Bejjani v. Immigration and Naturalization Service
| Decision Date | 04 May 2001 |
| Docket Number | No. 01-3117,01-3117 |
| Citation | 271 F.3d 670 |
| Parties | (6th Cir. 2001) Pierrot Bejjani, Petitioner, v. Immigration and Naturalization Service; John Ashcroft, Attorney General of the United States, <A HREF="#fr1-*" name="fn1-*">* Respondents. Argued: |
| Court | U.S. Court of Appeals — Sixth Circuit |
Richard H. Drucker (argued and briefed), DRUCKER & DRUCKER, Cleveland, Ohio, for Petitioner.
Victoria Christian, Immigration and Naturalization Service, Cleveland, Ohio, Earle B. Wilson, Cathy Appling, Victoria Christian, Richard M. Evans (briefed), U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Susan K. Houser (argued and briefed), U.S. Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondents.
Before: NORRIS and COLE, Circuit Judges; HOLSCHUH, District Judge. **
Petitioner Pierrot Bejjani ("Bejjani") seeks direct review of the January 29, 2001 decision of the Immigration and Naturalization Service ("INS") to reinstate a prior order of deportation pursuant to §241(a)(5) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1231(a)(5). For the reasons set forth herein, we GRANT Bejjani's petition for review, VACATE the January 29, 2001 order of reinstatement, and REMAND this matter for further proceedings not inconsistent with this opinion.
Petitioner Bejjani is a native and citizen of Lebanon who entered the United States on April 4, 1983 as a lawful permanent resident. In September, 1987, Bejjani pled guilty to a charge of possession with intent to distribute 650 grams of heroin, and was sentenced to a two year term of imprisonment and a mandatory special parole term of three years.
In January, 1989, the INS served Bejjani with an order to show cause, charging that he was subject to deportation pursuant to § 241(a)(11) of the INA, because of his conviction for trafficking in a controlled substance. Bejjani appeared before an immigration judge and admitted the allegations contained in the show cause order. In June, 1991, Bejjani requested leave to file for relief from deportation pursuant to § 212(c) of the INA. In January, 1992, an immigration judge denied Bejjani's § 212(c) application and ordered him to be deported to Lebanon. Bejjani appealed to the Board of Immigration Appeals ("BIA"), which affirmed the decision of the immigration judge on July 30, 1993. Bejjani appealed the BIA decision to this Court, which dismissed the appeal in April, 1994.
Bejjani voluntarily left the United States in March, 1996. Bejjani used his Lebanese passport for travel, and was gone from the United States for seventeen days. On April 12, 1996, he reentered the United States through Boston, Massachusetts. The parties dispute the exact details of his reentry. The INS asserts that Bejjani presented his invalid Alien Registration Card at the port of entry, and thus illegally reentered the country. Bejjani maintains that his reentry was legal, because he was inspected by INS officers and given permission to return to the United States.
In March, 1999, the INS issued a warrant of removal to Bejjani. On January 23, 2001, Bejjani filed a petition for a writ of habeas corpus in the District Court for the Northern District of Ohio, asking the court to restrain his deportation and to order the INS to consider his application for relief from deportation. Also on January 23, 2001, the INS issued a "Notice of Intent/Decision to Reinstate Prior Order," indicating that the INS intended to reinstate the order of deportation issued in 1992, pursuant to INA § 241(a)(5). 1 This notice stated, On January 29, 2001, the INS issued a decision to reinstate the order of deportation, and on January 30, 2001, the INS issued a warrant of removal. Bejjani's habeas petition was dismissed on January 30, 2001.
On January 31, 2001, Bejjani, who was represented by counsel, submitted a response to the decision to reinstate the prior order of deportation. In that response, Bejjani argued that his April, 1996 reentry into the United States was legal, and that INA § 241(a)(5) applies only to illegal reentries. In the alternative, Bejjani argued that even if his reentry was illegal, INA § 241(a)(5) applies only to reentries which occurred after April 1, 1997, the effective date of the reinstatement provision, and thus does not apply retroactively to aliens who voluntarily departed and reentered the country prior to the effective date. Bejjani further argued that assuming he did reenter illegally, § 241(a)(5) applies only to removal orders, and not to deportation orders. Finally, Bejjani argued that § 241(a)(5) violates the Due Process Clause, because it deprives aliens of a hearing before an immigration judge, the right to appeal to the BIA, the right to develop a record, the right to counsel and the right to adequate notice of the government's intended action.
On February 1, 2001, the INS directed Bejjani to report for deportation on February 9, 2001. On February 7, 2001, Bejjani petitioned this Court for review of the reinstatement of the deportation order, and moved the Court to stay the execution of the order of reinstatement. On February 8, 2001, the Court issued an order staying the execution of the order of reinstatement, and staying the requirement that Bejjani report to an immigration officer on February 9, 2001. In that order, the Court instructed the parties to address the propriety of the stay, appellate jurisdiction and the merits of the order of reinstatement.
