Dinnall v. Atty Gen USA

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

9-1-2005

Dinnall v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 04-2415

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation

"Dinnall v. Atty Gen USA" (2005). 2005 Decisions. Paper 497.

http://digitalcommons.law.villanova.edu/thirdcircuit_2005/497

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________________________

No. 04-2415

________________________

HAROLD GEORGE DINNALL

Petitioner

v.

ALBERTO GONZALES,* Attorney General

Of the United States of America,

Respondent

*Substituted pursuant to Federal Rule of Appellate Procedure

43(c)(2)

______________________________

On Petition for Review

from the Board of Immigration Appeals

BIA No. A27 931 848

Argued: May 5, 2005

Before: McKee, Smith, Van Antwerpen Circuit Judges

(Opinion Filed: September 1, 2005)

DEREK W. GRAY, Esq., (Argued)

Steel, Rudnick & Ruben

1608 Walnut Street

Suite 1500

Philadelphia, PA 19103

Attorney for Petitioner

PETER D. KEISLER, Esq.

Assistant Attorney General Civil Division

JULIA DOIG WILCOX, Esq.

Senior Litigation Counsel

ARTHUR L. RABIN, Esq.

Trial Attorney

JEFFREY J. BERNSTEIN, Esq. (Argued)

U.S. Department of Justice

Civil Division

Office of Immigration Litigation

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Attorneys for Respondent

OPINION

2

McKee, Circuit Judge

Harold Dinnall petitions for review of an order of the

Bureau of Immigration and Customs Enforcement (“BICE”),

Department of Homeland Security (“DHS”), reinstating his prior

order of deportation and ordering his removal under Section

241(a)(5) of the Immigration and Nationality Act (“INA”), 8

U.S.C. § 1231(a)(5) (2000), enacted as part of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”).1 Dinnall argues that the reinstatement provision is

impermissibly retroactive. We agree. For the reasons that

follow, we will grant the petition for review and vacate

reinstatement of the deportation order.

I. BACKGROUND

Dinnall is a native and citizen of Jamaica who entered the

United States in the 1980's. It is unclear if he entered illegally

or on a visitor visa, but the distinction is irrelevant to our

resolution of the issues raised in this appeal.

After Dinnall was “pulled over” for a traffic violation, on

August 10, 1987, the Immigration and Naturalization Service

1

For the sake of uniformity, we will cite to the INA section

numbers throughout with an initial cross-reference to their

section numbers in Title 8 of the United States Code.

Accordingly, we will cite 8 U.S.C. § 1231(a)(5) as INA §

241(a)(5); however opinions cited herein may also refer to

this provision as IIRIRA § 305(a)(5).

3

(“INS”)2 took him into custody and issued an Order to Show

Cause (“OSC”), charging him with being deportable from the

United States pursuant to former Section 241(a)(2) of the INA.

That section pertains to aliens who entered the United States

without immigration inspection. The INS subsequently released

Dinnall from custody on a $10,000.00 bond. On September 23,

1987, the INS sent Dinnall a hearing notification letter,

informing him that he was scheduled for a hearing date before

an Immigration Judge on October 7, 1987. Dinnall contends

that he never received the letter as it was sent to the wrong

address. There is record support for that contention.3 Dinnall

failed to appear at his October 7, hearing, and the IJ ordered him

deported in absentia. The INS issued a warrant of deportation

on November 20, 1987.

That warrant was not served before Dinnall left the

United States and went to Jamaica on January 4, 1988. Under

the regulations then in effect, Dinnall was considered to have

“self-deported.” See 8 C.F.R. § 243.5 (1987) (“Any alien who

has departed from the United States while an order of

2

On March 1, 2003, the Immigration and Naturalization

Service ceased to exist as an independent agency within the

Department of Justice and its functions were transferred to the

newly formed Department of Homeland Security. See

Homeland Security Act, 116 Stat. 2135, Pub. L. 107-296

(2002). The former INS was divided into three separate

agencies: United States Immigration and Customs

Enforcement; Bureau of Customs and Border Protection; and

the United States Citizenship and Immigration Services.

3

The address that Dinnall gave the immigration officials in

August was 4450 N.W. 24 th St., Miami, FL 33313. The

hearing notification letter was sent to 4450 N.W. 24 th St.,

Miami, FL 33126; the wrong zip code.

4

deportation is outstanding shall be considered to have been

deported in pursuance of law.”). Because Dinnall left under an

order of deportation, he could not legally reenter the United

States for a period of five years. However, he returned to the

United States two days after he left.

In 1994, Dinnall was again taken into custody by the INS,

and the INS issued another OSC. That OSC charged him with

illegally re-entering the United States following deportation.

Dinnall posted a $10,000.00 bond.4

In January, 1998, Dinnall married a United States citizen,

and he now has at least one child who is also a United States

citizen.5 In May, 2004, the BICE again took Dinnall into

custody, and on May 13, 2004, the BICE reinstated Dinnall’s

1987 deportation order, pursuant to § 241(a)(5). A warrant of

removal was issued on the same date. As of the date this case

was argued, Dinnall remained in custody at York County Prison.

Dinnall filed a Petition for Review and a motion to stay

deportation with this court on May 20, 2004, and on June 17,

2004 we ordered Dinnall’s deportation stayed pending a

decision on his Petition for Review to address his contention

that the reinstatement provision is impermissibly retroactive as

4

Although not relevant to the present appeal, Dinnall

asserts that the INS never filed the 1994 OSC with an

Immigration Court. According to Dinnall, the Executive

Office for Immigration Review has no record of deportation

proceedings against him after the 1987 proceedings.

