Petitioners Brief — Fernandez-Vargas v. Gonzales

Supreme Court brief2006

Ask Donna

What actually matters in this document.

Text

DEC 2 2 2005

LY | OFFICE OF THE CLERK |

No. 04-1376

In the Supreme Court of the Gnited States

HUMBERTO FERNANDEZ-VARGAS,

Petitioner,

ALBERTO GONZALES, ATTORNEY GENERAL,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

BRIEF FOR THE PETITIONER

TODD LUNDELL DAVID M. GOSSETT

Mayer, Brown, Rowe & Counsel of Record

Maw LLP ANDREW TAUBER

1675 Broadway Mayer, Brown, Rowe &

New York, NY 100!9 Maw LLP ~

J. CHRISTOPHER KEEN ee cea “reed om

Keen Law Offices, LLC ee

Jamestown Square (202) 263-3000

3585 N. University Ave.

Suite 250

Provo, UT 84604

Counsel for Petitioner

WILSON-EPES PRINTING CO., INC. -— (202) 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether § 241(a)(5) of the Immigration and Nationality

Act, 8 U.S.C. § 1231(a)(5), which eliminates the nght to ob-

tain relief from removal for noncitizens who have illegally

reentered the United States after having been deported, ap-

plies to individuals who reentered the United States before

April 1, 1997, the effective date of that provision.

(i)

its ce f

Pe | Mae

Y e544 %

a ce Patt aa

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......0c0csecesssocssccesssesssssssessessscoessenes i

TABLE OF AUTHORITIES. ....0.........c:ccccccessesseeseceeeeeeeeeeeeees vi

ET IIIT cicithcciendcaninters dstisthintsecinicnienetendenininenitiicaiisin l

EEL ORL NAS LOTS.

STATUTORY AND REGULATORY PROVISIONS

eI cstincceshieicisncnsieshanncbtidivinsiansiatnsiaichideicicigiinieniomeypeliationiinn l

Sr ETTIET ichinhsadtnhabiebseitesbcncicsiitiadioats Soednanieiniendnnsnndinnininadniiintioduie 2

A. Statutory Background............. La iniibientbiiettibinaideininediiahianing 3

Bs. Ici scinscsiictpetadapntisnitinniiiensetesenntitanteian 5

pe EN IO siciieccisterntitansinreinctincncsiiiteienteceieidivenenscein 7

SUMMARY OF ARGUMENT...............ccccccccseeeeseeseeeneeeeeeeeees 9

SE TIIIIITT sichincsadnpicseesssiidiiopeniapiiiadienbbiniathinehitiitsaniaabbisongl 13

I. Congress Intended INA § 241(a)(5) To Apply

Only To Persons Who Reentered The United

EE GED We HN Dabitecilinhissintintainesiteetnessnmivicesnnenens 16

A. Using ordinary rules of statutory construction,

INA § 241(a)(5) should be interpreted to

apply only to those persons who reentered

after ITRIRA’s effective date. oo... .cccecssceesseeeeeees 16

1. The proper interpretation of INA

§ 241(a)(5) must give effect to Congress’s

elimination of retroactivity language from

the previous reinstatement provision.................. 16

2. The legislative history of INA § 241(a)(5)

confirms that Congress intended that

provision to apply only prospectively. ............... 21

(iii)

TABLE OF CONTENTS—continued

Page

3. Congress enacted INA § 241(a)(5) against

the background of this Court’s default rule

AVAINSt retroactivity. ...........ccceeeeceesseeeeseeeereneees 24

4. Any ambiguity in INA § 241(a)(5) must

be construed in favor of the alien. ..................... 27

B. An unambiguous expression of congressional

intent is not needed for a court to find that,

under Landgraf step one, Congress intended a

Statute to apply prospectively. ............cccceeeePeeree 28

. Application Of INA § 241(a)(5) To Persons Who

Reentered The United States Before April 1,

1997, Is Impermissibly Retroactive.................c006 cesses 33

A. The relevant date for retroactivity analysis is

Bat Gate CE Be cceerecaccessccsnieninininitiumaiiiaiaiaaili 34

B. Application of INA § 241(a)(5) to persons

who reentered the United States before April

1, 1997, attaches new legal consequences to

EES QUTIEIIEL, ccnnccscssesnsssennersepseninnoentinianeieneanniinil 36

1. Application of INA § 241(a)(5) to persons

who reentered the United States before

April 1, 1997, is categorically precluded

because it would abolish the right of

reentrants to pursue various types of relief

that they could seek before that date. ................. 36

2. Application of INA § 241(a)(5) to

petitioner would deprive him of specific

rights he possessed under prior law.................... 38

TABLE OF CONTENTS—continued

Page

C. The fact that the relief available to petitioner

before IIRIRA was discretionary is irrelevant

for purposes of retroactivity analysis. ...................... 14

D. Petitioner is not required to demonstrate

reliance on prior law in order to establish

impermissible retrOactivity................:ccececeeeeeereeeeeees 45

E. Retroactive application of INA § 241(a)(5) to

petitioner is inequitable. ................:ccccccseceeeereeereeeeees 49

SE IITIIIIIIED sertiviaddttectniaageresenatensesespanecsscsascssvenccsocencetecsoes 50

TABLE OF AUTHORITIES

Page(s)

Cases

Alimi v. Ashcroft, 391 F.3d 888 -

ERE SR are mere hoes enor eee a 39

Alvarez-Portillo v. Ashcroft, 280 F.3d 858

EE Tal naniitscsisesscndiietantiensitepasenaiimnniiainsneimmiaieints passim

American Nat'l Red Cross v. S.G.,

ee a icrstitidintaiinsinccatanaiartnsaneitindaintntiaineiiind 17

Arevalo v. Ashcroft, 344 F.3d |

i: 2 ey ashaptiasehcibinmieiesiniaaiapainipeapiaianinaiiial passim

Astoria Fed. Sav. & Loan Ass'n v.

ee es CI cotreresiiiccetcianuitenabinmeniniatets 24

Avila-Macias v. Ashcroft, 328 F.3d 108

SREP ERI, Aeiteteecancidnctninnihinedinetncitnanttidindiatiaiiainmsil 8, 27, 29, 36

Beazell v. Ohio, 269 U.S. 167 (1925) .......cccccccecesceeeeseeeeeceees 35

Bejjani v. INS, 271 F.3d 670 (6th Cir. 2001) ................ passim

Bocova v. Gonzales, 412 F.3d 257

SITTRIEED: SITET iciiiesiesislaiphebeernnnineiimsendtniesiaiidalidinadiatinesnisthentietelie 39

Boria v. Keane, 90 F.3d 36 (2d Cir. 1996)...0.0...0.0ccccccccceeeee 26

Bowen v. Georgetown Univ. Hosp.,

ain cncinintinlteianatntsititeenieuieeainsaile 14, 31

Brewster v. Gage, 280 U.S. 327 (1930) .....ccccceccceeeseceeeeeeees 18

Castro-Cortez v. INS, 239 F.3d 1037

SE aE I irniiscenntinntiahatenitiinttantinsnnitedtntadinnmaguiinnia passim

Claridge Apartments Co. v. Comm'r,

4 RE ene ee 14

Collins v. Youngblood, 497 U.S. 37 (1990) .0.........ccccececceees 35

Vii

TABLE OF AUTHORITIES—continued

Page(s)

Contreras-Aragon v. INS, 852 F.2d 1088

EIEN: UIE icinicsiisiccslighiisantinldiidtdaptiiieendinnsapiiasineinbatiiagndiies 39

Costello v. INS, 376 U.S. 120 (1964) .0.......ccccccceceecesececeeeeeees 28

De Veau v. Braisted, 363 U.S. 144 (1960).............ccccccceceeees 49

Dinnall v. Gonzales, 421 F.3d 247

STU is AEE ichiihisthinabinnapeiiaeetinitiimanaiatadaialinteiiiepaianaianii passim

Downer v. United States, 97 F.3d 999

TIE: CUI hcicicenicsinsecatinastiininiesanensatinuitis seteceeessecsesessecens 25, 26

Faiz-Mohammad vy. Ashcroft, 395 F.3d 799

REESE SSS rea eee Ea 8, 29

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)........cccccecseees 24

Fong Haw Tan v. Phelan, 333 U.S. 6 (1948)........... 27, 28, 49

Goncalves v. Reno, 144 F.3d 110

a eee 22, 23, 31

Henderson v. INS, 157 F.3d 106

I a 23

Hughes Aircraft Co. v. U.S. ex rel.

I, Fi ee ST I icccctictttctncenicntnmmtannntens passim

In re Minarik, 166 F.3d 591 (3d Cir. 1999) 0000. 30

INS v. Cardoza-Fonseca, 480 U.S. 421 ;

iets tatiana tinea iatinltialaiatiahiarlarenninaipalania 22, 27, 49

INS v. Errico, 385 U.S. 214 (1966)..............cccccccceccesesesseseees 27

INS ¥. St. Cyr, $33 U.S. 289 (2001) ...ccccccceseseccccesecceeeces passim

Iselin v. United States, 270 U.S. 245 (1926)............cccccc00008 20

Kaiser Aluminum & Chem. Corp. v. Bonjorno,

Se ee I nnitccrerclensonincsintiintietnipipantnntcneiiiiiivenin 14

Vill

TABLE OF AUTHORITIES—continued

Page(s)

Keene Corp. v. United States, 508 U.S. 200

ray eal recherthnnisnesiletleaiiatatieatltnaietesiicietnettiiagiipetctuttaipadamemmaniteddiniie 25

Landgraf v. USI Film Products,

ee see rciisiciniitintietaistnidiehchiarenicieatinaaiiidaniamiaa passim.

Lindh v. Murphy, 521 U.S. 320 (1997) .......cccccccccseneesees passim

Lindsey v. Washington, 301 U.S. 397 (1937)...........cccccceeeees 44

Lonchar v. Thomas, 517 U.S. 314 (1996) ...........ccccsceeeeeeesees 22

Lopez-Chavez v. Ashcroft, 383 F.3d 650

SEE TITnIns ITT hininshaisliceieicatichladiad dtiadininidsintenisitibesteneninddaineniion 39

Lopez-Flores v. Dep't of Homeland Sec.,

387 F.3d 773 (8th Cir. 2004) 20... eee eeeeseeeeeeees 41, 43, 45

Magana-Pizano v. INS, 200 F.3d 603

TE EE 23

Martin v. Hadix, 527 U.S. 343 (1999) 200.0... es 15, 35, 38

Massachusetts Assoc. of Health Maint. Orgs. v.

Ruthardt, 194 F.3d 176 (ist Cir. 1999) 000 ceeeeees 23

Mayers v. INS, 175 F.3d 1289 (11th Cir. 1999)...00000000..0.... 23

Miller v. Florida, 482 U.S. 423 (1987) ..........ccccccccceeeeeee 34, 35

Nachman Corp. v. Pension Benefit Guar. Corp.,

ee iiecticieiiniatticastndtatitiintnnsetniieaictenetsninaciiiiite 22

Nalley v. Nalley, 53 F.3d 649 (4th Cir. 1995)... 18

Ojeda-Terrazas v. Ashcroft, 290 F.3d 292

I TT nileitecasicic nidanieniieeasciaitasiiesinsaaeibanbnnsiinpatdainianiiees 8, 29

Olatunji v. Ashcroft, 387 F.3d 383

SL cee ee nee 26, 46, 47

Pak v. Reno, 196 F.3d 666 (6th Cir. 1999) .000000.. eee 23

TABLE OF AUTHORITIES—continued

Page(s)

Ponnapula v. Ashcroft, 373 F.3d 480

SETTLE STII icahinlncinentitahatatisininibiaiepiitindnnnipinasndenninstininine 46

Randall v. Meese, 854 F.2d 472

I ind iinet inca 42

Reynolds v. McArthur, 27 U.S. (2 Pet.) 417

SuTree 14

Romani v. INS, 146 F.3d 737 (9th Cir. 1998) ..0........ccccceceeees 4

Russello v. United States, 464 U.S. 16 (1983) 0.0.0.0... 22

Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999)................2.. 23

Sarmiento Cisneros v. United States Att'y Gen.,

381 F.3d 1277 (11th Cir, 2004) ooo... ccc eceeceeeseeeees passim

Scott v. Boos, 215 F.3d 940 (9th Cir. 2000)..............ccceceeeees 31

Shah v. Reno, 184 F.3d 719 (8th Cir. 1999) 00000. 23

Tang v. INS, 223 F.3d 713 (8th Cir. 2000)..................... 37, 40

Union Pacific R.R. Co. v. Laramie Stock

oe Me ener 34

United States v. St. Louis, SF. & T. Ry. Co.,

I pishaninatinie 15

Velasquez-Gabriel v. Crocetti, 263 F.3d 102

ERE SERIE EEO Svat aan eee Senor 8, 29

Weaver v. Graham, 450 U.S. 24 (1981)............0000 34, 35, 44

Constitutional Provisions

MITTIN. il sisicoiicdninsitnisenDhcibbiddnsualanaieelatiaiidseiadebtil 15

ERLE Bee Na IS ENE 15

TABLE OF AUTHORITIES—continued

Page(s)

AI Be i artaseniviesiicncsnienennniebiceemmeianienisiitiainiieiia 15

Current U.S. Code Provisions

OP es 0 IT cccscsinininenestieenenntsenienteenepuneubaniensaapininietent 5

8 U.S.C. § 1182(a)(O)A)(Ti)......ccccccececesesesesesesesesesnseesereneevens 39

Silas Ob CUTIE) vcceitcgniniavcsinccorsiensenesinninaitisnbtnditinaibinianpttiamssiaamas 4

es Oe GI hccoccssstentniatineniniesteiitasatntadebidibisdiobiaens 39, 40

eis Se GUE ciersicrniesnententeinniieinctiesiteiatntinaiieiaationditiapabiaiiaal 39

INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) .....cccceccceeeeees passim

ees Ur MI chcitnihiesitintcieisitlimsicemccessantiiitinomesibaasiahiaasbinistaieaaiaaiia 7

Se EIT xconsnsnnnnnsicncinensenentsnetaneapeanintnsnitapeoiatiinnin 7

Sy Ea Ea SE idicesienceseinensitciiseeaibinnbecenenneniniannapnsiateeuadild 41

rt Takia ieciaitechsieiiniiciaciaeeet indiana tiie passim

26 U.S.C. § 171(b)(1)(B)(ii)........... pesctoonenstopnesnounsennnty 18

is OP Si ccredanisirenciciusieiinntnniingiiniinidstiataueabignsten l

Be Ss A el cicenistaaceccuiaitiacciniocniniiunicaiicariianighinrtinsibenecatiitite 7

ee ie ee cienicsinesinresisetainicihtinienineapiiteniniacitiniateinsinieietatiaita l

Pre-IIRIRA U.S. Code Provisions

Be ied Oe eI cincccestesacecitonianeenisnetionidinausptuiantaieel 37

8 U.S.C. § 1182(a)(6)(B) (1996) 0000. ccccceceeeteceeeneeneees 39

rs Oe I tectecnnesinicctcnsvnniniiincnennitadnietiniiesins 4

INA § 242(f) (1996), 8 U.S.C. § 1252(f) (1996)........... passim

8 U.S.C. § 1254(a)(1) (1996) oo... eeeccseeeeeeeeeeeseeeees 37, 40

ie Oe He EE cntartcnreerecenienconibnninentnninintnitiil 37

TABLE OF AUTHORITIES—continued

Page(s)

