Reply Brief — Fernandez-Vargas v. Gonzales

-_—~——- — ore

LEN

MAR j & 2006

No. 04-1376 OFFICE OF THE SLERK

In the Supreme Court of the Gnited States

HUMBERTO | ERNANDEZ- VARGAS,

Petitioner,

Vv.

ALBERTO GONZALES, ATTORNEY GENERAL,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

REPLY 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 10019 Maw LLP

J. CHRISTOPHER KEEN 1909 K Street, NW

perme .4

Keen Law Offices, LLC Washington, DC 20006

tated (202) 263-3000

Jamestown Square

3585 N. University Ave. =

Suite 250

Provo, UT 84604

Counsel for Petitioner

nectar EE TY va

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

TABLE OF CONTENTS

Page

FARES Ge ATT IIIRG 6 it cccccecessccscccesesccccccsescssesesconsessncses ili

I. The Government's Arguments Are Based On A

Fundamental Misconception About INA

BF ee cncncessnisimaicnsennnianedtianeiinimenpecatenananiteeneeepineneni l

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

Only To Post-IIRIRA Reentrant. ............ccccccceeeeseeseeeeeeees 4

A. Congress intended INA § 241(a)(5) to apply

EE CRIN conccccnnstenerssscniininnmennns 4

B. Congress did not intend INA § 241(a)(5) to

ey Ce tecenentasescnrnninasnsnirtemnninenn 8

III. Application Of INA § 241(a)(5) To Pre-IIRIRA

Reentrants Is Impermissibly Retroactive. ................0004 12

A. The bar on discretionary relief is categorically

inapplicable to aliens who reentered before

Sa TT Ths cssnistinnseatiassicicibciianinasionninniaennntiantincemmnmmnannetin 13

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

would attach new legal consequences to

events completed before the statute's

I sccccccenstcenntntsnnnninennsiincteimininninn 13

C. Petitioner had a cognizable expectation that he

would be eligible for relief from deportation. .......... 17

EEO ccsciisssitsensenesiecensonsevnensannnanninnesiarenmuinnininte anmeee 20

(1)

- TABLE OF AUTHORITIES

Page(s)

Cases

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

Ey ae: Sav henaneendiitncitiniodianondienaletiubasiotmennieniinmmmamenien |

Chew Heong v. United States, 112 U.S. 536 (1884)............ 17

Dole Food Co. v. Patrickson, 538 U.S. 468 (2003) ............. 1]

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

Scteeamaal,, FIO U.S. FFD (VDI) cccrdocccccvcseccesersescvccscsesccer By 19

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

SETI Diciietissiienspiindouitesitietaeidintiniaediinabaledbnisidasiggsibeeaibeapiantinmtiaslidediiniiaduit 6

fe Rae Bi ih & [ly | | em passim

Kessler v. Strecker, 307 U.S. 22 (1939).............cccccssreeseneeees 17

Landgraf v. USI Film Products,

ee SS ee Ce ictrctnteiincinnncencsemnsetenennininnne passim

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

Martin v. Hadix, 527 U.S. 343 (1999) ou... cccseteeeseeseeeeres 6

Miller v. Florida, 482 U.S. 423 (1987) .......cccccecccceeseeeeesseseenes 3

Pasquantino vy. United States, 125 S. Ct. 1766

PERS ERNE: Leen De ee ET NT PD 16

Republic of Austria v. Altmann, 541 US. 677

SSS icchishtensinneheiesistasbiibaniciaisadinicilieibidinarnsidntinbinusniiiisiciiadeiaeunelveaia 11,17

United States v. Leahy, _ F.3d __, 2006 WL

Es HE iccndadidinintnininideinenmemaghinemitindecasiiets 16

Constitutional Provisions

a Pe Dh We Oe Wiihiicnsansniisdeinncsioninsticiiiniunimininonianaiones 16, 19

Current U.S. Code Provisions

Oe se Oe Oe atcieiaticncevcscnsccnitnenciiepesiuinennnianien 16

BD ee & BPR Peete i ccesccnsnscsccecssensccsseosoonsese 14. 15, 16

iv

TABLE OF AUTHORITIES—continued

Page(s)

