Alvarez-Portillo v. Ashcroft

• Decision Date: 13 February 2002
• Docket Number: No. 01-1430.,01-1430.
• Citation: 280 F.3d 858
• Parties: Alfonso ALVAREZ-PORTILLO, Petitioner, v. John ASHCROFT, et al., Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

280 F.3d 858

Alfonso ALVAREZ-PORTILLO, Petitioner, v. John ASHCROFT, et al., Respondents.

No. 01-1430.

United States Court of Appeals, Eighth Circuit.

Submitted: September 10, 2001.

Filed: February 13, 2002.

Rehearing Denied: April 10, 2002.

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David Froman, argued, San Diego, CA, for petitioner.

Papu Sandhu, U.S. Dept. of Justice, Washington, DC (Quynh Vu, U.S. Dept. of Justice, Washington, DC, on the brief), for respondent.

Before LOKEN and FAGG, Circuit Judges, and BOGUE,^* District Judge.

LOKEN, Circuit Judge.

Alfonso Alvarez-Portillo appeals the decision of the Immigration and Naturalization Service (INS) reinstating his prior order of deportation and ordering his removal under § 241(a)(5) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1231(a)(5), enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009-546 (1996).¹ Section 241(a)(5) was enacted to expedite the removal of aliens who illegally reenter this country after being deported. The issue before us is whether § 241(a)(5) may be applied to aliens such as Alvarez-Portillo who illegally reentered before the statute's enactment. Applying the retroactivity analysis of Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), we conclude that new procedures may be applied to expedite all reinstatement proceedings commenced after the enactment of § 241(a)(5), but the substantive defenses to removal eliminated by § 241(a)(5) may not be retroactively denied to aliens who illegally reentered prior to enactment. Accordingly, we vacate the removal order and remand for further proceedings.

I. Background.

Alvarez-Portillo, a citizen of Mexico, illegally entered the United States in November of 1993. After a full deportation hearing, he was deported to Mexico on December 8, 1993. Twelve days later, he illegally reentered the United States. He avoided INS detection for more than seven years, living and working under an assumed name and marrying a United States citizen in November 1996. In February 2001, Alvarez-Portillo and his wife visited an INS district office to apply for an adjustment of his status to permanent resident alien. Discovering his prior deportation order, the INS took Alvarez-Portillo into custody, commenced this proceeding under § 241(a)(5), reinstated the 1993 deportation order, and ordered his immediate deportation to Mexico. Alvarez-Portillo appeals this final agency action, arguing that the INS improperly applied § 241(a)(5) retroactively because his illegal reentry occurred before the statute's enactment. Alternatively, he argues that the agency's procedures for implementing § 241(a)(5) violate his right to procedural due process. Finally, Alvarez-Portillo argues that INA § 245(i), 8 U.S.C. § 1255(i), conflicts with and supersedes § 241(a)(5); we reject this argument without discussion as it is without merit.

II. IIRIRA Changes to Reinstatement and Removal.

To place the Landgraf retroactivity analysis in proper perspective, it is essential to define the precise impact of the new statute. In December 1993, when Alvarez-Portillo illegally reentered the country, and up until the effective date of IIRIRA, the INA provided that, if a deported alien should illegally reenter, "the previous order of deportation shall be deemed to be reinstated from its original date and such alien shall be deported under such previous order at any time subsequent to such reentry." INA § 242(f), 8 U.S.C. § 1252(f) (1994). In practice, however, this strong language was tempered by the statute's limited scope. Section 242(f) applied only to aliens who were initially deported for enumerated reasons (such as criminal offenses). It did not apply to aliens such as Alvarez-Portillo who were deported for entering the country without inspection; aliens in this category who illegally reentered were entitled to a new deportation proceeding before again being deported.

