Arevalo v. Ashcroft

Citation344 F.3d 1
Decision Date29 August 2003
Docket NumberNo. 03-1135.,03-1135.
PartiesGloria AREVALO, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Anthony Drago, Jr., with whom Anthony Drago, Jr., P.C. was on brief, for petitioner.

Papu Sandhu, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Robert D. McCallum, Jr., Assistant Attorney General, and Emily Anne Radford, Associate Director, Civil Division, were on brief, for respondent.

Before SELYA, Circuit Judge, R. Arnold,* Senior Circuit Judge, and Lipez, Circuit Judge.

SELYA, Circuit Judge.

This appeal poses two questions, both of first impression in this circuit, arising out of Congress's 1996 revision of the immigration laws. First, we must determine what standard the new law requires us to apply when considering whether to grant stays of removal pending appeal (we use the terms "removal" and "deportation" interchangeably in this opinion). After studying the question, we hold that under the new law such stays are guided by essentially the same standard that informs the grant or denial of preliminary injunctions. Second, we must decide whether the neoteric statutory procedures for reinstating previous removal orders can be applied retroactively to an illegal reentrant who had requested discretionary relief before those procedures took effect. We hold that they cannot. Our reasoning follows.

I. STATUTORY FRAMEWORK

In laying the foundation for our consideration of this petition, we first limn the applicable statutory framework. We then undertake to describe the facts at hand. Only after we have set the stage do we turn to the issues that confront us.

On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in a comprehensive effort to strengthen and tighten the immigration laws.1 See Pub.L. 104-208, 110 Stat. 3009-546 (1996); see also INS v. St. Cyr, 533 U.S. 289, 317, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (describing the overall effect of the IIRIRA); Bejjani v. INS, 271 F.3d 670, 683 (6th Cir.2001) (similar). In doing so, Congress repealed and amended various parts of the Immigration and Nationality Act (INA), including the provision on reinstatement of orders of deportation for those who illegally reenter the United States. See IIRIRA § 305(a)(3) (codified as amended at INA § 241, 8 U.S.C. § 1231 (2002)) (replacing INA § 242(f), 8 U.S.C § 1252(f)). These changes became effective on April 1, 1997. See IIRIRA § 309(a).

The new reinstatement provision, replicated in the margin,2 differs from its predecessor in a number of material respects. Compare INA § 241(a)(5), with INA § 242(f) (repealed 1996). First, the current provision expands the category of illegal reentrants who may be subject to reinstatement of a previous deportation order. Whereas its immediate ancestor authorized reinstatement only for those who had been deported for certain enumerated reasons (e.g., persons convicted of aggravated felonies), the new provision authorizes reinstatement of prior removal orders for all illegal reentrants previously deported for any reason. See Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 296 (5th Cir.2002) (describing operation of reinstatement procedures under the IIRIRA); Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 862-63 (8th Cir.2002) (same).

Second, persons subject to reinstatement of a previous deportation order no longer are entitled to a hearing before an immigration judge (with its concomitant right to counsel and opportunity to develop an administrative record). Compare 8 C.F.R. § 241.8(a) & (b) (2003), with 8 C.F.R. § 242.23 (removed 1997). Instead, the Immigration and Naturalization Service (INS) may employ a summary administrative procedure in which an immigration official, not a judge, makes all the necessary determinations concerning the decision to recommence deportation.3 An alien is allowed only to "make a written or oral statement contesting the [immigration official's] determination." 8 C.F.R. § 241.8(b).

Third, a person facing reinstatement of an earlier deportation order may neither attack the validity of the earlier order nor endeavor to avoid removal by obtaining discretionary relief (apart from asylum). INA § 241(a)(5). By contrast, the pre-IIRIRA regime allowed those in deportation proceedings to request an adjustment of status (although granting the request lay within the discretion of the Attorney General). See 8 C.F.R. § 242.17(a) (removed 1997). Even those reentering the United States illegally could seek such an adjustment. See INA § 245(i) (8 U.S.C. § 1255(i)) (repealed 1996); 8 C.F.R. §§ 245.1, 245.10 (1996).