5

In May 2004, Dinnall’s wife filed a fiancé visa

application on his behalf.

5

applied to him.6

Dinnall’s Petition presents a legal question, and our

review is therefore de novo; the agency’s views garner no

special deference. See INS v. St. Cyr, 533 U.S. 289, 321 n.45

(2001) (“We only defer . . . to agency interpretations of statutes

that, applying the normal tools of statutory construction, are

ambiguous. Because a statute that is ambiguous with respect to

retroactive application is construed under our precedent to be

unambiguously prospective, there is, for Chevron purposes, no

ambiguity in such a statute for an agency to resolve.”) (citations

and quotations marks omitted); see also Arevalo v. Ashcroft, 344

F.3d 1, 9-10 (1st Cir. 2003) (explaining that “courts, rather than

agencies, are best equipped to make the constitutionally tinged

judgment calls inherent in retroactivity determinations”);

Sarmiento Cisneros v. United States Attorney General, 381 F.3d

1277, 1280 (11th Cir. 2004) (same); Ojeda-Terrazas v. Ashcroft,

290 F.3d 292, 300 n.53 (5th Cir. 2002) (same); Bejjani v. INS,

271 F.3d 670, 679 (6th Cir. 2001) (same).

II. DISCUSSION

Dinnall’s sole argument on appeal is that INA § 241(a)(5)

may not be applied retroactively to aliens who reentered the

United States prior to IIRIRA’s effective date because the

statute impairs certain rights that these aliens possessed prior to

6

Because an order reinstating a prior removal order is “the

functional equivalent of a final order of removal,” Arevalo v.

Ashcroft, 344 F.3d 1, 9-10 (1st Cir. 2003), we have

jurisdiction to hear Dinnall’s petition. See INA § 242(a), 8

U.S.C. § 1252(a) (2000); Avila-Macias v. Ashcroft, 328 F.3d

108, 110 (3d Cir. 2003).

6

that time.7

A. Retroactivity

Congress may undoubtedly enact statutes that operate

retroactively. See Landgraf v. USI Film Prods., 511 U.S. 244,

267 (1994). However, since retroactive legislation can

potentially alter the consequences of actions already taken, we

must presume that Congress intends legislation to only act

prospectively. Id. at 272-73.

In Landgraf, the Supreme Court established guidelines

for determining whether a statute enacted after a particular event

can alter the legal consequences of that event. The result is a

two-part inquiry that “demands a commonsense, functional

judgment” and “should be informed and guided by familiar

considerations of fair notice, reasonable reliance, and settled

expectations.” Martin v. Hadix, 527 U.S. 343, 357-58 (1999)

(internal quotations marks omitted).

We must first determine if Congress has declared

whether the statute should have retroactive effect. Landgraf,

511 U.S. at 280. “In answering this question, courts should

employ the customary rules of statutory construction, assaying

the language of the statute itself and then considering its

structure and purpose.” Arevalo, 344 F.3d at 10. If the statute

itself does not sufficiently denote the temporal reach of its

provisions, there is a “presumption against statutory

retroactivity,” and further inquiry should follow. Ponnapula v.

Ashcroft, 373 F.3d 480, 487 (3d Cir. 2004).

In conducting this further inquiry, we must consider

7

We will discuss the legislative background of IIRIRA in

more detail below.

7

whether retroactive application of the statute “would impair

rights a party possessed when he acted, increase a party’s

liability for past conduct, or impose new duties with respect to

transactions already completed.” Landgraf, 511 U.S. at 280;

accord St. Cyr, 533 U.S. at 321 (“A statute has retroactive effect

when it takes away or impairs vested rights acquired under

existing laws, or creates a new obligation, imposes a new duty,

or attaches a new disability, in respect to transactions or

considerations already past.”). If such ramifications loom, the

default rule is that the statute should not be construed to regulate

the past conduct. Hughes Aircraft Co. v. United States ex rel.

Schumer, 520 U.S. 939, 946 (1997).

However, the mere fact that a new statute has some

retroactive effect does not automatically resolve step two of the

Landgraf inquiry. A new law is not impermissibly retroactive

simply because it has implications for completed events.

"[A]pplication of new statutes passed after the events in suit is

unquestionably proper in many situations." Landgraf, 511 U.S.

at 273. Rather, the statute's temporal reach becomes

unacceptable only when its retroactive application would

significantly impair existing rights and thereby disappoint

legitimate expectations. Gen. Motors Corp. v. Romein, 503 U.S.

181, 191(1992).

Although our inquiry considers disappointed

expectations, we have not required the party opposing

application of an amendment to establish actual reliance on the

prior statute. See Ponnapula, 373 F.3d at 489-90. Indeed, any

requirement of a “quantum of evidence regarding the subjective

intent of the party seeking to avoid retroactive application . . .

[is] in tension with the language of presumption in Landgraf and

its progeny . . . [and] incorrectly focuses attention on the

particular facts and circumstances of the party before the court.”

Id. at 491. “The likelihood that the party before the court did or

8

did not in fact rely on the prior state of the law is not germane

to the question of retroactivity. Rather, courts are to concentrate

on the group to whose conduct the statute is addressed.” Id. at

493.

B. Section 241(a)(5)

Here, the government reinstated the 1987 in absentia

deportation order against Dinnall under INA § 241(a)(5). This

section states:

Reinstatement of removal orders 8 against aliens

illegally reentering

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 of

removal is reinstated from its original date and is

not subject to being reopened or reviewed, the

alien is not eligible and may not apply for any

relief under this chapter, and the alien shall be

removed under the prior order at any time after

the reentry.