De 0 Oe iccrternsrncnicscninsensinvimnusieientenintiriasiiin 17

RE 17

ORI ON sideiiicsnsisinisinisicdacaiieaeenaeue 20

SD dire OF PUI OP ccnesndncenentisscenesiniicnepeinadiniiniadinmsiinideiteiit 16

es OF CD seisniericsinnesecbinneciitineniinniinsdanieimeitden 14

INA § 241(a)(5), 8 U.S.C. § 123 1(a)(S)........................ passim

INA § 241(a)(4)(D), 8 U.S.C. § 123 1(a)(4)(D).... eee 2

INA § 241(b)(3)(A), 8 U.S.C. § 123 1(D)(3 (A) wees 2

BD RRieiiinc © Gipeeere ee btecconcsenescensicsusondensiaponeigueiidemeiimedialenianiias 9

eins OF Fee ie iccstinesicsocnbssntetidinisienmiimumetemsiaiiuiaaiia 9,14

Ae Sein © FRR screrescemnscitnntarinnniasonsniniennitiinbialiddaiaidads II

Pre-IIRIRA U.S. Code Provisions

S UDA. © FFIEC IE CPR cccsccscvesiconccerscnssencnnesssets 14, 16

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

BD Wire © TRIN OPC EER cencescrscninnssiestpiiamicsvemnianiaiians 20

© SABA. © CP IRIE ED CIP cccccnerscsassesischssunisttebinnanisimanions 13

Other Federal Statutes

Haitian Refugee Immigration Fairness Act of 1998

(HRIFA), Pub. L. No. 105-277, Div. A,

§ 101¢h) (Tit. IX], 112 Stat. 2681-538... eee 9.10

Se FRI OLAED conncssccssbundenibiiecnieaséndiinapeimmesannmmamemiaidiiaaaaaaa 10

| __Y : Ce EN EN TSN Te 10

Legal Immigration Family Equity Act (LIFE Act),

Pub. L. No. 106-553, § I(a)(2) [Tit. XT],

504 Gam, SRA BEE (IOP cccscsscrrsccnssnsiesnnsvensnionvnnensse 9,10

V

TABLE OF AUTHORITIES—continued

Page(s)

iy aT eccinesinrnnnenennnesenssangnsnennennesinnmanteotmmansnann 10

Nicaraguan Adjustment and Central American Re-

lief Act (NACARA), Pub. L. No. 105-100, Tit.

EE 9,10

iy SIPEITIE OP ctnecininnntiatessecensnsnsmnsneneeeseeneneneseenensetenssenesenecnstt 10

Trion hasten eppmnnnndnnntntninsenemenmiatemnessecssenatanen 10

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

ITT shenteehchieieicinteaatiinndeinpasideisintsinenanadeanenenenuannsenemenamsesesneneens 5

Federal Regulations

8 Ra 3

eT ee |

Miscellaneous

Brief for Respondent in A/lvarez-Portillo v.

Ashcroft, 280 F.3d 858 (8th Cir. 2002),

Se ees SI TIE cntntetesictneneneniecinaneseenemnesensnesennssescnceendh 2,3

Brief for Respondent in Faiz-Mohammad v.

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

Sy es TIE cceemtnensetnemnenenieceiininestancesnnmenceussesencsnece 8

Brief for Respondent in Fernandez-Vargas v.

Ashcroft, 394 F.3d 881 (10th Cir. 2005),

Ee 8

Brief for Respondents in Ojeda-Terrazas v.

Ashcroft, 290 F.3d 292 (Sth Cir. 2002),

Brief for Respondent in Salinas-Sandoval v. Reno,

decided sub nom. Castro-Cortez v. INS, 239

F.3d 1037 (9th Cir. 2001), 2000 WL 34430709 00... 14

vi

TABLE OF AUTHORITIES—<continued

Page(s)

Brief of Respondent in Sarmiento Cisneros v. U.S.

Aity. Gen., 381 F.3d 1277 (1 1th Cir. 2004),

SO Clin SOO ES cxsssnssscsinsssstcssnesesesessseemnmesnncsseses 2,14

Brief of Respondent in Velasquez-Gabriel v. Cro-

cetti, 263 F.3d 102 (4th Cir. 2001),

> GD Wes See crn 1,2

Gordon H. Hanson & Antonio Spilimbergo, //legal

Immigration, Border Enforcement, and Relative

Wages: Evidence from Apprehensions at the

U.S.-Mexico Border, 89 AM. ECON. REV. 1337

Douglas S. Massey, Theories of International Mi-

gration: A Review and Appraisal, 19 POPULA-

TION & DEV. REV. 431 (Sept. 1993)... cccccecseseeeeerenenees 18

S. Rep. No. 104-249 (1996), 1996 WL 180026 .............0....... 6

U.S. Immigration and Naturalization Service,

1985 STATISTICAL YEARBOOK OF THE IMMI-

GRATION AND NATURALIZATION SERVICE (1985

TTT in crnisinsininrintaissenientnsilideiintaeniiinaiaieniininiiil 18

U.S. Immigration and Naturalization Service,

1996 STATISTICAL YEARBOOK OF THE IMMI-

GRATION AND NATURALIZATION SERVICE (1996

, ER Cr nea 18, 19

U.S. Immigration and Naturalization Service,

1998 STATISTICAL YEARBOOK OF THE IMMI-

GRATION AND NATURALIZATION SERVICE (1998

ES ne 18, 19

Although the government strives to defend the Tenth Cir-

cuit’s decision, it is clear that INA § 241(a)(5) was not in-

tended to apply, and may not be applied, to deprive petitioner

of the right to seek discretionary relief from removal.