On appeal, we are presented with five issues. First, Bejjani contends that he legally reentered the country in 1996, and thus the INA's reinstatement provision does not apply to him. Second, Bejjani argues that even if he reentered illegally, INA § 241(a)(5), the new reinstatement provision added by the Illegal Immigration and Immigrant Responsibility Act ("IIRIRA"), Pub. L. 104-208, 100 Stat. 3009-546 (1996), does not apply to him, because he reentered the country prior to the effective date of the statute. He asserts that the reinstatement provision repealed by IIRIRA INA § 242(f), 8 U.S.C. §1252(f) (repealed), and its attendant regulations should apply to his reinstatement proceeding. Third, Bejjani submits that even if the new reinstatement provision applies to him, the statute and its attendant regulations violate his right to Due Process, and thus the prior reinstatement provision applies. Fourth, we must consider our decision to stay the order of removal. Finally, we must consider our decision to stay the requirement that Bejjani report to the INS.
This Court has jurisdiction over Bejjani's petition for review pursuant to INA § 242(b), 8 U.S.C. § 1252(b), which authorizes the courts of appeals to review orders of removal. This provision also applies to orders of reinstatement. SeeVelasquez-Gabriel v. Crocetti, 263 F.3d 102, 105 (4th Cir. 2001); Castro-Cortez v. INS, 239 F.3d 1037, 1043-44 (9th Cir. 2001).
The Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub. L. 104-208, 110 Stat. 3009-546 (1996), amended the Immigration and Nationality Act ("INA"). Prior to the enactment of IIRIRA, § 242(f) of the INA, codified at 8 U.S.C. § 1252(f), governed the reinstatement of prior orders of deportation. Section 242(f) provided:
Unlawful reentry
Should the Attorney General find that any alien has unlawfully reentered the United States after having previously departed or been deported pursuant to an order of deportation, whether before or after June 27, 1952, on any ground described in any of the paragraphs enumerated in subsection (e) of this section, 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. For the purposes of subsection (e) of this section the date on which the finding is made that such reinstatement is appropriate shall be deemed the date of the final order of deportation.
The practice of reinstatement set forth in § 242(f) appears "to have fallen into desuetude before its repeal."Castro-Cortez, 239 F.3d at 1040 n.1. With the sweeping changes implemented by IIRIRA, came a new, expanded reinstatement provision.
IIRIRA repealed § 242(f) and added a new reinstatement provision, INA § 241(a)(5), codified at 8 U.S.C. § 1231(a)(5), which provides: Reinstatement of removal orders against aliens illegally reentering If the Attorney General finds that an alien 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. 2
IIRIRA was enacted on September 30, 1996, and the new reinstatement provision, INA § 241(a)(5),which was located in IIRIRA § 305(a)(5), became effective on April 1, 1997. See IIRIRA § 309(a). Thus, IIRIRA was enacted and the reinstatement provision became effective after Bejjani reentered the country in April, 1996.
Initially, there appears to be little substantive difference between the reinstatement provisions. Both require the following elements to be established: the identity of the alien; whether the alien was previously removed under a provision of the act subjecting him to reinstatement; and whether the alien illegally reentered the United States. A closer examination, however,...
To continue reading
Request your trial
-
Bah v. Barr
...U.S. ––––, 138 S. Ct. 830, 847, 200 L.Ed.2d 122 (2018) ; Prieto-Romero v. Clark , 534 F.3d 1053, 1059 (9th Cir. 2008) ; Bejjani v. INS , 271 F.3d 670, 689 (6th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales , 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). Distr......
-
U.S. v. Garcia-Echaverria
...not give rise to an automatic stay of removal, although the court may issue a stay. 8 U.S.C. § 1252(b)(3)(B); see also Bejjani v. INS, 271 F.3d 670, 688-89 (6th Cir.2001). Moreover, under the permanent provisions of the IIRIRA, an alien's removal while his petition for review is pending nei......
-
Nken v. Holder
...F.3d 95 (C.A.2 2002), Douglas v. Ashcroft, 374 F.3d 230 (C.A.3 2004), Tesfamichael v. Gonzales, 411 F.3d 169 (C.A.5 2005), Bejjani v. INS, 271 F.3d 670 (C.A.6 2001), Hor v. Gonzales, 400 F.3d 482 (C.A.7 2005), and Andreiu v. Ashcroft, 253 F.3d 477 (C.A.9 2001) (en banc). We granted certiora......
-
In re Romalez-Alcaide, Interim Decision Number 3475
...divided over whether section 241(a)(5) of the Act applies to orders of deportation issued under prior law. Compare Bejjani v. INS, 271 F.3d 670, 687 (6th Cir. 2001) (holding that section 241(a)(5) did not apply to a reentry taking place before its enactment), and Castro-Cortez v. Reno, 239 ......
-
Beyond Chevron's Domain: Agency Interpretations of Statutory Procedural Provisions
...give deference to agency interpretations of provisions relating to the judicial review in their enabling acts). 275. See Bejjani v. INS, 271 F.3d 670, 679 (6th Cir. 2001), abrogated by Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422 (2006) ("Chevron appears to speak to statutory interpretatio......