8 U.S.C. § 1254(e)(1) (1982) on. ecccereesereeeeeeeeereseeneenes 44

BD lice 0) eG BID cccccccenseesnciccevnssesensenenensonsonnsnmencens 37

De, BT OI cecccccccescnnssesevescsrssccseszctenscessnibees 4,37

Other Federal Statutes

Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), Pub. L. No. 104-132,

Py I intnaihaninencraneientctmentenipeneesenetinenne passim

EE TEED cstnpescanecesevnenncanidseqensatinncnenenttintstnettnetin 23

RII THE? cavtiitnrenienneninnscidiinsiniinatetesienptcinallontens 32

TEN: ITO cisiiinsnteiretunetinteninsinsienpinetcdupeatesatinnibantaninnte 32

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”),

Pub. L. No. 104-208, 110 Stat. 3009.00... passim —

AI TTT rrtntaiatiiniiiaccnineiiiiseeninabeeesiaciiaanis —

STII TIITTTT iceintamesehcaniatintasinsndentinnetantinmasinendnibiie 27, 30

IIRIRA § 305(a)(3) .......cccceeceeseeseeeees pecnaiuniinenemiisteetennes l

ae 2

IIRIRA § 309(a), codified as note following

PR TITIES sctnideceniecinerisicersnenpsnenserminenentienerns passim

EE Se OE A aE 25

TE cisttininiettabeehivigiessdiiiconettariniaciaintaiiesedesanepestin 27, 35

IIT cia tpetmeecehatntiaeiimaniadinnetinnitetaees 25

TTI UII iiiahetchd ernie cnaiibeabctitintabmianiinntneenatiiiin 25

ETE EA ee RPE 25

SEIT a UT ncctticinsaietabiaiimeuseriigetinipiiatinintedpemeienedsnasiiitis 25

xii

TABLE OF AUTHORITIES—continued

Page(s)

Pub. L. No. 82-414 § 242(f), 66 Stat. 163, 212

Cael ico denetcnsccniniavespetasnnedatpiomiitionmtinnnmtectemesiontcanindl a

Current Regulations

i Oe ID escniueicinntisinrarnntantanininneanaintenastbnbinasinaneniiidiiilatis 41

aes Ce wicrenteresictivnenntssicntstiietarcniiniapellcnmnicadianiniita 41

is Oe ee ceceannsescnnnssnsecninsncssenneedatancnmapuincesinigacinisinnesiiia 41

es elie Oe I etarnncanpevenseinneevininicssndinnincstecensunnininmeaaiindtin 41

re Oe Ee cccarertsostcnciniininietennntenisiastininniiniveiaiitinianiie 4)

Pre-IIRIRA Regulations

ele 0 ee ietcccepenceceenennnedensnsenmnnnintittasnecinaniniaian 37

rs ee Ce icciccectanciccnnsemapssctpriitncinnieiaineianiiiniati 37

Fate ee Ce iiccitesensntentinninstnitinnscsiiemnitinmnitniniaiiiinn 37

Or ee CO icitrestctsnesicnnnstniciennsimanniinnanes 37

SCHR. B DEG Dea (1G 7 ) .ceccccccctesvccessessccccccsscsesetsesens 41

ae ey Piiccecsnecineneressastninnntentniesnnndnainnninsin 37

Miscellaneous

142 Cong. Rec. H2589 (March 4, 1996) ........ccccceeseeseeeenees 21

142 Cong. Rec. H10194-H10195

TGR BREEN Se tresmene ener ae meen 22

142 Cong. Rec. $4610-S4612

I tik SUED asisctntcelnsdsciistnacinensedapesininsnnniitininnniamedinaanidiin 22

H.R. Rep. No. 104-469(1) (1996), 1996 WL

URET sicssiciieseihdiastjupnlinesintabshadeabitsicn dgiesepuiibenniiinieenapiiiadhiia 21,34

H.R. REP. No. 104-828 (1996), 1996 WL

DIED cenestniccnssntssenensevnteniniomeianstnaapaneonineimmapennnteniies 22

xiii

TABLE OF AUTHORITIES—continued

Page(s)

S. Legomsky, Fear and Loathing in Congress

and the Courts: Immigration and Judicial

Review, 78 TEX. L. REV. 1615 (2000).............:ccceceseeeeseeee 49

D. Romboy, No Home For The Holidays,

DESERET MORNING NEws, Dec. 17, 2005, at

Al, available at http://deseretnews.com/

dn/view/0,1249,635169430,00. html ............c ee cceeeeeeeeees 40

D. Romboy, Outcast in Mexico, Outlaw in Utah,

DESERET MORNING NEws, Oct. 9, 2005, at

Al, available at hitp://deseretnews.com/dn/

view/0,1249,615152228,00. html ..............ccccceeeeeees 6, 40, 50

D. Romboy, Yes! Home For Christmas: 3 Donors

Pay Off Mortgage For Wife Of Deported Man,

DESERET MORNING News, Dec. 22, 2005, at

Al, available at http://deseretnews.com/

dn/view/0,1249,635 170599, 00. html «0.0... ceeceeeceeeeeeeees 40

S. REP. No. 104-249 (1996), 1996 WL 180026 ................... 21

Supplemental Brief for Respondent, 2002 WL

32355572, Chambers v. Ashcroft, 307 F.3d

284 (4th Cir. 2002) (No. 00-6364)... ccccccccceeeeeeeeeees 48

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-18a) is

reported at 394 F.3d 881. The November 17, 2003, final or-

der of the Bureau of Immigration and Customs Enforcement

(Pet. App. 19a-28a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

January 12, 2005. The petition for a writ of certiorari was

timely filed on April 12, 2005, and was granted on October

31, 2005. This Court has jurisdiction under 28 U.S.C.

§§ 1254(1) and 2350(a).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Section 241(a)(5) of the tmmigration and Nationality Act

(“INA”), 8 U.S.C. § 1231(a)(5), as enacted by § 305(a)(3) of

the Illegal Immigration Reform and Immigrant Responsibil-

ity Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat.

3009, provides:

If the Attorney General finds that an alien has reen-

tered the United States illegally after having been

removed or having departed voluntarily, under an

order of removal, the prior order of removal is rein-

stated from its original date and is not subject to be-

ing reopened or reviewed, the alien is not eligible

and may not apply for any relief under this Act, and

the alien shall be removed under the prior order at

any time after the reentry.

IIRIRA § 309(a), codified as note following 8 U.S.C. § 1101,

provides in relevant part: —~ -—s—

[T}his subtitle and the amendments made by this

subtitle shall take effect on the first day of the first

month beginning more than 180 days after the date

of the enactment of this Act [i.e., April 1, 1997].

INA § 242(f) (1996), 8 U.S.C. § 1252(f) (1996), repealed by

ITRIRA § 306(a)(2), provided in relevant part:

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 [i.e., June 27, 1952], on any

ground described in any of the paragraphs enumer-

ated in subsection (e) of this section, the previous

order of deportation shall be deemed to be reinstated

from its original date and such alien shall be de-

ported under such previous order at any time subse-

quent to such reentry.

Other statutory and regulatory provisions relevant to this case

are set forth as an addendum to this brief.

STATEMENT

This case presents the question whether INA

§ 241(a)(S)—which eliminates the right to obtain relief from

removal for noncitizens who have illegally reentered the

United States after having been deported—applies to indi-

viduals who reentered the United States before the effective

date of that statute.

Under the two-stage framework for retroactivity analysis

set forth by this Court in Landgraf v. USI Film Products, 511

U.S. 244 (1994), it is clear that INA § 241(a)(5) may not be

applied to persons who reentered the United States before

HIRIRA’s effective date. First, applying standard rules of

statutory construction, it is evident that Congress intended

IIRIRA’s reinstatement provision to apply only to individuals

who reentered the United States after April 1, 1997. Second,

even if congressional intent were not clearly discernable, ap-

plication of INA § 241(a)(5) to persons who reentered the

country before IIRIRA’s effective date would be impermissi-

bly retroactive because such application would impair pre-

existing rights and attach new legal consequences to events

completed before the statute’s enactment.

Resolution of the question presented will directly affect

thousands of people—both noncitizens and their U.S.-citizen

family members. It is no secret that many people, like peti-

tioner, have illegally reentered the United States after being

deported. Before IIRIRA’s enactment, illegal reentrants were

guaranteed the right to seek, and were eligible to receive, dis-

cretionary relief from deportation. Reentrants could reasona-

bly expect that under a variety of circumstances—such as if,

like petitioner, they married a U.S. citizen and led an other-

wise law-abiding life over a sufficient number of years—they

would have the opportunity to avoid deportation and possibly

remain in the United States, notwithstanding the fact that

they had reentered the country illegally. Indeed, one can

safely assume that reentrants acted on that expectation, tak-

ing the possibility of relief into account when deciding to re-

enter the country. Petitioner and thousands of others similarly

situated built lives in this country on the reasonable-expecta-

tion that relief from deportation would be available. It would

be grossly unfair—and contrary to this Court’s precedent—if

that expectation were now defeated, especially given the ab-

sence of a clear congressional mandate so commanding.

A. Statutory Background

Before April |, 1997, the INA provided that if a person

who had been deported for an enumerated reason (e.g., com-

mission of an aggravated felony) illegally reentered the

United States, “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 sub-

sequent to-such reentry.” INA § 242(f) (1996), 8 U.S.C.

§ 1252(f) (1996). While the consequences of such reinstate-

ment could be relatively harsh, Congress drafted the statute

narrowly. That former reinstatement provision did not apply

to noncitizens who were initially deported simply for enter-

ing the country without inspection or for any other reason not

specifically enumerated in 8 U.S.C. § 1252(e) (1996). More-

over, under pre-1997 immigration law, noncitizens who had

unlawfully reentered the United States after a previous depor-

tation could apply for various forms of relief from renewed

deportation, even if their previous deportation orders were

subject to reinstatement. For example, under 8 U.S.C.

§ 1255(i) (1996), persons who met certain conditions were

allowed to avoid deportation by seeking and obtaining a dis-

cretionary adjustment of status to that of lawful permanent

resident. This discretionary relief was available to individuals

who, like petitioner, were married to a United States citizen

who filed a visa petition on the noncitizen’s behalf.’

In 1996, Congress dramatically changed this legal land-

scape by enacting IIRIRA. Effective April 1, 1997 (see

IIRIRA § 309(a)), IIRIRA repealed INA § 242(f) and re-

placed it with INA § 241(a)(5). This new reinstatement pro-

vision differs from its predecessor in several significant

ways.

First, while under the old regime only persons who had

been deported on certain specified grounds were subject to

having their earlier deportation orders reinstated, INA

§ 241(a)(5) applies broadly to all noncitizens who were pre-

viously removed.’ See Pet. App. 10a; see also, e.g., Bejjani v.

INS, 271 F.3d 670, 675 (6th Cir. 2001).

' Other forms of relief from deportation were also available to

persons who had unlawfully reentered the country. For example,

relief under 8 U.S.C. § 1255(i) was available to noncitizens who

were beneficiaries of labor-certification applications filed on their

behalf by a U.S. employer. Similarly, in appropriate circumstances

noncitizens could seek suspension of deportation, voluntary depar-

ture, asylum, and various other forms of relief. See pages 37, infra

? What had been known as “deportation” before IIRIRA is now

known as “removal.” See, e.g., Romani v. INS, 146 F.3d 737, 739

n.3 (9th Cir. 1998) (“The IIRIRA repeals [the deportation provi-

sion] and replaces it with a new removal proceeding provision to

be codified at 8 U.S.C. § 1229a.”).

Second, INA § 241(a)(5) specifies that the earlier re-

moval order is “not subject to being reopened or reviewed,”

and thus may no longer be subject to at least some forms of

collateral challenge. See Bejjani, 271 F.3d at 675.

Finally, as noted above, the precursor statute allowed

noncitizens subject to reinstatement to apply for relief from

deportation under other sections of the INA. The new rein-

statement provision, by contrast, precludes them from apply-

ing for or receiving any form of relief under the INA. See

INA § 241(a)(5); Pet. App. | la; Bejjani, 271 F.3d at 675.

Consequently, application of this new statute operates to

deny to a large class of noncitizens relief that was available

to them under the old regime.

B. Factual Background

Petitioner Humberto Fernandez-Vargas is a native and

citizen of Mexico. Before his 2004 deportation (see page 6,

infra), he lived in the United States illegally, and had done so

since the 1970s. See Pet. App. 3a. During the 1970s and early

1980s petitioner was deported from the United States several

times for immigration violations, most recently in 1981. See

Pet. App. 3a, 26a. In January 1982, shortly after the last of

those deportations, petitioner again reentered the United

States without inspection. Pet. App. 3a, 19a. During the next

twenty years he resided primarily in Utah, worked as a truck

driver, owned his own trucking business, and was never ar-

rested for any reason: See A.R. 41-42.°

In 1989, petitioner and his long-time companion, Rita—a

U.S. citizen—had a child, Anthony Fernandez, also a U.S.

citizen. See A.R. 42. Petitioner and Mrs. Fernandez married

on March 30, 2001. See Pet. App. 3a. Thereafter, Mrs. Fer-

nandez filed an immediate-relative visa petition on behalf of

petitioner pursuant to 8 U.S.C. § 1151(b), and petitioner filed

an application for adjustment of status under 8 U.S.C.

> AR. refers to the Certified Administrative Record before the

Tenth Circuit.

§ 1255(i). See Pet. App. 3a-4a; A.R. 41-46. Petitioner paid

the $1,000.00 “penalty” fee for having entered the United

States without inspection; the Immigration and Naturaliza-

tion Service (“INS”) accepted petitioner’s application and fee

notwithstanding his illegal reentry. See A.R. 45-46. Indeed,

in light of the pending application for adjustment, the Bureau

of Citizenship and Immigration Service (“BCIS”)—the

agency within the Department of Homeland Security that

largely replaced the INS, and that is now known as the U.S.

Citizenship and Immigration Services (“USCIS”)}—provided

petitioner with employment authorization. See 10th Cir. Pet.

Rev. 3-4.

On or about November |, 2003, petitioner appeared at the

Salt Lake City BCIS office for a routine interview in connec-

tion with his visa petition. But when he arrived, he was ar-

rested by an officer from the Bureau of Immigration and

Customs Enforcement, now known as U.S. Immigration and

Customs Enforcement (collectively, “ICE”), based on ICE’s

assertion that his 1981 deportation order was subject to rein-

statement under INA § 241(a)(5) and that, as a result, he was

statutorily barred from applying for adjustment of status un-

der 8 U.S.C. § 1255(i). See Pet. App. 4a. On November 7,

2003, ICE issued a notice of its intent to reinstate petitioner’s

prior deportation order. A.R. 4. On November 17, 2003, ICE

issued an order reinstating petitioner’s prior deportation or-

der, see ibid., and that same day issued a warrant command-

ing his arrest and removal from the United States. See Pet.

App. 4a, 19a-20a. On September 9, 2004, after nearly a year

of detention and while his petition for review was pending in

the Tenth Circuit, petitioner was removed from the United

States to Juarez, Mexico. See D. Romboy, Outcast in Mex-

ico, Outlaw in Utah, DESERET MORNING NEws, Oct. 9, 2005,

at Al, available at http://deseretnews.com/dn/view/0,1249,

615152228,00.html.* His wife and son remain in Utah. /bid.

* As the government concedes, the fact that petitioner has been

C. Proceedings Below

Pursuant to 8 U.S.C. § 1252(a) and (b)(2), and 28 U.S.C.

§ 2342, petitioner sought review of the ICE decision in the

Tenth Circuit. Petitioner contended that because he had reen-

tered the United States before the effective date of IIRIRA—

April 1, 1997—INA § 241(a)(5) did not apply to his case,

and that ICE had therefore erred in reinstating the previous

deportation order and in refusing to allow him to pursue an

adjustment of status under 8 U.S.C. § 1255(i).

The court of appeals’ resolution of the case turned on the

question whether INA § 241(a)(5) applies despite the fact

that petitioner reentered the United States before the effective

date of IIRIRA. The court analyzed this question using the

analytical framework that this Court specified in Landgraf

for determining whether a federal statute applies to pre-

enactment conduct despite the strong historical presumption

against retroactivity. Expressly noting that the issue had split

the federal circuits (see Pet. App. 12a), the Tenth Circuit held

that INA § 241(a)(5) applied to petitioner. See Pet. App. 18a.

Under Landgraf, a “court’s first task is to determine

whether Congress has expressly prescribed the statute’s

proper reach.” Landgraf, 511 U.S. at 280. Rejecting the con-

trary decisions of the Sixth and Ninth Circuits (see Pet. App.

12a, 16a (rejecting Castro-Cortez v. INS, 239 F.3d 1037 (9th

Cir. 2001), and Bejjani, 271 F.3d 670)), the Tenth Circuit

held that Congress had not clearly provided that INA

§ 241(a)(5) applies only to individuals who reentered the

United States after IIRIRA’s effective date. Pet. App. 16a. In

so holding, the court sided with six other circuits—the First,

Third, Fourth, Fifth, Eighth, and Eleventh—that also “have

determined that application of the normal rules of statutory

construction does not reveal unambiguous congressional in-

tent as to the temporal scope of INA § 241(a)(5).” Pet. App.

removed to Mexico “does not moot the proceedings.” U.S. Cert.