I. The Government’s Arguments Are Based On A

Fundamental Misconception About INA § 241(a)(5).

The government repeatedly relies on a foundational as-

sumption that cannot withstand scrutiny—that INA

§ 241(a)(5) does not regulate the act of illegal reentry but in-

stead regulates only the process of removal. See, e.g., Resp.

Br. 6, 11, 13, 14-15, 29, 31. But the salient aspect of INA

§ 241(a)(5) for purposes of this litigation is the provision

specifying that an alien who has illegally reentered the

‘United States after a prior deportation “is not eligible and

may not apply for any relief under [the INA].” See Resp. Br.

4 & n.2. That provision, by penalizing those who reenter af-

ter removal, regulates reentry.

a. Hoping to avoid the presumption against retroactivity,

the government characterizes INA § 241(a)(5) as purely pro-

cedural. See, e.g., Resp. Br. 6-7; cf. Landgraf, 511 U.S. at

275 (“|c}hanges in procedural rules may often be applied

*** without raising concerns about retroactivity”). But al-

though certain aspects of INA § 241(a)(5) govern reinstate-

ment procedures, the salient provision effected a substantive

change in law that clearly penalizes those who illegally reen-

ter the United States after having been previously removed.’

See Part Ill, infra. Indeed, in an interim rule implementing

IIRIRA, the INS itself explained that “review of the relevant

statutory provisions reveals that a substantive change was in

fact effected in the transition from section 242(f) of the Act

to section 241(aX5) of the Act.” 62 Fed. Reg. 10,312,

Each of the statute's distinct provisions must be separately scrutinized

for purposes of retroactivity analysis. See Landgraf, 511 U.S. at 280; Al-

varez-Portillo, 280 F.3d at 86S.

* The government has taken the same position m other litigation. See.

¢.¢.. Gov't Br. in \Velasquez-Gabriel, 2000 WL. 33988616, at *32 (To

2

10,326 (Mar. 6, 1997) (emphasis added).’

b. The government also argues that INA § 241(a)(5) regu-

lates merely reinstatement, not reentry. See Resp. Br. 6, 11,

13, 29. But as the government has repeatedly acknowledged,

in enacting INA § 241(a)(5) “Congress clearly attempted to

address the problem of illegal entry, and particularly to deter

repeated illegal reentry by aliens who have already been re-

moved.” Gov't Br. in Sarmiento Cisneros, 2004 WL

3557971, at *46 n.12.° Inasmuch as INA § 241(a)(5) was

concededly intended to “address” and “deter” illegal reen-

try—by setting higher penalties for such conduct— it plainly

regulates that primary conduct.

c. Relatedly, the government’s assertion that INA

§ 241(a)(5) is, for purposes of retroactivity analysis, triggered

not by the reentry itself but instead by the Attorney General's

“finding” of reentry, see Resp. Br. 13, does not withstand

scrutiny. As an initial matter, the regulation implementing

INA § 241(a)(5) leaves no doubt that the provision is trig-

gered by reentry.” The regulation does not mention the Attor-

address the serious problem of illegal reentries, Congress sought to make

a substantive change when it enacted Section 241(a)(5) by precluding an

illegally reentering alien's eligibility for relief from deportation.”’).

* The government suggests that its characterization of INA § 241(aX(5)

as purely procedural ts bolstered by the subsection’s placement within the

INA. See Resp. Br. 31. But while much of INA § 241 addresses proce-

dural matters, the bar on deportation relief in INA § 241(a)(5) is by no

means the only substantive provision in INA § 241. See, e.g. INA

§ 241(a4)D) (“No cause or claim may be asserted under this paragraph

against any official of the United States or of any State to compel the re-

lease, removal, or consideration for release or removal of any alien.”);

§ 241(a6) (allowing government to detain certain aliens “beyond the

removal period”), § 241(b\ 3A) (prohibiting Attorney General from re-

moving alien to country where alien's life or freedom would be threat-

ened).

* See also, ¢.¢., Gov't Br. in Ojeda-Terrazas, 2001 WL. 34090034, at *5;

Gov't Br. in Alvarez-Portiilo, 2001 WL 34095765, at *7.

