still did not completely close the door for Rivera Vega.
Under the law, he could obtain a discretionary waiver of this
inadmissibility in some cases by filing a Form I-212. See id.§§ 1182, 1255(a).
So, in 2004, while his application for adjustment of
status remained pending, Rivera Vega filed a Form I-212
seeking a waiver of inadmissibility. Despite USCIS’s
initial—and yet again erroneous—conclusion that he was
denied the waiver, Rivera Vega in fact received a waiver of
§ 1182(a)(9)(A)(ii)’s ten-year inadmissibility bar in 2005.
See id. § 1182(a)(9)(A)(ii) (making any previously removed
alien inadmissible for 10 years).
8 RIVERA VEGA V. GARLAND
For the next decade, Rivera Vega’s adjustment of status
application remained in limbo. On March 20, 2019, Rivera
Vega appeared for an interview with USCIS to determine his
eligibility for adjustment of status. 8 C.F.R. § 245.2(a)(1)
(granting USCIS authority to adjudicate applications for
adjustment of status outside of removal proceedings).
About a month later on April 16, USCIS denied Rivera
Vega’s application to adjust his immigration status. The
agency concluded that Rivera Vega was statutorily ineligible
for adjustment of status because: (1) in 2010, the Department
of Homeland Security (DHS) had reinstated Rivera Vega’s
1991 removal order, rendering him ineligible for “any relief”
under § 1231(a)(5); (2) Rivera Vega was inadmissible for
ten years under § 1182(a)(9)(A)(ii) and he failed to obtain a
waiver of inadmissibility; and (3) Rivera Vega was
permanently inadmissible under § 1182(a)(9)(C)(i)(II) and
was ineligible for a waiver of inadmissibility. As noted
earlier, the first two grounds were factually wrong at the
time.
A few weeks later on May 17, agents from the United
States Immigration and Customs Enforcement (ICE)
arrested Rivera Vega. On the same day, DHS reinstated
Rivera Vega’s 1991 removal order.
Because Rivera Vega expressed a fear of returning to
Mexico, an asylum officer interviewed him. Rivera Vega’s
counsel appeared at the interview. The asylum officer
determined that Rivera Vega lacked a reasonable fear of
persecution or torture if returned to Mexico and referred the
case to an IJ for reasonable fear review proceedings.
Rivera Vega appeared before the IJ in June 2019.
Though Rivera Vega expected his counsel to be there, his
attorney did not show. Rivera Vega told the IJ that he was
RIVERA VEGA V. GARLAND 9
under the impression that his attorney would be present, so
the IJ checked for a notice of representation or
correspondence from Rivera Vega’s attorney but found
neither. When Rivera Vega still expressed trepidation about
proceeding without counsel, the IJ responded:
Okay, well, sir, there’s a limited amount of
time that I have available for me to review the
findings of the asylum officer. And in these
proceedings the attorneys are not allowed to
argue or to present evidence because all my
job is today is to review what already
occurred with you and the asylum officer. Do
you understand?
Rivera Vega then agreed to proceed without counsel.
The IJ reviewed the asylum officer’s notes with Rivera
Vega. Rivera Vega testified that he feared returning to
Mexico because of criminals, but he confirmed that the only
harm he suffered in Mexico was when someone randomly
assaulted him outside a bar in 1976. Moreover, Rivera Vega
has never been harmed by the Mexican government, nor
does he fear future harm from the government. After
listening to Rivera Vega’s testimony, the IJ held that Rivera
Vega lacked a reasonable fear of persecution or torture.
Rivera Vega had not suffered past harm rising to the level of
persecution, let alone torture, and there was no evidence that
any harm was inflicted by the government on account of a
protected ground. Rivera Vega was removed to Mexico the
next day on June 14, 2019.
Rivera Vega timely petitioned for review with this court,
challenging: (1) the April 16, 2019, USCIS decision denying
his adjustment of status application; (2) the May 17, 2019,
10 RIVERA VEGA V. GARLAND
reinstatement of removal order; and (3) the IJ’s June 13,
2019, negative reasonable fear determination.