Resp. 7 n.5 (citing Bejjani, 271 F.3d at 688-689).

12a-13a (citing Sarmiento Cisneros v. United States Att'y

Gen., 381 F.3d 1277, 1280-1284 (11th Cir. 2004); Arevalo v.

Ashcroft, 344 F.3d 1, 10-13 (1st Cir. 2003); Avila-Macias v.

Ashcroft, 328 F.3d 108, 112-114 (3d Cir. 2003); Ojeda-

Terrazas v. Ashcroft, 290 F.3d 292, 297-299 (Sth Cir. 2002);

Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 864-865 (8th Cir.

2002); and Velasquez-Gabriel v. Crocetti, 263 F.3d 102,

105-108 (4th Cir. 2001)).°

Having failed to find that congressional intent was suffi-

ciently clear to allow it to stop with the first stage of Land-

graf’s retroactivity analysis, the Tenth Circuit proceeded to

the second stage, under which a court “must determine

whether the new statute would have retroactive effect, i.e.,

whether it 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; see also Pet. App. 16a.°

The Tenth Circuit noted that a number of courts of ap-

peals have “held that barring an application for adjustment

under INA § 241(a)(S) is an impermissible retroactive ef- |

fect.” Pet. App. 16a-17a & n.12 (citing Sarmiento Cisneros,

381 F.3d at 1284; Arevalo, 344 F.3d at 14; and Alvarez-

Portillo, 280 F.3d at 861). It distinguished two of those cases

on the ground that the petitioners in those cases had not only

> Two weeks after the Tenth Circuit’s decision in this case, the

Seventh Circuit also held that Congress had not clearly defined the

temporal scope of INA § 241(a)(5). See Faiz-Mohammad v.

Ashcroft, 395 F.3d 799, 804 (7th Cir. 2005)

* “If the statute would operate retroactively, [the] traditional pre-

sumption [against retroactivity] teaches that it does not govern ab-

sent clear congressional intent favoring such a result.” Landgraf,

511 U.S. at 280 (emphasis added). No court has ever held that

there is “clear congressional intent” that INA § 241(a)(5) apply ret-

roactively. Thus, all courts would agree that if the statute has “ret-

roactive effect” as applied to a person who reentered the United

States before April 1, 1997, it would not apply.

reentered the United States before IIRIRA’s effective date,

but had also filed applications for adjustment of status before

that date. See Pet. App. 17a-18a. The court acknowledged

that in a third case—the Eighth Circuit’s decision in Alvarez-

Portillo—the petitioner had reentered the United States be-

fore IIRIRA’s effective date but had not filed an adjustment

application until after that date. It nonetheless distinguished

Alvarez-Portillo on the ground that, unlike here, the peti-

tioner not only had reentered the United States before

IIRIRA’s effective date but also had married a U.S. citizen

before that date. See Pet. App. 17a n.12. The court concluded

that applying INA § 241(a)(5) to petitioner would not give

the statute retroactive effect because he had no “protectable

expectation of being able to adjust his status” in that “the

only event completed before [IIRIRA’s effective date] was

his illegal re-entry into the United States.” Pet. App. 17a.

As a result, the court held that INA § 241(a)(5) applied to

petitioner and barred his application for adjustment of status.’

SUMMARY OF ARGUMENT

Applying Landgraf's two-step framework, this Court

should conclude that INA § 241(a)(5) does not apply to indi-

viduals, like petitioner, who reentered the United States be-

fore IIRIRA’s effective date.

1. The temporal scope of INA § 241(a)(5) is readily as-

certainable. As an initial matter, Congress specified that the

changes introduced by IIRIRA not take effect until April 1,

1997. Application of several well-accepted rules of statutory

construction confirms that Congress intended just what that

plain language provides—that INA § 241(a)(S) does not im-

In the court of appeals petitioner also argued that INA

§ 241(a)(5) would not preclude his application for adjustment of

status under 8 U.S.C. § 1255(i) even if the reinstatement statute

were applicable to him. The court of appeals rejected this argument

(see Pet. App. 4a-9a), and petitioner does not challenge that deter-

mination in this Court.

pose additional consequences on pre-enactment conduct like

petitioner’s reentry.

In enacting IIRIRA, Congress eliminated from the former

reinstatement provision express language making reinstate-

ment retroactively applicable to reentries occurring before

the former statute’s effective date. Had Congress intended

the new statute to apply to persons in petitioner’s circum-

stances, it could, and presumably would, have left the retro-

activity language from the former statute unchanged.

Congress’s decision to remove this language is strong evi-

dence that Congress did not intend for the new, harsher rein-

Statement provision to apply retroactively. This Court must

give effect to that congressional determination. See Part

LA.1, infra.

The legislative history of the statute confirms this inter-

pretation of INA § 241(a)(S). Congress considered and re-

jected \anguage that would have made the new provision

expressly retroactive. The House and the Senate initially dis-

agreed regarding the appropriate scope of the reinstatement

provision. The Senate’s version of the bill would have ap-

plied reinstatement to a narrow class of reentrants, but would

have included language requiring the statute to apply retroac-

tively. In contrast, the House bill applied to a broader class of

reentrants, but did not contain any retroactivity language. A

bipartisan committee resolved this dispute by adopting the

House version of the bill and excluding any retroactivity lan-

guage. By doing so, ongress implicitly proscribed the retro-

active application of INA § 241(a)(5). See Part 1.A.2, infra.

Moreover, this Court must assume that Congress enacted

IIRIRA with knowledge of the applicable background legal

rules, including the strong presumption against retroactive

application of statutes. Thus, Congress knew or must be

deemed to have known the necessity of being explicit if it in-

tended that any provision of IIRIRA, including the reinstate-

ment provision, apply to conduct antedating the statute’s

effective date. Against this background rule, Congress’s si-

lence reveals its intent that INA § 241(a)(5) not apply to re-

entries that occurred before its enactment. See Part I.A.3, in-

fra.

Further, the longstanding principle of construing ambi-

guities in immigration statutes in favor of aliens counsels

against retroactive application of the reinstatement provision.

This rule recognizes the drastic hardship deportation imposes

on persons, like petitioner, who have established deep roots

in this country despite having entered unlawfully. Therefore,

any ambiguity as to the temporal scope of IIRIRA’s rein-

statement provision should be interpreted against its retroac-

tive application. See Part 1.A.4, infra.

Rather than resolving the perceived ambiguity in INA

§ 241(a)(5) in petitioner’s favor, the Tenth Circuit errone-

ously held that the statute itself would not control the tempo-

ral-scope inquiry absent an unambiguous showing that

Congress intended the statute to apply prospectively. This

approach effectively eviscerates the traditional presumption

against retroactivity. Nothing in this Court’s retroactivity ju-

risprudence suggests that unambiguous clarity is needed be-

fore a court should interpret a statute only to apply to future

conduct. Rather, applying the traditional presumption, this

Court has determined that when the ordinary rules of statu-

tory construction support the conclusion that Congress in-

tended the statute to apply only prospectively, that

construction of the statute controls even if the statute is not

entirely clear on the issue. Adequate evidence of congres-

sional intent exists such that this Court should conclude that

only prospective application of INA § 241(a)(5) is author-

ized. See Part 1.B, infra.

2. Application of INA § 241(a)(5) to petitioner is also

inappropriate because that application would afford the stat-

ute an impermissibly retroactive effect under stage two of a

Landgraf analysis. The provision regulates reentry into the

United States. It penalizes persons who illegally reenter the

country after having been previously deported and, in par-

ticular, denies such persons the right to seek and the opportu-

nity to receive the discretionary relief from deportation to

which they would otherwise be entitled. Because it is illegal

reentry that triggers the statute’s application, it is that act that

constitutes the relevant event for purposes of retroactivity

analysis. See Part II.A, infra.

Before IIRIRA took effect on April 1, 1997, persons who

illegally reentered the United States after a prior deportation

had the right to seek, and were eligible to receive, various

forms of discretionary relief from renewed deportation, in-

cluding adjustment of status, suspension of deportation, and

voluntary departure. INA § 241(a)(5) now deprives these

same people of that mght and those opportunities. Thus, when

applied to persons who reentered the United. States before

April 1, 1997, INA § 241(a)(5) attaches a new legal conse-

quence to the previously completed act of illegal reentry. See

Part I1.B.1, infra.

Petitioner reentered the United States in 1982. From the

day he reentered through the day IIRIRA took effect, peti-

tioner was immediately eligible to seek and obtain discre-

tionary relief from deportation. Under the law as it stood

before IIRIRA, petitioner could have sought such relief either

proactively or defensively in a deportation proceeding. By

depriving petitioner and others who reentered the United

States before April 1, 1997, of the opportunity to obtain such

relief, INA § 241(a)(5) has an impermissibly retroactive ef-

fect when applied to him and those similarly situated. See

Part 11.B.2, infra.

The fact that the relief that was available to petitioner and

other illegal reentrants before April |, 1997, was discretion-

ary is immaterial. Although there was no guarantee that a

particular person would be granted discretionary relief, each

person who reentered the country before April 1, 1997, had a

right to seek, and was eligible to receive, such relief. By de-

priving reentrants of that mght, INA § 241(a)(5) converts

what had previously been possible deportation into what is

now certain deportation. That conversion, which is of im-

mense practical significance to reentrants facing deportation,

is—as recognized by this Court in JNS v. St. Cyr, 533 U.S.

289 (2001)—sufficient to make application of INA

§ 241(a)(5) to petitioner and those similarly situated imper-

missibly retroactive. See Part II.C, infra.

Because discretionary relief from deportation— which

could greatly alleviate the practical consequences of illegal

reentry—was readily available before IIRIRA, persons who

reentered the country before April 1, 1997, are likely to have

done so with the reasonable expectation that they could in

fact seek and obtain such relief. Nonetheless, as established

by Landgraf, Hughes Aircraft Co. v. U.S. ex rel. Schumer,

520 U.S. 939 (1997), and St. Cyr, petitioner has no obligation

to prove that he himself in fact relied on prior law in order to

demonstrate that application of INA § 241(a)(5) to him

would be impermissibly retroactive. See Part II.D, infra.

Finally, retroactive application of INA § 241(a)(5) to pe-

titioner would be extremely unfair. Petitioner lived in the

United States for more than two decades after reentering the

country. During that time he built a productive, law-abiding

life. He married a U.S. citizen, raised a U.S.-citizen child,

built a successful business, and was never arrested. After

more than two decades in the United States, deportation is

tantamount to exile. It would be particularly unjust to deprive

petitioner of the opportunity to obtain discretionary relief

from deportation as a result of his illegal reentry more than

twenty years ago when people who did not lead law-abiding

lives after entering the United States are, under St. Cyr, guar-

anteed precisely that opportunity. See Part II.E, infra.

ARGUMENT

The government has interpreted [IRIRA’s reinstatement

provision to work a dramatic change in the legal conse-

quences of petitioner’s 1982 reentry. Petitioner reentered the

United States under a statutory scheme that enabled him to

seck to become a lawful resident from within the country.

Nonetheless, based on that 20-year-old act of reentry, Peti-

tioner has been ripped from his family, removed to Mexico,

and deprived of his pre-existing right to pursue the discre-

tionary relief he almost certainly would have been afforded

under prior law. Because there is no indication that Congress

intended such retroactive application of INA § 241(a)(5), the

government’s interpretation of that provision is untenable.

The principle that “[rjetroactivity is not favored in the

law,” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208

(1988), is not new. As this Court has stated, “the presumption

against retroactive legislation is deeply rooted in our juris-

prudence, and embodies a legal doctrine centuries older than

our Republic.” Landgraf, 511 U.S. at 265; see also ibid.

(“The principle that the legal effect of conduct should ordi-

narily be assessed under the law that existed when the con-

duct took place has timeless and universal appeal.’”) (quoting

Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827,

855 (1990) (Scalia, J., concurring)). Indeed, as Chief Justice

Marshall declared,

It is a principle which has always been heid sacred

in the United States, that laws by which human ac-

tion is to be regulated look forwards, not backwards;

and are never to be construed retrospectively, unless

the language of the act shall render such construc-

tion indispensable.

Reynolds v. McArthur, 27 U.S. (2 Pet.) 417, 434 (1829).

In the criminal context, such retroactive legislation is

flatly prohibited by the Ex Post Facto Clause of the Constitu-

tion. In the civil context, “[rjetroactivity, even where permis-

sible, is not favored, except upon the clearest mandate.”

Claridge Apartments Co. v. Comm'’r, 323 U.S. 141, 164

(1944).° As Justice Brandeis has observed, “[t}hat a statute

* As this Court noted in Landgraf, the general principle against

retroactive legislation finds expression in numerous constitutional

provisions applicable in the civil context:

shall not be given retroactive effect unless such construction

is required by explicit language or by necessary implication

is a rule of general application.” United States v. St. Louis,

S.F. & T. Ry. Co., 270 U.S. 1,3°(1926).

More recently, this Court has set forth a two-step frame-

work for determining whether a statute may permissibly be

applied to conduct antedating its enactment despite the strong

presumption against retroactivity. First, a court is to “deter-

mine whether Congress has expressly prescribed the statute’s

proper reach.” Landgraf, 511 U.S. at 280. If the statute’s

proper reach is either expressly stated or discernable through

the “normal rules of construction,” then the statute controls

and the retroactivity inquiry ends. Lindh v. Murphy, 521 U.S.

320, 326 (1997). the proper reach of the statute cannot

be ascertained, “the court must determine whether the new

statute would have a retroactive effect,” in which case the

“traditional presumption teaches that it does not govern ab-

sent clear congressional intent favoring such a result.” Land- -

graf, 511 U.S. at 280; see also St. Cyr, 533 U.S. at 326;

Martin v. Hadix, 527 US. 343, 361-362 (1999).

Both steps of the Landgraf analysis lead to the conclusion

Article I, § 10, cl. 1, prohibits States from passing another

type of retroactive legislation, laws “impairing the Obliga-

tion of Contracts.” The Fifth Amendment’s Takings Clause

prevents the Legislature (and other government actors) from

depriving private persons of vested property rights except

for a “public use” and upon payment of “just compensa-

tion.” The prohibitions on “Bills of Attainder” in Art. I §§ 9-

10, prohibit the legislatures from singling out disfavored

persons and meting out summary punishment for past con-

duct. The Due Process Clause also protects the interests in

fair notice and repose that may be compromised by retroac-

tive legislation; a justification sufficient to validate a stat-

ute’s prospective application under the Clause “may not

suffice” to warrant its retroactive application.

Landgraf, 5i1 U.S. at 266.

that INA § 241(a)(5) may not be applied to deny persons who

reentered the United States before IIRIRA’s effective date

their pre-existing right to pursue discretionary relief from

removal.

I. Congress Intended INA § 241(a)(5) To Apply Only

To Persons Who Reentered The United States After

April 1, 1997.

This Court’s first task is to determine the temporal reach

of INA § 241(a)(5) using the normal rules of statutory con-

struction. Although the text of INA § 241(a)(5) does not ex-

plicitly state the temporal scope of that provision, Congress

provided generally that IIRIRA would not be effective until

April 1, 1997, the “first day of the first month beginning

more than 180 days after the date of enactment.” IIRIRA

§ 309(a). Application of several well-recognized principles of

statutory construction, in conjunction with the plain language

of IIRIRA’s effective date, lead to the unavoidable conclu-

sion that Congress specifically intended INA § 241(a)(5) to

apply only to individuals who reentered the United States af-

ter April 1, 1997. Thus, here, as in Lindh, there is no need to

reach the question whether the statute has retroactive “effect”

under step two of Landgraf.

A. Using ordinary rules of statutory construction,

INA § 241(a)(5) should be interpreted to apply

only to those persons who reentered after

IIRIRA’s effective date.

1. The proper interpretation of INA § 241(a)(5)

must give effect to Congress's elimination of

retroactivity language from the previous rein-

statement provision.

That Congress did not intend INA § 241(a)(5) to apply to

noncitizens who reentered the United States before April 1,

1997, is made clear by comparing that provision to its prede-

cessor. As explained above, “INA § 241(a)(5) replaced the

former reinstatement provision, INA § 242(f), 8 U.S.C.

