Fernandez-Vargas v. Ashcroft

• Decision Date: 12 January 2005
• Docket Number: No. 03-9610.,03-9610.
• Citation: 394 F.3d 881
• Parties: Humberto FERNANDEZ-VARGAS, Petitioner, v. John ASHCROFT, Attorney General, Respondent.<SMALL><SUP>*</SUP></SMALL>
• Court: U.S. Court of Appeals — Tenth Circuit

394 F.3d 881

Humberto FERNANDEZ-VARGAS, Petitioner, v. John ASHCROFT, Attorney General, Respondent.^*

No. 03-9610.

United States Court of Appeals, Tenth Circuit.

January 12, 2005.

Submitted on the briefs: J. Chris Keen, Keen Law Offices, LLC, Provo, UT, for Petitioner.

Papu Sandhu, Senior Litigation Counsel, Aviva L. Poczter, Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondent.

Before McCONNELL, HOLLOWAY, and PORFILIO, Circuit Judges.

McCONNELL, Circuit Judge.

This case turns upon the application of two statutes.¹ The first statute is § 245(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255(i), which allows an alien who entered the United States without inspection to apply to become an alien lawfully admitted for permanent residence, if a petition for classification under INA § 204, 8 U.S.C. § 1154, (including a relative visa petition) was filed on his or her behalf before April 30, 2001.²

The second statute is INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (referred to at times throughout as the "reinstatement statute"), which both (1) provides that a prior order of removal may be reinstated against an alien who has illegally re-entered the United States, and (2) bars that alien from applying for any form of "relief" under Chapter 12 of U.S.C. Title 8.³ INA § 241(a)(5) replaced the former reinstatement provision, INA § 242(f), 8 U.S.C § 1252(f) (repealed 1996), which, among other differences, did not prohibit application for relief.

The parties ask us to decide two questions regarding these statutes: (1) Is Petitioner Humberto Fernandez-Vargas' ("Fernandez") application to adjust status under INA § 245(i) an application for "relief" barred by the reinstatement statute? (2) If so, is this bar impermissibly retroactive when applied to Fernandez, a previously deported immigrant who re-entered the country prior to the reinstatement statute's April 1, 1997, effective date?

Because the plain language of the reinstatement statute bars application for any form of relief under Chapter 12 of U.S.C. Title 8, we hold that the reinstatement statute bars Fernandez' application to adjust status under INA § 245(i), 8 U.S.C. § 1255(i). Further, since both the filing of Fernandez' application to adjust status, and the marriage upon which his application is based, occurred after the effective date of the reinstatement statute, there is no impermissible retroactive effect. Therefore, Fernandez' petition for review is denied.

I. BACKGROUND

Fernandez, a native and citizen of Mexico, has been deported from the United States on several occasions. Shortly after his last deportation in October of 1981, Fernandez re-entered the United States without inspection and has lived in this country ever since. On March 30, 2001, nearly four years after the April 1, 1997, effective date of the reinstatement statute, Fernandez married Rita Fernandez, a United States citizen and, on May 30, 2001, he filed both a Form I-212 Application for Permission to Reapply for Admission Into the United States After Deportation or Removal ("Form I-212"), and an application to adjust his status to that of a legal permanent resident.⁴

Thereafter, apparently at an interview regarding his application, Fernandez was arrested for being in the country illegally. The government reinstated the 1981 order of deportation and, on November 17, 2003, issued a warrant commanding that Fernandez be taken into custody and removed from the United States. Fernandez then filed his petition with this court, arguing his prior order of deportation could not be reinstated without a decision being made on his "pending" adjustment application.

In its brief, the United States claims that reinstatement of Fernandez' deportation order was proper in that Fernandez was barred from applying for adjustment of his immigration status. The government also claims that a decision was made on Fernandez' application and the administrative record does contain an unsigned and undated letter from U.S. Citizenship and Immigration Services ("USCIS"), a bureau of the Department of Homeland Security, purportedly denying Fernandez' application. One of the grounds for denial presented by the government in its letter was that INA § 241(a)(5) prohibited Fernandez from applying for or receiving relief. The letter also presented two other grounds for denying adjustment: (1) that Fernandez had sought admission to the United States by fraud or willful misrepresentation under INA § 212(a)(6)(C), 8 U.S.C. § 1182(a)(6)(C), and (2) that Fernandez was ineligible for admission under INA § 212(a)(9)(A)(i), 8 U.S.C. § 1182(a)(9)(A)(i), because he had been previously deported and twenty years had not passed since his last removal. In his brief, Fernandez questions whether this unsigned and undated denial letter was ever sent and claims he did not learn of the letter's existence until the production of the administrative record for review.