Months later, on November 27, 2019, USCIS reopened
its April 16, 2019, order. USCIS acknowledged that one of
its stated reasons for denying the application—that Rivera
Vega’s 1991 removal order was reinstated in 2010—was
erroneous. That same day, USCIS administratively closed
Rivera Vega’s application because the agency concluded
that it lacked jurisdiction as Rivera Vega was “currently in
proceedings before an [IJ].” 8 C.F.R. §§ 245.2(a)(1),
1245.2(a)(1).
Almost a year later, on November 23, 2020, USCIS
issued a new decision denying Rivera Vega’s adjustment of
status application. 1 Because Rivera Vega departed the
United States on June 14, 2019—after DHS reinstated his
removal order and while his application was still pending—
USCIS considered the application to be abandoned. See id.§ 245.2(a)(4)(ii).
Rivera Vega argues that an adjustment of status
application must be properly adjudicated before a removal
order may be reinstated. Thus, Rivera Vega contends that
only the April 16, 2019, order denying adjustment of
status—and not the later decisions on November 27, 2019,
and November 23, 2020—may support the May 17, 2019,
reinstatement order. Rivera Vega also claims that the April
16 order erroneously concluded that he was statutorily
ineligible for adjustment of status. And because his
reinstatement order turned on an erroneous denial of
1
On December 23, 2020, Rivera Vega filed a motion to reconsider
the November 23, 2020, decision. USCIS denied the motion on February
17, 2021.
RIVERA VEGA V. GARLAND 11
adjustment of status, Rivera Vega requests that we vacate his
reinstatement order and remand for USCIS to consider
whether to grant his application.
Should we affirm his reinstatement order, Rivera Vega
seeks vacatur of the IJ’s June 13, 2019, negative reasonable
fear determination. By proceeding without his attorney,
Rivera Vega claims that the IJ violated his right to counsel
in reasonable fear hearings under Orozco-Lopez v. Garland,
11 F.4th 764 (9th Cir.), reh’g denied, 2021 U.S. App. LEXIS
34171 (9th Cir. Nov. 17, 2021). Alternatively, Rivera Vega
argues that the IJ ignored the possibility of “government
acquiescence” to torture, and thus applied an incorrect legal
standard to his claim under the Convention Against Torture
(CAT).
STANDARD OF REVIEW
We review jurisdictional and legal questions in the
context of immigration proceedings de novo. Bonilla v.
Lynch, 840 F.3d 575, 581 (9th Cir. 2016); Abdisalan v.
Holder, 774 F.3d 517, 521 (9th Cir. 2014). We review an
IJ’s negative reasonable fear determination for substantial
evidence. Andrade-Garcia v. Lynch, 828 F.3d 829, 831 (9th
Cir. 2016).
DISCUSSION
I. Rivera Vega’s removal order was properly reinstated
because he was permanently inadmissible under
8 U.S.C. § 1182(a)(9)(C)(i)(II), and thus ineligible for
adjustment of status.
If an alien has a pending adjustment of status application,
USCIS “is required to consider whether to exercise its
discretion in the alien’s favor before it can proceed with
12 RIVERA VEGA V. GARLAND
reinstatement proceedings.” See Perez-Gonzalez v.
Ashcroft, 379 F.3d 783, 795 (9th Cir. 2004) (emphasis
added), overruled on other grounds by Gonzales v. DHS,
508 F.3d 1227 (9th Cir. 2007). That means that we review
only USCIS’s initial April 16, 2019, order denying Rivera
Vega’s adjustment of status application—and not the later
two orders—in assessing the May 17, 2019, reinstatement
order. If USCIS mistakenly concluded that Rivera Vega was
statutorily ineligible for adjustment of status in that April 16
order, we must vacate the May 17 reinstatement order and
“remand to the USCIS for a discretionary determination on
appropriate legal grounds.” Id. at 795–96. 2
In its April 16, 2019, order, USCIS offered three reasons
why Rivera Vega was ineligible for adjustment of status to a
lawful permanent resident: (1) DHS in 2010 had purportedly
reinstated Rivera Vega’s 1991 removal order, rendering him
ineligible for “any relief” under § 1231(a)(5); (2) Rivera
Vega was inadmissible for ten years under
§ 1182(a)(9)(A)(ii) and he failed to obtain a waiver of
inadmissibility; and (3) Rivera Vega was permanently
2
The government argues that we lack jurisdiction to review
USCIS’s eligibility determinations because the April 16 order denying
Rivera Vega’s application is not an “order of removal.” See 8 U.S.C.