§ 1252(f) (repealed 1996).” Pet. App. 2a. The repealed provi-

sion was more limited in scope and effect than the new pro-

vision, but expressly provided that it was applicable to all

persons who illegally reentered the United States “whether

before or after the date of enactment of this Act,” June 27,

1952. See INA § 242(f) (1996); Pub. L. No. 82-414 § 242(f),

66 Stat. 163, 212 (1952). As several courts have noted,

“{t]his language clearly expressed Congress’s intent that

prior orders of deportation could be reinstated even if the

alien reentered the country prior to the enactment of that re-

instatement provision.” Bejjani, 271 F.3d at 684; see also,

e.g., Arevalo, 344 F.3d at 12; Castro-Cortez, 239 F.3d at

1051. But when Congress rewrote the reinstatement provi-

sion in 1996, it eliminated the language making reinstatement

applicable to persons who unlawfully reentered before the

statute’s effective date (while simultaneously providing that

reinstatement would apply to a broader class of illegal reen-

trants). Compare INA § 242(f) (repealed 1996) with INA

§ 241(a)(5).

This Court has long recognized the “canon of statutory

construction requiring a change in language to be read, if

possible, to have some effect.” American Nat'l Red Cross v.

S.G., 505 U.S. 247, 263 (1992). The only interpretation of

INA § 241(a)(5S) that gives effect to Congress’ elimination of

the retroactivity language from the predecessor provision is

that Congress intended the current provision to apply only

prospectively to reentries occurring after IIRIRA’s effective

date. Had Congress intended to apply IIRIRA’s new rein-

statement provision to reentries that occurred before its en-

actment, Congress would have either updated the express

retroactivity language in the prior statute to reflect IIRIRA’s

effective date or left the retroactivity language from the pre-

vious provision unchanged.’ Instead, Congress eliminated the

° As originally enacted, the prior provision specified that it ap-

plied to reentries antedating “enactment of this Act.” Pub. L. No.

82-414 § 242(f), 66 Stat. 163, 212 (1952). The version contained

retroactivity language entirely. That change in language

would be entirely ineffectual if INA § 241(a)(5) is interpreted

to apply as if it had the same explicitly retroactive language

that was contained in the predecessor statute.

Congress’s omission of retroactivity language froin INA

§ 241(a)(5) is strong evidence that it disapproved of applying

the new reinstatement provision retroactively.'° See Brewster

v. Gage, 280 U.S. 327, 337 (1930) (“The deliberate selection

of language so differing from that used in the earlier acts in-

dicates that a change of law was intended.”); Nalley v.

Nalley, 53 F.3d 649, 652 (4th Cir. 1995) (“When the wording

of an amended statute differs in substance from the wording

of the statute prior to amendment, we can only conclude that

Congress intended the amended statute to have a different

meaning.”). Having expressly provided that the former rein-

statement provision would apply to reentries pre-dating its ef-

fective date, Congress could be expected to include similar

in the U.S. Code replaced that phrase with the specific date—June

27, 1952. Congress could have incorporated either into the new re-

instatement provision. As the Ninth Circuit has noted, “Congress

often leaves specific dates in statutory provisions without updating

the date when it revises the statute with the effect that tie updated

provision applies retroactively from the initial, unchanged date in

the statute.” Castro-Cortez, 239 F.3d at 1051 n.15 (citing 26

U.S.C. § 171(6)(1)(B)(ii)).

'0 There are any number of reasons why Congress may have de-

cided not to apply INA § 241(a)(5) retroactively. As noted above

(at 3-4), INA § 241(a)(5) applies to a far broader class of aliens

than did its predecessor. Thus, Congress may have eliminated the

prior retroactivity language precisely because the new reinstate-

ment provision greatly expanded the class of persons subject to its

reach. Moreover, Congress presumably was aware that retroactive

application of INA § 241(a)(5) would upset settled expectations of

noncitizens who, like petitioner, reentered the United States dec-

ades before IIRIRA’s enactment under a statutory scheme in which

they were entitled to apply for discretionary relief from future de-

portation. See Part I1.D, infra.

language in the current statute had it intended the new rein-

statement provision also to apply retroactively. It would vio-

late ordinary rules of statutory construction, and defy

common sense, to conclude that, despite removing all retro-

activity language, Congress intended to leave open the possi-

bility of applying INA §241(a)(S) retroactively to

immigrants who reentered the United States before IIRIRA’s

effective date. See Castro-Cortez, 239 F.3d at 1051 (“Con-

gress’s decision to remove the retroactivity language from

this part of the statute provides strong support for the conclu-

sion that it did not intend that the revised provision be ap-

plied to reentries occurring before the date of the statute’s

enactment.”); Bejjani, 271 F.3d at 684 (“[T]he complete

elimination of the retrosctive language from the reinstate-

ment provision is persuasive evidence that Congress did not

intend for the new reinstatement provision to apply to reen-

tries which occurred prior to the statute’s effective date.”)."’

This Court drew a similar inference of prospective intent

in Lindh by noting the differences in two closely related

statutory provisions enacted as part of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.

No. 104-132, 110 Stat. 1214. The Court held that Congress’s

inclusion of retroactivity language in one provision “indi-

cat[ed] implicitly” that the provision excluding such lan-

guage was intende! to apply only prospectively. 521 U.S. at

327. Although t.* inference in Lindh was drawn from two

'' The Tenth Circuit agreed that “Congress’s elimination of the

previous retroactivity language lends weight to the argument that

Congress intended the statute to apply only prospectively.” Pet.

App. 14a. However, the court erroneously held that this indication

of congressional intent was insufficient to meet the requirement of

absolute clarity purportedly set forth in Landgraf. See id. at 1Sa-

16a. As we explain below, such absolute clarity is not required

when the ordinary rules of statutory construction lead a court to

conclude that a statute applies only prospectively. See Part [.B, in-

fra.

parallel provisions of the same statute, that inference is no

less applicable here, when Congress amended the earlier re-

instatement provision to exclude all retroactive language.

Here, as in Lindh, “[njothing * * * but a different intent ex-

plains the different treatment.” /d. at 329.

Although the elimination of retroactivity language in INA

§ 241(a)(S) reveals specific congressional intent to apply the

statute only prospectively—a conclusion reinforced by the

legislative history (see Part 1.A.2, infra)}—even inadvertent

omissions of statutory language must be given legal effect. In

the words of Justice Brandeis:

The statute was evidently drawn with care. Its lan-

guage is plain and unambiguous. What the govern-

ment asks is not a construction of a statute, but, in

effect, an enlargement of it by the court, so that

what was omitted, presumably by inadvertence, may

be included within its scope. To supply omissions

transcends the judicial function.

Iselin v. United States, 270 U.S. 245, 250-251 (1926). As in

Iselin, the government herein effectively asks this Court to

enlarge IIRIRA’s carefully drafted language by reinserting

the retroactivity language from prior law that Congress omit-

ted from INA § 241(a)(5). Given that all available evidence

strongly suggests that the omission was intentional, the gov-

ernment’s suggested interpretation would “transcend[]} the

judicial function” to an even greater extent than were that

omission merely inadvertent.'”

'2 In Sarmiento Cisneros, the Eleventh Circuit agreed that “the

removal! of the retroactivity language from the statute lends weight

to” the argument that INA § 241(a)(S) was not intended to apply to

prior reentries, but also remarked that “[a}nother rational explana-

tion for the removal of the language is that Congress believed the

language was surplusage.” 381 F.3d at 1282. That latter conclusion

is flatly inconsistent with this Court's recognition that Congress is

presumed to know the legal background against which it legrslates.

As explained more fully below (see Part 1.A.3, infra), this Court's

2. The legislative history of INA § 241(a)(5) con-

firms that Congress intended that provision to

apply only prospectively.

The legislative history of INA § 241(a)(5) confirms that

Congress’s decision to omit the prior retroactivity language

from INA § 241(a)(5) was no accident.'’ Rather, Congress

explicitly “considered and rejected new language which

would have applied the new reinstatement provision to illegal

reentries which occurred before the date of enactment.” Be-

jjani, 271 F.3d at 685 (emphasis added). This too is strong

evidence that Congress intended INA § 241(a)(5) to apply

only prospectively.

The current reinstatement provision originated with a bill

(H.R. 2202) passed in the House in March 1996. See H.R.

Rep. No. 104-469(1), at 26 (1996), 1996 WL 168955; 142

Cong. Rec. H2589 (March 4, 1996). At that time, the Senate

was simultaneously considering a different version of the

immigration-reform bill (S.1664), that contained a reinstate-

ment provision that, like the statute then in effect, applied

only to a narrow class of deported individuals and included

express retroactivity language. S. Rep. No. 104-249, at 118

(1996), 1996 WL 180026.

When the House bill was called up on the Senate floor in

May 1996, the Senate amended the bill by replacing the

decision in Landgraf put Congress on notice as to the “wisdom of

being explicit” if it intends a statute to apply retroactively, even

when the statute in question may not have true retroactive effect.

Lindh, 521 U.S. at 328. Against that background legal rule, Con-

gress’s silence as to the retroactive effect of INA § 241(a)(5)

weighs heavily in favor of interpreting it to apply only prospec-

tively. Affirmative removal of retroactivity language is even

weightier evidence that Congress did not intend the statute to apply

retroactively.

'? This Court routinely looks to legislative history to determine

whether Congress prescribed the temporal reach of a statute. See,

e.g., Lindh, 521 U.S. at 329-330 & n.6; Landgraf, 511 U.S. at 262.

House’s version of the text with its own version, which in-

cluded retroactivity language in the reinstatement provision.

See 142 Cong. Rec. $4610-S4612 (May 2, 1996). The bill

then returned to the House, which noted its disagreement

with the Senate amendment and agreed to a conference. See

142 Cong. Rec. H10194-H10195 (Sept. 11, 1996). Two

weeks later, a bipartisan conference committee emerged with

a compromise bill that included the House’s broader version

of the reinstatement provision (thus applying to all previ-

ously deported persons), but that excluded the Senate’s ex-

plicit retroactivity language. See H.R. Rep. No. 104-828, at

54 (1996), 1996 WL 563320.

As this Court has recognized, “[f]ew principles of statu-

tory construction are more compelling than the proposition

that Congress does not intend sub silentio to enact statutory

language that it has earlier discarded in favor of other lan-

guage.” INS v. Cardoza-Fonseca, 480 U.S. 421, 442-443

(1987) (quoting Nachman Corp. v. Pension Benefit Guar.

Corp., 446 U.S. 359, 392-393 (1980) (Stewart, J., dissent-

ing)); cf. Lonchar v. Thomas, 517 U.S. 314, 325-327 (1996)

(refusing to interpret the habeas rules to relax the prejudice

requirement because Congress “rejected, by removing from

the draft Rule, a provision that would have eased the burden

of the prejudice requirement”).

A difference between the language of a prior version of a

bill and the enacted version is particularly strong evidence of

congressional intent when, as here, “it represents a decision

by a conference committee to resolve a dispute in two ver-

sions of a bill, and the committee’s choice is then approved

by both Houses of Congress.” Goncalves v. Reno, 144 F.3d

110, 132 (ist Cir. 1998); cf. Russello v. United States, 464

U.S. 16, 23-24 (1983) (“Where Congress includes limiting

language in an earlier version of a bill but deletes it prior to

enactment, it may be presumed that the limitation was not in-

tended.”). In such a context, Congress’s intent is clearly

manifested by its decision not to include the disputed lan-

guage. See, e.g., Massachusetts Assoc. of Health Maint.

Orgs. v. Ruthardt, 194 F.3d 176, 185 (ist Cir. 1999) (“Con-

gress sometimes can speak as clearly by opting not to enact

proffered language as by enacting it.”’).

Applying this cannon of construction in a similar context,

the lower courts have uniformly held that AEDPA § 440(d)

does not apply to cases pending before its enactment. That

provision purported to expand the definition of an aggravated

felony for immigration purposes and thereby to restrict the

availability of certain discretionary relief from deportation.

Courts that confronted the question whether AEDPA

§ 440(d)’s restrictions applied to cases pending at the time

AEDPA was enacted looked to that statute’s legislative his-

tory and noted that the Senate version, in contrast to the

House version, included explicit language making the restric-

tions in AEDPA § 440(d) applicable to all pending cases.

However, the “compromise bill that came out of the confer-

ence committee * * * did not contain the Senate bill’s lan-

guage on retroactivity.” Henderson v. INS, 157 F.3d 106, 130

(2d Cir. 1998). As these courts explained, the contrasting

language between the Senate version and the version actually

enacted is more than adequate evidence of Congress’s intent

that the statute apply only prospectively. See, e.g., Pak v.

Reno, 196 F.3d 666, 676 (6th Cir. 1999) (“Congress had con-

sidered a retroactivity provision but decided against it. With

such strong evidence of congressional intent, we refuse to in-

clude in the language of the statute a provision that Congress

chose to omit.”); Sandoval v. Reno, 166 F.3d 225, 241 (3d

Cir. 1999) (noting that Congress deleted retroactivity lan-

guage contained in prior version of bill and holding that

“[t}his legislative history confirms that Congress deliberately

chose to make AEDPA § 440(d) apply prospectively”); see

also, e.g., Henderson, 157 F.3d at 130; Goncalves, 144 F.3d

at 131-133; Shah v. Reno, 184 F.3d 719 (8th Cir. 1999); Ma-

gana-Pizano v. INS, 200 F.3d 603, 610-611 (9th Cir. 1999);

Mayers v. INS, 175 F.3d 1289, 1303-1304 (11th Cir. 1999).

In sum, because Congress explicitly considered and re-

jected language applying the reinstatement provision to con-

duct antedating IIRIRA’s effective date, this Court should

not interpret the provision to do just that.

3. Congress enacted INA § 241(a)(5) against the

background of this Court's default rule against

retroactivity.

Even if there were some lingering doubt about Con-

gress’s intent as to the retroactive applicability of INA

§ 241(a)(5), that provision must still be interpreted to apply

only prospectively. In interpreting statutes, courts must as-

sume that Congress knows the legal background against

which it legislates. Thus, this Court has held that “the courts

may take it as given that Congress has legislated with an ex-

pectation that the [background] principle will apply except

when a statutory purpose to the contrary is evident.” Astoria

Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108

(1991) (internal quotation marks omitted); see also Fogerty

v. Fantasy, Inc., 510 U.S. 517, 533-535 (1994). Against the

background of Landgraf’s default rule, congressional silence

as to the temporal scope of INA § 241(a)(5) speaks volumes.

Just two years before Congress enacted IIRIRA, this

Court reaffirmed the strong presumption against retroactivity

and held that a statute would not be interpreted to apply ret-

roactively absent a clear expression that Congress intended

thut result. See Landgraf, 511 U.S. at 272 (“prospectivity re-

mains the appropriate default rule”). Moreover, this Court

stressed that any enacted legislation would be interpreted

against the background of this default rule. As the Court ex-

plained, “[s]uch a [clear intent] requirement * * * has the ad-

ditional virtue of giving legislators a predictable background

rule against which to legislate.” /d. at 273. In essence, Con-

gress has been put on notice as to the “wisdom of being ex-

plicit” if it intends a provision to be applied to conduct

antedating a statute’s effective date. Lindh, 521 U.S. at 328.

Thus, “[nJotwithstanding whether a statute actually has an

impermissibly retroactive effect, Congress is deemed to enact

legislation with Landgraf’s ‘default rule’ in mind.” Castro-

Cortez, 239 F.3d at 1052; see also Bejjani, 271 F.3d at 687

(“Congress is presumed to be familiar with the judicial pre-

sumption against retroactive application, and thus Congress

must explicitly provide for such.”); Downer v. United States,

97 F.3d 999, 1003 n.3 (8th Cir. 1996) (because Congress “is

presumed to know the legal background in which it is legis-

lating,” “we interpret as intentional Congress’s silence on the

subject of retroactivity”’).

Against this strong background rule, Congress must be

presumed to understand that it needs to provide clear instruc-

tion when it desires to give any specific statutory provision

retroactive application. Indeed, in enacting [IRIRA, Congress

knew to be explicit when it intended for provisions of that

statute to apply retroactively: Several other sections of

IIRIRA specifically state that they are to be applied retroac-

tively.'* Bejjani, 271 F.3d at 686 (“[C]omparing § 241(a)(5)

to other provisions is useful in demonstrating that where

Congress specifically wished for a provision to apply in a

certain manner, Congress knew how to accomplish that, and

did so throughout IIRIRA.”); Keene Corp. v. United States,

508 U.S. 200, 208 (1993) (“Where Congress includes par-

ticular language in one section of a statute but omits it in an-

other ***, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or ex-

clusion.””) (internal quotation marks and citation omitted).

