Cortez v. Immigration & Naturalization
| Decision Date | 23 January 2001 |
| Docket Number | 99-70267,9 |
| Parties | CARLOSetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. JOSE LUIS ARAUJO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. FRANCISCO MARIOK.A. Francisco Mario Funes, Petitioner, v. JANET RENO, Attorney General, Respondent. Petitions for Review from the Board of Immigration Appeals RAMON RUEDA, Petitioner, v. RICHARD C. SMITH, District Director and JANET RENO, Attorney General, Respondents. NESTORetitioner, v. JANET RENO, Attorney General, RICHARD EUGENE SMITH, and IMMIGRATION AND NATURALIZATION SERVICE, Respondents.o. 99-70357,os. 99-35314 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT |
| Court | U.S. Court of Appeals — Ninth Circuit |
Appeals from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding
Before: William C. Canby, Jr., Stephen Reinhardt, and Ferdinand F. Fernandez, Circuit Judges.
Opinion by Judge Reinhardt;
COUNSEL: Marc Van Der Hout, and Trina Realmuto, San Francisco, California, for petitioners Carlos Castro-Cortez; Jose Luis Araujo; and Mario Funes-Quevado. Camille K. Cook, San Francisco, California, for petitioner Carlos Castro-Cortez. Lisa Ellen Seifert, Olympia, Washington, for petitioner Ramon Rueda.Matt Adams, Northwest Immigrant Rights Project, Granger, Washington, for petitioner Nestor Salinas-Sandoval. Marc Van Der Hout and Trina Realmuto, The American Immigration Lawyers Association and the National Immigration Project of the National Lawyers Guild, San Francisco, California, amici curaie for petitioner Nestor SalinasSandoval. Timothy P. McIlmail, Civil Division, United States Department of Justice, Washington, D.C., for the respondents.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) Pub. L. No. 104-208, 110 Stat. 3009-546 (1996) breathed new life into a dormant provision of the Immigration and Nationality Act (INA) that permitted the INS to reinstate prior orders of removal against aliens who reentered the United States.1 The revised provision, codified at INA S 241(a)(5), 8 U.S.C. S 1231(a)(5), not only expands the types of orders subject to reinstatement, but constrains the relief available to aliens whose orders are reinstated. When implementing the revised provision, the government decided to change the practice set forth in its prior regulations which provided aliens subject to orders of reinstatement with hearings before an Immigration Judge (IJ). Instead, the INS instituted a new procedure whereby it reinstated such orders and removed such aliens without affording hearings of any sort.
In this case, we are asked to decide whether the government's new reinstatement procedure violates the Due Process Clause of the Fifth Amendment. We are also asked to decide whether the new procedure actually applies to the aliens in this case, because all five petitioners reentered the United States before IIRIRA became effective. While we seriously doubt that the government's new reinstatement procedure comports with the Due Process Clause, we need not decide that question here; instead, we hold that INA S 241(a)(5) does not apply to aliens who reentered the United States before IIRIRA's effective date.
This opinion consolidates five cases in which the government, pursuant to INA S 241(a)(5), reinstated old orders of deportation or exclusion. In two of those cases, the government has executed the reinstatement, and the aliens appeal from abroad. In the other cases, the government or the district court stayed the execution of the reinstated order. Below we explain the facts surrounding each of the reinstatements.2
Carlos Castro-Cortez (hereinafter Castro) is a 42-year-old native of Mexico who has resided in the United States nearly
continuously since 1975. In 1982, he married a United States citizen, and together they have two children. On February 9, 1976, Castro received an Order to Show Cause charging him with deportability for having entered the United States without inspection. The events that followed are in dispute. According to Castro, he asked to see a judge but was told by INS officials that the judge was sick. INS officials then told him that if he signed a paper, he could voluntarily depart the United States. On February 12, Castro departed the United States without having seen a judge or having been advised that he was required to remain outside the United States for a particular length of time. He reentered the United States about two months later.
