# Petitioners Brief — Fernandez-Vargas v. Gonzales > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0090%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 2006 - **Citation:** 548 U.S. 30 ## 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, V. 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 Fa 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) iV 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 Vv 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 vi 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 ix 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 x 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 xi 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 ~ 2 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- 3 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 4 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.”). 5 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. 6 § 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. 9 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- 7 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. 10 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- 1] 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- 12 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 13 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. 14 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: 15 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. 16 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. 17 § 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 18 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. 19 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. 20 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 21 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. 22 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- 23 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). 24 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 25 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). 26 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, — 27 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. 28 (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- 29 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 30 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. 31 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- 32 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 a 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. 34 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- 35 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. 36 17 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). 37 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). 38 269 (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 39 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. 40 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- 4) 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- 42 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. 43 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. 44 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.”). 45 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 46 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- 47 389. “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.”). 48 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. 49 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 50 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 I ET a I a caseienssesinserccnininanenatennit ITRIRA § 348(b) .....ccccccccccsseccssssvessssecesssueesessecen a TABLE OF CONTENTS—continued Page CURRENT REGULATIONS 8 8) 6 7a ee 8a ay [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0090%3A05. Public record. Not legal advice.