Lattab v. Ashcroft

• Decision Date: 14 September 2004
• Docket Number: No. 03-2146.,03-2146.
• Citation: 384 F.3d 8
• Parties: Azzedine LATTAB, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

384 F.3d 8

Azzedine LATTAB, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-2146.

United States Court of Appeals, First Circuit.

Heard August 5, 2004.

Decided September 14, 2004.

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Carlos E. Estrada, with whom Allan M. Tow was on brief, for petitioner.

Trina A. Realmuto and Nadine K. Wettstein on brief for American Immigration Law Foundation, amicus curiae.

Papu Sandhu, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Peter D. Keisler, Assistant Attorney General, and Emily Anne Radford, Assistant Director, were on brief, for respondent.

Before SELYA, DYK^* and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

The petitioner, Azzedine Lattab, is an Algerian national. His case presents a gallimaufry of issues, including yet another in the series of retroactivity problems that have trailed Congress's enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. 104-208, 110 Stat. 3009-598 (IIRIRA). Broadly stated, Lattab — with the able assistance of the amicus — attacks an IIRIRA provision, codified at 8 U.S.C. § 1231(a)(5), which mandates the reinstatement of a prior deportation order (or removal order — the terms are interchangeable on these facts) when an alien subject to such an order is found to have reentered the country illegally. He argues that the reinstatement provision is impermissibly retroactive as applied to his case; that the regulatory procedure implementing it is ultra vires; and that, in all events, the provision deprives illegally reentering aliens of procedural due process. As a fallback, he asserts that the reinstatement provision ought not to have been invoked in this instance because another statute trumped its operation. Concluding, as we do, that this asseverational array lacks force, we deny and dismiss the petition for review.

I. THE NEW REINSTATEMENT PROVISION

We begin by limning the parameters of the new reinstatement provision. Among many other innovations, IIRIRA repealed the former reinstatement provision, section 242(f) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1252(f) (repealed 1996), and enacted a new reinstatement provision at section 241(a)(5), 8 U.S.C. § 1231(a)(5).¹ Section 241(a)(5) provides: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 [the INA], and the alien shall be removed under the prior order at any time after the reentry.

This provision took effect on April 1, 1997. It altered preexisting law in at least three salient respects. First, under the old regime only illegal reentrants who had previously been deported on certain specified grounds (e.g., conviction for an aggravated felony) were subject to having their original deportation orders reinstated. Under section 241(a)(5), however, all illegal reentrants now face the prospect of such reinstatement. See Arevalo v. Ashcroft, 344 F.3d 1, 5 (1st Cir.2003). Second, under the earlier system an alien had a right to a hearing, presided over by an immigration judge, before reinstatement of the prior deportation order became a fait accompli. Under the regulations implementing section 241(a)(5), however, there is no longer a right to such a hearing (or to any hearing, for that matter). See 8 C.F.R. § 241.8. Third, preexisting law allowed an illegal reentrant to attempt to fend off execution of a reinstated deportation order by petitioning for discretionary relief in the form of an adjustment of his status to that of an alien lawfully admitted for permanent residence. Conversely, section 241(a)(5) pretermits an illegal reentrant's ability to apply for any relief under the INA. See Arevalo, 344 F.3d at 5.

II. THE FACTUAL BACKGROUND

We next recount the facts undergirding the case. The petitioner first entered the United States on February 7, 1992, as a tourist. He overstayed his visa and remained here for some time. On March 29, 1996, an immigration judge found him deportable but allowed him to depart voluntarily on or before June 27 of that year. The petitioner failed to comply — he did not leave the United States until August 23, 1996 — and that default caused the immigration judge's ukase to mutate into a deportation order. See 8 C.F.R. § 243.5 (repealed 1997). In the eyes of the law, therefore, the petitioner's belated departure was tantamount to self-deportation. Id.

While in the United States, the petitioner had become romantically involved with a United States citizen (he claims that they had become engaged). He reentered the United States illegally on March 1, 1997, and resumed this courtship. He and his fiancee were married on July 5, 1999.