§ 1252(a)(1). While we agree that the statutory text plainly limits
judicial review to only a “final order of removal,” we have held in an
almost identical case that a petition challenging a denial of adjustment
of status can “properly [be] construed as a challenge to an ‘order of
removal’” because his adjustment of status application is “inextricably
linked” to his reinstatement order. Morales-Izquierdo v. DHS, 600 F.3d
1076, 1082–83 (9th Cir. 2010). Put another way, if Rivera Vega is
granted the relief he seeks—“adjustment of status to that of an LPR
[Legal Permanent Resident]—the Reinstatement Order would be
rendered invalid.” Id. We are bound to follow this precedent and cannot
overrule a prior panel decision even if we disagree with it. See Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003).
RIVERA VEGA V. GARLAND 13
inadmissible under § 1182(a)(9)(C)(i)(II) and was ineligible
for a waiver of inadmissibility.
Each of the three reasons proffered by USCIS, if valid,
independently bars Rivera Vega’s claim. While USCIS
factually erred on its first two reasons, we lack jurisdiction
to review factual findings under the Supreme Court’s recent
decision in Patel. __ U.S.__, 142 S. Ct. at 1623, 1627
(holding that federal courts can review “constitutional
claims and questions of law” but lack “jurisdiction to review
facts found as part of discretionary-relief proceedings under
§ 1255”). The erroneous factual findings underlying the first
two reasons proffered by USCIS cannot be disturbed under
Patel, and so Rivera Vega’s claim is independently barred
on those grounds. In the alternative, Rivera Vega’s claim
would still be barred because USCIS’s third reason for
denying his petition for adjustment of status is valid.
Under § 1182(a)(9)(C)(i)(II), any alien who is removed
and later re-enters the United States illegally is permanently
inadmissible. Further, an alien cannot obtain a waiver of
permanent inadmissibility under § 1182(a)(9)(C)(ii) until he
departs the United States and remains abroad for ten years.
Gonzales, 508 F.3d at 1242 (holding that an alien “who is
inadmissible under subsection (a)(9)(C)(i)(II) is also
ineligible to adjust his status . . . from within the United
States” because of subsection (a)(9)(C)(ii)’s ten-year
waiting period) (adopting Matter of Torres-Garcia, 23 I. &
N. Dec. 866 (B.I.A. 2006)).
Rivera Vega disputes neither that he was earlier removed
and unlawfully re-entered, nor that he failed to remain
outside the United States for ten years, as required to obtain
a waiver. Rather, he argues that the inadmissibility ground
at § 1182(a)(9)(C)(i)(II) does not apply to individuals, like
himself, who illegally re-entered the United States before
14 RIVERA VEGA V. GARLAND
IIRIRA went into effect. In other words, Rivera Vega
contends that it would be impermissibly retroactive to apply
this IIRIRA provision to his pre-IIRIRA reentry.
We have long recognized the presumption that “the legal
effect of conduct should ordinarily be assessed under the law
that existed when the conduct took place.” Hughes Aircraft
Co. v. United States ex rel. Schumer, 520 U.S. 939, 946
(1997) (quoting Landgraf v. USI Film Prods., 511 U.S. 244,
265 (1994)). But this presumption against retroactive
legislation is not absolute: we “read laws as prospective in
application unless Congress unambiguously instructed
retroactivity.” Vartelas v. Holder, 566 U.S. 257, 266 (2012).
