Castro-Cortez v. INS: 9th Circuit Rules on Reinstatement of Removal

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

CASTRO-CORTEZ V. INS: 9TH CIRCUIT RULES ON REINSTATEMENT OF REMOVAL
Immigrants' Rights Update, Vol. 15, No. 1, Feb. 28, 2001

The Ninth Circuit Court of Appeals has vacated reinstatement of removal orders that the Immigration and Naturalization Service had issued against five persons under a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Under the provision, the INS may reinstate prior orders of removal against individuals who reenter the United States after being ordered removed.

In the case before the Ninth Circuit, the petitions of the five individuals were consolidated under that of one petitioner, a Mr. Castro-Cortez. In its decision granting the petitions for review and vacating the reinstatement orders, the court discussed issues of jurisdiction, retroactivity, and due process but ruled only on jurisdiction and retroactivity. While questioning whether the procedures developed by the INS to implement reinstatement comport with the Due Process Clause of the Fifth Amendment, the court declined to rule on this issue.

Under the immigration statute's reinstatement of removal provision, as amended by the IIRIRA in 1996, there is no relief available to individuals whose orders of removal are reinstated. Although the statute itself makes no mention of procedures that should be followed in enforcing the reinstatement of removal provision, the regulations that implement the statute allow the INS to reinstate prior deportation orders without affording hearings to those against whom orders are issued, nor are such persons allowed any opportunity to contest the orders. In addition, the INS applies the statute retroactively, without regard to when an individual's prior deportation occurred.

The experience of Castro-Cortez illustrates how the INS has enforced the reinstatement of removal provision. He is a 42-year-old Mexican national who has resided in the United States almost continuously since 1975. In 1982 he married a U.S. citizen, with whom he has raised two children. On Feb. 9, 1976, he received an Order to Show Cause charging him with being deportable for having entered the U.S. without inspection. According to Castro-Cortez, he asked to see a judge but was told that the judge was sick. Castro-Cortez says that INS officials told him that if he signed a paper, he could voluntarily depart the U.S. On February 12, he departed the U.S. He says that he never saw a judge nor received any advisal stating that he was required to remain outside the U.S. for a particular length of time. He reentered the U.S. about two months later.

The INS, on the other hand, contends that Castro-Cortez was validly deported. However, there is no written record that a deportation hearing was held for Castro-Cortez, nor is there any evidence that he ever appeared before an immigration judge. Regulations in place at that time required IJs to enter summary decisions even in the cases of respondents who conceded deportability.

Following his deportation and reentry, Castro-Cortez attempted to legalize his status. In 1986 he applied for amnesty under the Special Agricultural Worker (SAW) Program. In 1995, he left the U.S. to visit a sick relative in Mexico. When he returned, an INS official admitted him when he presented his SAW card.

In 1996 after learning that Castro-Cortez's application for amnesty had been denied, his wife filed an immediate relative visa petition on his behalf. It was approved on May 15, 1997. On that day, Castro-Cortez filed an application for adjustment of status. In 1998, when Castro-Cortez and his counsel appeared at the INS office for a routine adjustment interview, the INS arrested Castro-Cortez and informed him that due to the reinstatement provision, his 1976 deportation order was being reinstated. The INS informed his counsel that the INS intended to deport Castro-Cortez to Mexico that same day. His counsel intervened and obtained a stay of removal from the Ninth Circuit.

Jurisdiction. Like Castro-Cortez's case, two of the other cases that were consolidated with his had gone to the Ninth Circuit by direct appeal. The government concedes that under section 242(a)(1) of the Immigration and Nationality Act, which grants courts of appeal authority to review removal orders, the court has jurisdiction to review reinstatement of removal cases. Nevertheless, the government contends that the court lacks jurisdiction over these consolidated cases because the petitioners failed to exhaust the administrative remedies that were available to them. The government argues that at the time the petitioners were issued the reinstatement of removal orders, they were given a form asking them to check a box whereby they could indicate whether or not they wished to make a statement. Since some of the petitioners either indicated they did not want to make a statement or did not check the box, the government argued that they had failed to exhaust administrative remedies.

The court held that the government's argument failed for two reasons. First, according to the court, the opportunity to make a statement does not, under any standard, qualify as an actual administrative remedy. Allowing individuals the opportunity to make a statement provides them neither any advance notice regarding the case against them, nor any opportunity either to review the INS's case or to produce documents that may refute the INS's case, nor any opportunity to consult with or be represented by counsel, the court noted. Moreover, the court held that even if providing an opportunity to make a statement did qualify as a remedy, it is not one that must be exhausted before an appeal can be heard by the appellate court. The INS is not required to consider the individual's statement and thus reconsider whether to reinstate removal. The court therefore held that since the statement is not a remedy as of right, it is not a remedy that must be exhausted before judicial review is authorized.

The plaintiffs in two of the cases that were consolidated with Castro-Cortez's case had filed their petitions for review after the district court denied their petitions for habeas corpus. In these cases, the Ninth Circuit employed a jurisdiction-preserving provision that allows the court to transfer cases to itself and consider the petitions as though they had never been filed in the district court. The transfer statute authorizes such an action if (1) the court would have been able to exercise jurisdiction on the date that a case was filed in the district court, and (2) the district court lacked jurisdiction over the case, and (3) the transfer is in the interest of justice.

Retroactivity. The Ninth Circuit agreed with the petitioners that the reinstatement of removal provision should not apply to individuals such as themselves who reentered before the IIRIRA's effective date. In doing so, the court analyzed Landgraf v. USI Film Products, 511 U.S. 244 (1994). There the Supreme Court reaffirmed the principle that "the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic." According to Landgraf, in considering whether the provision of a statute may be applied retroactively, a court must first determine whether Congress has expressly prescribed the statute's proper reach. If it has not, a court must determine whether the statute acts retroactively by assessing whether it "takes away or impairs vested rights, . . . creates a new obligation, . . . imposes a new duty, . . . [or] attaches a new disability" with respect to transactions that have already taken place. If so, then absent a plain statement to the contrary, courts should presume that Congress did not intend that the statute be retroactively applied. Following Landgraf, the U.S. Supreme Court issued its decision in Lindh v. Murphy, 521 U.S. 320, 323 (1997), which clarified that the first inquiry that must be made under Landgraf should be to determine congressional intent using the rules of statutory construction.

Applying the principles of Landgraf and Lindh, the Ninth Circuit held that Congress clearly intended that the statute should not be applied retroactively to individuals whose reentry occurred prior to its enactment. The court provided three reasons for concluding that Congress intended that the statute should not be applied retroactively.

First, the court reviewed the language of the prior statute—INA section 242(f)—and noted that it contained a retroactivity clause expressly applying the statute to deportations "whether before or after the date of enactment of this Act." When Congress enacted the IIRIRA, it eliminated the retroactivity language completely. The court concluded that Congress's decision to remove the retroactivity language from the statute provides strong support for the conclusion that Congress did not intend that the revised provision be applied to reentries occurring before the date of the statute's enactment.

Second, citing a number of examples, including IIRIRA's expanded definition of "aggravated felony," the court noted that Congress explicitly directed certain provisions to be applied to preenactment conduct. Thus, the court determined that, by implication, Congress did not intend to apply the reinstatement section to individuals who reentered the U.S. before the IIRIRA's effective date.

Finally, the court noted Congress's silence with respect to the statute's temporal scope and held that when Congress enacts legislation, it must be deemed to have done so with Landgraf's default rule in mind.

Castro-Cortez v. INS, __F3d.__, No. 99-70267 (Jan. 23, 2001).