Having done so elsewhere in the statute, Congress surely

would have done so in INA § 241(a)(5) had it wished for that

result.

In short, Congress knew—or must be deemed to have

known—that its silence with regard to the temporal scope of

INA § 241(a)(5) would be construed to mean that the new re-

'* See, e.g, HRIRA §§ 212(e), 322(c), 342(b), 347(c), 348(b) &

35 l(c).

instatement provision would apply only prospectively. See,

e.g., Olatunji v. Ashcroft, 387 F.3d 383, 389 (4th Cir. 2004)

(“In the face of congressional silence on the temporal reach

of a given statute, it is presumed that Congress did not intend

for the statute to be applied retroactively.”); Downer, 97 F.3d

at 1003 n.3 (“we interpret as intentional Congress’s silence

on the subject of retroactivity”); Boria v. Keane, 90 F.3d 36,

38 (2d Cir. 1996) (“[The statute’s] silence, coupled with the

presumption against retroactivity, leads us to hold that the

new statute does not apply to this case.”). Nonetheless, rather

than explicitly stating an intent for INA § 241(a)(5) to apply

retroactively, as it had done in various other sections of

IIRIRA, Congress specifically eliminated retroactivity lan-

guage from the prior reinstatement provision and rejected a

proposed version of the bill that contained explicit retroactiv-

ity language. When judged against Landgraf’s background

rule, the only reasonable interpretation of Congress’s silence

is that “Congress intended § 241(a)(5) to encompass only

post-enactment reentries.” Castro-Cortez, 239 F.3d at 1052;

Bejjani, 271 F.3d at 686 (“The absence of an express direc-

tive from Congress, viewed in light of Landgraf’s default

rule, persuades us * * * that in this case, congressional si-

lence is instructive.”’) (internal quotation marks omitted).'°

'S Although, as the Tenth Circuit noted below, Congress also

specified that certain sections of IIRIRA would apply only pro-

spectively (Pet. App. 14a; see also U.S. Cert. Resp. 13 n.7), that

does not undermine the argument that congressional silence with

respect to INA § 241(a)(5) should be interpreted as providing for

prospective application of that provision. Congress must be pre-

sumed to follow this Court’s admonition to always speak clearly

when seeking to apply a statute retroactively, even if it sometimes

also unnecessarily speaks clearly when enacting prospective legis-

lation. Importantly, Congress's clear language regarding the tem-

poral scope of a provision closely related to INA § 241(a)(5)

demonstrates its intent to apply only prospectively those sections

of IIRIRA relating to reentries after a prior deportation. In expand-

ing the scope of the criminal! prohibition against unlawful reentry, —

4. Any ambiguity in INA § 241(a)(5) must be con-

strued in favor of the alien.

Finally, in addition to knowing that it must speak clearly

to overcome the presumption against retroactivity, Congress

must also be deemed to have enacted INA § 241(a)(5) with

knowledge of “the longstanding principle of construing any

lingering ambiguities in deportation statutes in favor of the

alien.” Cardoza-Fonseca, 480 U.S. at 449; see also, e.g., St.

Cyr, 533 U.S. at 320 (“The presumption against retroactive

application of ambiguous statutory provisions, buttressed by

the longstanding principle of construing ¢ny lingering ambi-

guities in deportation statutes in favor of the alien, forecloses

the conclusion that, in enacting § 304(b), Congress itself has

affirmatively considered the potential unfairness of retroac-

tive application and determined that it is an acceptable price

to pay for the countervailing benefits.”); JNS v. Errico, 385

U.S. 214, 225 (1966) (“Even if there were some doubt as to

the correct construction of the statute, the doubt should be re-

solved in favor of the alien.”). This rule of statutory construc-

tion recognizes that “deportation is a drastic measure,”

indeed, “a penalty.” Fong Haw Tan v. Phelan, 333 U.S. 6, 10

Congress explicitly stated that criminal liability “shall apply to de-

partures that occurred before, on, or after the date of the enactment

of [IIRIRA], but only with respect to entries (and attempted en-

tries) occurring on or after such date.” IIRIRA § 324(c) (emphasis

added). Congress’s intent to expand criminal liability for reentries

following all departures, even those predating IIRIRA—and its

concomitant need to state that intent explicitly—required Congress

to clarify that such liability would be imposed only prospectively

on future reentries. As the Third Circuit explained, “it could well

be argued that this is likely what Congress intended with regard to

[INA § 241(a)(S)] as well.” Avila-Macias, 328 F.3d at 113 n.6

(emphasis added). Indeed, there is no conceivable reason why

Congress would want INA § 241(a)(5) and the criminal prohibition

against unlawful reentry to apply differently, and this Court should

interpret the provisions consistently.

(1948). In this case, petitioner’s removal is a penalty for con-

duct—his illegal reentry—that occurred more than 20 years

ago, at a time when the consequences for illegal reentry were

far less severe than under the post-IIRIRA regime. Had Con-

gress intended to upset the long-settled expectations of such

reentrants, it had to do so clearly.

Because “the stakes are considerable for the individwa!,”

this Court shcild “not assume that Congress meant to trench

on [petitioner’s] freedom beyond that which is required by

the narrowest of several possible meanings of the words

used.” /hid. As discussed above, the available evidence

shows that Congress intended INA § 241(a)(5) to apply only

prospectively. But to the extent that the Court concludes that

this evidence does not resolve all ambiguity, the Court must

“nonetheless be constrained by accepted principles of statu-

tory construction in this area of the law to resolve that doubt

in favor of the petitioner.” Costello v. INS, 376 U.S. 120, 128

(1964) (construing statute rarrowly in favor of petitioner

even though “{t]o construe this statutory provision Icss gen-

erously to the alien might find support in logic”). This back-

ground rule of interpretation is one more reason why INA

§ 241(a)(5) must be interpreted to apply only prospectively.

ss ee

In sum, using the ordinary tools of statutory construction,

it is plain that Congress intended INA § 241(a)(5) to apply

only prospectively to people who reentered the United States

after IIRIRA’s effective date.

B. An unambiguous expression of congressional in-

tent is not needed for a court to find that, under

Landgraf step one, Congress intended a statute to

apply prospectively.

1. Even courts that have rejected the conclusion that

Congress expressly provided that INA § 241(a)(5) operates

only prospectively have acknowledge« che force of the fore-

going arguments. Indeed, the Tenth Circuit in this very case

agreed that “Congress’s elimination of the previous retroac-

tivity language lends weight to the argument that Congress

intended the statute to apply only prospectively.” Pet. App.

14a. Similarly, the Seventh Circuit observed that “[t}here is

no question that some statutory evidence points to the con-

clusion reached by the Ninth and Sixth Circuits that Congress

may not have desired [the reinstatement provision] to be ap-

plied retroactively.” Faiz-Mohammad, 395 F.3d at 804.

The sole reason these courts have nonetheless proceeded

to the second step of the Landgraf analysis is that they have

inappropriately stood the presumption against retroactivity on

its head and effectively created a non-existent presumption

against prospectivity. For example, rather than end its analy-

sis with the implication of prospectivity derived from the

normal rules of statutory construction, the Tenth Circuit in

this case erroneously relied on the St. Cyr decision to hold:

Congress’s failure to expressly state that the rein-

statement statute applied to aliens who re-entered

the country prior to its effective date, does not mean

Congress therefore unambiguous/y intended for the

Statute not to apply to those aliens. Consequently,

we must determine whether INA § 241(a)(5)’s bar

of Fernandez’ adjustment application is an imper-

missible retroactive effect of the statute.

Pet. App. 16a (second emphasis added). The other courts that

have rejected the conclusion that Congress expressly pro-

vided that INA § 241(a)(5) operates only prospectivety have

made the same error, holding that “Landgraf’s first step is

satisfied only where the ‘statutory language [is] so clear that

it could sustain only one interpretation.’” Ojeda-Terrazas,

290 F.3d at 298 (quoting St. Cyr, 533 U.S. at 317) (emphasis

added); see also Avila-Macias, 328 F.3d at 113; Alvarez-

Portillo, 280 F.3d at 86£; Ojeda-Terrazas,.290 F.3d at 300;

Arevalo, 344 F.3d at 11-12; Sarmiento Cisneros, 381 F.3d at

1282; Faiz-Mohammad, 395 F.3d at 803-804; Velasquez-

Gabriel, 263 F.3d at 108.

That approach to the first step of the Landgraf analysis is

fundamentally flawed. This Court has never held that Con-

gress must speak unambiguously when it intends to apply a

statue only prospectively. In Landgraf, “the presumption

against retroactivity was reaffirmed in the traditional rule re-

quiring retroactive application to be supported by a clear

statement.” Lindh, 521 U.S. at 325 (emphasis added). By re-

quiring a similar “unambiguous” directive from Congress

that INA § 241(a)(5) be prospective only, courts such as the

Tenth Circuit below have turned the traditional clear-

statement rule upside down. As this Court has recognized,

Landgraf “referred to ‘express command{s],’ ‘unambiguous

directive[s],’ and the like where it sought to reaffirm that

clear-statement rule, but only there.” Ibid. (emphasis added);

see also In re Minarik, 166 F.3d 591, 598 (3d Cir. 1999)

(“normal rules of statutory construction may apply to remove

* * * the possibility of retroactivity” but “[nJothing short of

an unambiguous directive * * * will justify giving a statute

retroactive effect”) (emphasis in original).

2. As noted above, courts that have rejected the statutory

arguments for prospective application of INA § 241(a)(5)

have interpreted this Court’s decision in St. Cyr to require

unambiguous congressional intent that the statute apply only

prospectively. See, e.g., Pet. App. 16a. That approach reflects

a fundamental misunderstanding of this Court’s decision: In

St. Cyr, the Court considered whether IIRIRA § 304(b)}—

which narrowed the class of noncitizens eligible for discre-

tionary relief from deportation and precluded such relief for

noncitizens convicted of aggravated felonies—applied to

someone who pleaded guilty to such a crime before I[RIRA’s

enactment. St. Cyr, 533 U.S. at 293-297. The government ar-

gued that Congress intended the provision to apply retroac-

tively to all removals initiated after IIRIRA’s effective date.

The Court rejected that argument, and concluded that con-

gressional intent regarding retroactivity was unclear and that

application of § 304(b) to the petitioner would produce an

impermissible retroactive effect.

In rejecting the government’s interpretation of the statute

in the first stage of the Landgraf analysis, the Court ex-

plained that, in order to apply retroactively, the statute must

be “‘so clear that it could sustain only one interpretation.”

Id. at 317 (quoting Lindh, 521 U.S. at 328 n.4). This “only

one interpretation” standard “assures that Congress itself has

affirmatively considered the potential unfairness of retroac-

tive application and determined that it is an acceptable price

to pay for the countervailing benefits.” /d. at 316. Thus, in

light of the presumption against retroactive legislation, the

Court held that “[a] statute may not be applied retroactively

* * * absent a clear indication from Congress that it intended

such a result.” /bid. (emphasis added); see also Bowen, 488

U.S. at 208 (“[C]jongressional enactments * * * will not be

construed to have retroactive effect unless their language re-

quires this result.””) (emphasis added).

However, nothing in St. Cyr remotely suggests that Con-

gress must speak “unambiguously” if it intends exclusively

prospective application of a statute. There is no “potential un-

fairness” in such application and, thus, no need for courts to

rely on any presumptions concerning congressional intent.

The lower court’s misapplication of St. Cyr’s clear-statement

requirement fails to recognize that “the only ‘presumption’

mentioned in [Landgraf] is a general presumption against

retroactivity.” Hughes Aircraft, 520 U.S. at 950 (emphasis in

original). St. Cyr simply applied, but did not expand upon,

that basic presumption. Thus, this Court’s retroactivity cases,

including St. Cyr, “require[] an express congressional com-

mand only to overcome [the] presumption against retroactiv-

ity, not to ensure application of a statutory term

prospectively.” Goncalves, 144 F.3d at 129; see also, e.g.,

Scott v. Boos, 215 F.3d 940, 947-948 (9th Cir. 2000) (“A

negative inference may be used to apply a statute prospec-

tively because there is no traditional presumption against ap-

plying a statute prospectively. Concerns about retroactive

effect are not relevant and there is no requirement that Con-

gress clearly intended to have a statute apply prospec-

tively.”’).

3. Not only was the Tenth Circuit’s reliance on St. Cyr

misplaced, but the court also ignored the implications of this

Court’s decision in Lindh, which held that Congress need not

speak with the same unambiguous clarity to apply a statute

exclusively to future conduct as it must when seeking to ap-

ply the statute io past conduct. The Court held that Congress

intended chapter 153 of AEDPA, which addresses habeas pe-

titions in non-capital state cases, to apply only prospectively

to cases filed after AEDPA became effective. The Court ob-

served that although AEDPA’s chapter 153 contained no ex-

plicit statement regarding its temporal scope, Congress had

explicitly provided that chapter 154, which addresses similar

habeas claims in capital cases, “shall apply to cases pending

on or after the date of enactment of this Act.” 521 U.S. at

327. The Court explained that it “read [the provision] ex-

pressly applying chapter 154 to all cases pending at enact-

ment, as indicating implicitly that the amendments to chapter

153 were assumed and meant to apply to the general run of

habeas cases only when those cases had been filed after the

date of the Act.” Jbid.

Although it was able to draw a negative inference from

Congress’s silence on the scope of chapter 153, the Lindh

Court did not conclude that the statute was entirely clear on

the subject. Quite the contrary; the Court recognized that

AEDPA “does not speak to the present issue with flawless

clarity,” but went on to “agree with Lindh that it tends to

confirm the interpretation * * * that we adopt.” /d. at 332.

Indeed, the Court explained that the language prescribing the

temporal scope of chapter 154 “may not amount to the clear

statemeni required for a mandate to apply a statute in the dis-

favored retroactive way,” but was sufficient to cause the

Court to hold that Congress intended chapter 153 to apply

only to cases filed after that provision became effective. /d. at

328-329. Ultimately, although recognizing problems with its

interpretation of the statute, the Lindh Court held that its con-

clusion “accords more coherence” to the statute than any

other possible interpretation. /d. at 336. “That,” said the

Court, “is enough.” /bid.

As in Lindh, application of the normal rules of statutory

construction leads to the conclusion that Congress intended

INA § 241(a)(5) to apply only to those persons who illegally

reentered the country after IIRIRA’s effective date, and not

to persons like petitioner who reentered more than 15 years

before that date. Even if Congress’s elimination of retroactiv-

ity language from the prior statutory provision, the legislative

history of INA § 241(a)(5), and Congress’s knowledge of the

background legal principles against which it legislated do not

“unambiguously” demonstrate congressional intent, by far

the most plausible interpretation of the statute is that Con-

gress meant it to apply only prospectively. Here, as in Lindh,

“(t}hat is enough.” 521 U.S. at 336.

Il. Application Of INA § 241(a)(5) To Persons Who

Reentered The United States Before April 1, 1997, Is

Impermissibly Retroactive.

If, despite the foregoing analysis, this Court concludes

that Congress has not “prescribed the statute’s proper reach,”

then the Court “must determine whether the new statute

would have retroactive effect, i.e., whether it would impair

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

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

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

If application of INA § 241(a)(5) to persons who reentered

the United States before April 1, 1997, “would operate retro-

actively,” then the “traditional presumption” against retroac-

tive legislation “teaches that it does not govern.” /bid.

Because application of the reinstatement provision to persons

who reentered the United States before that date would in-

deed increase penalties for tne previously completed reentries

and impair rights that these persons possessed when they

acted, INA § 241(a)(5) may not be applied to such persons.

A. The relevant date for retroactivity analysis is the

date of reentry.

Retroaciivity analysis asks “whether the new provision

attaches new legal consequences to events completed before

its enactment.” Landgraf, 511 U.S. at 269-270. “A law is ret-

rospective if it “changes the legal consequences of acts com-

pleted before its effective date.’” Miller v. Florida, 482 U.S.