To determine whether legislation applies retroactively,
we first look to the statute’s text to determine “whether
Congress has expressly prescribed the statute’s proper
[temporal] reach.” Fernandez-Vargas, 548 U.S. at 37(quoting Landgraf, 511 U.S. at 280). If the statute’s text is
silent, we next ask whether the statute “attaches new legal
consequences to events completed before its enactment.”
Maldonado-Galindo v. Gonzales, 456 F.3d 1064, 1067 (9th
Cir. 2006) (quoting St. Cyr, 533 U.S. at 321). If we answer
yes, then we apply the presumption by “construing the
statute as inapplicable to the event or act in question.”
Fernandez-Vargas, 548 U.S. at 37–38.
Neither the Supreme Court nor our circuit has decided
whether § 1182(a)(9)(C)(i)(II)’s permanent inadmissibility
bar applies to pre-IIRIRA reentries. 3 Section 1182(a)(9)(C)
3
Rivera Vega claims that we have already decided this issue in his
favor. In a footnote in Carrillo de Palacios v. Holder, we said that the
permanent inadmissibility bar applies to aliens “who enter or attempt to
re-enter the United States unlawfully any time on or after April 1, 1997.”
RIVERA VEGA V. GARLAND 15
is silent about its temporal reach: it requires a past act of
illegal reentry but makes no mention of when that reentry
must occur. Thus, we must proceed to the next question of
whether applying the inadmissibility bar to Rivera Vega’s
pre-IIRIRA reentry would impose a “new legal
consequence[]” on account of past conduct. Maldonado-
Galindo, 456 F.3d at 1067. We conclude that it does not.
First, Rivera Vega does not have a vested right in the
relief he seeks. Before IIRIRA, Rivera Vega was eligible to
adjust his status. But such relief depended on Rivera Vega
applying for it, and his failure to do so until after IIRIRA
went into effect dooms his claim. See Fernandez-Vargas,
548 U.S. at 45–46; see also Ixcot v. Holder, 646 F.3d 1202,
1212 (9th Cir. 2011) (In determining whether an application
of IIRIRA is impermissibly retroactive, “the most salient
fact . . . is whether an alien filed for relief before IIRIRA’s
effective date.”) (emphasis in original).
The Supreme Court’s decision in Fernandez-Vargas
guides our analysis. The Court there held that IIRIRA’s
reinstatement provision applied to individuals who re-
entered the United States before the Act’s effective date. Id.
at 33. It emphasized the 180-day lag between IIRIRA’s
passage on September 30, 1996, and its effective date on
April 1, 1997. Id. at 45; see § 309(a), 110 Stat. 3009-625.
This provided the alien with “a grace period between the
unequivocal warning that a tougher removal regime lay
708 F.3d 1066, 1070 n.3 (9th Cir. 2013) (quoting Immigration and
Naturalization Service, Interim Guidance on New Grounds of
Inadmissibility (June 17, 1997), as reprinted in 74 No. 25 Interpreter
Releases 1033). But Carrillo involved an alien that unlawfully re-
entered after IIRIRA went into effect, see id. at 1070–71, so the
applicability of § 1182(a)(9)(C)(i)(II) to pre-IIRIRA reentries was not at
issue.
16 RIVERA VEGA V. GARLAND
ahead and actual imposition of the less opportune terms of
the new law.” Id. During this grace period, the alien could
have applied for adjustment of status, which would have
transformed his “inchoate expectation” of relief into a
“vested right.” Id. at 44, n.10. But the alien took no action,
so retroactive application of the reinstatement provision did
not deprive him of anything to which he was previously
entitled. Id.
Like the alien in Fernandez-Vargas, Rivera Vega failed
to apply for adjustment of status before IIRIRA’s effective
date. Rivera Vega last entered the United States in 1991,
years before IIRIRA’s passage. Yet he never applied for
relief during that time. And even after IIRIRA was enacted,
Rivera Vega did not seek relief during the six-month grace
period. Because of his inaction, Rivera Vega does not have
a vested right in the adjustment of status claim that
retroactive application of § 1182(a)(9)(C)(i)(II)
extinguishes. See Montoya v. Holder, 744 F.3d 614, 617
(9th Cir. 2014) (explaining that “[u]p until this last step—the
application—the alien” has no “vested right to apply for
adjustment [of status]”); cf. Ixcot, 646 F.3d at 1213 (holding
that IIRIRA’s “reinstatement provision is impermissibly
retroactive . . . when applied to an immigrant . . . who
applied for immigration relief prior to IIRIRA’s effective
date”).
