Herrera-Molina v. Holder

• Citation: 597 F.3d 128
• Decision Date: 03 March 2010
• Docket Number: No. 07-0985-ag.,07-0985-ag.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Parties: William HERRERA-MOLINA, a.k.a. Eduardo Salazar, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.<SMALL><SUP>1</SUP></SMALL>

597 F.3d 128

William HERRERA-MOLINA, a.k.a. Eduardo Salazar, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.¹

No. 07-0985-ag.

United States Court of Appeals, Second Circuit.

Argued November 16, 2009.

Decided March 3, 2010.

Haroutyun Asatrian, Strasser Asatrian, LLC, Newark, NJ, for Petitioner.

Anna E. Nelson, Trial Attorney for the United States Department of Justice, Office of Immigration Litigation (Kelly J. Walls, Trial Attorney for the United States Department of Justice, Office of Immigration Litigation; Jeffrey S. Bucholtz, Acting Assistant Attorney General for the United States Department of Justice, Civil Division; and Linda S. Wernery, Assistant Director for the United States Department of Justice, Office of Immigration Litigation, on the brief), Washington, DC, for Respondent.

Before: MINER, CABRANES, and STRAUB, Circuit Judges.

STRAUB, Circuit Judge:

Petitioner William Herrera-Molina seeks review of a February 23, 2007 decision of the United States Department of Homeland Security, Immigration and Customs Enforcement ("ICE"), reinstating a prior order of deportation for illegal entry, entered in July 1985 against Herrera-Molina. The first issue before us is whether the reinstatement of removal statute, section 241(a)(5) of the Immigration and Naturalization Act ("INA"), as added by section 305(a)(3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 8 U.S.C. § 1231(a)(5), is impermissibly retroactive as applied to Herrera-Molina, an alien who illegally reentered the United States and married a United States citizen prior to the statute's enactment. For the reasons set forth below, we hold that section 241(a)(5) is not impermissibly retroactive as applied to Herrera-Molina. We further hold, as discussed below, that section 241(a)(5) forecloses Herrera-Molina from applying for certain additional types of relief and that section 241(a)(5) does not deprive him of due process.

BACKGROUND

I. Herrera-Molina's Initial Illegal Entry, Deportation, and Subsequent Illegal Reentry

Herrera-Molina, a native and citizen of Colombia, illegally entered the United States in 1972 at the age of twenty-two. In 1985, he pled guilty to two crimes: (1) simple possession of a controlled substance (cocaine) in Nebraska and (2) fraudulent practices in the third degree in Iowa. On June 6, 1985, Herrera-Molina was served with an Order to Show Cause charging that he had entered the United States without inspection. On July 26, 1985, an Immigration Judge ordered him deported from the United States to Colombia based on the charges contained in the Order to Show Cause. Herrera-Molina waived appeal of that decision, and on October 21, 1985, he was deported from the United States to Colombia.

In 1986, shortly after being deported to Colombia, Herrera-Molina reentered the United States without inspection. He asserts that he then married Rosa Haydee Garofalo in 1986 in a Mormon church in Texas but that the record of their marriage was misplaced by the church. Subsequently, on July 4, 1988, Herrera-Molina and his wife had a child, William Herrera, Jr., who is a United States citizen. Garofalo became a naturalized United States citizen in March 1995, and on May 27, 1995, Herrera-Molina remarried Garofalo and obtained an official marriage license from the state of New York.

II. Proceedings Below: Herrera-Molina's Applications for Relief and Reinstatement of Herrera-Molina's Prior Order of Deportation

In late 1997, Garofalo filed on behalf of Herrera-Molina a Petition for Alien Relative ("Form I-130") and an Application to Adjust Status ("Form I-485"). In connection with these applications, Herrera-Molina paid a fee for having entered the United States without inspection. In addition, in 2003, Herrera-Molina filed an Application for Permission to Reapply for Admission into the United States after Deportation or Removal ("Form I-212"), which was denied on March 17, 2004.

