Gabriel v. Grocetti

• Decision Date: 02 April 2001
• Docket Number: P,No. 00-1755,VELASQUEZ-GABRIE,00-1755
• Citation: 263 F.3d 102
• Parties: (4th Cir. 2001) FRANCISCOetitioner, v. LOUIS D. CROCETTI, JR., District Director for the Immigration and Naturalization Service; U.S. IMMIGRATION & NATURALIZATION SERVICE; JOHN ASHCROFT, Attorney General, Respondents. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 102

263 F.3d 102 (4th Cir. 2001)

FRANCISCO VELASQUEZ-GABRIEL, Petitioner, v. LOUIS D. CROCETTI, JR., District Director for the Immigration and Naturalization Service; U.S. IMMIGRATION & NATURALIZATION SERVICE; JOHN ASHCROFT, Attorney General, Respondents.

No. 00-1755.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: April 2, 2001.

Decided: August 22, 2001.

On Petition for Review of an Order of the Board of Immigration Appeals. (A70-669-804)

COUNSEL ARGUED: Jaime Wintheysen Aparisi, Silver Spring, Maryland, for Petitioner. Papu Sandhu, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents. ON BRIEF: David W. Ogden, Assistant Attorney General, Emily Anne Radford, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondents.

Before MOTZ and GREGORY, Circuit Judges, and Frederic N. SMALKIN, United States District Judge for the District of Maryland, sitting by designation.

Petition for review denied in part and dismissed in part. Judge Motz wrote the opinion, in which Judge Gregory and Judge Smalkin joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Francisco Velasquez-Gabriel challenges, as impermissibly retroactive, the Immigration and Naturalization Service's (INS) reinstatement of his prior deportation pursuant to § 241(a)(5) of the Immigration and Nationality Act (INA), 8 U.S.C.§ 1231(a)(5) (Supp. V 1999). We hold that § 241(a)(5) does not have a retroactive effect on Velasquez-Gabriel and thus affirm reinstatement of the prior order deporting him.

I.

Velasquez-Gabriel, a native and citizen of Guatemala, entered the United States illegally in 1992. An immigration judge ordered him deported on September 29, 1994; he was finally removed from the United States on October 19, 1995. Upon his brief return to Guatemala, in November 1995, Velasquez-Gabriel divorced his Guatemalan wife of 23 years. Shortly thereafter, he illegally reentered the United States and, on February 9, 1996, married Lorraine Boyce, a United States citizen.

On September 30, 1996, Congress enacted major immigration reform legislation, entitled the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546 (1996). Title III, Subtitle A of IIRIRA instituted a complete "Revision of Procedures for Removal of Aliens." 110 Stat. 3009-575. Congress included in that subtitle IIRIRAS 305(a), creating new § 241(a)(5) of the INA, which provides:

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), 8 U.S.C. § 1231(a)(5). The statute defines "order of removal" as follows:

For purposes of carrying out the Immigration and Nationality Act, as amended by this subtitle

. . . .

(2) any reference in law to an order of removal shall be deemed to include a reference to an order of exclusion and deportation or an order of deportation.

IIRIRA § 309(d). Congress also stated that Subtitle A, which revised the procedures for removing aliens, "shall take effect on" April 1, 1997. IIRIRA § 309(a).

In November 1997, more than seven months after § 241(a)(5) took effect, Velasquez-Gabriel's wife, Lorraine Boyce, filed a Form I-130 (Petition for Alien Relative) on his behalf and he simultaneously filed a Form I-485 (Application to Adjust to Register Permanent Residence or Adjust Status) based on his marriage to a United States citizen. On March 17, 2000, the INS denied Velasquez-Gabriel's application for adjustment of status because he entered the United States without inspection, citing INA § 212(a)(6)(A), 8 U.S.C. § 1182(a)(6)(A), and reentered the United States illegally after previous removal, citing INA § 212(a)(9)(A), 8 U.S.C. § 1182(a)(9)(A), and 8 C.F.R. § 241.8 (1999) (implementing § 241(a)(5)).

On May 16, 2000, Velasquez-Gabriel filed an Application for Permission to Reapply for Admission Into the United States After Deportation or Removal. On the same day, however, the INS reinstated Velasquez-Gabriel's prior order of deportation "in accordance with section 241(a)(5) of the Immigration and Nationality Act (Act) and 8 C.F.R. 241.8." The immigration judge denied Velasquez-Gabriel's subsequent application for asylum, finding Velasquez-Gabriel did not have a "reasonable fear" of persecution or torture; he does not seek review of this ruling.

