Labojewski, Rafal v. Gonzales, Alberto R.

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 at13-14 (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