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By
Linton
Joaquin
Executive Director, NILC
The U.S. Supreme Court has issued a decision
in the appeal of a reinstated removal order. Justice Souter, writing
for a majority of eight justices, found that the reinstatement procedure
was properly applied to a noncitizen whose reentry to the U.S. following
a deportation order occurred prior to the 1996 enactment of the
reinstatement statute, and that the statute is not impermissibly
retroactive. Justice Stevens filed a lone dissent, disagreeing with
both of these conclusions. The Court's ruling, on review from a
decision of the Tenth Circuit, resolves a split among the circuits
regarding the reach of the reinstatement statute.
The current reinstatement statute, section
241(a)(5) of the Immigration and Nationality Act, was enacted as part of
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA). The statute provides that "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 is reinstated," and may not be reopened or reviewed. This
provision replaced a more limited reinstatement statute, former INA
section 242(f), which applied only to deportation orders based on
specified, limited grounds.
The different circuit courts of appeals have
reached diverse conclusions regarding the temporal scope of the current
reinstatement statute. The Ninth and Sixth Circuits found, based on
rules of statutory construction, that Congress did not intend this
provision to apply to non–U.S. citizens whose reentry to the U.S.
occurred prior to Apr. 1, 1997. Castro-Cortez v. INS, 239 F.3d
1037 (9th Cir. 2001); Beijani v. INS, 271 F.3d 670 (6th Cir.
2001). Several other circuits have found Congress's intent regarding
the reach of the reinstatement statute to be ambiguous — and that
whether it applies to pre-Apr. 1, 1997, reentries depends on whether it
has an impermissibly retroactive effect. The Fourth Circuit has found
that the reinstatement statute does not have a retroactive effect and
applies to pre-Apr. 1, 1997, reentries. Velasquez-Gabriel v. Crocetti,
263 F.3d 102 (4th Cir. 2001).
Other circuit courts have found that to apply
the reinstatement statute to noncitizens in certain circumstances would
have an impermissibly retroactive effect. Cisneros v. U.S. Attorney
Gen., 381 F.3d 1277 (11th Cir. 2004) (impermissibly retroactive
when applied to a noncitizen who reentered the U.S. and applied for
adjustment prior to Apr. 1, 1997); Arevalo v. Ashcroft, 344 F.3d
1 (1st Cir. 2003) (same). The Eighth Circuit has found that applying
the reinstatement statute to a noncitizen who reentered prior to Apr. 1,
1997, has an impermissibly retroactive effect if it eliminates a
potential defense the individual otherwise would have.
Alvarez-Portillo v. Ashcroft, 280 F.3d 858 (8th Cir. 2002) (the
respondent, married to a U.S. citizen, could have relied on being
eligible to apply for adjustment as a defense to deportation).
The petitioner in this case, a Mr. Fernandez,
is a Mexican national who last entered the U.S. in 1982, shortly after
he had been deported. In Mar. 2001 he married a U.S. citizen and two
months later applied for adjustment of status under section 245(i) of
the INA and filed Form I-212 (Application for Permission to Reapply for
Admission After Deportation or Removal). Following an interview on the
adjustment application, the government reinstated the 1982 order of
deportation and took Fernandez into custody. He filed a petition for
review the reinstated order, which the Tenth Circuit upheld, resulting
in this appeal.
The Court's decision addresses two issues:
(1) whether the reinstatement statute applies to Fernandez's case, and
(2) whether such a bar is impermissibly retroactive as applied to
Fernandez. Regarding the first issue, the Court majority found nothing
in the statute's language to preclude its application to pre-IIRIRA
entries and rejected Fernandez's arguments to the contrary. Fernandez
argued that because the limited pre-IIRIRA reinstatement statute
expressly applied to deportations "whether before or after June 27,
1952" (the statute's date of enactment), the fact that Congress chose
not to include such language in the current reinstatement statute
indicates an intent to limit its application to reentries made after its
enactment. The majority rejected this argument, noting that the "before
or after" language did not concern when the reentry occurred, but rather
concerned the departure or deportation being reinstated. The Court
found that the current statute's language, read in the context of other
IIRIRA provisions, clearly applies to both removal and deportation
orders, without regard to when they were entered. Noting that some
other provisions of IIRIRA expressly limit their application to
post-enactment actions, the majority found no reason in the statute to
limit section 241(a)(5)'s application to post-enactment reentries.
The Court majority also concluded that the
application of the statute to Fernandez is not impermissibly
retroactive. The majority noted that the conduct of Fernandez that the
statute penalized was not his 1982 reentry, but rather his remaining in
the U.S. until after the enactment of IIRIRA. The majority concluded
that it was therefore not impermissibly retroactive. In reaching this
conclusion, the majority also noted that Fernandez could have married
the mother of his son and applied for adjustment of status during the
six-month "grace period" between the enactment of IIRIRA and its Apr. 1,
1997, effective date, but that he did not do so. Had he done so, "he
would at least have had a claim (about which we express no opinion) that
proven reliance on the old law should be honored by applying the
presumption against retroactivity."
Justice Stevens dissented, noting that the
longstanding and consistent interpretation of the prior reinstatement
statute to apply only to preenactment reentries supported a similar
interpretation of the current statute. Justice Stevens also rejected
the majority's conclusion that the statute is not impermissibly
retroactive because of the action of remaining in the U.S. that
continued after the law's enactment, noting that "it is precisely
[Fernandez's] 'continuing violation' that allowed him to be eligible for
relief from deportation in the first place," by developing ties in the
country. Thus, Fernandez "legitimately complains that the Government
has changed the rules midgame." Justice Stevens thus would find that
the statute is impermissibly retroactive.
Fernandez-Vargas v. Gonzales,
126 S.Ct. 2422 (June 22, 2006).
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