Ojeda-Terrazas v. Ashcroft

• Citation: 290 F.3d 292
• Decision Date: 09 May 2002
• Docket Number: No. 01-60460.,01-60460.
• Parties: Benjamin OJEDA-TERRAZAS, also known as Benjamin T. Ojeda, also known as Benjamin Ojeda, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

290 F.3d 292

Benjamin OJEDA-TERRAZAS, also known as Benjamin T. Ojeda, also known as Benjamin Ojeda, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent.

No. 01-60460.

United States Court of Appeals, Fifth Circuit.

May 9, 2002.

Conn Felix Sanchez (argued), Kansas City, KS, for Petitioner.

Barry Joseph Pettinato (argued), David V. Bernal, Thomas Ward Hussey, Director, U.S. Dept. of Justice, Civ. Div., Immigration Litigation, John Ashcroft, Civ. Div., App. Staff, Washington, DC, Luis Garcia, U.S. INS, El Paso, TX, Christine G. Davis, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Before ALDISERT^*, DAVIS and PARKER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Petitioner Benjamin Ojeda-Terrazas petitions for review of an order of the Immigration and Naturalization Service ("INS") reinstating his prior deportation order under § 241(a)(5) of the Immigration and Nationality Act ("INA").¹ Ojeda-Terrazas argues that § 241(a)(5) does not apply retroactively to aliens who, like Ojeda-Terrazas, illegally reentered the United States before the statute's effective date of April 1, 1997. Ojeda-Terrazas further argues that § 241(a)(5)'s implementing regulations violate his due process rights under the Fifth Amendment. Because we conclude that § 241(a)(5) does not have an impermissible retroactive effect as applied to Ojeda-Terrazas and that the corresponding regulations do not violate any of his due process rights, we deny Ojeda-Terrazas' petition for review and affirm the removal order.

I.

The facts in this case are not in dispute. Ojeda-Terrazas is a citizen of Mexico. Some time before 1984, Ojeda-Terrazas illegally entered the United States without inspection. On March 8, 1984, Ojeda-Terrazas was deported to Mexico through El Paso, Texas. At that time, Ojeda-Terrazas was informed that if he returned to the United States without permission, he could be subject to criminal prosecution which could result in imprisonment and/or a fine.

Nevertheless, Ojeda-Terrazas illegally reentered the United States sometime in 1991. On May 14, 2001, the INS apprehended Ojeda-Terrazas and served him with a Notice of Intent to reinstate his March 8, 1984, deportation order. Ojeda-Terrazas then filed this petition for review.

II.

As an initial matter, this court must determine whether it has jurisdiction to review the INS' order reinstating Ojeda-Terrazas' previous deportation order. Both parties in this case agree that INA § 242(a)-(b)² grants this court jurisdiction to review the reinstatement order, but not the merits of Ojeda-Terrazas' 1984 order of deportation which has been reinstated.³ That, of course, does not end our inquiry because this court must satisfy itself that jurisdiction is proper.⁴

Section 242(a)-(b) of the INA grants the courts of appeals subject matter jurisdiction over "final orders of removal."⁵ At the same time, INA § 241(a)(5) states, in relevant part, that a "prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed."⁶

Turning to the issue at hand, a reinstatement order is not literally an "order of removal" because it merely reinstates a previously issued order of removal or deportation. Nevertheless, reinstatement of Ojeda-Terrazas' previous deportation order is a final order of the INS. A fair interpretation of § 242 grants this court the authority to review the lawfulness of the reinstatement order. However, § 241(a)(5) limits that review to the reinstatement order itself; this court cannot "reopen or review" the merits of Ojeda-Terrazas' 1984 deportation order. We conclude, therefore, that this court has jurisdiction to hear Ojeda-Terrazas' petition for review of the reinstatement order.⁷

III.

Ojeda-Terrazas next argues that INA § 241(a)(5) does not apply retroactively to him because he illegally reentered the United States in 1991, before the provision's effective date of April 1, 1997. This argument requires a brief overview and history of reinstatement procedures under the INA.

A.