On February 23, 2007, ICE reinstated Herrera-Molina's prior order of deportation from its original date, July 26, 1985, pursuant to INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), and placed him in custody. On the same date, an ICE officer interviewed Herrera-Molina, at which time he indicated that he feared for his life if forced to return to Colombia. On April 25, 2007, an asylum officer issued a Reasonable Fear Determination finding that Herrera-Molina was credible and that he had a reasonable fear of returning to Colombia on account of his Mormon faith; in conclusion, the asylum officer opined that Herrera-Molina should be allowed to pursue his withholding of removal claim before an immigration judge. Based on the asylum officer's findings, Herrera-Molina was placed in withholding of removal proceedings before an immigration judge ("IJ"), and on November 8, 2007, the IJ denied his application for withholding of removal. Herrera-Molina appealed the IJ's decision to the Board of Immigration Appeals ("BIA") on December 4, 2007.² On July 31, 2009, the BIA dismissed Herrera-Molina's appeal, concluding that the IJ was not clearly erroneous in his determination that Herrera-Molina failed to provide credible testimony and evidence in support of his assertion that his family has been targeted for persecution.³

On October 5, 2009, we granted Herrera-Molina's motion for a stay of removal pending disposition of Herrera-Molina's present petition for review of the reinstatement of his prior deportation order.

DISCUSSION

Herrera-Molina argues that section 241(a)(5)—the provision pursuant to which his prior order of deportation was reinstated—is impermissibly retroactive as applied to him. Herrera-Molina further argues that, even if section 241(a)(5) is not impermissibly retroactive, the statute nevertheless deprives him of due process and we should interpret section 241(a)(5) to allow him to apply for additional types of relief. For the reasons set forth below, we hold that section 241(a)(5) is not impermissibly retroactive as applied Herrera-Molina does not deprive him of due process, and forecloses him from applying for certain additional types of relief.

I. Jurisdiction

Before reaching the merits of Herrera-Molina's arguments, we first address whether we have jurisdiction over this matter. The parties initially disputed our jurisdiction because, at the time that the parties filed their briefs, Herrera-Molina's appeal of the IJ's denial of withholding of removal was still pending before the BIA. Due to the pendency of the appeal, the Attorney General argued that the reinstated order of deportation was not a "final" order of removal over which we could exercise jurisdiction. See Chupina v. Holder, 570 F.3d 99, 103-04 (2d Cir.2009) (noting that our jurisdiction is limited to review of "final" orders of removal and that, when a petitioner's "pending applications [for relief] directly affect whether he may be removed ..., [the] order of removal is not final until those applications have been resolved by the agency"). After the Attorney General filed his brief, however, the BIA subsequently dismissed Herrera-Molina's appeal of the denial of withholding of removal. As a result, the Attorney General has withdrawn his argument that we lack jurisdiction to review the reinstatement of Herrera-Molina's prior deportation order. See Resp't Supp. Letter Br. of Oct. 28, 2009 at 2 ("With the Board's dismissal of Mr. Herrera-Molina's appeal of the denial of withholding of removal, the instant petition for review has ripened from a premature petition into a petition for review of a final order of removal."). Likewise, by supplemental letter brief dated October 29, 2009, Herrera-Molina concurred with the Attorney General's position and represented that he "has elected not to seek review of" the BIA's July 31, 2009 decision dismissing his appeal from the IJ's denial of withholding of removal.

A premature petition for review of a not-yet-final order of removal can become a reviewable final order upon the adjudication of remaining applications for relief and protection, provided that the Attorney General has not shown prejudice. See Lewis v. Gonzales, 481 F.3d 125, 128-29 (2d Cir.2007); Foster v. INS, 376 F.3d 75, 77 (2d Cir.2004) ("Despite his premature petition to us, we exercised jurisdiction noting that the BIA has since affirmed petitioner's removal order and the respondent has not shown prejudice." (internal quotation marks omitted)). In the present case, the BIA has now rendered a decision resolving Herrera-Molina's appeal of the denial of withholding of removal, and the Attorney General does not claim that he was prejudiced by Herrera-Molina filing a petition for review prior to the BIA's decision—nor do we see how he could have been prejudiced. Accordingly, even if Herrera-Molina's initial petition were premature, we conclude that the reinstatement of his prior deportation order is now a reviewable final order and proceed to the merits of his arguments.

II. The Reinstatement Provisions of Section 241(a)(5)

Before analyzing Herrera-Molina's specific arguments regarding section 241(a)(5), it is necessary to summarize briefly how section 241(a)(5) changed the law regarding reinstatement of removal orders, formerly known as deportation orders.⁴ 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 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.

8 U.S.C. § 1231(a)(5). The statute became effective on April 1, 1997, "the first day of the first month beginning more than 180 days after" it was enacted on September 30, 1996. Fernandez-Vargas...