Alvarenga-Villalobos v. Ashcroft: 9th Circuit Rules Reinstatement Statute Bars Challenge...

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

ALVARENGA-VILLALOBOS V. ASHCROFT: 9TH CIRCUIT RULES REINSTATEMENT STATUTE BARS CHALLENGE TO PRIOR DEPORTATION ORDER THAT WAS BASED ON RETROACTIVE APPLICATION OF AEDPA
Immigrants' Rights Update, Vol. 15, No. 8, Dec. 20, 2001

The U.S. Court of Appeals for the Ninth Circuit has issued a decision upholding a district court's denial of a petition for writ of habeas corpus to review a "reinstated" removal order. A panel of the court found that the reinstatement statute bars challenges to the original removal order and that it is not unconstitutional to do so where the petitioner had the opportunity to appeal the original order but failed to do so. In this case the immigration judge in the original deportation case had not allowed the petitioner to apply for a 212(c) waiver because the IJ considered that, under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the petitioner's convictions barred him from this relief. Although the Ninth Circuit ultimately ruled, in Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999), that AEDPA does not apply to cases that were pending when the AEDPA was enacted, the court in this case ruled that the deportation order was not unlawful. The court reasoned that Magana-Pizano announced a new rule of law, and new rules do not apply to cases that are subject only to collateral review.

In this case, the petitioner, a Mr. Alvarenga-Villalobos, is a lawful permanent resident with criminal convictions who was served with an Order to Show Cause in June 1993. Apparently he did not have a hearing until June 1997, at which time the IJ ruled that because of the AEDPA he was not eligible for 212(c) relief and ordered him deported. He did not appeal—he was detained and was informed that he could not be released because of the mandatory detention provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). He was therefore deported in June 1997. He returned to the U.S. illegally in November 1997 and two years later ended up in proceedings again. The Immigration and Naturalization Service then reinstated the prior deportation order, and the petitioner filed a habeas petition in an effort to challenge reinstatement.

On the merits, the petitioner contended that under Magana-Pizano his deportation was unlawful. He would have been eligible for 212(c) relief but for the IJ's impermissibly retroactive application of the AEDPA to his case. However, the panel held that the reinstatement statute, INA section 241(a)(5), precludes any challenge to the prior deportation order. The panel found there was no constitutional infirmity in applying this preclusion to the petitioner because in his case he could have appealed the immigration judge's decision but did not do so. The panel also found that the prior removal order was not unlawful, reasoning that because the case was not on direct review at the time that Magana-Pizano was decided, and a new rule of law does not apply retroactively on collateral review, the prior order should be considered lawful. The petitioner is expected to file a petition for rehearing of the decision.

Alvarenga-Villalobos v. Ashcroft, __ F.3d __, No. 00-17525 (9th Cir. Nov. 26, 2001).