The INS contends that Castro was validly deported. It has produced a document stamped "deport to Mexico " with an illegible signature beneath it. However, there is no written record of a deportation hearing or any evidence that Castro ever appeared before an IJ.3 Regulations in place at the time required that, even if an alien conceded deportability, the IJ was directed to "enter a summary decision on Form I-38, if deportation is ordered, or on Form I-39, if voluntary departure is granted with an alternate order of deportation. " 8 C.F.R. S 242.18(b) (1984). The INS has failed to produce any of the documents that, in 1976, IJs were required to execute to order an alien deported or to grant an alien voluntary departure.
Following his almost immediate reentry, Castro made several attempts to legalize his status. In 1987, he applied for a visa under the "Special Agricultural Workers Program" (SAW). In a sworn declaration, he states that he left the United States in 1995 to visit a sick relative in Mexico, and
that he returned to the United States via direct flight to San Francisco where, on approximately November 29, he was admitted by an INS inspector who examined his employment authorization card. Castro last entered the United States under a SAW applicant authorization.
When Castro learned in 1996 that his legalization petition had been denied, his wife filed an immediate relative visa petition, and it was approved on May 15, 1997. On that day, Castro then filed an application for adjustment of status under INA S 245(a), 8 U.S.C. S 1255(a).
On March 11, 1998, Castro and his counsel appeared at the INS office for a routine adjustment interview. The INS thereupon arrested Castro and informed him that his 1976 deportation was being reinstated. The INS interviewed Castro, and he explained that his most recent entry had been with permission at the San Francisco airport. When asked whether he had ever been deported, he responded that he did not remember exactly, and said "I do not remember talking to a judge." The next day, Castro was served with a Notice of Intent/Decision to Reinstate Prior Order. The INS informed his counsel that it intended to remove him to Mexico that same day, and his counsel intervened and thereafter obtained a stay of removal from this court.
Jose Luis Araujo is a citizen of Mexico who has resided in the United States since approximately 1979. In 1996, Araujo married a United States citizen, and he has a United States citizen son from a prior marriage. According to Araujo's affidavit, on the morning of March 2, 1999, he was awakened by INS officers who had arrived at his Fremont, California home to apprehend him. He was handcuffed, placed in a car, and delivered to the San Francisco offices of the INS. There he confirmed that he was Jose Luis Araujo, whereupon he was told that he was "going straight to Mexico." He was not permitted to contact his wife or his attorney. He remained in custody until that evening, when he was driven to the airport and flown to Phoenix, Arizona. When he arrived there, he was placed on a bus and driven to Nogales, Mexico, where he was deposited at 6:00 A.M. on March 3, with neither money nor identification. He remains in Mexico awaiting disposition of this petition.
The prior order of deportation that the INS reinstated was issued in 1983, when Araujo was deported after entering the United States without inspection. Araujo reentered the United States shortly after his deportation. Over the years, he has attempted on several occasions to legalize his status. He was approved for relative immigrant visas in 1980 and 1981. In 1996, Araujo's wife filed an immediate relative visa petition and Araujo applied for adjustment of status, paying the penalty fee assessed against aliens who entered without inspection. At the time of Araujo's arrest and expulsion in March 1999, the INS had not adjudicated his adjustment application.4
Araujo petitions this court to review the INS's decision reinstating his 1983 deportation. Because the government no longer permits aliens subject to reinstatement to appear before an IJ or appeal to the Board of Immigration Appeals (BIA), this forum is the first one in which Araujo has sought to challenge the deportation.
Francisco Funes-Quevado (here in after Funes) is a native of El Salvador who entered the United States in 1982. He has been married to a United States citizen for nine years, and has two children. On February 18, 1986, the INS ordered Funes excluded from the United States. He was excluded, returned within a month, and has resided in this country since then.
In 1991, the INS granted Funes Temporary Protected Status, which was valid through 1994. The next year, Funes applied for adjustment of status. Four years later, in 1999, while the application was still pending, Funes went to the INS office for a routine adjustment of status interview. According to Funes, instead of interviewing him, the INS handcuffed and detained him, and released him after he requested to speak with his attorney. At...
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