Vega v. Garland

• Decision Date: 08 July 2022
• Docket Number: 19-71750
• Citation: 39 F.4th 1146
• Parties: Jorge RIVERA VEGA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

39 F.4th 1146

Jorge RIVERA VEGA, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 19-71750

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 2022 Pasadena, California

Filed July 8, 2022

Megan Brewer (argued) and Stacy Tolchin, Law Offices of Stacy Tolchin, Pasadena, California, for Petitioner.

Jaclyn E. Shea (argued), Trial Attorney; Derek C. Julius, Assistant Director; Brian Boynton, Acting Assistant Attorney General; Criminal Immigration Team, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Sandra S. Ikuta, Kenneth K. Lee, and Danielle J. Forrest, Circuit Judges.

LEE, Circuit Judge:

This case involves facts spanning over three decades, a tortuous procedural history, and inexplicable factual errors made by the United States Citizenship and Immigration Services (USCIS). But ultimately the outcome hinges on whether we apply retroactively a provision in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) preventing "inadmissible" aliens from adjusting their status to lawful permanent residents. If it applies retroactively, petitioner Jorge Rivera Vega—who is considered "inadmissible" because he re-entered unlawfully after being removed in 1991—cannot seek adjustment of his immigration status.

We hold that IIRIRA's permanent inadmissibility provision applies retroactively because doing so does not impose a new legal consequence based on past conduct. Rivera Vega had no vested right to the discretionary relief of adjustment of immigration status because he failed to timely seek such relief. And the IIRIRA provision does not penalize Rivera Vega's pre-IIRIRA act of unlawfully re-entering the United States but rather the post-IIRIRA conduct of illegally remaining here. We thus deny the petition.

BACKGROUND

Decades ago, Jorge Rivera Vega, a native of Mexico, unlawfully entered the United States but was deported on January 30, 1991. Just a week later, however, Rivera Vega illegally re-entered the United States and remained off the radar of immigration authorities for decades. In 2001, he sought discretionary relief to adjust his status and become a lawful permanent resident.

But Rivera Vega's potential path to becoming a lawful permanent resident was not so straightforward. Typically, an alien who enters the United States illegally may be removed from the country after a hearing before an Immigration Judge (IJ). 8 U.S.C. §§ 1182, 1227, 1229a ; 8 C.F.R. § 1240.1(a)(1). If he re-enters unlawfully, however, the prior removal order may be reinstated via a summary proceeding without a hearing. 8 U.S.C. § 1231(a)(5) ; 8 C.F.R. § 241.8(a). And important here, once a removal order is reinstated, an alien is generally precluded from seeking "any relief." 8 U.S.C. § 1231(a)(5). That would have seemingly precluded Rivera Vega from seeking adjustment of status to a lawful permanent resident.

But until a reinstatement order has issued, an alien can still seek discretionary relief to become a lawful permanent resident. If granted, such relief would forgive his prior immigration violations and shield him from removal. See 8 U.S.C. § 1255(i) ; see also Patel v. Garland , ––– U.S. ––––, 142 S. Ct. 1614, 1619, 212 L.Ed.2d 685 (2022) (the granting of adjustment of status is "a matter of grace" committed to the discretion of the Attorney General. (quoting INS v. St. Cyr , 533 U.S. 289, 308, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) )). Here, despite USCIS's initial insistence that the reinstatement order had been issued in 2010, it had not.

But it still was not clear sailing for Rivera Vega. An alien must meet certain statutory criteria to be eligible for discretionary relief of adjustment of status. The criteria changed when Congress enacted IIRIRA, which was passed on September 30, 1996 and became effective on April 1, 1997. See Fernandez-Vargas v. Gonzales , 548 U.S. 30, 33, 45, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006) (citing Pub. L. 104-208, div. C, 110 Stat. 3009-546). IIRIRA made it harder for aliens to adjust their immigration status. Id. at 33–35, 126 S.Ct. 2422. For example, an alien is ineligible for status adjustment if he falls into one of the many classes of "inadmissible" aliens created by IIRIRA, including unlawfully re-entering the United States after being removed. See 8 U.S.C. § 1182. Rivera Vega thus would be an "inadmissible" alien under IIRIRA. But that still did not completely close the door for Rivera Vega. Under the law, he could obtain a discretionary waiver of this inadmissibility in some cases by filing a Form I-212. See id. §§ 1182, 1255(a).

So, in 2004, while his application for adjustment of status remained pending, Rivera Vega filed a Form I-212 seeking a waiver of inadmissibility. Despite USCIS's initial—and yet again erroneous—conclusion that he was denied the waiver, Rivera Vega in fact received a waiver of § 1182(a)(9)(A)(ii)'s ten-year inadmissibility bar in 2005. See id. § 1182(a)(9)(A)(ii) (making any previously removed alien inadmissible for 10 years).

