Perez-Gonzalez v. Ashcroft

• Decision Date: 13 August 2004
• Docket Number: No. 02-73294.,02-73294.
• Citation: 379 F.3d 783
• Parties: Gregorio PEREZ-GONZALEZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 783

379 F.3d 783

Gregorio PEREZ-GONZALEZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-73294.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 9, 2004.

Filed August 13, 2004.

Matt Adams (argued), Northwest Immigrant Rights Project, Granger, Washington, for the petitioner.

Soren M. Rottman, Northwest Immigrant Rights Project, Granger, Washington, for the petitioner.

James A. Hunolt, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for the respondent.

Anthony P. Nicastro (argued), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before D.W. NELSON, FISHER, and GOULD, Circuit Judges.

D.W. NELSON, Senior Circuit Judge:

Gregorio Perez-Gonzalez petitions for review of the reinstatement of his prior deportation order by the Immigration and Naturalization Service ("INS").¹ He challenges the INS's interpretation of the Immigration and Nationality Act ("INA") § 241(a)(5), 8 U.S.C. § 1231(a)(5) ("the reinstatement provision"), on both statutory and constitutional grounds. We hold that the reinstatement provision is not impermissibly retroactive when applied to deportation orders that occurred before the passage of the 1996 revisions to the INA. However, we conclude that the INS did err in holding that the reinstatement provision categorically bars Perez-Gonzalez from receiving adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i). We remand in order for the agency to consider whether to exercise its discretion to grant Perez-Gonzalez's application for adjustment of status.² We do not reach Perez-Gonzalez's argument that there was a due process violation in this case, because we address his injury on narrower grounds.

I. Factual and Procedural History

Gregorio Perez-Gonzalez was born in Tumbiscatio, Mexico in 1971. He first entered the United States without inspection in 1992. In October 1994, he was convicted in Ephrata, Washington, for the unlawful possession of a firearm, and was sentenced to thirty days in jail. On November 23, 1994, an Immigration Judge ordered Perez-Gonzalez deported to Mexico, and he was deported on November 30, 1994.

In December 1995, Perez-Gonzalez returned to the United States without inspection. He married a U.S. citizen in November 1997, and they had a daughter in 1999. Later in 1999, Perez-Gonzalez, his wife, daughter, and in-laws traveled to Mexico, and Perez-Gonzalez returned without inspection in December 1999.

In April 2001, Perez-Gonzalez's wife filed a petition for an alien relative, in order to begin the process of attaining legal status for her husband. The petition was approved, and in April 2002, Perez-Gonzalez filed an application to adjust his status to that of a lawful permanent resident pursuant to INA § 245(i), 8 U.S.C. § 1255(i). In June 2002, Perez-Gonzalez had an interview for his application for adjustment of status in which he gave a sworn statement describing his previous conviction and illegal reentries. He explained that he had not reported these past experiences in his application because the notary had not asked him these questions. The interviewing officer informed him that his application for adjustment of status would be denied, because in his case, he was required to receive advance permission to reapply from the Attorney General.

Therefore, in July 2002, Perez-Gonzalez filed Form I-212, for permission to reapply for admission to the United States after deportation or removal. The INS sent him a notice to appear for an interview in the local INS office on October 9, 2002. When Perez-Gonzalez arrived at the office, with his wife, daughter, and attorney, he was immediately placed under arrest. He was not permitted to speak with his attorney. He was given a copy of three decisions made in his case, all dated October 9, 2002. First, his Form I-212 application was denied on the ground that permission to reapply is only available to "aliens outside the United States, applying at a port-of-entry, or aliens paroled into the United States." His application for adjustment of status was denied on multiple grounds. The INS's explanation of his denial stated that he was inadmissible under several sub-sections of the INA,³ that he was ineligible for a waiver under Form I-212 because he had not applied from outside the United States prior to his reentry, and that because he was subject to reinstatement under § 241(a)(5), he was not eligible to apply for any relief under the INA. Finally, he received the "Notice of Intent/Decision to Reinstate Prior Order," which stated that the INS was reinstating Perez-Gonzalez's prior 1994 deportation order pursuant to INA § 241(a)(5).