8 U.S.C. § 1231(a)(5). This statute was enacted on September 30,

1996 as part of IIRIRA, and had an effective date of April 1,

1997.

The previous reinstatement statute, 8 U.S.C. § 1252(f),

8

For all relevant purposes in this appeal, the terms

“deportation” and “removal” are used interchangeably. See

Avila-Macias, 328 F.3d at 111-112.

9

INA § 242(f) (repealed 1997), stated:

Unlawful reentry

Should the Attorney General find that any alien

has unlawfully reentered the United States after

having previously departed or been deported

pursuant to an order of deportation, whether

before or after June 27, 1952, on any ground

described in any of the paragraphs enumerated in

subsection (e) of this section [covering

deportation based on various enumerated reasons

including commission of alien smuggling and

other criminal offenses], the previous order of

deportation shall be deemed to be reinstated from

its original date and such alien shall be deported

under such previous order at any time subsequent

to such reentry. For the purposes of subsection (e)

of this section the date on which the finding is

made that such reinstatement is appropriate shall

be deemed the date of the final order of

deportation.

The new reinstatement statute therefore differs from its

predecessor in three important ways: (1) it applies to all prior

removal, deportation, and exclusion orders, not just to certain

grounds of deportation (such as criminal offenses); (2) it

prohibits reopening or review of the prior removal order; and (3)

it prohibits any applications for relief. Furthermore, the prior

statute did not apply to aliens such as Dinnall whose basis for

deportation was solely their illegal entry. Rather, under the prior

statute, aliens who illegally reentered were entitled to a new

deportation proceeding before again being deported. Under the

new statute, all aliens who illegally reenter the United States

following their removal or deportation have their prior

deportation orders summarily reinstated without any opportunity

10

to attack their underlying deportation orders or to seek new

forms of relief from removal or deportation.

Moreover, the Attorney General has promulgated a new

procedure to implement the new reinstatement statute, and that

is codified at 8 C.F.R. § 241.8 (2004). The new regulations

delegate the Attorney General’s reinstatement authority to

immigration officers (rather than immigration judges) outside

the course of formal removal proceedings. Under the former

regulation, an alien subject to a reinstatement order was entitled

to a hearing before an Immigration Judge, who was charged

with determining the identity of the alien, whether the alien had

previously been deported, and whether the alien illegally

reentered the United States. 8 C.F.R. § 242.23 (repealed 1997).

At the hearing before the IJ, the alien could contest the charges

and the evidence, present his or her own evidence, and apply for

relief from deportation. The alien also had the right to counsel,

and the right to appeal an adverse decision to the Board of

Immigration Appeals. See id. Under the current regulations, the

government is still required to determine the identity of the

alien, whether the alien has previously been deported, and

whether the alien illegally reentered the United States. 8 C.F.R.

§ 241.8. However, the alien is not allowed a hearing before an

IJ, nor does the alien have a right to counsel. 8 C.F.R. §

241.8(a). Rather, an immigration official makes the

abovementioned inquiries and determines whether to issue a

reinstatement order. 8 C.F.R. §§ 241.8(a)(1)-(3).9

9

This new regulation was found unconstitutional in

Morales-Izquierdo

v. Ashcroft, 388 F.3d 1299 (9th Cir. 2004). The court found

that 8 C.F.R. § 241.8 was ultra vires, as it conflicted with the

clear and unambiguous provision of Section 240(a) of the

INA, which specifies that immigration judges must conduct

all proceedings for deciding inadmissibility or deportability of

11

C. The Parties’ Arguments.

As noted earlier, Dinnall was ordered deported on

October 7, 1987 and he left the United States under that order of

deportation on January 4, 1988, to reenter the United States on

January 6, 1988. Employing a Landgraf analysis, Dinnall first

maintains that Congress clearly did not intend § 241(a)(5) to

apply to these events occurring before the effective date of §

241(a)(5). He reaches this conclusion because: (1) § 241(a)(5)

eliminated the retroactivity language of the prior reinstatement

provision, and did not simply leave it intact or modify the date;

see INA § 242(f) (repealed 1997) (specifying that reinstatement

was applicable to reentries “whether before or after June 27,

1952"); (2) Congress considered and rejected new language that

would have applied the new reinstatement provision to pre-

enactment illegal reentries;10 (3) elsewhere in the statute, where

IIRIRA changes rules for conduct that occurred prior to its

aliens. Id. at 1302-05. Dinnall has not raised this issue in his

Petition for Review.

10

The House and Senate reports indicate that the language

of the statute, prior to being amended, stated:

Should the Attorney General find that any alien

has unlawfully reentered the United States after

having previously departed or been deported

pursuant to an order of deportation, whether

before or after the date of enactment of this Act,

on any ground described in any of the

paragraphs enumerated in subsection (e) . . .

H.R.Rep. No. 104-469(I) at 416-17 (1996), 1996 WL 168955

(emphasis added); S.Rep. No. 104-249 at 118 (1996), 1996

WL 180026 (emphasis added).

12

effective date, Congress specifically indicated that the relevant

sections would apply to pre-enactment conduct; see, e.g.,

IIRIRA § 321 (modifying the definition of the term “aggravated

felony” and providing that the new definition applies regardless

of whether the conviction was entered “before, on, or after the

date of enactment”); and (4) Congress failed to include language

explicitly making the provision retroactive.