* Indeed, the government previously told both the Fifth and kighth Cir-

cuits that INA § 241(a5) “ts directed at two events,” namely “the prior

‘ 3

ney General at all, instead specifying that the provision ap-

plies to any “alien who illegally reenters the United States af-

ter having been removed,” and requiring that an immigration

officer determine “[w]hether the alien unlawfully reentered

the United States.” 8 C.F.R. § 241.8(a)(1).

Furthermore, the government's position is inconsistent

with this Court's decision in St. Cyr. The petitioner in S71. Cyr

had been eligible for relief from deportation under INA

§ 212(c) before ITRIRA, but the decision to grant such relief

lay entirely within “‘the discretion of the Attorney General,””

St. Cyr, 533 U.S. at 295 (quoting INA § 212(c) (1996)), who

had not exercised that discretion as of the day that ITIRIRA

took effect. Nonetheless, this Court held that application of

IIRIRA, which would have made the petitioner ineligible for

such discretionary relief, would be impermissibly retroactive.

That result forecloses the government's argument here: If the

government were correct that the triggering event for retroac-

livity purposes is action by the Attorney General, then Sv.

Cyr would necessarily have come out the other way because

the Attorney General had not acted before IIRIRA took ef-

fect.

Indeed, the government's position as to the relevant trig-

gering event is at odds with basic principles of retroactivity

analysis. On the government's theory, a statute is, for retroac-

tivity purposes, triggered not by the actor's primary conduct,

but rather by the fact-finder’s subsequent determination of

culpability. This, however, is true neither in the criminal con-

text, see, ¢e.g., Miller v. Florida, 482 U.S. 423 (1987) (pro-

hibiting application of statute enacted after crime but in ef-

fect at time of sentencing), nor in the civil context, see, e¢.g.,

Hughes Aircraft, 520 U.S. 939 (prohibiting application of

statute in effect at time of trial to conduct predating statutory

enactment). Thus, there is no support for the government's

argument that INA § 241(a)(5) is a procedural provision that

order of removal and the subsequent illegal reentry.” Gov't Br. in Ojeda-

Terrazas, at *18, Gov't Br. in Alvarez-Portillo, at *25.

4

does not regulate and is not triggered by reentry.

II. Congress Intended INA § 241(aX5) To Apply Only

To Post-IIRIRA Reentrants.

As demonstrated in our opening brief, Congress intended

INA § 241(a)(5) to apply only to persons who reentered the

United States after IIRIRA took effect. The government dis-

putes this proposition—and goes so far as to argue that Con-

gress specifically intended for the statute to apply retroac-

tively. Its arguments are baseless.

A. Congress intended [<A § 241(a)(5) to apply only

prospectively.

1. The foremost proof that Congress intended INA

§ 241(a)(S) to apply only prospectively is the comparison be-

tween that provision and its 1952 predecessor. See Pet. Br.

16-20. The government challenges the import of this com-

parison, arguing that “[bJecause the ‘before or after’ clause

[in the 1952 Act] pertained to the date of the alien's previous

deportation or departure—rather than to the date of the

alien's illegal reentry—the absence of such language in [INA

§ 241(a)(5)] in no way suggests that Congress sought to draw

a distinction based on the timing of illegal reentry.” Resp. Br.

20. But the government's quibble over the precise meaning

of the “before or after” clause misses the point.

Although the government may be correct that the “before

or after” clause in the 1952 provision related to deportations

rather than reentries, the elimination of that clause nonethe-

less demonstrates that INA § 241(a)(5) must be interpreted

not to apply to aliens who reentered before April 1, 1997. By

climinating the “before or after” clause, Congress deliber-

ately removed the express retroactivity language that it had

previously understood was necessary for a reinstatement pro-

vision to apply to pre-enactment conduct. Consistent with the

default rule against retroactivity, the INS interpreted the 1950

statute—which contained no specific temporal restriction—o

apply strictly prospectively, ¢.c. only to aliens who were de-

ported, and thus also reentered, after its enactment. In the

1952 statute, Congress, evidently dissatisfied with that result,

expressly commanded—through adoption of the “before or

after” clause-—that the new reinstatement provision be retro-

actively applied to pre-enactment deportations. But in enact-

ing INA § 241(a)(5) in 1996, Congress eliminated the very

language that made the 1952 Act retroactive. The clear im-

_ plication is that Congress, in climinating the language it had

introduced in 1952, intended that INA § 241(a)(5), like the

1950 provision, not be applied to pre-enactment conduct.”

Moreover, far from advancing the government's position,

the implication of its argument is that INA § 241(a)(5), like

its 1950 precursor, may not be applied to an alien who was

deported before its enactment, let alone to one who reentered

before that date. Reentry necessarily follows deportation.

