JEREZ v. HOLDER

Decision Date25 August 2010
Docket NumberNo. 09-1283.,09-1283.
Citation625 F.3d 1058
PartiesJose Favio MOLINA JEREZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
CourtU.S. Court of Appeals — Eighth Circuit

OPINION TEXT STARTS HERE

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Alison M. Brown, argued, Amy L. Peck, on the brief, Omaha, NE, for Petitioner.

Kathryn Deangelis, argued, Department of Justice, Washington, DC, for Respondent.

Before RILEY, Chief Judge, 1 WOLLMAN and SHEPHERD, Circuit Judges.

RILEY, Chief Judge.

Jose Favio Molina Jerez (Molina) petitions for review of a final order of reinstatement of removal entered by the Department of Homeland Security, Immigration and Customs Enforcement (DHS). 2 We dismiss in part and deny in part Molina's petition.

I. BACKGROUND A. Three Illegal Entries

Molina is a Guatemalan national. In March 1985, Molina entered the United States illegally at Nogales, Arizona. DHS's records state Molina “tried to apply for amnesty in [Los Angeles, California], but was informed of his ineligibility due to time and dates of entry to [the United States].” In August 1987, Molina left the United States “to visit his parents and common-law Guatemalan wife and three children.”

In October 1987, Molina entered the United States illegally for a second time. DHS apprehended Molina near Nogales, “enroute to his former residence and legal wife in Los Angeles.” DHS placed Molina in deportation proceedings. 3 In an order to show cause, DHS alleged Molina entered the United States without inspection, in violation of 8 U.S.C. § 1251(a)(2) (1988).

In May 1989, an immigration judge found Molina deportable as alleged, but granted Molina the privilege to depart the United States voluntarily on or before September 2, 1989. See id. § 1254(e). In the event Molina failed to depart in a timely manner, the immigration judge alternatively ordered Molina's deportation to Guatemala. Molina abused his privilege of voluntary departure and remained in the United States for more than one year after he was ordered to depart voluntarily. The immigration judge's alternate deportation order, therefore, became a final order of deportation.

In December 1990, Molina left the United States on his own accord, but subject to the immigration judge's deportation order. Molina did not apprise DHS he left the United States.

In March 1991, Molina entered the United States illegally for a third time. Molina crossed the Mexican border near San Ysidro, California, and settled in Los Angeles.

B. Applications for Asylum and Work Authorization

In January 1992, Molina filed two applications with DHS: (1) an application for asylum, and (2) an application for permission to work in the United States. 4 In each application, Molina falsely stated under oath that he had last entered the United States on March 15, 1985.

In his asylum application, Molina testified he was “unwilling to return to Guatemala for the well founded fear of persecution by the leftist guerrillas”; he “would be discriminated [against], persecuted and humiliated” if he returned; and his “life [was] in danger due to[ ]the constant violence in Guatemala that everyday is getting worse.” In exchange for “protection while [his] application ... [was] pending,” Molina “promise[d] to respect all the laws ... of the [United States].” 5 Molina expressed his “wish to return to Guatemala once the situation of [instability] gets better.”

For most of the next two decades, DHS failed to issue a final decision on Molina's asylum application. No later than 1995, DHS granted Molina's application to work in the United States. Molina gained lawful employment as a laborer in Lexington, Nebraska.

C. Intervening Changes in the Law

The significant delay in processing Molina's asylum application was not unusual. In 1985, “thousands of Salvadorian and Guatemalan asylum seekers ... filed a lawsuit against [DHS] claiming their asylum applications had not been fairly adjudicated.” Cuadra v. Gonzales, 417 F.3d 947, 948 (8th Cir.2005). In 1991, a district court approved a class-action settlement agreement, American Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D.Cal.1991) ( ABC), in which DHS “agreed not to deport class members (commonly referred to as the ABC class), to give each class member a proper de novo asylum interview, and to give class members work authorization while they awaited these interviews.” Cuadra, 417 F.3d at 948. DHS “delayed implementation of the settlement for years.” Id.