Under the second prong of the Landgraf inquiry, Dinnall

argues that, even if Congress’s intent is unclear, retroactive

application of § 241(a)(5) would “attach new legal

consequences to events that occurred before enactment of the

statute and impair rights that [Dinnall] possessed at the time of

his reentry.” Specifically, Dinnall points to the fact that, under

§ 241(a)(5), he can no longer attempt to reopen his prior

deportation order or have it reviewed, and he can no longer

apply for discretionary relief such as voluntary departure.11

Lastly, Dinnall contends that he detrimentally relied on the

previous reinstatement statute by paying a $10,000.00 bond so

that he would have the opportunity to have a hearing before an

11

The regulations in effect at the time of Dinnall’s illegal

reentry provided the following as to voluntary departure:

[I]f the alien establishes that he/she is willing

and has the immediate means with which to

depart promptly from the United States, an

immigration judge may authorize the alien to

depart voluntarily from the United States in lieu

of deportation within such time as may be

specified by the immigration judge when first

authorizing voluntary departure, and under such

conditions as the district director shall direct.

8 C.F.R. 244.1 (1987).

13

Immigration Judge and apply for relief from deportation.

The government counters by arguing that, (1) in Avila-

Macias v. Ashcroft, 328 F.3d 108 (3d Cir. 2003), we decided

that § 241(a)(5)’s language is not sufficiently clear to determine

the statute’s temporal reach, and (2) the application of §

241(a)(5) does not impair any vested rights or impose any new

obligations on Dinnall.

D. Analysis

1. The First Prong of Landgraf

In Avila-Macias, we were called upon to decide whether

§ 241(a)(5) was impermissibly retroactive when applied to an

alien who was deported prior to the effective date of IIRIRA,

but who did not claim to have reentered prior to the effective

date. 328 F.3d at 114. In analyzing Avila-Macias’s claim under

Landgraf’s first prong, we rejected arguments almost identical

to those put forth by Dinnall and concluded, “[w]hat is clear is

that Congress’ intent with regard to the temporal reach of

Section 305(a)(5) of IIRIRA is not clear.” 328 F.3d at 114

(emphasis in original).12 Thus, having already decided that

12

The Courts of Appeals for the Sixth and Ninth Circuits

have reached a different result under the first prong of the

Landgraf analysis. In Bejjani, 271 F.3d at 687, and Castro-

Cortez v. INS, 239 F.3d 1037, 1053 (9th Cir. 2001), those

courts concluded that Congress did not intend § 241(a)(5) to

apply retroactively. In reaching this result, both courts relied

primarily on Congress’s elimination of the explicit retroactive

language contained in former § 242(f), the legislative history

of § 241(a)(5), and Congress’s silence on the retroactivity of

this provision.

However, every other circuit court of appeals that has

14

Congress did not specify § 241(a)(5)’s temporal reach, we need

not revisit that question again here. Rather, we can proceed to

the second inquiry under Landgraf .13

2. The Second Prong of Landgraf

considered the retroactivity of § 241(a)(5) has held, as we

held in Avila-Macias, that there is no clear indication of

Congress’s intent regarding the provision’s retroactive effect.

See Faiz-Mohammad v. Ashcroft, 395 F.3d 799, 804 (7th Cir.

2005); Sarmiento Cisneros, 381 F.3d at 1283; Arevalo, 344

F.3d at 13; Ojeda-Terrazas, 290 F.3d at 299-300; Alvarez-

Portillo v. Ashcroft, 280 F.3d 858, 865 (8th Cir. 2002);

Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 108 (4th Cir.

2001). In light of their analysis under prong one, these courts

proceeded to analyze the retroactivity of § 241(a)(5) under the

second prong of the Landgraf test. These cases are discussed

in more detail below.

13

In analyzing Avila-Macias’s claim under the second

prong of Landgraf, we stated, “[a]pplying IIRIRA to [Avila-

Macias] – an alien who was deported prior to [IIRIRA’s]

effective date, but who reentered afterwards – does not have

an impermissible retroactive effect because the consequences

of an illegal reentry at the time that [Avila-Macias] reentered

are the consequences he faces now.” Id. (Emphasis added).

Because Dinnall, unlike Avila-Macias, reentered the United

States prior to IIRIRA’s effective date, Avila-Macias does not

advance our Landgraf analysis here. Indeed, we stated in

Avila-Macias that, had the petitioner reentered the United

States before IIRIRA’s effective date, “he could at least

plausibly argue that he did so believing (1) that he would be

entitled to a hearing at which he could contest the legality of

his underlying deportation order and (2) that he would be

entitled to apply for discretionary relief.” Id. at 99.

15

Under the second part of our Landgraf inquiry we must

determine whether applying § 241(a)(5) to Dinnall would have

an impermissible retroactive effect. See Landgraf, 511 U.S. at

280. Dinnall contends that, under § 241(a)(5), not only did he

lose his right to counsel, his right to develop a record and his

right to have a hearing before an IJ, he also lost his right to

apply for discretionary relief from deportation (i.e. voluntary

departure) before a neutral judge and to have his original in

absentia deportation order reopened and reviewed so that he

could argue lack of notice.