Thus, if the deportation must have occurred after enactment

of the reinstatement provision, a fortiori the reentry must

also have occurred thereafter. The government's effort to

avoid this logical corollary, see Resp. Br. 21 n.6, mistakenly

assumes that petitioner can prevail only if the negative infer-

ence derived from Congress's elimination of the “before or

after” clause relates directly to an immigrant’s illegal reentry.

Thus, even if the government's interpretation of the “before

or after” clause were accepted, petitioner would still prevail,

as he was deported 15 years before ITRIRA’s enactment.

2. As explained in our opening brief, see Pet. Br. 21-22,

The government argues that Congress removed the retroactivity lan-

guage from the prior reinstatement provision because, by 1996, “there

was no enduring need to maintain the specification that the reinstatement

authority encompasses aliens whose previous deportation or departure

was ‘before * * * June 27, 1952."" Resp. Bro21. This argument is a red

herring. The government mistakenly quotes the codified version of the

prior reinstatement provision, which references “June 27, 1952." The ver-

sion enacted by Congress specified, however, that it applied to reentries

whether “hefore or after the date of enactment of this Act.” Pub. L. No.

2-414 § 24211), 66 Stat. 163, 212 (1952) (emphasis added). Thus, had

Congress intended the expanded reinstatement provision to apply retroac

tively, it would have retained this clause from the prior provision.

ty

the legislative history, too, reveals that Congress intended

INA § 241(a)(5) to apply only prospectively. Although the

government contends that “[p]etitioner’s argument rests on a

clear misunderstanding of the legislative history,” Resp. Br.

22, the history that it recounts is identical to what we out-

lined: Before adopting what became INA § 241(a)(5), Con-

gress considered a Senate bill that would have left the text of

the former reinstatement provision unchanged.’ Yet rather

than accept the Senate proposal, Congress instead adopted a

House bill that expanded the scope of reinstatement but—

critically for current purposes—also eliminated the express

retroactivity language that had been contained in the 1952

provision. That elimination must be given effect. See Pet. Br.

21-22; Cardoza-Fonseca, 480 U.S. at 442-443."

3. The government’s efforts to distinguish Lindh are simi-

larly unpersuasive. In Lindh, this Court compared two paral-

lel provisions enacted as part of AEDPA and inferred that

Congress intended one of them to apply prospectively. See

Pet. Br. 19-20. The government contends that Lindh is dis-

tinguishable because “the ‘before or after’ clause [in INA

§ 242(f) (1952)] pertained to a subject that was entirely dis-

tinct from the date of an alien's illegal reentry.” Resp. Br. 24.

” The Senate bill would have renumbered INA § 242(f) to § 242(f)(1)

and added a new § 242(1)(2) to impose a new 15-year criminal sentence

tor illegal reentry. See S. REP. NO, 104-249, at 118 (1996).

* The government's reliance on Martin to counter our legislative-history

argument, see Resp. Br. 23, is misguided. In Martin, the petitioner argued

that by moving a particular statutory provision from one section of a stat-

ute to another, when the first section had language making it applicable to

pending cases and the latter did not, Congress intended not to apply the

moved provision to pending cases. This Court rejected that argument,

concluding that the provision “may have been moved for a variety of

other reasons.” 527 U.S. at 357. In enacting IIRIRA, by contrast, Con-

gress did not simply move the reinstatement provision from one section

in the statute that had retroactivity language to another section that did

not: It intentionally discarded language from within the prior provision it-

self that would have made reinstatement expressly retroactive. There are

simply not “a vanety of other reasons” for that change.

But there can be no serious dispute that, regardless of the

precise referent of the before-or-after clause, INA § 241(a)(5)

and its 1952 predecessor address precisely the same sub-

ject—teinstatement of a prior deportation order after a subse-

quent illegal reentry—and that Congress expressly diretted

that the reinstatement provision in the earlier statute but not

the latter one be applied retroactively. The point in Lindh was

that, if “Congress was reasonably concerned to ensure that

[the first statutory provision] be applied to pending cases, it

should have been just as concerned about [the second statu-

tory provision], unless it had the different intent.” 521 U.S. at

329. Here, Congress “had the different intent.”

4. Finally, if there were any doubt as to Congress's intent

that INA § 241(a)(5) be applied only prospectively, it would

be resolved in petitioner’s favor by the presumption against

retroactivity, Pet. Br. 24-26, and the canon that any ambigu-

ity be resolved in favor of the alien, id. at 27-28.