423, 430 (1987) (quoting Weaver v. Graham, 450 U.S. 24,

31 (1981)); see also Union Pacific R.R. Co. v. Laramie Stock

Yards Co., 231 U.S. 190, 199 (1913) (a retroactive statute

gives “a quality or effect to acts or conduct which they did

not have or did not contemplate when they were performed”).

Thus, as Justice Scalia has observed, “[t]he critical issue” in

retroactivity analysis is identifying “the relevant activity that

the [statute in question} regulates.” Landgraf, 511 U.S. at 291

(Scalia, J., concurring); see also Landgraf, 511 U.S. at 270

(retroactivity analysis focuses on relationship between

change in law and the “relevant past event’) (emphasis

added).

Here, the relevant activity is illegal reentry into the

United States. Congress adopted IIRIRA because it found

that “the ability to cross into the United States over and over

with no consequences undermines the credibility of our ef-

forts to secure the border.” H.R. REP. No. 104-469(1), at 155.

Thus, INA § 241(a)(5) specifies certain consequences if an

“an alien * * * reenter[s] the United States illegally after hav-

ing been removed or having departed voluntarily, under an

order of removal.” In particular, it provides that an illegal re-

entrant “is not eligible and may not apply for any relief” un-

der the INA. Once someone has illegally reentered the United

States after deportation, there is nothing the person can do

thereafter to avoid the statute’s consequences. It does not

matter whether the individual marries a U.S. citizen, submits

an application for adjustment of status, applies for suspension

of deportation or voluntary departure, or performs any other

act subsequent to reentry. Regardless of personal circum-

stances and subsequent conduct, if someone has illegally re-

entered the country, INA § 241(a)(5) mandates reinstatement

without the possibility of discretionary relief.

Further evidence that reentry is the relevant conduct for

purposes of retroactivity analysis comes from the criminal

parallel to INA § 241(a)(5). Under the Ex Post Facto Clause,

Congress may not impose criminal penalties on conduct an-

tedating a statute. Recognizing this strict prohibition, Con-

gress made clear, when amending the criminal provision

concerning illegal reentries after deportation—the same con-

duct addressed by INA § 241(a)(S)}—that although deporta-

tions antedating I[RIRA could serve as a factual predicate to

the new provision’s application, the new provision does not

apply to illegal reentries antedating the Act. See IIRIRA

§ 324(c); note 15, supra. In drawing the line between reentry

and deportation, Congress implicitly recognized that the

critical conduct for purposes of retroactivity analysis is reen-

try.

Accordingly, because illegal reentry is “the conduct

which serves as the basis for the [reinstatement] proceeding,”

Bejjani, 271 F.3d at 677, it is the date of that act that consti-

tutes the relevant “reference point,” Martin, 527 U.S. at 363

(Scalia, J., concurring), for purposes of retroactivity analy-

'© The same considerations that undergird the Ex Post Facto

Clause apply in the civil context. In fact, this Court has repeatedly

relied on cases decided under the Ex Post Facto Clause when ad-

dressing questions of statutory retroactivity in the civil context.

See, e.g., St. Cyr, 533 U.S. at 317-318 (citing Lindh, 521 U.S.

320), Hughes Aircraft, 520 U.S. at 948 (citing Collins v.

Youngblood, 497 U.S. 37 (1990); Beazell v. Ohio, 269 U.S. 167

(1925)); Landgraf, 511 U.S. at 266-267, 269 n.23 (citing Weaver,

450 U.S. 24; Miller, 482 U.S. 423). Because of the Ex Post Facto

Clause, Congress could not have applied ITRIRA § 324(c) to reen-

tres antedating the Act. Although Congress could have made INA

§ 241(a\(S) apply retroactively had it done so explicitly, it did not

in fact do so.

B. Application of INA § 241(a)(5) to persons who

reentered the United States before April 1, 1997,

attaches new legal consequences to past conduct.

1. Application of INA § 241(a)(5) to persons who

reentered the United States before April 1,

1997, is categorically precluded because it

would abolish the right of reentrants to pursue

various types of relief that they could seek be-

fore that date.

Applying INA § 241(a)(5) to an individual who, after be-

ing deported, reentered the United States when relief from

renewed deportation was available to illegal reentrants would

“impair rights” the person “possessed when he acted” and

“increase” his “liability for past conduct.” Landgraf, 511

U.S. at 280. As a result, retroactive application of that provi-

sion is precluded absent express congressional mandate.

INA § 241(a)(5) abolishes certain substantive rights non-

citizens possessed before IIRIRA’s effective date, April 1,

1997. Specifically, before IIRIRA took effect, individuals

who unlawfully reentered the United States after having pre-

viously been deported had the right to seek various forms of

discretionary relief that, if granted, would have allowed them

to legalize their status in the country or avoid renewed depor-

tation.

For example, before IIRIRA, an illegal reentrant could—

either proactively or as a defense to deportation—apply for

'” See, e.g., Avila~Macias, 328 F.3d at 114 (application of IIRIRA

to someone who reentered after statute’s effective date “does not

have an impermissible retroactive effect because the consequences

of an illegal reentry at the time that he reentered are the conse-

quences he faces now”) (emphasis added); A/varez-Portillo, 280

F.3d at 861 (“the substantive defenses to removal eliminated by

§ 241(a)(S) may not be retroactively denied to aliens who illegally

reentered prior to enactment’) (emphasis added).

an adjustment of status (and the requisite waiver of the prior

deportation order). See 8 U.S.C. § 1255(a), (i) (1996); 8

C.F.R. §§ 212.2, 245.1, 245.2, 245.10 (1997); Arevalo, 344

F.3d at 5 (under the pre-IIRIRA regime “[e]ven those reen-

tering the United States illegally could seek such an adjust-

ment”); Alvarez-Portillo, 280 F.3d at 862 (before I[RIRA

took effect “aliens in deportation proceedings were allowed

to avoid removal by seeking and obtaining an adjustment of

status to lawful permanent resident”).

Similarly, before IIRIRA, a person placed in deportation

proceedings could seek “suspension of deportation” (and thus

obtain permanent residency), request “voluntary departure”

(and thus avoid en..y of a deportation order), or apply for

asylum—notwithstanding the fact that the person had reen-

tered the country unlawfully. See 8 U.S.C. §§ 1158(a),

1254(a)(1), (e)(1) (1996); 8 C.F.R. § 244.1 (1997); Dinnall v.

Gonzales, 421 F.3d 247, 260-261 (3d Cir. 2005) (noting that

person who reentered United States before IIRIRA could

have applied for voluntary departure under law in effect at

time of reentry).

INA § 241(a)(5), however, provides that an illegal reen-

trant “is not eligible and may not apply for any relief” under

the Immigration and Nationality Act. As a result, a person

subject to INA § 241(a)(5) can neither apply for nor receive

adjustment of status, cancellation of removal,'* asylum, or

voluntary departure. Consequently, the government’s appli-

cation of INA § 241(a)(5) to those who reentered the United

States when such forms of relief were still available to illegal

reentrants “impairs vested rights acquired under existing

laws” and “attaches a new disability, in respect to transac-

tions or considerations already past,” Landgraf, 511 U.S. at

'* IIRIRA “replaced ‘suspension of deportation’ with ‘cancella-

tion of removal,’ its functional equivalent. Tang v. INS, 223 F.3d

713, 718 (8th Cir. 2000); see also page 40, infra (discussing differ-

ences between the two).

269 (citation and internal quotation marks omitted), thus giv-

ing the statute an impermissible retroactive effect. See St.

Cyr, 533 U.S. at 321.

As this Court recognized in Martin, “[t}he inquiry into

whether a statute operates retroactively demands a common-

sense, functional judgment about ‘whether the new provision

attaches new legal consequences to events completed before

its enactment.”’” 527 U.S. at 357-358 (quoting Landgraf, 511

U.S. at 270). Here, there can be no doubt that the govern-

ment’s retroactive application of INA § 241(a)(5) to persons

who unlawfully reentered the country before IIRIRA’s effec-

tive date attaches new legal consequences to their completed

reentries. As a result, retroactive application is precluded un-

der Landgraf.

2. Application of INA § 241(a)(5) to petitioner”

would deprive him of specific rights he pos-

sessed under prior law.

Even if retroactive application of INA § 241(a)(5) were

not categorically precluded because it deprives individuals of

the possibility of relief that had existed pre-IIRIRA, applica-

tion as to petitioner would violate Landgraf because, but for

the application of INA § 241(a)(5), he was and still would be

entitled to seek, and have the opportunity to receive, multiple

forms of discretionary relief.

a. At all times since his reentry into the country, peti-

tioner has been eligible for at least some form of discretion-

ary relief. From the moment he entered, he was entitled to

seek, and eligible to receive, voluntary departure. From 1989

onward, he was also entitled to seek, and eligible to receive,

suspension of deportation (or its replacement, cancellation of

removal). And since his 2001 marriage, he was additionally

entitled to seek, and eligible to receive, adjustment of status.

But for the retroactive application of INA § 241(a)(5), peti-

tioner would remain eligible for each of these forms of relief.

Voluntary departure. Petitioner would be eligible for the

defense of voluntary departure but for the government’s ap-

plication of INA § 241(a)(5) to him. See 8 U.S.C. § 1229c.

Voluntary departure confers significant benefits on an indi-

vidual as compared to deportation or removal. See Dinnall,

421 F.3d at 260; Alimi v. Ashcroft, 391 F.3d 888, 892 (7th

Cir. 2004); Contreras-Aragon v. INS, 852 F.2d 1088, 1090

(9th Cir. 1988). The benefits of voluntary departure generally

include the ability to determine the time and manner of one’s

departure from the United States, and the ability to select a

preferred destination. See Bocova v. Gonzales, 412 F.3d 257,

265 (ist Cir. 2005). Moreover, a person granted voluntary

departure is usually not detained before leaving the United

States, whereas a person subject to deportation is frequently

jailed during the period before deportation (as petitioner was

here, for nearly a year). See Lopez-Chavez v. Ashcroft, 383

F.3d 650, 651 (7th Cir. 2004). But the greatest benefit to an

individual granted voluntary departure is that he may, after

departure, proceed to a U.S. consulate in his home country

and, if otherwise eligible, immediately seek readmission to

the United States. By contrast, a person deported or removed

from the United States must wait many years—S years under

pre-IIRIRA law and up to 20 years under current law—

before seeking readmission. See 8 U.S.C. § 1182(a)(6)(B)

(1996); 8 U.S.C. § 1182(aX(9MA)ii); Dinnall, 421 F.3d at

260; Bocova, 412 F.3d at 265 n.1; Alimi, 391 F.3d at 892.

Thus, because petitioner was removed under the govern-

ment’s flawed interpretation of INA § 241(a)(5), he purport-

edly is now inadmissible for at least 20 years. A.R. 3.

Cancellation of removal. Petitioner would be eligible for

the defense of cancellation of removal (which replaced sus-

pension of deportation) but for the government’s application

of INA § 241(a)(5) to him. See 8 U.S.C. § 1229b(b). Had he

been given an opportunity to apply for, and had he obtained,

cancellation of removal (or suspension of deportation), peti-

tioner’s status would have been adjusted to that of lawful

permanent resident.

As discussed above (at note 18), pre-IIRIRA suspension

of deportation and post-IIRIRA cancellation of removal are

functional equivalents. See Tang, 223 F.3d at 718. Though

the respective standards are different, the differences are ir-

relevant here; petitioner would be eligible for relief under ei-

ther regime.

Before IIRIRA’s enactment, an individual placed into de-

portation proceedings was eligible for suspension of deporta-

tion if he had seven years continuous presence in the United

States, was of good moral character, and could demonstrate

“extreme hardship” to either himself or a U.S.-citizen child

or spouse. See 8 U.S.C. § 1254(a)(1) (1996). After ITRIRA’s

enactment, such a person is eligible for cancellation of re-

moval if he has ten years continuous presence in the United

States, is of good moral character, and can demonstrate “ex-

ceptional and extremely unusual hardship” to a U.S.-citizen

child or spouse. See 8 U.S.C. § 1229b(b).

Petitioner satisfies each of these criteria: He reentered the

United States “shortly after his last deportation in October of

1981” and—until his removal during the course of these pro-

ceedings—‘lived in this country ever since.” Pet. App. 3a.

Petitioner, who was never arrested for any crime in the

twenty-one years following his reentry, is married to a U.S.

citizen and has a U.S.-citizen son who was born in 1989. Pet.

App. 3a; A.R. 11-15, 23, 42. His wife, a “homemaker with

few job skills,” and his asthmatic son are dependent upon

him for financial support and, having beer: deprived of his

earings, were on the verge of losing the family home until

anonymous donors paid off their mortgage earlier this week.

See D. Romboy, Yes! Home For Christmas: 3 Donors Pay

Off Mortgage For Wife Of Deported Man, DESERET Morn-

ING NEws, Dec. 22, 2005, at Al, available at http://deseret-

news.com; D. Romboy, No Home For The Holidays,

DESERET MORNING News, Dec. 17, 2005, at Al, available at

http://deseretnews.com; see also Romboy, Outcast ir, Mexico,

at Al. Thus, based on his two decades of continuous pres-

ence in the United States, good moral character, and the “ex-

treme and exceptionally unusual” hardship to his U.S.-citizen

wife and child, petitioner would be eligible for cancellation

of removal today, and was eligible for suspension of deporta-

tion as of 1989—but for application of INA § 241(a)(5).

Adjustment of status. Petitioner is married to a U.S. citi-

zen, who applied for an immediate-relative visa on his be-

half. Pet. App. 3a & n.5. Based on his wife’s visa application

and his submission of a Form I-212 Application for Permis-

sion to Reapply for Admission Into the United States After

Deportation or Removal, ibid., petitioner would be entitled to

apply for adjustment of status and, if granted, become a legal

permanent resident but for the government’s application of

INA § 241(a)(5) to him. See 8 U.S.C. § 1255(a), (i); 8 C.F.R.

§§ 212.2, 212.7, 245.1, 245.2, 245.10. Indeed, not only

would petitioner be entitled to apply for adjustment of status,

but “his marriage would have made him a likely candidate

for adjustment of status” but for application of INA

§ 241(a)(S). Alvarez-Portillo, 280 F.3d at 862 (emphasis

added)."”

'? Petitioner submitted an application for adjustment of status on

April 30, 2001, notwithstanding INA § 241(a)(5). Pet. App. 3a;

A.R. 46. The government argued below that petitioner’s applica-

tion was denied. Pet. App. 4a. But the purported denial was neither

signed nor provided to petitioner (ibid.), and the government has

expressly disavowed any reliance on the purported denial in this

Court. U.S. Cert. Resp. 5 n.2: Moreover, even if petitioner’s af-

firmative application for adjustment of status had in fact been de-

nied, that would not resolve this case. Under prior law, petitioner

would have been entitled to renew a previously denied application

for adjustment of status if he were subsequently placed in deporta-

tion proceedings. See 8 C.F.R. § 245.2(a)(S)(ii) (1997); Lopez-

Flores v. Dep't of Homeland Sec., 387 F.3d 773, 776-777 (8th Cir.

2004) (holding application of § 241(a)(S) impermissibly retroac-

tive even when alien had already applied for and been denied ad-

justment of status because, “absent the § 241(a)(5) provisions,

[petitioner] would have had the opportunity to renew his applica-

b. The court of appeals rejected the argument that appli-

cation of INA § 241(a\(5) to_petitioner would be impermissi-

bly retroactive, on the grounds that petitioner’s marriage “did

not occur until 2001” and that “the only event completed be-

fore [IIRIRA’s effective date] was his illegal re-entry into the

United States.” Pet. App. 17a & n.12. In so holding, the court

of appeals focused on the wrong event for purposes of retro-

activity analysis. As we explained above (see Part II.A), INA

§ 241(a)(5S) regulates reentry, not marriage, and thus the rele-

vant event for present purposes is petitioner’s reentry, not his

marriage. Because application of INA § 241(a)(5) would at-

tach a new legal consequence—ineligibility for discretionary

relief—to an event—petitioner’s reentry—that was com-

pleted before the statute’s enactment, its application to peti-

tioner is impermissibly retroactive.

That petitioner was not yet eligible as of April 1, 1997, to

apply for adjustment of status does not obviate the fact that

he was at all points subsequent to his 1982 reentry and before

April 1, 1997, eligible for some form of relief (to wit, volun-

tary departure and, as of 1989, suspension of deportation).