Because numerous other courts have previously

addressed prong two of Landgraf’s retroactivity analysis in the

immigration context, it is helpful to first discuss these cases in

some detail.

a). INS v. St. Cyr, 533 U.S. 289 (2001)

Any discussion of the case law in this area must begin

with the Supreme Court’s decision in St. Cyr. T h e r e , t h e

Court held that the provisions of IIRIRA precluding aliens who

were removable because of aggravated felony convictions from

applying for discretionary relief from deportation did not apply

to aliens who pled guilty to aggravated felonies prior to the

statute’s enactment. 533 U.S. at 326. The Court reasoned that

IIRIRA’s elimination of section 212(c) relief had an

impermissible retroactive effect on St. Cyr and other defendants

who had entered into plea agreements before IIRIRA’s

amendments to that section. The Supreme Court explained that

“IIRIRA’s elimination of any possibility of § 212(c) relief for

people who entered into plea agreements with the expectation

that they would be eligible for such relief clearly attaches a new

disability, in respect to transactions or considerations already

past.” Id. at 321 (citations and internal quotation marks

16

omitted).

b). Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004)

In Ponnapula, we also addressed 212(c) waivers, albeit

in a slightly different context. There, we were faced with the

question of whether the application of IIRIRA § 304(b) would

have an impermissibly retroactive effect on an alien who turned

down a misdemeanor plea agreement and went to trial while

former § 212(c) was still in effect and was convicted of a felony

by the jury. 373 F.3d at 483. Ponnapula had gone to trial

relying on his counsel’s advice that, even if he were found

guilty, he would likely not receive a sentence that would render

him ineligible for § 212(c) relief because of his very minor role

in the offense. Id. We ultimately held that IIRIRA’s repeal of

discretionary relief from deportation was impermissibly

retroactive with respect to aliens who turned down a plea

agreement and elected to go to trial in reasonable reliance on the

availability of such relief. Id. at 489-90.

We also rejected the government’s argument that St. Cyr

rested on the existence of the quid pro quo of criminal plea

agreements, and we distanced ourselves from those courts of

appeals that have interpreted St. Cyr as requiring as much. Id.

at 488. Specifically, we disagreed with other courts’ Landgraf

and St. Cyr analysis where those courts (1) failed to note

Landgraf’s presumption against retroactivity; (2) required actual

reliance on the prior statute; and (3) imposed an evidentiary

burden of proving reliance. Id. at 489-90, 492-93. We

concluded that, not only does the Supreme Court favor a

“reasonable reliance” formulation over an “actual reliance” one,

but also, the Landgraf line of cases demonstrates that courts are

to concentrate on “the group to whose conduct the statute is

addressed” rather than the party before the court. Id. at 493. We

concluded that, “a change in law can be found impermissibly

17

retroactive without establishing that some (or all) members of

the group affected by the change in law relied on the prior state

of the law.” Id.

c). Faiz-Mohammad v. Ashcroft, 395 F.3d 799 (7th Cir. 2005)

In Faiz-Mohammad, the Court of Appeals for the

Seventh Circuit held that, “because § 241(a)(5) operates to

impair rights [Mr. Faiz-Mohammad] possessed when he acted,

namely his ability to apply for discretionary relief, [§ 241(a)(5)]

may not be applied retroactively” to him. 395 F.3d at 810. The

petitioner had reentered the United States and applied for

adjustment of status before IIRIRA became effective. Id. at

809.14 The court concluded that, even though he had no

guarantee of a favorable decision in his application for

adjustment of status, § 241(a) still constituted a “new disability”

that did not exist prior to IIRIRA’s passage. The court

explained that “the second step of Landgraf does not address

only the tak[ing] away or impair[ing] of vested rights; it also

asks whether retroactive application would create[] a new

obligation, impose[] a new duty, or attach[] a new disability.”

Id. at 810 (internal quotation marks omitted).

14

The court reserved judgment on whether its retroactivity

analysis would differ if the petitioner had applied for

discretionary relief prior to IIRIRA’s effective date. 395 F.3d

at 809 n.10. In a subsequent opinion the Seventh Circuit

resolved this issue. The court held that Ҥ 1231(a)(5) is not

impermissibly retroactive when applied to an alien who

reentered the United States before IIRIRA’s effective date but

did not apply for adjustment of status until after the Act

became effective.” Labojewski v. Gonzalez, 407 F.3d 814,

816 (7th Cir.) (2005); accord Fernandez-Vargas v. Ashcroft,

394 F.3d 881 (10th Cir. 2005), petition for cert. filed, 2005

WL 879510 (Apr. 12, 2005).

18

d). Sarmiento Cisneros v. Ashcroft, 381 F.3d 1277 (11th

Cir. 2004)

In Sarmiento Cisneros, the petitioner illegally reentered

the United States and applied for adjustment of status after

having been deported. 381 F.3d 1279. His application was

based on his marriage to a United States citizen. Id. That all

occurred before IIRIRA became effective. The petitioner’s

status was adjusted. Id. However, in the years that followed,

the INS took a variety of adverse actions against him. In 2003,

the BICE reinstated Sarmiento Cisneros’s prior deportation

order and issued a warrant of removal. Id. Because he had

applied for discretionary relief before the effective date of

IIRIRA, the court concluded that § 241(a)(5)’s elimination of

the availability of discretionary relief attached a “new disability

to a completed transaction.” Id. at 1284. The court rejected the

argument that § 241(a)(5)’s elimination of relief cannot be

impermissibly retroactive because the relief is discretionary. Id.

The court explained that St. Cyr directed a court to consider “an

alien’s reasonable reliance on the continued availability of

discretionary relief from deportation when deciding whether the

elimination of such relief has a retroactive effect.” Id.

Accordingly, the court held that § 241(a)(5) would have an

impermissible retroactive effect if applied to the petitioner. Id.

at 1285.

e). Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003)

In Arevalo, the petitioner illegally reentered the United

States in 1990. 344 F.3d at 6. In August, 1990, the

petitioner’s father, a legal permanent resident, filed a visa

petition on her behalf and it was later approved. Id. In

March, 1996, Arevalo applied for an adjustment of

status. Six years later, the INS notified Arevalo that it

would not entertain her application. Id. The INS

19

subsequently invoked § 241(a)(5) to resurrect her prior

deportation order and detained Arevalo pending removal.