The government argues that the default rule against retro-

activity cannot be invoked in the first step of the Landgraf

analysis because the presumption is not triggered unless a

statute has a “retroactive effect.” Resp. Br. 25. But both steps

of the Landgraf retroactivity analysis are based on the pre-

sumption against retroactivity. Thus, the test under step one

is asymmetric: To demonstrate that Congress intended

strictly prospective application of INA § 241(a)(5), and

therefore to prevail under the first prong of the Landgraf

analysis, petitioner need not identify an express command

requiring that result. Rather, because retroactive application

is “disfavored,” Lindh, 521 U.S. at 328, prospective intent

can be demonstrated through the “normal rules of [statutory]

construction,” id. at 326. In fact, “a statute that is ambiguous

with respect to retroactive application is construed * * * to be

unambiguously prospective.” St. Cyr, 533 U.S. at 321 n.45.

By contrast, a statute will be applied retroactively under

Landgraf step one only when “Congress has express/y pre-

scribed” such application. Landgraf, 511 U.S. at 280 (em-

phasis added). Thus, the only way that the government can

prevail under the first prong of Landgraf is to point to ex-

press retroactivity language “so clear that it could sustain

only one interpretation,” Lindh, 521 U.S. at 328 n4—

language that is absent from INA § 241(a)(5).

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

retroactively.

Despite the ample evidence that Congress specifically in-

tended INA § 241(a)(5) to apply only prospectively, and de-

spite always before arguing that congressional intent as to the

application of this provision is ambiguous,” the government

now contends that Congress specifically intended the provi-

sion to apply retroactively. This argument is without merit.

1. The government suggests that because INA § 241(a)(5)

governs reinstatement against any alien who “has reentered”

the country illegally, “there is no basis for exempting from

the statute’s reach an alien who ‘had reentered’ before

IIRIRA’s effective date.” Resp. Br. 13. But as the govern-

ment itself has repeatedly emphasized, INA § 241(a)(5) be-

gins with the phrase “[i]f the Attorney General finds that an

alien has reentered.” Thus, use of the present perfect—*has

reentered’’—is a natural consequence of the fact that the re-

entry will necessarily have occurred before the Attorney

General’s finding, regardless of whether the reentry occurred

before or after the enactment of ITIRIRA.

The government also argues that a retroactive reading of

INA § 241(a)(5) “is reinforced by” the provision’s prescrip-

tion that an alien whose prior order of removal has been rein-

stated may be removed “at any time after the reentry.” Resp.

Br. 13. The “at any time after the reentry” language does not,

however, define the temporal scope of INA § 241(a)(5); it

* See. e.g., Gov't LOth Cir. Br. in Fernandez-Vargas, at 8 ("there is sim-

ply no clear evidence of whether Congress intended to apply or not to ap-

ply [INA § 241¢a)(5)| to aliens who reentered the country prior to April |,

1997"); Gov't Br. in Faiz-Mohammad, 2003 WL 23339842, at *11-*12

(same).

9

simply affirms that, when reinstatement applies, removal

may be executed forthwith.

2. The government also contrasts INA § 241(a)(5) with

two other IIRIRA provisions—8 U.S.C. § 1326(a) (criminal-

izing illegal reentry) and 8 U.S.C. § 1325(b) (imposing civil

fines for illegal entry)—and argues that because they, unlike

INA § 241(a)(5), are expressly prospective, a negative infer-

ence can be drawn that Congress intended INA § 241(a)(5) to

be retroactive. Resp. Br. 14-16. But any such inference is

foreclosed by Congress having specifically eliminated retro-

activity language from INA § 241(a)(5)—and having done so

while on notice of the “wisdom of being explicit” if it in-

tended the statute to apply retroactively. Lindh, 521 U.S. at

328.'” Further, the government’s argument is based on the

mistaken premise that, unlike these other provisions, INA

§ 241(a)(5) does not regulate primary conduct. But it does

regulate the primary conduct of reentry, see Part I, supra, and

as the government acknowledges, “when Congress addresses

primary conduct as such, it generally does not impose new

consequences on past acts.” Resp. Br. 16n.5.

3. Nor is there merit to the government’s argument that

“Congress's express treatment of Section 1231(a)(5) in stat-

utes enacted since IIRIRA confirms that the provision en-

compasses illegal teentrants who made their unlawful reentry

before IIRIRA.” Resp. Br. 16. None of the statutes the gov-

ernment cites--NACARA, HRIFA, or the LIFE Act—

supports its position,

Each of these statutes extends relief from deportation to a

defined class of aliens. To be eligible for relief under any of

them, an alien must have been present in the United States on

a date before the enactment of IIRIRA, and must have main-

tained a statutorily defined continuous presence in the United

Given that other provisions of IIRIRA are expressly retroactive, see

Pet. Br. 25, Congress clearly knew how to overcome the presumption

against retroactivity when it wanted to do so.