In 1994, INA § 245 was amended to make aliens who were physically present and had an immigrant visa immediately available eligible for a discretionary adjustment of status to lawful permanent resident. See Pub.L. No. 103-317, Tit. V, § 506(b), (c), 108 Stat. 1765, 1766, codified at 8 U.S.C. § 1255(i) (1994). By administrative practice, aliens in deportation proceedings were allowed to avoid removal by seeking and obtaining an adjustment of status to lawful permanent resident. See 8 C.F.R. § 242.17 (1995). Thus, after Alvarez-Portillo married a United States citizen in 1996, if the INS had commenced a deportation proceeding under this prior statutory regime for illegal reentry, his marriage would have made him a likely candidate for adjustment of status to lawful permanent resident, though such relief was within the discretion of the Attorney General. See Matter of Garcia, 16 I & N Dec. 653 (BIA 1978).

Congress took dramatic steps to change this legal landscape in IIRIRA, replacing the little-used § 242(f) with new § 241(a)(5), a broader and far less forgiving reinstatement-of-removal provision:

(5) Reinstatement of removal orders against aliens illegally reentering. 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.

Congress's intent is readily apparent from IIRIRA's legislative history:

Existing procedures to deny entry to and to remove illegal aliens from the United States are cumbersome and duplicative. Removal of aliens who enter the United States illegally, even those who are ordered deported after a full due process hearing, is an all-too-rare event.

H.R. Rep. 104-469(I), 1996 WL 168955 at *107;

Aliens who violate U.S. immigration law should be removed from this country as soon as possible. Exceptions should be provided only in extraordinary cases specified in the statute and approved by the Attorney General.... The opportunity that U.S. immigration law extends to aliens to enter and remain in this country is a privilege, not an entitlement.

S. Rep. 104-249, 1996 WL 180026 at *7. To implement this new statute, the INS adopted a summary administrative reinstatement-of-removal procedure in which "[t]he alien has no right to a hearing before an immigration judge," an immigration officer determines whether the alien is subject to reinstatement of a prior deportation order, and the alien is entitled only to written notice and an opportunity to "make a written or oral statement contesting the determination." 8 C.F.R. § 241.8(a), (b).

Unlike the prior reinstatement provision, § 241(a)(5) applies to all previously deported aliens, including Alvarez-Portillo, whose prior deportation was for entry without inspection. Moreover, in a § 241(a)(5) proceeding, the alien may neither attack the validity of the prior deportation order nor avoid removal by obtaining discretionary relief such as an adjustment of status to lawful permanent resident. In this case, an immigration officer acting pursuant to 8 C.F.R. § 241.8 determined that Alvarez-Portillo was deported for entering the United States without inspection in November 1993 and unlawfully reentered in December 1993. If he was subject to reinstatement and removal in accordance with the new statute, the INS removal order must be affirmed.

III. The Landgraf Analysis.

In Landgraf, the Supreme Court confirmed that, while Congress may make civil legislation retroactive in most cases, the judicial presumption against retroactivity may be overcome only by a clear expression of congressional intent. However, the Court also recognized that "application of new statutes passed after the events in suit is unquestionably proper in many situations," even if the statute is silent as to its temporal reach. 511 U.S. at 273, 114 S.Ct. 1483. The resulting doctrinal tension led the Court to articulate a two-part test for determining whether a subsequently-enacted federal statute may govern the events at issue:

[T]he court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, 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. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.

511 U.S. at 280, 114 S.Ct. 1483. The question here is whether the INS decision summarily reinstating Alvarez-Portillo's prior deportation order and ordering his immediate removal under § 241(a)(5) passes muster under either part of this two-part test. As is often the case, these are difficult inquiries.

A. Part One. The issue under part one of the Landgraf analysis is whether we need not invoke the judicial presumption because the statute answers the retroactivity issue by prescribing that § 241(a)(5) either does or does not apply to aliens who illegally reentered prior to its enactment. Though § 241(a)(5) is silent as to its temporal reach, the INS argues that inferences may be drawn from other IIRIRA provisions, such as § 309, the general effective date section, to find the "unambiguous directive" that Landgraf requires for express retroactivity. 511 U.S. at 263, 114 S.Ct. 1483. In our view, the Supreme Court rejected this...