Second, IIRIRA imposes a new legal consequence on
Rivera Vega—indefinite ineligibility for adjustment of
status—not for his pre-IIRIRA illegal reentry but because of
his continuous illegal presence within the United States after
IIRIRA went into effect. In layman’s terms, he is not being
penalized for illegally re-entering in 1991 (before IIRIRA
went into effect) but for unlawfully staying here after
IIRIRA’s effective date.
RIVERA VEGA V. GARLAND 17
Again, the Court’s decision in Fernandez-Vargas is
instructive. The Court determined that the reinstatement
provision targets the alien’s “conduct of remaining in the
country after entry.” Fernandez-Vargas, 548 U.S. at 44.
Though the statute requires a past act of illegal reentry, it
“applies to stop an indefinitely continuing violation that the
alien himself could end at any time by voluntarily leaving
the country.” Id. Thus, “the alien’s choice to continue his
illegal presence, after illegal reentry and after the effective
date of the new law” subjects him to reinstatement, “not a
past act that he is helpless to undo.” Id.Like its reinstatement provision, IIRIRA’s permanent
inadmissibility bar targets Rivera Vega’s continuous illegal
presence. Id. Section (a)(9)(C) is titled “Aliens unlawfully
present after previous immigration violations,” 8 U.S.C.
§ 1182(a)(9)(C) (emphasis added), showing that Congress
intended to limit relief given Rivera Vega’s illegal presence
after his unlawful reentry. See Almendarez-Torres v. United
States, 523 U.S. 224, 234 (1998) (noting that a statute’s title
may be used to interpret the statute).
An alien is also eligible to obtain a waiver of permanent
inadmissibility if he departs the United States and remains
abroad for ten years. See § 1182(a)(9)(C)(ii); Gonzales,
508 F.3d at 1242. If not for Rivera Vega’s continued
presence within the United States since 1991, he would have
been statutorily eligible for a waiver of inadmissibility—and
thus adjustment of status—by the time USCIS decided his
application in 2019. Rivera Vega was not “helpless to undo”
the consequences of his pre-IIRIRA conduct. Cf. Vartelas,
566 U.S. at 270 (holding that an IIRIRA provision
precluding foreign travel by LPRs with certain pre-IIRIRA
convictions was impermissibly retroactive because the alien
18 RIVERA VEGA V. GARLAND
was “helpless to undo” the crime (quoting Fernandez-
Vargas, 548 U.S. at 44)).
Lastly, we note that retroactive application of IIRIRA’s
permanent admissibility bar dovetails with Congress’s intent
to “toe[] a harder line,” Fernandez-Vargas, 548 U.S. at 34–
35, and “limit[] the availability of discretionary relief from
deportation,” Castello-Diaz v. AG of the U.S., 174 Fed.
Appx. 719, 724 (3d Cir. 2006). Given IIRIRA’s aims, it
would be anomalous for Rivera Vega to obtain, through a
past immigration infraction, a perpetual right to seek relief
at his own convenience. Before IIRIRA, Congress left ajar
the door for relief. But Congress closed it on April 1, 1997.