Id. The Court of Appeals for the First Circuit concluded

that applying § 241(a)(5) would have an impermissible

retroactive effect because Arevalo “already had filed for

relief when Congress amended the statute. Discarding

her application now would deprive her both of a right

that she once had and of the reasonable expectation that

she would have the opportunity to convince the Attorney

General to grant her relief.” Id. at 15.

f). Lattab v. Ashcroft, 384 F.3d 8 (1st Cir. 2004)

In Lattab, however, the Court of Appeals for the First

Circuit held that “application of § 241(a)(5) to deprive an alien

who illegally reentered the country before IIRIRA’s effective

date of the ability to apply for relief for which the alien did not

theretofore qualify is not impermissibly retroactive.” 383 F.3d

at 17. While Lattab had illegally reentered the United States

prior to IIRIRA’s effective date, he did not marry a United

States citizen until 1999, and it wasn’t until 2000 that he sought

to have his status adjusted. Id. at 13. Lattab does not further

our inquiry here, however, because the court noted that it was

not deciding “the retroactive application of § 241(a)(5) to all

aliens who reentered illegally before April 1, 1997, nor [was it

deciding] the case of an alien illegally present in the United

States who had a potential defense to deportation before IIRIRA

took effect but had not yet applied for relief when IIRIRA

eliminated that defense.” Id.

g). Alvarez-Portillo v. Ashcroft, 280 F.3d 858 (8th Cir.

2002)

The Court of Appeals for the Eighth Circuit has decided

two cases on this issue. In Alvarez-Portillo, the court concluded

20

that, under the second prong of the Landgraf inquiry, the

majority of the reinstatement statute may be applied

retroactively to aliens illegally reentering the country prior to the

statute’s effective date; however, the provision of the statute

precluding an alien subject to reinstatement from applying for

any relief “under this chapter” may not. 280 F.3d 858. The

petitioner there illegally entered the United States in 1993. He

was subsequently deported, but reentered illegally 12 days later.

Id. at 861. In 2001, he and his wife visited an INS district office

to apply for an adjustment of his status to permanent resident

alien, and the INS reinstated his 1993 deportation order.

The court explained:

Alvarez-Portillo, who was deported and illegally

reentered in late 1993, married a United States

citizen in 1996, prior to the effective date of §

241(a)(5). At that time, long-standing INS

practice created a reasonable expectation that he

could defend against later deportation or removal

by seeking a discretionary adjustment of status to

lawful permanent resident.

Id. at 867. The court expressly rejected the contention that §

241(a)(5) had no impermissible retroactive effect because the

illegal reentrant could have applied for adjustment of status

before IIRIRA’s enactment. Instead, the court concluded that §

241(a)(5)’s “may not apply for any relief under this chapter”

clause attaches new legal consequences to Alvarez-Portillo’s

prior actions. Id. Under the prior law Alvarez-Portillo could

have filed for a discretionary adjustment of status or sought the

adjustment as a defense to a subsequent deportation proceeding.

“He chose to wait, and § 241(a)(5) as applied by the INS has

now deprived him of that defense.” Id.

21

h). Lopez-Flores v. Dept. of Homeland Security, 387 F.3d

773 (8th Cir. 2004)

In Lopez-Flores, the petitioner had illegally reentered the

United States prior to IIRIRA’s enactment and in 1995 filed an

application for work authorization with his sponsoring

employer. Congress enacted IIRIRA and § 241(a)(5) while that

application was pending. The INS ultimately approved Lopez-

Flores’ work petition, but refused to adjust his status. Instead,

it reinstated the prior order of deportation. Id. at 774-75.

On appeal, the government argued that the case was

distinguishable from Alvarez-Portillo because obtaining an

employment-based visa is a much more complicated and lengthy

process than receiving an immediate relative visa. The court

rejected that distinction because it “has no bearing on the

reasonableness of Lopez-Flores’s expectation that the

opportunity to pursue such a defense would be available to him

in later instituted deportation.” Id. at 776. The court continued:

“[h]ad Respondents shown that Lopez-Flores’s application for

adjustment of status was utterly without merit or that such relief

was unavailable to him as a matter of law prior to the enactment

of § 241(a)(5), we would conclude that any retroactive

application of § 241(a)(5) was harmless error.” Id. The court

ultimately concluded that Lopez-Flores had the right to renew

his application for adjustment of status in a subsequent

deportation proceeding. Id. at 776-77.

I). Ojeda-Terrazas, 290 F.3d 292 (5th Cir. 2002)

The court in Ojeda-Terrazas held that the reinstatement

statute applies retroactively to aliens who illegally reentered the

country prior to IIRIRA’s effective date. 290 F.3d 292. The

petitioner there had not applied for, nor had he argued that he

was eligible to apply for, any form of discretionary relief.

22

Relying substantially on St. Cyr, the court determined that he

therefore “had no reasonable expectation of having a hearing

before an immigration judge rather than an INS official when he

illegally reentered the United States in 1991.” Id. at 301-02.

j). Velasquez-Gabriel v. Crocetti, 263 F.3d 102 (4th Cir.

2001)

In Velasquez-Gabriel, the court also concluded that §

241(a)(5) did not operate in an impermissibly retroactive manner

when applied to an alien who illegally reentered the United

States prior to the effective date of the statute. Petitioner’s wife

filed a petition on his behalf and petitioner filed an application

to adjust his status based on his marriage to a U.S. citizen seven

months after IIRIRA took effect (and 21 months after his

marriage to a U.S. citizen). 263 F.3d at 104. The INS denied

petitioner’s application and reinstated his prior order of

deportation pursuant to § 241(a)(5). Id.

