Gallo-Alvarez v. Ashcroft: 9th Circuit Finds INS Can Reinstate Removal Order after Voluntary Departure...

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

GALLO-ALVAREZ V. ASHCROFT: 9TH CIRCUIT FINDS INS CAN REINSTATE REMOVAL ORDER AFTER VOLUNTARY DEPARTURE; TRANSFERS CASE TO DISTRICT COURT TO RESOLVE FACTUAL ISSUES
Immigrants' Rights Update, Vol. 15, No. 7, Nov. 16, 2001

The U.S. Court of Appeals for the Ninth Circuit has ruled that the reinstatement of removal statute-section 241(a)(5) of the Immigration and Nationality Act-allows the Immigration and Naturalization Service to "reinstate" removal orders for individuals who previously left the U.S. pursuant to a grant of voluntary departure as well as for those who were deported. The court distinguished between voluntary departure granted in proceedings, which can trigger reinstatement, and voluntary departure granted prior to proceedings, which cannot. On review of a reinstated order in this case the court also found that it could transfer the case to federal district court to resolve disputed factual issues.

The petitioner in this case, a Mr. Gallo, was put in deportation proceedings in Alaska in 1992. He applied for suspension of deportation but was denied by the immigration judge, in part because the IJ considered that he had other relief available (he planned to marry his girlfriend of four years, a recently-naturalized U.S. citizen). The IJ granted him 60 days' voluntary departure, and Gallo appealed to the Board of Immigration Appeals. Shortly after filing the appeal, Gallo married his girlfriend, and she filed a visa petition on his behalf. He may have filed an adjustment application with the INS, but he did not move to remand his deportation case to apply for adjustment with the Executive Office for Immigration Review. In January 1997, while the appeal to the BIA was still pending, Gallo went to Mexico because his father was dying. Although he had an attorney, his attorney did not warn him that leaving the U.S. constitutes abandonment of the appeal. Gallo claimed that he returned to the U.S. before Apr. 1, 1997, but there was a factual dispute about this.

There was also a factual dispute about conversations that Gallo had with the INS district director for Anchorage, Alaska—a Mr. Eddy—after he returned to the U.S. Gallo and his wife claimed that Gallo told Eddy that he returned to the U.S. with a border crossing card that he subsequently lost, and that Eddy told them they would have to pay an extra $1,000 fee to apply for adjustment of status but that there would be no further deportation proceedings against him. Eddy claims that he believed Gallo had reentered the U.S. legally and that he told Gallo he would have to file a new application for adjustment of status because his first application was deemed abandoned when he left the country. Gallo filed an adjustment application on Sept. 11, 1997.

On July 11, 1998, Gallo's attorney moved to withdraw his appeal to the BIA, requesting voluntary departure nunc pro tunc because of the medical emergency that caused him to go to Mexico. He did not move to reopen the proceedings to apply for adjustment. On Sept. 21, 1998, the BIA acknowledged that the appeal had been withdrawn and ordered the record returned to the IJ without further action. The BIA noted in its order that it had no jurisdiction to grant voluntary departure because of the withdrawal. On Aug. 10, 1999, Gallo went to the INS office to renew his work authorization, at the suggestion of Eddy. The INS then arrested Gallo and served him with a Notice of Intent to Reinstate Prior Order. On Aug. 16, 1999, the INS denied Gallo's application for adjustment. Gallo then obtained other counsel and, on Aug. 23, 1999, filed both a petition for review of the reinstatement order and a habeas petition. Both cases ultimately were consolidated at the Ninth Circuit.

In both cases, Gallo argued that his departure while his BIA appeal was pending was a voluntary departure rather than a deportation and that reinstatement of removal should not apply to him. The INS contended that the departure constituted a self-deportation and was subject to reinstatement. In the habeas case, Gallo also argued that he was denied due process due to his former counsel's ineffective assistance (failing to move to remand or reopen the deportation case to apply for adjustment, failing to advise him that leaving the country is deemed an abandonment of a BIA appeal). And he also argued that the INS should be estopped from proceeding against him because of affirmative misconduct on the part of Eddy.

The district court found that it had jurisdiction to determine whether the reinstatement statute applied to Gallo and concluded that it did not because his departure should be considered a voluntary departure. For this reason, the court found no need to resolve the ineffective assistance of counsel and estoppel claims.

On appeal, a panel of the Ninth Circuit found that it had jurisdiction over both the petition for review and the appeal of the habeas petition. The court noted that in Castro-Cortez v. INS, 239 F.3d 1037 (9th Cir. 2001), it had ruled that reinstated orders of removal are subject to review by petition for review. As for the habeas case, the court followed Castro-Cortez in finding that, in cases where parties file actions in the wrong court because of uncertainty as to which court has jurisdiction, the jurisdiction-saving transfer statute, 28 U.S.C. section 1631, allows the court to invoke jurisdiction over claims improperly brought in district court.

On the merits, however, the court concluded that it did not need to decide whether Gallo's departure constituted a voluntary departure or a self-deportation, because in either case it is encompassed within the plain language of the reinstatement statute. The statute applies where the attorney general finds that an alien has reentered the U.S. illegally "after having been removed or having departed voluntarily, under an order of removal." The court decided that this language encompasses all voluntary departures issued in removal proceedings. The court distinguished cases of voluntary departure granted by the INS in lieu of initiating removal proceedings, concluding that such voluntary departures are not under threat of removal and thus not encompassed by the statute. The court also concluded, with little discussion, that the reinstatement statute applies to deportation orders entered prior to the statute's enactment.

The court found that it could not resolve the factual issue of whether Gallo reentered the U.S. before or after Apr. 1, 1997, or whether he reentered unlawfully, and it transferred the case to the district court to resolve these issues. The court also transferred the ineffective assistance of counsel and estoppel issues, since these are no longer moot in light of the court's ruling on retroactivity. The court based its transfer on 28 U.S.C. section 2347(b)(3), part of the Hobbs Act, which allows a court considering a petition to review an administrative order to transfer proceedings to a district court "when a hearing is not required by law and a genuine issue of material fact is presented."

The petitioner, represented by the firm Stock & Donnelley in Anchorage, Alaska, has filed a petition for rehearing.

Gallo-Alvarez v. Ashcroft, __ F.3d __, Nos. 99-71038, 00-35238, and 00-35289 (9th Cir. Sept. 21, 2001).