II. THE FACTS

The petitioner in this case first arrived in the United States in 1986 under the pseudonym "Maria Guadalupe Sillas-Mendoza." She was soon apprehended by the INS and, because she had entered without the documentation necessary for legal admission, an immigration judge ordered her deported to her native Guatemala. In 1990, the petitioner illegally reentered the United States, this time using the name "Gloria Arevalo." She has remained here from that time forward and given birth to two children (both of whom are American citizens).

In August of 1990, the petitioner's father, a legal permanent resident, filed a visa petition on her behalf. The INS approved that petition and issued an employment authorization card (a so-called "green card") to the petitioner. In March of 1996, the petitioner applied for adjustment of status to become a legal permanent resident and tendered the requisite fee. See INA § 245(i). On her application, she falsely swore that she had never been deported from the United States.

Proceedings on the petitioner's application for adjustment of status lagged for almost six years. Finally, fingerprint analysis revealed that she had previously been deported under a different name. The INS sent the petitioner a letter in January of 2002, notifying her of its discovery and advising her that it would not entertain her application for adjustment of status. The INS did nothing further, however, until January 17, 2003, when it detained the petitioner. Acting under the INA's current reinstatement provision, see supra note 2, the INS then resurrected the previous order of deportation and instructed the petitioner that she had no right either to seek a hearing before an immigration judge or to apply for discretionary relief.

The petitioner repaired to the United States District Court for the District of Massachusetts, challenging the Attorney General's authority summarily to reinstate the previous order of deportation. The district court, concluding that it lacked subject matter jurisdiction over most of the petitioner's claims, transferred the case to us. See 28 U.S.C. § 1631 (allowing inter-court transfers to cure lack of jurisdiction). Acting under INA § 242(b)(3)(B) (8 U.S.C. § 1252(b)(3)(B)) (2003), we temporarily stayed the petitioner's deportation and set a briefing schedule. We heard oral argument on June 4, 2003, and took the matter under advisement.

III. THE STAY

The stay of the order of deportation remains in effect. The INS challenges it, asserting that its issuance was predicated upon an improper legal standard. We do not agree.

Before Congress enacted the IIRIRA, an alien seeking review of a deportation order was entitled to an automatic stay pending the completion of that review. See INA § 106(a)(3) (8 U.S.C. § 1105a(a)(3)) (repealed 1996). The IIRIRA altered that paradigm: INA § 242(b)(3)(B) requires a review-seeker to ask the reviewing court for a stay of removal. But section 242(b)(3)(B) does not specify the standard that a court should use in deciding whether to grant a stay.

To fill this vacuum, the INS invites us to turn to a neighboring subsection, namely, INA § 242(f)(2) (8 U.S.C. § 1252(f)(2)) (2003). That subsection provides:

Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.

INA § 242(f)(2). According to the INS, a stay is an injunction, and, thus, the review-seeker cannot obtain a stay unless she can show the illegality of the removal order by clear and convincing evidence. We decline the INS's invitation to treat a temporary stay on a par with a permanent injunction.

Although this is a matter of first impression in this court, the case law in other circuits provides a modicum of guidance. In Andreiu v. Ashcroft, 253 F.3d 477 (9th Cir.2001) (en banc), the Ninth Circuit rejected the INS's proposal that the clear and convincing evidence standard should apply to a stay of removal pendente lite. The court instead adopted the preliminary injunction standard. Id. at 483. Under this quadral standard, a petitioner must demonstrate (1) that she is likely to succeed on the merits of her underlying objection; (2) that she will suffer irreparable harm absent the stay; (3) that this harm outweighs any potential harm fairly attributable to the granting of the stay; and (4) that the stay would not disserve the public interest.

The Ninth Circuit's holding has been embraced in opinions published by both the Second and Sixth Circuits. See Mohammed v. Reno, 309 F.3d 95, 98-100 (2d Cir.2002); Bejjani, 271 F.3d at 687-88. The Seventh Circuit reached the same conclusion in an unpublished opinion. See Lal v. Reno, 221 F.3d 1338 (7th Cir.2000) (unpublished table opinion). The Eleventh Circuit, however, has adopted the clear and convincing evidence standard in this context. See, e.g., Weng v. United States Atty. Gen., 287 F.3d 1335, 1340 (11th Cir. 2002). For the reasons that follow, we adhere to the majority view.

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