II. DISCUSSION

Fernandez seeks review of the government's reinstatement of his deportation order, arguing (1) that the bar to relief found in INA § 241(a)(5) does not prohibit his application for adjustment of status under INA § 245(i), and (2) that if INA § 241(a)(5) does bar his application, the effect of the bar on him is impermissibly retroactive. As for the letter denying his application, Fernandez claims his inadmissibility under INA § 212(a)(6)(C) could have been waived because denial of adjustment will cause his spouse extreme hardship, but that he was prevented from applying for such a waiver by the reinstatement of the prior deportation order. He also claims that his inadmissibility under INA § 212(a)(9)(A)(i) would have been waived if his Form I-212 — which was not addressed in the denial — had been granted. He argues that the reinstatement order should be reversed and, essentially, that he should have the opportunity to have his application for adjustment ruled upon once he has had a chance to properly request waivers of the other possible grounds for denial. Even if, for the sake of argument, we assume Fernandez qualified for waivers of the grounds for denial found in INA § 212(a)(6)(C) and INA § 212(a)(9)(A)(i), and that he was prevented from properly applying for and receiving these waivers by the reinstatement of his prior order of deportation, we must still deny his petition because we hold that the reinstatement statute barred Fernandez' application to adjust his immigration status, and that the bar is not an impermissible retroactive effect on Fernandez.

A. Jurisdiction and Standard of Review

An order reinstating a prior removal order is the functional equivalent of a final order of removal and, therefore, we have jurisdiction to review the reinstatement order under INA § 242(b)(2), 8 U.S.C. § 1252(b)(2). Garcia-Marrufo v. Ashcroft, 376 F.3d 1061, 1063 (10th Cir.2004); Arevalo, 344 F.3d at 2. Although we defer to an agency's interpretation of a statute when the statute is ambiguous, here there is no ambiguity and we are instead faced with purely legal questions, which we review de novo. Lattab v. Ashcroft, 384 F.3d 8, 14 (1st Cir.2004); Arevalo, 344 F.3d at 9-10.

B. INA § 241(a)(5)'s Bar To Application For Relief

Fernandez' argument is that his INA § 245(i) application to adjust status was not barred by INA § 241(a)(5)'s bar to application and eligibility for "any relief." INA § 241(a)(5) reads:

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.

INA § 241(a)(5) (emphasis added). INA § 245(i) provides that the Attorney General may adjust the status of an alien physically present in the United States who entered without inspection if the alien meets certain requirements, including being "admissible to the United States for permanent residence."

Generally, a previously removed alien who illegally re-enters the United States is permanently inadmissible to the United States under INA § 212(a)(9)(C)(i)(II), and therefore not eligible for adjustment of status under INA § 245(i). See Berrum-Garcia, 390 F.3d at 1167 ("It is therefore apparent to us that Congress did not consider those who reenter the United States in defiance of a prior deportation order to be qualified for [INA § 245(i)'s] amnesty."). While a waiver of this permanent inadmissibility is available, that waiver may only be sought following the completion of an unwaivable ten-year period outside of the United States. INA § 212(a)(9)(C)(ii); Berrum-Garcia, 390 F.3d at 1166-1167. Consequently, we find no inherent tension between the allowance of adjustment of status to aliens admitted without inspection under INA § 245(i) and the bar to any relief to previously removed aliens who illegally re-enter the United States under INA § 241(a)(5).

Fernandez cites Prado Hernandez v. Reno, 86 F.Supp.2d 1037 (W.D.Wash.1999), to support his argument that he should be allowed to adjust his status despite his previous removal order and subsequent illegal reentry. In Prado Hernandez, the district court held that an application to adjust status under INA § 245(i), submitted before reinstatement of the alien's previous deportation order, was not a "request for relief" barred by INA § 241(a)(5), and that the alien was entitled to have his adjustment application considered before the previous deportation order was reinstated.⁵ Id. at 1041-42. The district court held that the adjustment application could not be considered a request for relief because, at the time it was filed, the INS had not yet moved to reinstate the prior deportation...