We thus hold that § 1182(a)(9)(C)(i)(II) applies
retroactively to unlawful reentries made before April 1,
1997, provided the alien failed to apply for adjustment of
status before that date. 4 Because Rivera Vega did not file
his application until 2001, his application must be
adjudicated under IIRIRA’s eligibility criteria. Rivera Vega
is thus permanently inadmissible, and he is ineligible for a
waiver of inadmissibility on account of his lengthy presence
4
Though not mentioned by either party, the former Immigration and
Naturalization Service issued a memo months after IIRIRA went into
effect explaining that an alien’s “unlawful or attempted unlawful reentry
must have occurred on or after April 1, 1997” for § 1182(a)(9)(C)(i)(II)
to apply. See 74 No. 25 Interpreter Releases at 1035. Notably, the memo
offers guidance but does not provide any analysis to support it. The
government is not bound by this interpretation because the memo lacks
the force of law. See W. Radio Servs. Co., Inc. v. Espy, 79 F.3d 896, 900
(9th Cir. 1996). We also do not defer to the memo’s interpretation
because this non-binding guidance is “‘entitled to respect’ . . . only to the
extent that [it has] the ‘power to persuade.’” Christensen v. Harris Cnty.,
529 U.S. 576, 587 (2000) (quoting Skidmore v. Swift & Co., 323 U.S.
134, 140 (1944)). For the reasons stated, we find the memo’s analysis—
or lack of it—unpersuasive.
RIVERA VEGA V. GARLAND 19
in the United States. USCIS correctly denied Rivera Vega’s
application, and his removal order was properly reinstated.
II. Rivera Vega’s statutory right to counsel in
reasonable fear proceedings was not violated.
Rivera Vega next argues that his right to counsel was
violated because the IJ conducted his reasonable fear hearing
without his counsel present. 5 In the time between when
Rivera Vega filed his Opening and Reply Briefs, we held in
Orozco-Lopez v. Garland that aliens “whose removal orders
have been reinstated are statutorily entitled to counsel, at no
expense to the government, at their reasonable fear hearings
before an IJ.” 11 F.4th at 780. 6
But Orozco-Lopez cabined this right to only being
notified of the right to counsel and given the opportunity to
obtain counsel. We limited that right because 8 C.F.R.
5
Though neither party raised the issue of “exhaustion,” we note that
Rivera Vega exhausted his right to counsel claim because he complained
to the IJ about his counsel’s absence. See Barron v. Ashcroft, 358 F.3d
674, 677 (9th Cir. 2004) (“[E]xhaustion of administrative remedies is a
prerequisite to our jurisdiction.”); cf. Brezilien v. Holder, 569 F.3d 403,
408–09, 412 (9th Cir. 2009) (holding that an alien did not exhaust his
right to counsel claim because he failed to complain to the IJ about his
counsel’s absence).
6
The government urges us to remand for the IJ to determine in the
first instance whether Rivera Vega’s right to counsel was violated. We
decline to do so because “whether [an] IJ’s denial of a continuance
violated [an alien’s] statutory right to counsel . . . is a question of law
which we review de novo.” Id. at 774 (first alteration in original)
(quoting Montes-Lopez v. Holder, 694 F.3d 1085, 1088 (9th Cir. 2012)).
While an IJ should use its expertise to make initial determinations about
factual issues, we may appropriately decide legal issues in the first
instance. See id. at 779 (deciding whether an alien’s right to counsel was
violated).
20 RIVERA VEGA V. GARLAND
§ 208.31(g)(1) requires that “[i]n the absence of exceptional
circumstances,” the reasonable fear hearing should be
conducted “within 10 days of the filing of the Notice of
Referral” with the IJ. Id. (alteration in original) (quoting
§ 208.31(g)(1)). And because of § 208.31(g)(1)’s ten-day
deadline, we held that an IJ may conduct the hearing even if
the alien is without counsel so long as the alien was
“informed of the entitlement to counsel and ha[d] an
opportunity to seek counsel within § 208.31(g)(1)’s
constraints.” Id. at 778–79 (holding that an alien’s right to
counsel was not violated because the asylum officer gave
him “a list of free legal service providers” eight days before
his reasonable fear hearing).