The court relied heavily on St. Cyr. The court first

rejected the government’s contention that Velasquez-Gabriel

could not prevail because the relief he was seeking was

discretionary. Id. at 108. Next, the court explained that in St.

Cyr, the Supreme Court “heavily relied on two factors not

present here: (1) aliens like St. Cyr had a significant likelihood

of receiving the relief they sought under the old law and (2) they

almost certainly relied upon that likelihood to their detriment.”

Id. (internal quotation marks omitted). The court determined

that Velasquez-Gabriel had not shown either a reasonable

likelihood of success under pre-IIRIRA law, nor a detrimental

reliance on pre-IIRIRA law. Id. at 108-09. The court noted that

Velasquez-Gabriel’s sole reliance argument was that he and his

wife relied on his ability to adjust his status in the United States

when they got married. Id. at 109.

23

Citing Hughes Aircraft, 520 U.S. 939, the court noted

that the fact that petitioner “did not detrimentally rely on prior

law may not, however, foreclose a claim that § 241(a)(5)

nonetheless operates retroactively.” Id. However, the court

concluded that it need not decide that question because there

was “a far simpler reason compelling [the court’s] conclusion

that the application of § 241(a)(5) is not impermissibly

retroactive in this case: not until well after § 241(a)(5) took

effect did [petitioner] apply to adjust his status or did his wife

file for a visa petition on his behalf.” Id.

E. Dinnall’s Claim.

As previously noted, Dinnall maintains that § 241(a)(5)

is impermissibly retroactive because retroactive application of

the statute “would impair rights he possessed when he acted.”

Specifically, he argues that (1) his prior deportation order can no

longer be reopened or reviewed, and (2) he can no longer apply

for discretionary relief such as voluntary departure.

We need not spend much time analyzing Dinnall’s first

contention because, as Dinnall’s counsel conceded at argument,

prior to IIRIRA’s effective date, Dinnall could not reopen the

deportation order either. Indeed, the regulations in effect when

Dinnall illegally reentered the United States unequivocally

prohibited Dinnall from moving to reopen his deportation

proceedings. Those regulations provided, in relevant part:

A motion to reopen . . . shall not be made by or on

behalf of a person who is the subject of

deportation proceedings subsequent to his

departure from the United States.

8 C.F.R. § 3.2 (1987).

24

Dinnall’s second contention – that § 241(a)(5) impairs his

right to apply for discretionary relief such as voluntary departure

– is more troubling. We note at the outset that it is clear under

St. Cyr that our analysis is not altered because voluntary

departure is a discretionary form of relief rather than a defense

to removal. As the Court noted there, we must consider an

“alien’s reasonable reliance on the continued availability of

discretionary relief from deportation when deciding whether the

elimination of such relief has a retroactive effect,” since “[t]here

is a clear difference, for the purposes of retroactivity analysis,

between facing possible deportation and facing certain

deportation.” St. Cyr, 533 U.S. at 324, 325; accord Sarmiento

Cisneros, 381 F.3d at 1284; Velasquez-Gabriel, 263 F.3d at 108.

Dinnall would have to leave the United States whether he

was deported or granted voluntary departure. Therefore, the

distinction in St. Cyr between facing possible deportation and

certain deportation may at first seem inapplicable here. There is,

however, a crucial distinction that our analysis cannot ignore.

Voluntary departure is not tantamount to deportation. Rather, it

is a form of relief granted in lieu of deportation. See 8 C.F.R.

244.1 (1987). Accordingly, the consequences for Dinnall if

deported differ substantially from the consequences that he

would face if granted voluntary departure. The law when

Dinnall illegally reentered the country barred aliens such as

Dinnall who departed the United States under an order of

deportation from returning to the United States for five years.

Bill Ong Hing, Handling Immigration Cases, § 9.21, at 310

(1985). However, no such time bar was erected against aliens

who were granted voluntary departure. Such an alien could

return to the United States at any time so long as he or she was

otherwise eligible to enter as an immigrant or nonimmigrant.

Steel on Immigration Law, § 14.48, at 452. If § 241(a)(5)

applies retroactively to Dinnall, he would forever be precluded

from applying for this discretionary relief. That sanction

25

“attaches a new disability” to Dinnall “[with] respect to

transactions or considerations already past.” See St. Cyr, 533

U.S. at 321; accord Alvarez-Portillo, 280 F.3d at 867.

Moreover, the government concedes that Dinnall’s illegal

reentry would not render him completely ineligible for this form

of discretionary relief. Rather, the government maintains that

his illegal reentry would “constitute[] an ‘adverse factor’ in the

immigration judge’s discretionary determination.” Government

brief at 14; see Lopez-Flores, 387 F.3d at 776 (“Had

Respondents shown that Lopez-Flores’s application for

adjustment of status was utterly without merit or that such relief

was unavailable to him as a matter of law prior to the enactment

of § 241(a)(5), we would conclude that any retroactive

application of § 241(a)(5) was harmless error.”). Although

Dinnall has no guarantee of a favorable decision on his

voluntary departure application, because § 241(a)(5) constitutes

a “new disability” that did not exist prior to IIRIRA’s passage,

he nevertheless had a reasonable expectation of an avenue of

relief before IIRIRA was enacted that he no longer has. See St.

Cyr., 533 U.S. at 321.