In 1991, when Ojeda-Terrazas illegally reentered the United States, INA § 242(f) provided that, if any alien illegally reentered the United States after deportation, "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 The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"),⁹ which became effective on April 1, 1997, made dramatic changes to immigration law. Significant to this case, IIRIRA replaced § 242(f) with a new, broader reinstatement provision. The new reinstatement provision, § 241(a)(5), states:

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 reentry.¹⁰

In enacting § 241(a)(5), Congress' intent was to streamline and expedite existing procedures for removing illegal aliens, which had become "cumbersome and duplicative."¹¹

Pursuant to § 241(a)(5), the INS promulgated regulations outlining the procedures for reinstating an alien's prior deportation order. Under the regulations, the alien is not entitled to a hearing before an immigration judge.¹² Rather, an INS officer determines (1) the identity of the alien; (2) whether the alien was subject to a prior order of removal; and (3) whether the alien unlawfully reentered the United States.¹³ The alien then has an opportunity to make a statement.¹⁴ The officer determines whether this statement warrants reconsideration.¹⁵ An alien who expresses a fear of persecution upon return to the country of removal is referred to an asylum officer.¹⁶ If that officer determines his fear is reasonable, the alien may apply for withholding of removal.¹⁷

The key differences between the current reinstatement procedure under § 241(a)(5) and the former procedure under repealed § 242(f) significant to this appeal are:

1. Section 241(a)(5) extends the reinstatement procedures to those aliens, like Ojeda-Terrazas, whose initial removals were based upon entry without inspection. Under § 242(f), reinstatement was only available for those aliens whose previous order of deportation was based on one of the enumerated grounds (which did not include lack of inspection). Therefore, under the old statute, Ojeda-Terrazas would have been entitled to a new deportation procedure rather than being limited to the reinstatement procedure.

2. Section 241(a)(5) does not allow judicial review of the underlying previous removal order, as discussed above. Section 242(f), however, allowed the alien to attack the merits of a previous removal order.

3. The regulations implementing § 241(a)(5) allow an immigration officer to determine, following the three-step analysis discussed above, whether reinstatement is proper. Under § 242(f), an immigration judge made the determination.

B.

We turn next to the question for decision in this case: whether the current reinstatement procedure under § 241(a)(5) applies retroactively to Ojeda-Terrazas. The landmark Supreme Court case, Landgraf v. USI Film Products,¹⁸ provides the starting point of our analysis of whether § 241(a)(5) applies retroactively. In Landgraf, the Supreme Court set forth a two-step test to determine whether a federal statute applies retroactively to conduct occurring before it was enacted.¹⁹ First, the court must "determine whether Congress has expressly prescribed the statute's proper reach."²⁰ In determining whether Congress clearly expressed the temporal reach of the statute, the court is not limited to the statute's express language, but may also use traditional tools of statutory construction.²¹ If Congress has clearly expressed whether the statute should apply retroactively, the inquiry ends.²²

However, if the statute contains no clear indication of Congress' intent, the court must then determine whether applying the new statute to past conduct "would have retroactive effect."²³ A statute has an impermissible retroactive effect when "it 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."²⁴ If the court decides that the statute would have an impermissible retroactive effect if applied to past conduct, Landgraf instructs that the statute does not apply retroactively.²⁵

1.

Proceeding under the Landgraf framework, we must first determine whether Congress has clearly prescribed the temporal reach of § 241(a)(5). While Ojeda-Terrazas contends that Congress clearly expressed its intent that § 241(a)(5) apply only prospectively, the INS argues that Congress clearly indicated just the opposite — that the statute should apply retroactively.

Ojeda-Terrazas makes several arguments to advance his reading of § 241(a)(5). First, Ojeda-Terrazas points out that the former reinstatement statute, § 242(f), expressly provided that the reinstatement procedure applied retroactively.²⁶ He maintains that the omission of any reference to retroactivity in § 241(a)(5) in contrast to § 242(f), indicates Congress' clear intent that the statute apply only prospectively. Next, Ojeda-Terrazas argues that Congress' inclusion of express language making retroactive other sections of the IIRIRA demonstrates, by negative inference, that Congress intended that § 241(a)(5) not apply retroactively.²⁷ Finally, Ojeda-Terrazas asserts that Congress' silence regarding retroactivity is instructive. He argues that Congress enacted IIRIRA against the backdrop of Landgraf, and therefore, knew to use clear language if it intended §...