10)

States thereafter.'' As the government notes, Congress has

expressly exempted aliens otherwise eligible for relief under

those acts from the operation of INA § 241(a)(5). Resp. Br.

17-18. According to the government, because each act re-

_ quires that an alien have maintained a continuous presence in

the United States beginning at some time before IIRIRA’s

enactment, the exemptions “can be explained only if Section

1231(a)(5) applies to aliens who had illegally reentered the

country before the ene~tment of IIRIRA.” Resp. Br. 18.

The government is wrong: Under each statute, although

aliens must have been present in the United States before

IIRIRA’s enactment to qualify for relief, those eligible for re-

lief who had previously been deported but were in the United

States as of the relevant cutoff date could thereafter leave and

reenter the country illegally—even after ITRIRA—without

losing that eligibility.'? But INA § 241(a)(5) would, by its

plain terms, preclude a person who reentered after ITRIRA

from receiving such relief. Accordingly, contrary to the gov-

ernment’s suggestion, an exemption from INA § 241(a)(5)

was necessary if immigrants otherwise eligible for relief un-

der those statutes were to be assured continued eligibility for

relief, even though INA § 241(a)(5) does not apply to persons

who illegally reentered the country before ITRIRA’s enact-

ment. Consequently, the statutes provide no evidence that

'' See LIFE Act, Pub. L. No. 106-553, § 1104(cM2 Bi), 114 Stat.

2762A-142, 2762A-146 (2000), HRIFA, Pub. L. No. 105-277, Tit. IX,

§ 902(b)(2), 112 Stat. 2681-538, 2681-539 (1998); NACARA, Pub. L.

No. 105-100, Tit. IL, § 202(b)(1), 111 Stat. 2193, 2194 (1998).

'? HRIFA and NACARA each provide, in substance, that an immigrant

“shall not be considered to have failed to maintain continuous physical

presence by reason of an absence, or absences, from the United States for

any period or periods amounting in the aggregate to not more than 180

days.” HRIFA § 902(d\(2); see also NACARA § 202(b\(2). Under the

LIFE Act, although an immigrant had to be continuously present in the

United States between January |. 1982, and May 4, 1988, in order to

quality for relief. the immigrant need not have been continuously present

after 1988. LIFE Act § E104(¢ 2) BG).

Congress intended INA § 241(a)(5) to apply retroactively.

4. Finally, the government does not claim that “Congress

has expressly prescribed” the retroactive application of INA

§ 241(a)(5), Landgraf, 511 U.S. at 280, but, relying on Re-

public of Austria v. Altmann, 541 U.S. 677 (2004), it none-

theless argues that “the text and structure of Section

1231(a)(5) and related statutory provisions are sufficiently

clear to establish that Sections 1231(a)(5) applies to immi-

grants whose illegal reentry occurred before as well as after

IIRIRA’s effective date.” Resp. Br. 28. The government's re-

liance on Altmann is misplaced. As it concedes, Resp. Br. 33

n.12, Altmann involved no “private rights”; rather, it ad-

dressed the Foreign Sovereign Immunities Act (FSIA), a “sui

generis context” “not control[led]” by this Court’s decision

in Landgraf. Altmann, 541 U.S. at 692, 696.'* As explained

in Part I, supra, INA § 241(a)(5) regulates the primary con-

duct of reentry, not the Atiorney General’s subsequent find-

ing relating thereto. By contrast, the FSIA is a jurisdictional

statute and as such presumptively applies to all pending cases

regardless of when the underlying primary conduct occurred.

See Landgraf, 511 U.S. at 274. Moreover, Congress “unam-

biguously” provided that the FSIA would apply “henceforth”

to all “(claims of * * * immunity,” 28 U.S.C. § 1602, with-

out regard to when the conduct giving rise to such a claim

occurred. Here? there is no language in INA § 241(a)(5) that

approaches even that degree of clarity with respect to retroac-

tivity, let alone language “so clear that it could sustain only

one interpretation.” Lindh, 521 U.S. at 328 n.4.

'* The presumption against retroactivity is inapplicable in the FSIA con-

text because unlike statutes “on which parties relied in shaping their pri

mary conduct™—such as former INA § 242(f}—"“the principal purpose of

foreign sovereign immunity has never been to permit foreign states * * *

to shape their conduct in reliance on the promise of future immunity.”

Altmann, 541 U.S. at 696. “Rather. such immunity reflects current politi

cal realities and relationships, and aims to give foreign states some pre-

sent ‘protection from the inconvenience of suit as a gesture of comity.”

lhid. (quoting Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2003)).