Rather, Velasquez-Gabriel petitions this court to review and reverse the INS's May 16, 2000 order reinstating the 1994 order deporting him.¹ For the reasons that follow, we deny his petition.

II.

At the outset, we dispose of two preliminary matters.

First, we note that, as the INS concedes, we clearly have subject matter jurisdiction in this case. Congress has expressly provided that aliens seeking to challenge an "order of removal" may file a petition for review with "the court of appeals for the judicial circuit in which the immigration judge completed the proceedings." See INA § 242(b), 8 U.S.C. § 1252(b) (Supp. V 1999).

Second, contrary to Velasquez-Gabriel's suggestion, his status as a "deported" rather than a "removed" alien does not render § 241(a)(5) of the INA (S 305(a) of the IIRIRA) inapplicable to him. Although Velasquez-Gabriel acknowledges that IIRIRA§ 309(d)(2) expands the definition of removal in § 241(a)(5) to include deportation, he suggests that § 309(d)(2) applies only to those "removal" proceedings ongoing at the time of IIRIRA's enactment.

That theory finds no support in the plain language of § 309(a), which states that Subtitle A "and the amendments made by this subtitle shall take effect on the first day of the first month beginning more than 180 days after the date of the enactment of this Act [April 1, 1997]." Section 309(c) establishes transitional rules for ongoing proceedings, but there is no indication that § 309(d) is also a transitional rule that applies solely to ongoing, not post-enactment, proceedings. In fact, such a reading would eviscerate IIRIRA's streamlined removal procedures by resurrecting the distinctions between "removal," "deportation," and "exclusion" that § 309(d)(2) sought to abolish. See United States v. Lopez-Gonzalez, 183 F.3d 933, 934 (9th Cir. 1999) (holding that IIRIRA "eliminate[d] the previous legal distinction between deportation, removal and exclusion"); see also INS v. St. Cyr, ___ U.S. ___, 121 S. Ct. 2271, 2287 (2001) (noting that IIRIRA substituted "the term `removal' . . . for `deportation'"). Velasquez-Gabriel's contention also contradicts the relevant regulation, which applies § 241(a)(5) to "an order of exclusion, deportation, or removal." 8 C.F.R. § 241.8(a) (1999). Accordingly, we reject it.

We now turn to Velasquez-Gabriel's principal argument.

III.

Velasquez-Gabriel contends that Congress did not intend INA § 241(a)(5) "to apply retroactively to pre-IIRIRA deportation orders," and that, even if the statute's temporal reach is ambiguous, to apply it to him would have an impermissible retroactive effect. To resolve this question, we must first ascertain "whether Congress expressly prescribed the statute's reach." Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). "If there is no congressional directive on the temporal reach of a statute, we determine whether the application of the statute to the conduct at issue would result in a retroactive effect. If so, then in keeping with our `traditional presumption' against retroactivity, we presume that the statute does not apply to that conduct." Tasios v. Reno, 204 F.3d 544, 547-48 (4th Cir. 2000) (quoting Martin v. Hadix, 527 U.S. 343 (1999)).

We held this case in abeyance, awaiting the Supreme Court's decision in INS v. St. Cyr, which provides substantial guidance as to several of the retroactivity questions presented here. In St. Cyr, the Court rejected the INS's contention that Congress clearly intended to apply retroactively IIRIRA's repeal of former INA § 212(c), see IIRIRA § 304(b), which provided for a discretionary waiver of deportation even for those aliens that had committed certain aggravated felonies. See St. Cyr, 121 S. Ct. at 2290. The Court further held that this repeal had a retroactive effect on aliens that pled guilty to one of those specified crimes in reliance on the availability and reasonable likelihood of obtaining a discretionary deportation waiver. See id. at 2293. With these holdings in mind, we turn to the case at hand.

A.

Although § 241(a)(5) does not explicitly state whether it applies retroactively or prospectively, the INS and Velasquez-Gabriel each contend that Congress unambiguously defined the statute's temporal application.

1.

The INS asserts that Congress clearly indicated, in IIRIRA, that § 241(a)(5) is to apply to all aliens, including those, like Velasquez-Gabriel, who illegally reentered the United States prior to the effective date of that statute. The INS maintains that the comprehensive nature of IIRIRA's revision, the statute's general effective date, the presence of transitional rules, and the prospective nature of immigration deportation proceedings require this conclusion.

The Supreme Court's recent analysis in St. Cyr forecloses all of these arguments. See St. Cyr, 121 S. Ct. at 2287-90.² The St. Cyr Court concluded that despite these very features,§ 304(b) of IIRIRA was ambiguous and "the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien . . . forecloses the conclusion that, in enacting § 304(b), Congress itself has...