For the next decade, Rivera Vega's adjustment of status application remained in limbo. On March 20, 2019, Rivera Vega appeared for an interview with USCIS to determine his eligibility for adjustment of status. 8 C.F.R. § 245.2(a)(1) (granting USCIS authority to adjudicate applications for adjustment of status outside of removal proceedings).

About a month later on April 16, USCIS denied Rivera Vega's application to adjust his immigration status. The agency concluded that Rivera Vega was statutorily ineligible for adjustment of status because: (1) in 2010, the Department of Homeland Security (DHS) had reinstated Rivera Vega's 1991 removal order, rendering him ineligible for "any relief" under § 1231(a)(5) ; (2) Rivera Vega was inadmissible for ten years under § 1182(a)(9)(A)(ii) and he failed to obtain a waiver of inadmissibility; and (3) Rivera Vega was permanently inadmissible under § 1182(a)(9)(C)(i)(II) and was ineligible for a waiver of inadmissibility. As noted earlier, the first two grounds were factually wrong at the time.

A few weeks later on May 17, agents from the United States Immigration and Customs Enforcement (ICE) arrested Rivera Vega. On the same day, DHS reinstated Rivera Vega's 1991 removal order.

Because Rivera Vega expressed a fear of returning to Mexico, an asylum officer interviewed him. Rivera Vega's counsel appeared at the interview. The asylum officer determined that Rivera Vega lacked a reasonable fear of persecution or torture if returned to Mexico and referred the case to an IJ for reasonable fear review proceedings.

Rivera Vega appeared before the IJ in June 2019. Though Rivera Vega expected his counsel to be there, his attorney did not show. Rivera Vega told the IJ that he was under the impression that his attorney would be present, so the IJ checked for a notice of representation or correspondence from Rivera Vega's attorney but found neither. When Rivera Vega still expressed trepidation about proceeding without counsel, the IJ responded:

Okay, well, sir, there's a limited amount of time that I have available for me to review the findings of the asylum officer. And in these proceedings the attorneys are not allowed to argue or to present evidence because all my job is today is to review what already occurred with you and the asylum officer. Do you understand?

Rivera Vega then agreed to proceed without counsel.

The IJ reviewed the asylum officer's notes with Rivera Vega. Rivera Vega testified that he feared returning to Mexico because of criminals, but he confirmed that the only harm he suffered in Mexico was when someone randomly assaulted him outside a bar in 1976. Moreover, Rivera Vega has never been harmed by the Mexican government, nor does he fear future harm from the government. After listening to Rivera Vega's testimony, the IJ held that Rivera Vega lacked a reasonable fear of persecution or torture. Rivera Vega had not suffered past harm rising to the level of persecution, let alone torture, and there was no evidence that any harm was inflicted by the government on account of a protected ground. Rivera Vega was removed to Mexico the next day on June 14, 2019.

Rivera Vega timely petitioned for review with this court, challenging: (1) the April 16, 2019, USCIS decision denying his adjustment of status application; (2) the May 17, 2019, reinstatement of removal order; and (3) the IJ's June 13, 2019, negative reasonable fear determination.

Months later, on November 27, 2019, USCIS reopened its April 16, 2019, order. USCIS acknowledged that one of its stated reasons for denying the application—that Rivera Vega's 1991 removal order was reinstated in 2010—was erroneous. That same day, USCIS administratively closed Rivera Vega's application because the agency concluded that it lacked jurisdiction as Rivera Vega was "currently in proceedings before an [IJ]." 8 C.F.R. §§ 245.2(a)(1), 1245.2(a)(1).

Almost a year later, on November 23, 2020, USCIS issued a new decision denying Rivera Vega's adjustment of status application.¹ Because Rivera Vega departed the United States on June 14, 2019—after DHS reinstated his removal order and while his application was still pending—USCIS considered the application to be abandoned. See id. § 245.2(a)(4)(ii).

Rivera Vega argues that an adjustment of status application must be properly adjudicated before a removal order may be reinstated. Thus, Rivera Vega contends that only the April 16, 2019, order denying adjustment of status—and not the later decisions on November 27, 2019, and November 23, 2020—may support the May 17, 2019, reinstatement order. Rivera Vega also claims that the April 16 order erroneously concluded that he was statutorily ineligible for adjustment of status. And because his reinstatement order turned on an erroneous denial of adjustment of status, Rivera Vega requests that we vacate his reinstatement order and remand for USCIS to consider...