Ixcot v. Eric H. Holder Jr.

• Decision Date: 01 June 2011
• Docket Number: No. 09–71597.,09–71597.
• Citation: 646 F.3d 1202
• Parties: Abelino Francisco Chay IXCOT, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

646 F.3d 1202

11 Cal. Daily Op. Serv. 6539

2011 Daily Journal D.A.R. 7945

Abelino Francisco Chay IXCOT, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 09–71597.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 10, 2011.Filed June 1, 2011.

Matt Adams, Northwest Immigrant Rights Project, Seattle, Washington, for petitioner Abelino Francisco Chay Ixcot.Andrew Jacob Oliveira and Michael Christopher Heyse, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for respondent Eric H. Holder Jr.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A029–283–431.Before: BETTY B. FLETCHER, RICHARD A. PAEZ, and SANDRA S. IKUTA, Circuit Judges.

OPINION

B. FLETCHER, Circuit Judge:

We must decide whether the reinstatement provision enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), applies retroactively to a petitioner who applied for discretionary relief prior to IIRIRA's effective date. Following the First, Seventh, Tenth and Eleventh Circuits, we hold that the application of INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), is impermissibly retroactive when applied to such petitioners. See Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Accordingly, we grant the petition for review in part and remand for further proceedings. Because we lack jurisdiction to review agency determinations of eligibility for special rule cancellation of removal under § 203 of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA),¹ however, we deny the petition in part.

I.

Petitioner Francisco Abelino Chay Ixcot (“Chay”) is a native and citizen of Guatemala. He entered the United States without inspection on or about February 13, 1989, near San Ysidro, California, and was immediately apprehended by the Immigration and Naturalization Service (“INS”).² At that time, Chay claimed his name was Juan Mendez–Lopez, that he was a native and citizen of El Salvador, and that he was sixteen years old.

Chay was detained and placed in deportation proceedings ³ before an immigration judge (“IJ”). At the first deportation hearing, the IJ agreed to continue the proceeding to afford Chay an opportunity to find an attorney, and provided Chay with an attorney information sheet containing the names and phone numbers of lawyers who could be retained to assist him.

Chay reappeared before the IJ during a group deportation hearing a little over two weeks later. As before, he was without counsel; when the IJ asked why this was so, Chay explained that the lawyer he had contacted was unable to represent him. Chay again stated that his name was Juan Mendez–Lopez, that he was a native and citizen of El Salvador, and that he was sixteen years old, and admitted that he had entered the United States without inspection. The IJ then asked Chay whether he was afraid to return to El Salvador for any reason. Chay answered “yes,” and explained that his family was embroiled in a dispute with the owners of an apartment building in which his family had rented certain units. On the basis of this response, the IJ concluded that any issues Chay might have if deported to El Salvador were “problems of a personal nature” that could not support an asylum claim.

At the end of the hearing, the IJ ordered Chay and several other individuals deported. Prior to concluding the hearing, however, the IJ asked whether any person wished to appeal his decision. The transcript of the hearing reflects that an unnamed individual indicated an intent to appeal, and that the IJ supplied this individual with an appeal form. Although the transcript does not reflect whether this petitioner was Chay, Chay did timely file a notice of appeal with the Board of Immigration Appeals (“BIA”). The notice of appeal was received March 18, 1989, and Chay was released from detention on March 23, 1989.

One year later, the Executive Office of Immigration Review (“EOIR”) served Chay with a copy of the IJ's decision and the transcript of his deportation hearing. Chay was instructed to file his appeal brief by April 9, 1990, but did not do so. Consequently, the BIA summarily dismissed Chay's appeal on September 26, 1990.

In April 1993, Chay filed an affirmative asylum application. The application was filed under his real name, indicated that he was a native and citizen of Guatemala, and stated that his year of birth was 1967.⁴ As the basis for his asylum claim, Chay marked “political opinion” and explained that he was an indigenous farmer from Guatemala whom guerrillas had threatened with death when he had refused to help their cause in the 1980s. Four months after Chay filed his asylum application, in August 1993, he visited Guatemala for three weeks to marry his fiancée.⁵ He then returned to the United States, again entering without inspection.

