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The U.S. Supreme Court has granted a petition for
certiorari to review a petition for review of a reinstated removal
order, in a case decided by the U.S. Court of Appeals for the Tenth
Circuit. This will be the first time that the Court has considered the
interpretation of the current reinstatement statute, section 241(a)(5)
of the Immigration and Nationality Act, which was enacted as part of
Title III-A of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA). The Court is likely to resolve a
split among the circuit courts of appeal regarding whether section
241(a)(5) applies to reentries that occurred prior to the Apr. 1, 1997,
effective date of this part of IIRIRA.
The reinstatement statute -- INA section
241(a)(5) -- provides that "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
is reinstated" and may not be reopened or reviewed. The Ninth and Sixth
Circuits have found, based on rules of statutory construction, that
Congress did not intend this provision to apply to noncitizens whose
reentry to the U.S. occurred prior to Apr. 1, 1997. Castro-Cortez v.
INS, 239 F.3d 1037 (9th Cir. 2001); Beijani v. INS, 271 F.3d
670 (6th Cir. 2001).
Several other circuits have found that
Congress's intent regarding the reach of the reinstatement statute is
ambiguous and that whether it applies to pre-Apr. 1, 1997, reentries
depends on whether it has an impermissibly retroactive effect. The
Fourth Circuit has found that the reinstatement statute does not have a
retroactive effect and applies to preApr. 1, 1997, reentries.
Velasquez-Gabriel v. Crocetti, 263 F.3d 102 (4th Cir. 2001). Other
courts have found that to apply the reinstatement statute to noncitizens
in certain circumstances would have an impermissibly retroactive effect.
Cisneros v. U.S. Attorney Gen., 381 F.3d 1277 (11th Cir. 2004)
(impermissibly retroactive when applied to a noncitizen who reentered
the U.S. and applied for adjustment prior to Apr. 1, 1997); Arevalo
v. Ashcroft, 344 F.3d 1 (1st Cir. 2003) (same). The Eighth Circuit
has found that applying the reinstatement statute to a noncitizen who
reentered prior to Apr. 1, 1997, has an impermissibly retroactive effect
if it eliminates a potential defense the individual otherwise would
have. Alvarez-Portillo v. Ashcroft, 280 F.3d 858 (8th Cir. 2002)
(the respondent, married to a U.S. citizen, could have relied on being
eligible to apply for adjustment as a defense to deportation).
The petitioner in this case, Mr. Fernandez, is
a Mexican national who last entered the U.S. in 1981, shortly after he
had been deported. In March 2001 he married a U.S. citizen and two
months later applied for adjustment of status under INA section 245(i)
and also filed Form I‑212 (Application for Permission to Reapply for
Admission After Deportation or Removal) (the government did not dispute
that an I‑130 visa petition was also filed, although apparently this was
not reflected in the record). Following an interview on the adjustment
application, the government reinstated the 1981 order of deportation and
took Fernandez into custody. He filed a petition for review of the
reinstated order, resulting in the Tenth Circuit decision that is now to
be reviewed.
The appellate decision below addressed two
issues: (1) whether Fernandez's application for adjustment was barred
by the reinstatement statute and (2) whether such a bar is impermissibly
retroactive as applied to the petitioner. Regarding the first issue,
the court found that adjustment of status constitutes "relief" under the
INA and is barred by the reinstatement statute. The court rejected
arguments that the petitioner's I‑212 application, filed before the
deportation order was reinstated, should have been adjudicated and that,
if the application had been granted, INA sec. 245(i) would have
permitted a grant of adjustment.
With respect to the application of the
reinstatement statute, the Tenth Circuit found that the statute applies
to noncitizens who unlawfully reentered the U.S. prior to the IIRIRA's
effective date and that its application to Fernandez is not
impermissibly retroactive. These issues now will likely be addressed by
the Supreme Court.
Fernandez-Vargas v. Gonzales, 2005 U.S. LEXIS 7858, 74 U.S.L.W. 3272
(Oct. 31, 2005) (order granting writ of certiorari);
Fernandez-Vargas v. Ashcroft, 394 F.3d 881 (10th Cir. 2005).
By
Linton Joaquin, NILC
executive director | joaquin@nilc.org
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