On May 23, 2000, the petitioner's wife filed an "immediate relative" petition with the Immigration and Naturalization Service (INS).² This petition was approved on August 28, 2002. That approval, standing alone, did not affect the petitioner's immigration status, but, rather, paved the way for a possible adjustment. See INA § 245(i), 8 U.S.C. § 1255(i). To that end, he immediately sought to have his status changed to that of lawful permanent resident. During the pendency of that application, the INS approved the petitioner's request for temporary authorization to engage in employment. See 8 C.F.R. § 274a.12(c).

On August 5, 2003, the petitioner endeavored to renew his employment authorization. While at the CIS office in Boston, an immigration officer discovered that the petitioner had been deported once before. He was taken into custody and soon thereafter ICE, relying on section 241(a)(5), reinstated the 1996 deportation order.

Dismayed by this chain of events, the petitioner sought judicial review. His petition contends, inter alia, that the government's attempt to apply section 241(a)(5) to his case has an impermissibly retroactive effect; that the summary reinstatement of the prior deportation order disregarded both statutorily mandated procedures and the dictates of the Due Process Clause; and that in the circumstances of this case, section 241(a)(5) must yield to a different (allegedly conflicting) INA provision. Because an order reinstating a prior removal order is "the functional equivalent of a final order of removal," Arevalo, 344 F.3d at 9, we have jurisdiction to hear and determine these contentions under 8 U.S.C. § 1252.

III. ANALYSIS

The petitioner and the amicus advance four principal arguments. We consider them in an order that roughly corresponds to the amount of energy that they have devoted to each.

A. Retroactivity.

The centerpiece of the petitioner's case is a claim that application of section 241(a)(5) to his circumstances is impermissibly retroactive. Since IIRIRA took effect after his illegal reentry in 1997, this thesis runs, retroactive application of the new reinstatement proviso would violate his settled expectation that he would be allowed to seek an adjustment of his immigration status following his marriage.

Whether application of a statute to a given situation is impermissibly retroactive presents a quintessentially legal question. Judicial review is de novo and, accordingly, the agency's views garner no special deference. Arevalo, 344 F.3d at 9-10 (explaining that "courts, rather than agencies, are best equipped to make the constitutionally tinged judgment calls inherent in retroactivity determinations"). We proceed on that basis.

There is no doubt that Congress has the raw power to enact statutes that operate retroactively. See Landgraf v. USI Film Prods., 511 U.S. 244, 267, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). But because retroactive legislation has the potential to alter the consequences of actions already taken, courts start with a presumption that Congress intends to legislate prospectively. Id. at 272-73, 114 S.Ct. 1483. Congress can overcome this presumption and give legislation a retroactive effect only by clearly indicating its intent to do so. Id. at 268, 114 S.Ct. 1483.

We analyze the possibility that Congress intended a statute to apply retroactively under the rubric set forth in Landgraf. Initially, we decide whether Congress has clearly stated an intention to have the statute apply retrospectively. Id. at 280, 114 S.Ct. 1483; Arevalo, 344 F.3d at 10. Although this prong of the test requires Congress's intention to be unmistakable, our inquiry is not limited to the statutory text but may include an examination of standard ensigns of statutory construction, such as the statute's structure and legislative history. See Martin v. Hadix, 527 U.S. 343, 355-57, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999); see also Arevalo, 344 F.3d at 11-13 (examining these factors in determining the sweep of section 241(a)(5), but noting that "the benchmark for finding unambiguous temporal scope is quite high"). If this perscrutation leads to a firm conviction that Congress intended the statute to have a specific temporal reach, the retroactivity analysis ends and we will apply the statute in accordance with Congress's prescription. In the absence of such a directive, we will proceed to determine whether the application in question would have an impermissibly retroactive effect. Landgraf, 511 U.S. at 280, 114 S.Ct. 1483; Arevalo, 344 F.3d at 10-11. That result obtains if the specified application would "impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Landgraf, 511 U.S. at 280, 114 S.Ct. 1483. In that event, the presumption that Congress did not intend the statute to apply retrospectively will hold. Arevalo, 344 F.3d at 11. Otherwise,...