Nor does it obviate the fact that preventing him from apply-

ing for the additional relief to which he is now otherwise eli-

gible, ie. adjustment of status, “attaches new legal

consequences to events completed before [I[RIRA’s] enact-

ment.” Landgraf, 511 U.S. at 269-270. If, as the government

contends, INA § 241(a)(5) precludes petitioner from receiv-

ing “any relief” under the Immigration and Nationality Act,

tion for adjustment of status in the context of a subsequent depor-

tation proceeding”); Randall v. Meese, 854 F.2d 472, 474-475

(D.C. Cir. 1988) (“Should the alien fail to gain adjustment [in his

initial application], he is entitled to a de novo review of his appli-

cation in the context of deportation proceedings.”). By subjecting

petitioner to reinstatement without an opportunity to pursue relief,

INA § 241(a)(5) deprived petitioner of the right to renew his ad-

justment application, if denied, before an immigration judge in re-

moval proceedings.

he would no longer be entitled to seek suspension of deporta-

tion or voluntary departure, although he was entitled to apply

for both before April 1, 1997.7° —_

The fact that suspension of deportation and voluntary de-

parture would be defenses to deportation in no way suggests

that these are not relevant for purposes of retroactivity analy-

sis. As this Court held unanimously in Hughes Aircraft,

“eliminat[ion of] a defense” previously available is barred by

the “presumption against retroactivity” because it “attach[es]

a new disability, in respect to transactions or considerations

already past.” 520 U.S. at 948 (internal quotations omitted);

see also St. Cyr, 533 U.S. at 321 (holding same with respect

to elimination of § 212(c) relief, which had offered defense

to removal). Thus, as the Eighth Circuit concluded with re-

spect to someone who had reentered the United States before

IIRIRA’s effective date but had not affirmatively sought re-

lief before being placed in reinstatement proceedings after

IIRIRA’s effective date, application of INA § 241(a)(5) “had

an impermissible retroactive effect” because the reentrant

“had a reasonable expectation he could either file for a dis-

cretionary adjustment of status, or wait and seck the adjust-

ment as a defense to a later deportation proceeding,” and

“§ 241(a)(S) as applied by the INS has now deprived him of

that defense.” Alvarez-Portillo, 280 F.3d at 867.

Thus, even if retroactivity analysis were properly con-

fined to a narrow comparison of, on the one hand, the relief

immediately available to petitioner the instant before ITRIRA

took effect and, on the other hand, the relief immediately

available to petitioner the instant after IIRIRA took effect, it

*0 Moreover, under the law as it stood before April 1, 1997, peti-

tioner would have been eligible to apply for adjustment of status

upon marriage to his long-time, U.S.-citizen partner, with whom

he was raising their U.S. citizen child. Thus, petitioner had a “rea-

sonable{] * * * expectation that the opportunity to pursue such a

defense would be available to him in later instituted deportation

proceedings.” Lopez-Flores, 387 F.3d at 776.

is clear that INA § 241(a)(5) “changes the legal conse-

quences of acts completed before its effective date.” Weaver,

450 US. at 31.

c. Finally, even if the inquiry were limited to whether

petitioner was entitled to seek, and eligible to receive, discre-

tionary relief at the time of his 1982 illegal reentry, applica-

tion of INA § 241(a)(5) to petitioner would still deprive him

of relief to which he then was entitled—voluntary departure.

See 8 U.S.C. § 1254(e)(1) (1982). Furthermore, the fact that

petitioner could expect to become eligible for other relief

over time, by, for example, living in the United States for the

requisite period and demonstrating good moral character (the

prerequisites for suspension of deportation) or by marrying a

U.S. citizen (the prerequisite for adjustment of status), itself

demonstrates that retroactive application of INA § 241(a)(5)

to petitioner would violate Landgraf.

C. The fact that the relief available to petitioner be-

fore IIRIRA was discretionary is irrelevant for

purposes of retroactivity analysis.

Allowing someone otherwise subject to removal the op-

portunity to apply for discretionary relief gives that person a

chance to avoid removal. And as this Court has previously

recognized, “[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 325 (cit-

ing Hughes Aircraft, 520 U.S. at 949; Lindsey v. Washington,

301 U.S. 397, 401 (1937)). Thus, the fact that a particular

form of “relief is discretionary does not affect” the conclu-

sion that denial of the opportunity to seek such relief is

impermissibly retroactive. /bid.; see also Sarmiento Cisneros,

381 F.3d at 1284 (“That adjustment of status relief is discre-

tionary does not defeat Sarmiento’s argument that section

1231(a)(5) has an impermissible retroactive effect when ap-

plied to him.”); Arevalo, 344 F.3d at 15 (“Contrary to the

INS’s position, we do not think it is significant that adjust-

ment of status is a discretionary form of relief.”).

Although there was no guarantee that discretionary relief

would in fact be granted, a person who reentered the United

States before IIRIRA’s effective date nonetheless had a well-

established right to seek such relief. Accordingly, applying

INA § 241(a)(5) to deny a person who reentered the United

States before IIRIRA’s effective date the opportunity to ob-

tain an otherwise available form of discretionary relief is an

impermissibly retroactive denial of “a substantive right.”

Arevalo, 344 F.3d at 14; see also id. at 15 (“A mght to seek

- relief is analytically separate and distinct from a right to the

relief itself. Consequently, an alien is not precluded from

having a vested nght in a form of relief merely because the

relief itself is ultimately at the discretion of the Executive

Branch.”’, (citations omitted); Lopez-Flores, 387 F.3d at 776

(“the fact that Lopez-Flores may have been a weaker candi-

date than Alvarez-Portillo for discretionary adjustment of

status does not change the fact that he had a reasonable ex-

pectation that such a defense would be available to him to as-

sert in a subsequent deportation proceeding”’).

D. Petitioner is not required to demonstrate reliance

on prior law in order to establish impermissible

retroactivity.

Before IIRIRA, petitioner and others similarly situated,

when deciding whether to reenter the United States, can rea-

sonably be expected to have known that they either were eli-

gible or could become eligible to legalize their status in the

United States after reentry. Leaving behind family and

friends and all that is familiar to establish a new life in a for-

eign land is not easy. It requires a significant investment of

economic and emotional resources. Given the ever-present

danger of deportation, the investment is a highly risky one.

The availability of a possible defense to deportation—via ad-

justment of status, suspension of deportation, or some other

form of discretionary relief—reduces that risk appreciably.

The possibility of relief means that someone who, subsequent

to reentry, gets married, has children, and otherwise builds a

stable and productive life in America need not fear certain

deportation and the concomitant loss of all that he or she has

achieved. Cf. St. Cyr, 533 U.S. at 325 (noting the “clear dif-

ference” between possible and certain deportation).

Accordingly, before IIRIRA the availability of discre-

tionary relief may well have affected the calculus of a person

contemplating reentry after deportation. See Dinnall, 421

F.3d at 262 (“It is not unreasonable to assume that many of

these aliens may well have reentered the country with the un-

derstanding that they might be eligible for some form of dis-

cretionary relief.”’). Stated differently, someone such as

petitioner is likely to have relied on the immediate or poten-

tial availability of discretionary relief when choosing to reen-

ter the United States. The bar to such relief subsequently

imposed by INA § 241(a)(5) is therefore “the type of legal

change that would have an impact on private parties’ plan-

ning.” Landgraf, 511 U.S. at 282.

That said, petitioner need not demonstrate that he himself

relied on prior law in order to prove that the application of

INA § 241(a)(5) to him would be impermissibly retroactive.

As the Third Circuit has observed, this Court “has never re-

quired actual reliance or evidence thereof in the Landgraf

line of cases, and has in fact assiduously eschewed an actual

reliance requirement.” Ponnapula v. Ashcroft, 373 F.3d 480,

491 (3d Cir. 2004). Simply put, “(t]he likelihood that the

party before the court did or did not in fact rely on the prior

state of the law is not germane to the question of retroactiv-

ity.” Id. at 493; see also Olatunji, 387 F.3d at 389 (“we do

not believe that subjective reliance is, or ought to be, relevant

to the question of whether a particular statute is impermissi-

bly retroactive, as such is neither dictated by Supreme Court

precedent nor related to the presumption of congressional in-

tent underlying the bar against retroactivity”). Indeed, “no

form of reliance is necessary” because requiring proof of “re-

liance (whether subjective or objective)” would “all but turn

the presumption against retroactivity on its head.” /d. at 388-

389. “Whether a plaintiff did or did not rely on a prior statu- |

tory scheme is irrelevant to whether that scheme in fact has a

retroactive effect on that plaintiff.” /d. at 391.”'

Landgraf and its progeny also make clear that reliance

need not be proven to establish impermissible retroactivity.

Landgraf held that a statute allowing compensatory and puni-

tive damages where none had previously been allowed could

not be applied retroactively to conduct pre-dating the statute,

even though the discriminatory conduct upon which such

damages would have been based was already unlawful at the

time it occurred. See S11 U.S. at 281-283.7? The Court

reached this conclusion despite there being no evidence that

the defendant, which was sued on a respondeat superior the-

ory, had in any way relied on the absence of such damages

when designing and implementing its internal training and

control mechanisms. See id. at 280-293. Similarly, in Hughes

Aircraft this Court held that a statute eliminating a previously

accepted defense to gui tam actions brought under the False

Claims Act could not be applied retroactively even though

the conduct at issue was illegal when it occurred and could

have resulted in equally large damages if the government,

rather than a private relator, had initiated the action. In so

holding, the Court did not even discuss, let alone require, re-

liance. See 520 U.S. at 946-952.

Even St. Cyr—which is often cited by the government in

?' Because petitioner was subjected to INA § 241(a)(5), he was

denied any opportunity to demonstrate actual reliance—or, for that

matter, to present evidence that he was eligible for and in fact

likely to have received discretionary relief from removal.

22 Landgraf, like Hughes Aircraft and St. Cyr, makes clear that

even persons who break the law are entitled to protection from the

retroactive application of statutes that attach new legal conse-

quences to past conduct. See Landgraf, 511 U.S. at 282 n.35

(“Even when the conduct in question is morally reprehensible or il-

legal, a degree of unfairness is inherent whenever the law imposes

additional burdens based on conduct that occurred in the past.”).

support of the proposition that reliance must be proven (see,

e.g., Supplemental Brief for Respondent, 2002 WL

32355572, at *3, Chambers v. Ashcroft, 307 F.3d 284 (4th

Cir. 2002) (No. 00-6364))}—demonstrates that retroactivity

analysis entails a categorical approach that disregards a par-

ticular petitioner’s actual reliance on prior law. In St. Cyr, the

Court held that it was impermissibly retroactive to eliminate

the possibility of relief under INA § 212(c) for persons who

had pled guilty to an offense but who, notwithstanding their

conviction, would have been eligible for § 212(c) relief at the

time of their plea under the law then in effect. In reaching

this result, the Court did not determine (and did not invoke a

lower court finding) that St. Cyr himself had actually relied

on the possibility of § 212(c) relief when entering his plea.

Rather than focus on St. Cyr in particular, the Court adopted

a categorical approach, speaking not of St. Cyr individually

but of “defendants * * * in St. Cyr’s position,” 533 U.S. at

323, and of “other aliens like him.” /d. at 325. Notably, the

holding in St. Cyr is not limited either to the particular liti-

gant before the court or to those who could demonstrate ac-

tual reliance on the prior law. Instead, the prohibition on

retroactive elimination of § 212(c) relief extends to all per-

sons who had been eligible for such relief at the time of their

guilty plea, without regard for individual reliance.

Thus, the question whether petitioner actually relied on

pre-IIRIRA law is irrelevant to the determination whether

applying INA § 241(a)(5) to him would be impermissibly ret-

roactive. Because actual reliance need not be proven, such a

demonstration is unnecessary, particularly when it is prob-

able that, “as a general matter,” St. Cyr, 533 U.S. at 322, “the

class of aliens who chose to illegally reenter the United

States prior to the enactment of § 241(a)(5),” Dinnall, 421

F.3d at 262 (emphasis added), did so on the reasonable ex-

pectation that discretionary relief from deportation would be

available to them.

E. Retroactive application of INA § 241(a)(5) to pe-

titioner is inequitable.

This Court has long recognized that “deportation is a

drastic measure and at times the equivalent of banishment or

exile.” Fong Haw Tan, 333 U.S. at 10. Because deportation,

like punitive damages, “share[s] key characteristics of crimi-

nal sanctions,” Landgraf, 511 ' 5. at 281, its “retroactive

imposition * * * would raise a serious constitutional ques-

tion.” /bid. (citing, inter alia, De Veau v. Braisted, 363 U.S.

144, 160 (1960) (“The mark of an ex post facto law is the

imposition of what can fairly be designated punishment for

past acts.”)).

Indeed, it is well-settled that “retroactive statutes”—even

purely civil ones—“raise particular concerns.” Landgraf, 511

U.S. at 266. That is especially true when, as here, the statute

in question targets noncitizens. The legislature’s “responsiv-

ity to political pressures poses a risk that it may be tempted

to use retroactive legislation as a means of retribution against

unpopular groups or individuals.” /bid.; see also St. Cyr, 533

U.S. at 315 (same). “{B]ecause noncitizens cannot vote, they

are particularly vulnerable to adverse legislation.” /d. at 315

n.39 (quoting S. Legomsky, Fear and Loathing in Congress

and the Courts: Immigration and Judicial Review, 78 Tex. L.

REV. 1615, 1626 (2000)). Accordingly, this Court has repeat-

edly recognized the “‘longstanding principle of construing

any lingering ambiguities in deportation statutes in favor of

the alien.”” Sr. Cyr, 533 U.S. at 320 (quoting Cardoza-

Fonseca, 480 U.S. at 449). This principle is fully applicable

here. See Part 1.A.4, supra.

In light of the result in St. Cyr, moreover, it would be par-

ticularly inequitable if INA § 241(a)(S) were retroactively

applied to petitioner and those in his position. St. Cyr held

that the availability of discretionary relief from deportation

may not be withheld retroactively from persons who were

convicted, by guilty plea, of crimes that are now deemed to

be aggravated felonies. St. Cyr himself was convicted of drug

trafficking. By contrast, petitioner’s only crime is having en-

tered the United States without inspection. To be sure, illegal

reentry is a serious matter. Once here, however, petitioner

conducted himself in an exemplary fashion, so much so that

he would have been eligible to apply for several distinct

forms of immigration relief but for the government’s applica-

tion of INA § 241(a)(5) to him. In over twenty years of living

in the United States, he was never arrested for any reason.