Perez-Gonzalez filed a petition for review and motion for stay of removal with this court on October 10, 2002. A temporary stay was granted the same day. On December 9, 2002, pursuant to Perez-Gonzalez's request, the temporary stay was lifted and Perez-Gonzalez was removed to Mexico.

II. Jurisdiction and Standard of Review

This court has jurisdiction to review final orders of removal in the form of reinstatement orders under INA § 242(a), 8 U.S.C. § 1252(a). Castro-Cortez v. INS, 239 F.3d 1037, 1043-45 (9th Cir.2001).

Questions of fact are considered conclusive unless "any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

Questions of statutory interpretation are reviewed de novo. Friend v. Reno, 172 F.3d 638, 641 (9th Cir.1999). Chevron deference is not applicable in this case because under Chevron,"a court must first analyze the law applying normal principles of statutory construction, and then defer to the agency if, after performing that analysis, it concludes that the statute is ambiguous or uncertain." Castro-Cortez, 239 F.3d at 1053 (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). As demonstrated in the discussion below, normal principles of statutory construction suffice.

Questions of constitutional law are reviewed de novo. Padilla v. Ashcroft, 334 F.3d 921, 923 (9th Cir.2003).

III. Discussion

A. Retroactivity

Perez-Gonzalez argues that the reinstatement provision is not applicable to him for two related reasons. First, he argues that the plain terms of the reinstatement provision only refer to orders of removal, not orders of deportation, and he was subject to an order of deportation only. Second, his order of deportation occurred in 1994, before the reinstatement provision was enacted, and therefore applying it to his case would be impermissibly retroactive.

This argument is foreclosed by Gallo-Alvarez v. Ashcroft, 266 F.3d 1123 (9th Cir.2001), in which we held expressly that the reinstatement provision "applies to situations in which the predicate order of deportation was entered prior to the 1996 revisions of the immigration law." Id. at 1129. We held that Gallo-Alvarez could only escape the contours of the reinstatement provision "if he reentered the United States prior to April 1, 1997, or if he re-entered the United States legally, in which case the provision does not apply." Id. (citing Castro-Cortez, 239 F.3d at 1050). Here, it is uncontested that Perez-Gonzalez had a prior deportation order entered before the law changed, and he reentered the United States illegally after April 1, 1997. Therefore, Gallo-Alvarez squarely controls and Perez-Gonzalez is subject to the reinstatement provision.

We find further support for this conclusion in Avila-Macias v. Ashcroft, 328 F.3d 108 (3d Cir.2003), in which the Third Circuit rejected the same retroactivity argument. The Third Circuit's reasoning regarding the non-retroactivity of the terms of the reinstatement provision enacted in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") applies to this case with equal force: "Applying IIRIRA to [Perez-Gonzalez] — 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." Id. at 114. Accordingly, Perez-Gonzalez's retroactivity argument fails.

B. The Reinstatement Provision and Adjustment of Status

Perez-Gonzalez also argues that the INS erred by barring review of his application for adjustment of status on the ground that he is ineligible for adjustment of status due to the reinstatement provision. He argues that the reinstatement provision should not bar his application because he applied for adjustment of status prior to the initiation of reinstatement proceedings, and he filed an application for consent to reapply under 8 C.F.R. § 212.2(e).

The INS based its denial of his application for adjustment of status in part on the section of the reinstatement provision stating that a person subject to reinstatement of a prior order of removal "is not eligible and may not apply for any relief under this chapter." INA § 241(a)(5), 8 U.S.C. § 1231(a)(5).⁴

Perez-Gonzalez argues that despite this language, he was entitled to apply for adjustment of status under INA § 245(i), which allows undocumented persons who entered the country without inspection to apply for adjustment to lawful permanent status. The provision was passed in 1994, then amended and extended twice, first in 1997 and then in 2000, by the Legal Immigration and Family Equity (LIFE) Act, Pub.L. No. 106-554, 114 Stat. 2763, 2763A-324 (2000).

The government contends that Perez-Gonzalez's argument is foreclosed by Padilla v. Ashcroft, 334 F.3d 921 (9th Cir.2003). In Padilla, we held that a plaintiff who was removed in 1997, and then reentered and applied for adjustment of status in 2001, was barred from seeking adjustment of status by...