Chay's asylum application languished some twelve years; there is no explanation for this extremely lengthy delay in its adjudication. In September 2005, Chay attended an interview for his pending asylum application and to determine whether he qualified for lawful permanent residence under NACARA. The Department of Homeland Security (“DHS”) concluded that Chay was ineligible for relief under NACARA because he had failed to register for the so-called “ ABC benefits” under American Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D.Cal.1991).⁶ No decision was made on Chay's eligibility for asylum relief.

Chay supplied DHS with additional information salient to his asylum application in December 2005, and, in February 2006, filed a request to add his wife and oldest child to his application. In July 2007, Chay and his wife attended another asylum interview, along with their immigration lawyer. Again, no decision was made.

Chay appeared for yet another asylum interview on May 19, 2009, once more accompanied by his wife and his immigration lawyer. At that time, an Immigration and Customs Enforcement (“ICE”) officer met Chay in the lobby and ran a fingerprint query, which matched a record belonging to Juan Mendez–Lopez. Through an interpreter, Chay then submitted a sworn statement in which he admitted to having used an alias, and stated that he had never been informed that he previously had been ordered deported. When asked whether he had any fear of persecution or torture if removed from the United States, Chay answered “Yes, because my whole family was killed in Guatemala.” He stated that he had witnessed the deaths of his mother and father, and asserted “I would like to ask a chance to fight my case. I fear if I am removed I too will be killed in Guatemala.”

Thereafter, instead of adjudicating Chay's pending asylum application, DHS processed Chay for reinstatement of the IJ's 1989 order of deportation ⁷ pursuant to the post-IIRIRA reinstatement provision, INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), and the attendant regulations, 8 C.F.R. § 241.8. The asylum office simultaneously issued a letter advising Chay that, since his prior order of deportation had been reinstated, he was statutorily ineligible for any immigration relief.

One week later, Chay filed the instant petition for review. We have jurisdiction to review final agency orders of removal, including reinstatement orders, pursuant to INA § 242(a)(1), 8 U.S.C. § 1252(a)(1), subject to the standard requirements for petitions for review, 8 U.S.C. § 1252(b). “The proper standard of review in immigration proceedings depends on the nature of the decision being reviewed.” Aguilar Gonzalez v. Mukasey, 534 F.3d 1204, 1208 (9th Cir.2008). Pure questions of law raised in a petition for review are reviewed de novo. Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir.2009). Factual findings are reviewed for substantial evidence, see 8 U.S.C. § 1252(b)(4)(B); Hamazaspyan, 590 F.3d at 747, and “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

II.

Chay argues that, because he submitted an affirmative application for asylum three years before IIRIRA was enacted,⁸ DHS erred in retroactively applying IIRIRA's reinstatement provision to him. The government contends that IIRIRA's reinstatement provision can be applied to Chay because it does not affect any substantive rights, create any new liabilities, attach any new legal consequences, or take away any vested interests. Rather, according to the government, INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), “merely withdraws [Chay's] eligibility for a form of immigration relief which is granted in the broad discretion of the adjudicator.” ⁹

“We ... review de novo whether an application of IIRIRA is impermissibly retroactive.” Hernandez de Anderson v. Gonzales, 497 F.3d 927, 932 (9th Cir.2007).

A.

The Immigration and Nationality Act (INA), enacted in 1952, included a reinstatement provision, which stated in relevant part:

Unlawful entry. 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.

8 U.S.C. § 1252(f) (1994 ed.) (repealed 1996). This reinstatement provision was limited: it applied only to those individuals “deported for engaging in certain unlawful activities—e.g., smuggling, marriage fraud, crimes of moral turpitude, multiple criminal convictions, aggravated felonies, illegal drug use or dealing, and terrorism activities.”

Morales–Izquierdo, 486 F.3d at 494 n. 11 (citing INA § 242, 8 U.S.C. § 1252 (1994 ed.) (repealed 1996)). Because Chay's 199...