Rivera Vega’s attorney was present during his
reasonable fear interview with the asylum officer on June 4,
2019. Thus, Rivera Vega knew of his right to counsel, as he
had retained counsel. Rivera Vega also received a notice
three days before his reasonable fear hearing explicitly
advising him of his right “to be represented in this
proceeding, at no expense to the government, by an
attorney.” And Rivera Vega apparently retained an attorney
for the hearing, telling the IJ that “[my attorney] was going
to be here.” Rivera Vega’s attorney failed to appear for
reasons unknown based on the record. (Rivera Vega: My
attorney “said [the hearing] was going to be at 8:00 but they
didn’t bring me out until 1:00. So, I don’t know if he came
or did not.”). While Rivera Vega might have a grievance
against his counsel, he cannot blame the government for
inadequate notice or opportunity to obtain counsel. See id.
at 778–79. Indeed, the IJ even tried to assist Rivera Vega by
checking for a notice of representation or correspondence
from his attorney but found none. Considering the
impending ten-day deadline, the IJ was not required to take
RIVERA VEGA V. GARLAND 21
further remedial actions. Therefore, Rivera Vega’s right to
counsel was not violated. 7
III. The past harms Rivera Vega alleged did not rise
to the level of torture, so the IJ did not need to
explicitly consider “government acquiescence.”
Lastly, Rivera Vega claims that the IJ applied an
erroneous legal standard in adjudicating his claim for CAT
relief. According to Rivera Vega, the IJ “erroneously
require[d] that the feared torturer be a government official”
and ignored the possibility of mere “government
acquiescence” to torture conducted by a private actor. But if
an alien fails to show a “reasonable possibility” of future
torture, 8 C.F.R. § 1208.31(c), then government
acquiescence is irrelevant, as there is no torture for the
government to give in to. See Orozco-Lopez, 11 F.4th at 780
(rejecting alien’s claim that IJ erred by ignoring government
acquiescence because “the harms he alleged did not rise to
the level of torture”).
“Past torture is the first factor we consider in evaluating
the likelihood of future torture.” Nuru v. Gonzales, 404 F.3d
1207, 1217 (9th Cir. 2005). The lack of past persecution, a
lesser harm than torture, necessarily encompasses a lack of
In his Opening Brief, Rivera Vega also argues that he has a right
7
to counsel under the Fifth Amendment’s Due Process Clause. But
Congress has provided for “aliens [to] receive a full and fair hearing by
providing a statutory right to counsel.” Hernandez-Gil v. Gonzales,
476 F.3d 803, 806 (9th Cir. 2007). That is, Congress has statutorily
provided that aliens are entitled to counsel at reasonable fear hearings at
no expense to the government. See 8 U.S.C. § 1362; see also Orozco-
Lopez, 11 F.4th at 777 (holding “that a reasonable fear hearing before an
IJ is a type of ‘removal proceeding[]’ included in § 1362”). That due
process entitlement was not infringed here for the reasons outlined
above. Thus, Rivera Vega’s due process argument fails.
22 RIVERA VEGA V. GARLAND
past torture. See id. at 1224. The IJ concluded that Rivera
Vega had not even suffered past persecution, let alone
torture, because the only time he was harmed in Mexico was
when he was assaulted outside a bar in 1976. This finding is
supported by substantial evidence. See Orozco-Lopez,
11 F.4th at 780 (affirming IJ’s conclusion that a single
incident of robbery and another incident of kidnapping for
ransom did not constitute torture). Therefore, the IJ properly
rejected Rivera Vega’s CAT claim.
CONCLUSION
We hold that § 1182(a)(9)(C)(i)(II) retroactively applies
to pre-IIRIRA reentries and that USCIS correctly
determined that Rivera Vega was statutorily ineligible for
adjustment of status. We also hold that Rivera Vega’s right
to counsel in reasonable fear proceedings was not violated,
and that the IJ properly denied Rivera Vega’s claim for CAT
relief. We thus DENY Rivera Vega’s petition for review. 8
8
Rivera Vega also requests that we order ICE to facilitate his return
to the United States. Because we deny Rivera Vega’s petition for review,
we decline to do so. See Del Cid Marroquin v. Lynch, 823 F.3d 933, 936
(9th Cir. 2016) (DHS has “a policy of facilitating the return . . . of
removed aliens whose petitions for review are granted.” (citing ICE
Policy Directive 11061.1 (Feb. 24, 2012), https://www.ice.gov/doclib/f
oia/dro_policy_memos/11061.1_current_policy_facilating_return.pdf)).