A.R. 11-15. On the contrary, he constructed a stable, law-

abiding life in which he built a business, married a U.S. citi-

~ zen, and raised a U.S.-citizen son. Pet. App. 3a; A.R. 20, 23,

42; see also Romboy, Outcast in Mexico, at Al. It would be

ironic indeed if petitioner were denied that which St. Cyr re-

ceived. Retroactively depriving petitioner of the opportunity

to seek and receive the discretionary relief available from the

time of his reentry through the date IIRIRA took effect would

“undoubtedly impose * * * a ‘new disability’ in respect to

past events.” Landgraf, 511 U.S. at 283.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

Topp LUNDELL DaviD M. GOSSETT

Mayer, Brown, Rowe & Counsel of Record

Maw LLP ANDREW TAUBER

1675 Broadway Mayer, Brown, Rowe &

New York, NY 10019 Maw LLP

J. CHRISTOPHER KEEN 1909 K Street, NW

Keen Law Offices, LLC Washington, DC 20006

Jamestown Square (202) 263-3000

3585 N. University Ave.

Suite 250

Provo, UT 84604

Counsel for Petitioner

DECEMBER 2005

STATUTORY AND REGULATORY ADDENDUM

TABLE OF CONTENTS

CURRENT STATUTES

8 U.S.C. § 1182(a)(9)(A)(ii) (2005) ......ccccceceoee

8 U.S.C. § 1229b(b)(1) (2005) ....ccccceccscsseeeesenen

8 U.S.C. § 1229¢(a)(1) (2005).....cccccecccesseeeseenee

8 U.S.C. § 1255(a) (2005) ...cccccccccvcveesessseccessenee

8 U.S.C. § 1255(i) (2005)......cccccccccsecessesseveesosen

PRE-IIRIRA STATUTES

8 U.S.C. § 1158(a) (1996) ....ccccccccsccescscessveeseeeen

8 U.S.C. § 1182(a)(6)(B) (1996) ......-cccccccccoseee

8 U.S.C. § 1254(a) (1996) ...ccccccccccccececssssveeeeeene

8 U.S.C. § 1254(€)(1) (1982) .o.cccccccececssssveeseesee

8 U.S.C. § 1254(€)(1) (1996) ...ccccccccccsssssseeeseeee

8 U.S.C. § 1255(a) (1996) ....ccccccccccesecessssveeeeseen

8 U.S.C. § 1255(i) (1996) ...ccccccccscovecsccesssveeeesenn

IIRIRA

SE aaa Te

ET a

I a caseienssesinserccnininanenatennit

ITRIRA § 348(b) .....ccccccccccsseccssssvessssecesssueesessecen

TABLE OF CONTENTS—continued

Page

CURRENT REGULATIONS

8 8) 6 7a

ee 8a

ay IAS eenteneniniiniite 8a

Dra © cence 8a

er es Oe ND increments 9a

PRE-IRRIRA REGULATIONS_

et BR 10a

ry Oe Se raecicintinnncrninntinansniiieininsiamnaiiiiin 10a

ot 8 a 10a

os BR lla

8 C.F.R. § 245.2(a(3 (itt) (1997).00 cc cccceceteeeeeeees lla

8 C.F.R. § 245.2(a)(S)(ii) (1997)... ccccceceeeeseeeeeeeeenees 12a

tee 12a

CURRENT STATUTES

8 U.S.C. § 1182(a)(9)(A)(ii) (2005) provides:

Any alien not described in clause (1) who—

(1) has been ordered removed under section 240 or

any other provision of law, or

(Il) departed the United States while an order of

removal was outstanding,

and who seeks admission within !0 years of the date

of such alien’s departure or removal (or within 20

years of such date in the case of a second or

subsequent removal or at any time in the case of an

alien convicted of an aggravated felony) is

inadmissible.

8 U.S.C. § 1229b(b)(1) (2005) provides:

The Attorney General may cancel removal of, and

adjust to the status of an alien lawfully admitted for

permanent residence, an alien who is inadmissible

or deportable from the United States if the alien—

(A) has been physically present in the United States

for a continuous period of not less than 10 years

immediately preceding the date of such application;

(B) has been a person of good moral character

during such period;

section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this

title (except in a case described in section

1227(a)(7) of this title where the Attorney General

exercises discretion to grant a waiver); and

(D) establishes that removal would result in

exceptional and extremely unusual hardship to the

alien’s spouse, parent, or child, who is a citizen of

the United States or an alien lawfully admitted for

permanent residence.

8 U.S.C. § 1229c(a)(1) (2005) provides:

The Attorney General may permit an alien

voluntarily to depart the United States at the alien’s

own expense under this subsection, in lieu of being

subject to proceedings under section 1229a of this

title or prior to the completion of such proceedings,

if the alien is not deportable under section

1227(a)(2)(A)(iii) or section 1227(a)(4)(B) of this

title.

8 U.S.C. § 1255(a) (2005) provides in relevant part:

The status of an alien who was inspected and

admitted or paroled into the United States * * * may

be adjusted by the Attorney General, in his

discretion and under such regulations as he may

prescribe, to that of an alien lawfully admitted for

permanent residence if (1) the alien makes an

application for such adjustment, (2) the alien is

eligible to receive an immigrant visa and is

admissible to the United States for permanent

residence, and (3) an immigrant visa is immediately

available to him at the time his application is filed.

8 U.S.C. § 1255(i) (2005) provides in relevant part:

(1) Notwithstanding the provisions of subsections

(a) and (c) of this section, an alien physically

present in the United States—

(A) who—

(i) entered the United States without inspection;

*“* *

(B) who is the beneficiary * * * of—

(i) a petition for classification under section 1154 of

this title that was filed with the Attorney General on

or before April 30, 2001;

***

and

classification * * * is physically present in the

United States on December 21, 2000;

may~ apply to the Attorney General for the

adjustment of his or her status to that of an alien

lawfully admitted for permanent residence.

8 U.S.C. § 1158(a) (1996), repealed by IIRIRA § 604(a),

provided:

The Attorney General shall establish a procedure for

an alien physically present in the United States or at

a land border or port of entry, irrespective of such

alien’s status, to apply for asylum, and the alien may

be granted asylum in the discretion of the Attorney

General if the Attorney General determines that

such alien is a refugee within the meaning of section

1101(a)(42)(A) of this title.

8 U.S.C. § 1182(a)(6)(B) (1996), repealed by IIRIRA

§ 301(b)(1), provided in relevant part:

Any alien who

(i) has been arrested and deported,

** *

and * * * who seeks admission within 5 years of the

dete of such deportation or removal * * * is

excludable, unless before the date of the alien’s

embarkation or reembarkation at a place outside the

United States or attempt to be admitted from foreign

contiguous territory the Attorney General has

consented to the aiien’s applying or reapplying for

admission.

8 U.S.C. § 1254(a) (1996), repealed by IIRIRA § 308(b)(7),

provided in relevant part:

As hereinafter prescribed in this section, the

Attorney General may, in his discretion, suspend

deportation and adjust the status to that of an alien

lawfully admitted for permanent residence, in the

case of an alien (other than an alien described in

section 1251(a)(4)(D) of this title) who applies to

the Attorney General for suspension of deportation

and—

(1) is deportable under any law of the United States

except the provisions specified in paragraph (2) of

this subsection; has been physically present in the

United States for a continuous period of not less

than seven years immediately preceding the date of

such application, and proves that during all of such

period he was and is a person of good moral

character; and is a person whose deportation would,

in the opinion of the Attorney General, result in

extreme hardship to the alien or to his spouse,

parent, or child, who is a citizen of the United States

or an alien lawfully admitted for permanent

residence[. ]

8 U.S.C. § 1254(e)(1) (1982), amended by subsequent iaw,

provided in relevant part:

The Attorney General may, in his discretion, permit

any alien under deportation proceedings, other than

an alien within the provisions of paragraph (4), (5),

(6), (7), (11), (12), (14), (15), (16), (17), (18), or

(19) of section 1251(a) of this title * * * to depart

voluntarily from the United States~at his own

expense in lieu of deportation if such alien shall

establish to the satisfaction of the Attorney General

that he is, and has been, a person of good moral

character for at least five years immediately

preceding his application for voluntary departure

under this subsection.

8 U.S.C. §1254(e)(1) (1996), repealed by IIRIRA

§ 308(b)(7), provided in relevant part:

Except as provided in paragraph (2), the Attorney

General may, in his discretion, permit any alien

under deportation proceedings, other than an alien

within the provisions of paragraph (2), (3) or (4) of

section 125l(a) of this titlk * * * to depart

voluntarily from the United States at his own

expense in lieu of deportation if such alien shall

establish to the satisfaction of the Attorney General

that he is, and has been, a person of good moral

character for at least five years immediately

preceding his application for voluntary departure

under this subsection.

8 U.S.C. § 1255(a) (1996), amended by Pub. L. 106-386 §

1506(a)(1)(A), 114 Stat. 1464 (2000), provided in relevant

part:

The status of an alien who was inspected and

admitted or paroled into the United States may be

adjusted by the Attorney General, in his discretion

and under such regulations as he may prescribe, to

that of an alien lawfully admitted for permanent

residence if (1) the alien makes an application for

such adjustment, (2) the alien is eligible to receive

an immigrant visa and is admissible to the United

States for permanent residence, and (3) an

immigrant visa is immediately available to him at

the time his application is filed.

8 U.S.C. § 1255(i) (1996), amended by IIRIRA § 376(a),

provided in relevant part:

(1) Notwithstanding the provisions of subsections

(a) and (c) of this section, an alien physically

present in the United States who—

(A) entered the United States without inspection

*“* *

may apply to the Attorney General for the

adjustment of his or her status to that of an alien

lawfully admitted for permanent residence.

IIRIRA

IIRIRA § 212(e), Pub. L. No. 104-208 § 212(e), provides:

EFFECTIVE DATE.—Section 274C(f) of the

Immigration and Nationality Act, as added by

subsection (b), applies to the preparation of

applications before, on, or after the date of the

enactment of this Act.

IIRIRA § 322(c), Pub. L. No. 104-208 § 322(c), provides:

EFFECTIVE DATE.—The amendments made by

subsection (a) shall apply to convictions and

sentences entered before, on, or after the date of the

enactment of this Act. Subparagraphs (B) and (C) of

section 240(c)(3) of the Immigration and Nationality

Act, as inserted by section 304(a)(3) of this division,

shall apply to proving such convictions.

IIRIRA § 342(b), Pub. L. No. 104-208 § 342(b), provides:

EFFECTIVE DATE.—The amendments made by

subsection (a) shall take effect on the date of the

enactment of this Act and shall apply to incitement

regardless of when it occurs.

IIRIRA § 347(c), Pub. L. No. 104-208 § 347(c), provides:

EFFECTIVE DATE.—The amendments made by

this section shall apply to voting occurring before,

on, or after the date of the enactment of this Act.

IIRIRA § 348(b), Pub. L. No. 104-208 § 348(b), provides:

EFFECTIVE DATE.—The amendment made by

subsection (a) shall be effective on the date of the

enactment of this Act and shall apply in the case of

any alien who is in exclusion or deportation

proceedings as of such date unless a final

administrative order in such proceedings has been

entered as of such date.

IIRIRA § 351(c), Pub. L. No. 104-208 § 351(c), provides:

EFFECTIVE DATE.—The amendments made by

this section shall apply to applications for waivers

filed before, on, or after the date of the enactment of

this Act, but shall not apply to such an application

for which a final determination has been made as of

the date of the enactment of this Act.

CURRENT REGULATIONS

8 C.F.R. § 212.2(e) provides:

An applicant for adjustment of status under section

245 of the Act and part 245 of this chapter must

request permission to reapply for entry ~in

conjunction with his or her application for

adjustment of status. This request is made by filing

an application for permission to reapply, Form I-

212, with the district director having jurisdiction

over the place where the alien resides. If the

application under section 245 of the Act has been

initiated, renewed, or is pending in a proceeding

before an immigration judge, the district director

must refer the Form I-212 to the immigration judge

for adjudication.

—

8 C.F.R. § 212.7(a)(1)(ii) provides:

An applicant for adjustment of status who is

excludable and seeks a waiver under section 212(h)

or (i) of the Act shall file an application on Form I-

601 with the director or immigration judge

considering the application for adjustment of status.

8 C.F.R. § 245.1 provides in relevant part:

(a) General. Any alien who is physically present in

the United States, except for an alien who is

_ ineligible to apply for adjustment of status under

paragraph (b) or (c) of this section, may apply for

adjustment of status to that of a lawful permanent

resident of the United States if the applicant is

eligible to receive an immigrant visa and an

immigrant visa is immediately available at the time

of filing of the application. * * *

(b) Restricted aliens. The following categories of

aliens are ineligible to apply for adjustment of status

to that of a lawful permanent resident alien under

section 245 of the Act, unless the alien establishes

eligibility under the provisions of section 245(i) of

the Act and § 245.10, is not included in the

categories of aliens prohibited from applying for-

adjustment of status listed in § 245.1(c), is eligible

to receive an immigrant visa, and has an immigrant

visa immediately available at the time of filing the

application for adjustment of status:

** *

(3) Any alien who was not admitted or paroled

following inspection by an immigration officer[.]

8 C.F.R. § 245.2(a)(3)(i1i) provides:

An alien who seeks adjustment of status under the

provisions of section 245(i) of the Act must file

Form [-485, with the required fee. The alien must

also file Supplement A to Form I[-485, with any

required additional sum.

8 C.F.R. § 245.10 provides in relevant part:

(a) Definitions. As used in this section the term:

(1)(i) Grandfathered alien means an alien who is the

beneficiary * * * of:

(A) A petition for classification under section 204 of

the Act which was properly filed with the Attorney

General on or before April 30, 2001, and which was

approvable when filed{.]

(b) Eligibility. An alien who is included in the

categories of restricted aliens under § 245.1(b) and

meets the definition of a "grandfathered alien" may

apply for adjustment of status under section 245 of

the Act if the alien meets the requirements of

paragraphs (b)(1) through (b)(7) of this section:

(1) Is physically present in the United States;

(2) Is eligible for immigrant classification and has

an immigrant visa number immediately available at

the time of filing for adjustment of status;

(3) Is not inadmissible from the United States under

any provision of section 212 of the Act, or all

grounds for inadmissibility have been waived;

(4) Properly files Form 1-485, Application to

or after October |, 1994, with the required fee for

that application;

(5) Properly files Supplement A to Form 1-485 on or

after October |, 1994;

10a

(6) Pays an additional sum of $1,000, unless

payment of the additional sum is not required under

section 245(i) of the Act; and

(7) Will adjust status under section 245 of the Act to

that of lawful permanent resident of the United

States on or after October |, 1994.

PRE-IRRIRA REGULATIONS

8 C.F.R. § 212.2(e) (1997) provided:

Applicant for adjustment of status. An applicant for

adjustment of status under section 245 of the Act

and part 245 of this chapter must request permission

to reapply for entry in conjunction with his or her

application for adjustment of status. This request is

made by filing an application for permission to

reapply, Form 1I-212, with the district director

having jurisdiction over the place where the alien

resides. If the application under section 245 of the

Act has been initiated, renewed, or is pending in a

proceeding before an immigration judge, the district

director must refer the Form 1-212 to the

immigration judge for adjudication.

8 C.F.R. § 244.1 (1982) provided in relevant part:

Pursuant to Part 242 of this chapter and section 244

of the Act an immigration judge may authorize the

suspension of an alien’s deportation; or, if 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{.]

8 C.F.R. § 244.1 (1997) provided in relevant part:

Pursuant to Part 242 of this chapter and section 244

of the Act an immigration judge may authorize the

suspension of an alien’s deportation; or, if the alien

lla

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{.]

8 C.F.R. § 245.1 (1997) provided in relevant part:

(a) General. Any alien who is physically present in

the United States, except for an alien who is

ineligible to apply for adjustment of status under

paragraph (b) or (c) of this section, may apply for

adjustment of status to that of a lawful permanent

resident of the United States if the applicant is

eligible to receive an immigrant visa and an

immigrant visa is immediately available at the time

of filing of the application. * * *

(b) Restricted aliens. The following categories of

aliens are ineligible to apply for adjustment of status

to that of a lawful permanent resident alien under

section 245 of the Act, unless the alien establishes

eligibility under the provisions of section 245(i) of

the Act and s 245.10, is not included in the

categories of aliens prohibited from applying for

adjustment of status listed in s 245.1(c), is eligible

to receive an immigrant visa, and has an immigrant

visa immediately available at the time of filing the

application for adjustment of status:

(3) Any alien who was not admitted or paroled

following inspection by an immigration officer{. }

8 C.F.R. § 245.2(a)(3 (iii) (1997) provided:

An alien who seeks adjustment of status under the

provisions of section 245(i) of the Act must file

Form 1-485, withthe required fee. The alien must

12a

also file Supplement A to Form 1-485, with any

required additional sum.

8 C.F.R. § 245.2(a)(5)(ii) (1997) provided in relevant part:

No appeal lies from the denial of an application [for

adjustment of status] by the director, but the

applicant retains the right to renew his or her

application in proceedings under Part 242 of this

chapter(.]

8 C.F.R. § 245.10 (1997) provided:

(a) Eligibility. Any alien who is included in the

categories of restricted aliens under s 245.1(b) may

apply for adjustment of status under section 245 of

the Act if the alien:

(1) Is physically present in the United States;

(2) Is eligible for immigrant classification and has

an immigrant visa number immediately available at

the time of filing for adjustment of status;

(3) Is not excludable from the United States under

any provision of section 212 of the Act, or all

grounds for excludability have been waived;

(4) Properly files Form 1-485, Application to

or after October 1, 1994, with the fee required for

that application;

(5S) Properly files Supplement A to Form 1-485 on or

after October |, 1994;

(6) Pay an additional sum of five times the fee

required for filing Form 1-485, unless payment of

the additional sum is waived under section 245(i) of

the Act; and

(7) Will adjust status under section 245 of the Act to

that of a lawful permanent resident of the United

13a

States on or after October 1, 1994, and before

October 1, 1997.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.