The government argues that St. Cyr is “premised on a

reliance theory,” since “[t]he Supreme Court found that

application of the statutory bars had a retroactive effect only as

to those aliens who actually pled guilty to their disqualifying

crimes and who were otherwise eligible for such relief at the

time of their plea.” Government brief at 20 (emphasis in

original). Citing to several post St. Cyr decisions, the

government explains that, in those cases, the courts “found

ineligible for Section 212(c) relief those aliens who were

convicted of their crimes prior to enactment of the bars but who

did not fall within St. Cyr’s holding because they did not plead

guilty, and therefore did not rely on the availability of

immigration relief.” Id. (emphasis in original).

26

However, as Dinnall points out, the government’s

argument improperly implies that Dinnall must demonstrate

actual reliance on pre-IIRIRA law to show the impermissible

retroactive effect of § 241(a)(5). That is inconsistent with our

decision in Ponnapula.15 See Ponnapula, 373 F.3d at 491-94.16

15

During oral argument, the government asserted that

Ponnapula was wrongly decided and should not be followed

because it is not consistent with Landgraf. We are, however,

bound by Ponnapula and its interpretation of Supreme Court

precedent. See Auguste v. Ridge, 395 F.3d 123, 149 (3d Cir.

2005) (citing Third Circuit Internal Operating Procedure 9.1).

16

In Olatunji v. Ashcroft, 387 F.3d 383, 394 (4th Cir.

2004), the court also concluded that subjective reliance on

prior law did not factor into its retroactivity analysis:

Whether the particular petitioner did or did not

subjectively rely upon the prior statute or

scheme has nothing whatever to do with

Congress’ intent . . . It is one thing to indulge

the supportable presumption that Congress

intends its enactments not to operate

retroactively; it is another altogether to indulge

the quite different, and unsupported and

unsupportable, presumption that Congress so

intends, but only where the particular

petitioning party can prove that he subjectively

relied on the prior statute to his detriment. In

other words, where Congress has apparently

given no thought to the question of retroactivity

whatever, there is no basis for inferring that

Congress’ intent was any more nuanced than

that statutes should not be held to apply

retroactively. Anything more, in the face of

27

In Ponnapula we found that a requirement of actual reliance

erects “too high a barrier to triggering the presumption against

retroactivity . . . [and] has the effect of treating Landgraf as

establishing a presumption in favor of retroactive application.”

Id. at 491. (emphasis in original). Rather surprisingly, the

government fails to even mention Ponnapula in its brief. Thus,

the government does not mention that in Ponnapula we rejected

almost all of the post-St. Cyr precedent it relies upon to counter

Dinnall’s Landgraf analysis.17 See Ponnapula, 373 F.3d at 488-

89 (“our interpretation of Landgraf and its progeny differs

somewhat from these Courts . . . we believe that other Courts of

Appeals have perhaps misapplied Landgraf in this area.”).

Ponnapula also instructs us not to “focus[] attention on

the particular facts and circumstances of the party before the

court” because that was not the focus in St. Cyr. Id. at 491, 492.

Instead, in St. Cyr, “[t]he discussion of the quid pro quo in

criminal plea agreements is directed at establishing, as a general

matter, the reasonable reliance of this class of aliens,

irrespective of the course of St. Cyr’s own plea negotiations.”

Id. Accordingly, as we focused our attention in Ponnapula on

the class of aliens who decided to proceed to trial and were

convicted prior to the effective date of IIRIRA’s repeal of §

212(c), id. at 494, `here, we focus our attention on the class of

aliens who chose to illegally reenter the United States prior to

complete congressional silence, is nothing but

judicial legislation.

17

The cases the government cites to, whose application of

Landgraf we disavowed in Ponnapula, include Rankine v.

Reno, 319 F.3d 93 (2d Cir. 2003); Chambers v. Reno, 307

F.3d 284 (4th Cir. 2002); Armendariz-Montoya v. Sonchik,

291 F.3d 1116, 1121-22 (9th Cir. 2002); and Brooks v.

Ashcroft, 283 F.3d 1268, 1274 (11th Cir. 2002).

28

the enactment of § 241(a)(5), and who at the time of their

reentry, would have been eligible for voluntary departure. It is

not unreasonable to assume that many of these aliens may well

have reentered the country with the understanding that they

might be eligible for some form of discretionary relief. See e.g.,

Lopez-Flores, 387 F.3d at 774-75 (after illegal reentry alien

sought discretionary relief of adjustment of status due to

approved work visa application); Arevalo, 344 F.3d at 6 (after

illegal reentry alien sought discretionary relief of adjustment of

status based on grant of family visa petition); Alvarez-Portillo,

280 F.3d at 861-62 (after illegal reentry alien sought

discretionary relief of adjustment of status due to marriage to a

U.S. citizen). Section 241(a)(5) “can be found impermissibly

retroactive without establishing that some (or all) members of

the group affected by the change in law relied on the prior state

of the law;” Ponnapula, 373 F.3d at 493, therefore, our inquiry

is not resolved by focusing on whether Dinnall reentered with

the possibility of this relief in mind. Moreover, even if we were

to conclude that Dinnall’s interest in obtaining voluntary

departure at the time of illegal reentry was attenuated, “the fact

that an interest may have been attenuated . . . has had little

salience in the Supreme Court’s analysis of other retroactivity

questions.” Id. at 495.

We therefore hold that applying § 241(a)(5) to Dinnall

has an impermissibly retroactive effect.

III. CONCLUSION

For the reasons set forth above, we will grant Dinnall’s

Petition for Review and vacate the BICE’s order reinstating

Dinnall’s order of deportation.

29