1. IIRIRA

While Molina's asylum application was pending, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009-546. In relevant part, IIRIRA: (1) replaced suspension of deportation with cancellation of removal, and (2) strengthened an extant reinstatement-of-removal provision.

a. Cancellation of Removal

Before IIRIRA, aliens with pending asylum claims were able to apply for suspension of deportation, which “gave the Attorney General discretion to grant permanent resident status to an alien who had been in the United States for seven years, was of good moral character, and whose deportation would cause extreme hardship for the alien or certain lawfully present relatives.” Cuadra, 417 F.3d at 948-49 (discussing 8 U.S.C. § 1254 (1994)). Time spent in deportation proceedings before applying for suspension of deportation counted toward the seven-year physical presence requirement. Tang v. INS, 223 F.3d 713, 715 (8th Cir.2000).

IIRIRA replaced suspension of deportation with cancellation of removal. See 8 U.S.C. § 1229b (2006); Chanmouny v. Ashcroft, 376 F.3d 810, 811 n. 1 (8th Cir.2004) (citing IIRIRA §§ 304, 308(b)(7)). Cancellation of removal is “a much more restrictive form of immigration relief.” Cuadra, 417 F.3d at 949. “Among other things, the IIRIRA contains a stop-time rule, terminating the accrual of continuous physical presence at the time when an alien is served with a notice to appear before [DHS] on deportation charges.” Escudero-Corona v. INS, 244 F.3d 608, 613 (8th Cir.2001) (citing 8 U.S.C. § 1229b(d)(1) (Supp. III 1997)). This “stop-time rule” is retroactive and “applies to show cause orders issued before ... IIRIRA's enactment date.” Id. (citing 8 U.S.C. § 1101 note).

b. Reinstatement of Removal

Before IIRIRA, reinstatement of removal was a “little-used” provision, which “did not apply to aliens ... who were deported for entering the country without inspection.” Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 862 (8th Cir.2002) (citing 8 U.S.C. § 1252(f) (1994)), overruled on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). IIRIRA ushered in “a broader and far less forgiving reinstatement-of-removal provision.” Id. (discussing IIRIRA § 241(a)(5)). The strengthened version 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.

8 U.S.C. § 1231(a)(5) (2006).

[1] [2] IIRIRA's strengthened reinstatement-of-removal provision reflects a Congressional determination that [a]liens who violate U.S. immigration law should be removed ... as soon as possible” with [e]xceptions ... provided only in extraordinary cases specified in the statute and approved by the Attorney General.” Alvarez-Portillo, 280 F.3d at 863 (quoting S.Rep. No. 104-249, 7 (1996)). It “applies to all previously deported aliens ... whose prior deportation was for entry without inspection.” Id. In the mine-run case, “the only issues to be determined are those establishing the agency's right to proceed under [8 U.S.C. § 1231(a)(5) ]-the alien's identity, the existence of a prior removal order, and whether the alien has unlawfully reentered.” Id. at 867.

For its part, DHS “adopted a summary administrative reinstatement-of-removal procedure in which [t]he alien has no right to a hearing before an immigration judge,’ an immigration officer determines whether the alien is subject to reinstatement of a prior deportation order, and the alien is entitled only to written notice and an opportunity to ‘make a written or oral statement contesting the determination.’ Id. at 863 (quoting 8 C.F.R. § 241.8(a), (b)). [T]he alien may neither attack the validity of the prior deportation order nor avoid removal by obtaining discretionary relief such as an adjustment of status to lawful permanent resident.” Id.

c. IIRIRA as Applied to Molina

IIRIRA reduced Molina's chances to stay in the United States if his asylum claim were denied. If, as represented to DHS, Molina never left the United States under the immigration judge's 1989 deportation order, Molina would be subject to cancellation of removal instead of suspension of deportation. If DHS learned Molina left in 1990 and reentered in 1991, Molina would be subject to IIRIRA's strengthened reinstatement-of-removal provision.

2. ABC Class Member Benefits

While Molina's asylum application was pending, Congress enacted legislation to ameliorate some of IIRIRA's adverse effects upon ABC class members. Molina attempts to avail himself of such legislation in his petition for review.

a. NACARA and Cancellation of Removal

In 1997, Congress passed the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA), Pub.L. No. 105-100, 111 Stat. 2160. NACARA § 203 “allows ABC class members to seek relief under conditions approximating pre-IIRIRA suspension of deportation.” Cuadra, 417 F.3d at 949. Such relief is called “special rule cancellation of removal.” Id.

b. LIFE Act Amendments and Reinstatement of Removal

In 2000, Congress passed the LIFE Act Amendments of 2000 ...

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