12

Thus, this Court should hold that Congress intended INA

§ 241(a)(5) not to apply to pre- 1997 reentries.

lil. Application Of INA § 241(a)(5) To Pre-IIRIRA

Reentrants Is Impermissibly Retroactive.

It is beyond serious dispute that INA § 241(a)(5) “attaches

new legal consequences to events completed before its en-

actment,” Landgraf, 511 U.S. at 269-270. Before INA

§ 241(a)(5) took effect, petitioner was entitled to apply for

discretionary relief from deportation; now, if INA

§ 241(a)(5) is applied to him, he is not.

We have already rebutted the government’s overarching

counterargument that INA § 241(a)(5) regulates the process

of removal, not reentry. See Part I. Its other arguments are

equally flawed. In essence, the government asserts that INA

§ 241(a)(S) imposes no new consequences on people who re-

entered before 1997. But application of the bar on discretion-

ary relief undermines their legitimate expectation that the

mere fact of reentry would not categorically preclude them

from seeking discretionary relief. Indeed, even if the Court

declines to approach the issue categorically, applying INA

§ 241(a)(5) to petitioner would impermissibly deny him the

right to seek specific forms of discretionary relief to which he

would otherwise be eligible, and would expose him to sanc-

tions to which he would not otherwise be subject. Finally, the

government's argument that illegal reentrants lack a reason-

able expectation interest in any form of discretionary relief—

because such relief could not have motivated their reentry

and because their expectations were based on unlawful con-

duct—has neither factual nor legal support.'*

'* The government's administrative-burden argument, Resp. Br. 49, also

has no merit. If the statute is viewed categorically, the only inquiry that

immigration officials must make is whether an alien reentered before

April 1997. Even if the Court rejects the categorical approach and con-

cludes that the retroactivity determination depends on whether a particu-

lar individual was eligible for some form of relief before that date, the

13

A. The bar on discretionary relief is categorically

inapplicable to aliens who reentered before IIRIRA.

INA § 241(a)(5) addresses the availability of relief from

deportation in absolute terms, barring all previously removed

illegal reentrants from receiving “any relief under this Act”

without distinguishing among the various forms of relief that

would otherwise be available. Accordingly, as we have ex-

plained, see Pet. Br. 36-38, its retroactive effect should be

evaluated on a similarly categorical basis. Aliens who reen-

tered the country before IIRIRA took effect had a legitimate

expectation that the mere fact of illegal reentry would not it-

self operate as an absolute bar to relief from deportation. Al-

though Congress could have upset that expectation, it would

have needed to do so explicitly. Because it elected not to,

INA § 241(a)(5) may not be applied to deprive someone who

reentered the country before its enactment of the opportunity

to seek relief merely on the basis of that reentry."

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

attach new legal consequences to events completed

before the statute’s enactment.

In any event, application of INA § 241(a)(5) to petitioner

would impermissibly “impair rights [he] possessed when he

acted” and “increase [his] liability for past conduct.” Land-

graf, 511 U.S. at 280.

1. As we explained, see Pet. Br. 38-39, upon reentering

the country in 1982, petitioner was immediately eligible for

voluntary departure—a form of discretionary relief granted

“in lieu of deportation,” 8 U.S.C. § 1254(e)(1) (1982), that

confers significant benefits on its recipient.'° The most im-

administrative inquiry ts still a ministerial one—vie , whether the individ:

ual was eligrble for the relief on April |, 1997.

'* Contrary to the government's argument, Resp. Br. 42 n.17, petitioner

does not seek a “windfall.” An alien requesting discretionary reliet

would, of course, have to satisfy the eligibility requirements tor the spe-

cific form of relief sought. The point is merely that, under Landeraf, re-

entry before April 1997 cannot categorically preclude all such reliet.

Indeed, the benefits of voluntary departure are so substantial that, as

14

portant benefit conferred is that a person granted voluntary

departure is immediately eligible to apply for admission to

the United States, whereas someone who is deported (or “re-

moved” in post-IIRIRA terminology) is inadmissible for up

to twenty years. See 8 U.S.C. § 1182(a)(6)(B) (1996); 8

U.S.C. § 1182(a9( Ai.”

The government does not dispute that petitione, was, upon

reentry, immediately eligible for voluntary departure, or that

voluntary departure confers substantial benefits to one who

would otherwise be deported. See Resp. Br. 41-42. Rather,

the government argues principally that petitioner could not

have reasonably relied on the availability of voluntary depar-

ture when he chose to reenter this country. /bid. As we dis-

cuss below, see Part IIL.C, that argument is misplaced.

The government also argues that denying petitioner the

opportunity to seek voluntary departure is not impermissibly

retroactive because “petitioner's act of illegal reentry was not

itself a ‘completed’ act within the meaning of Landgraf.”

Resp. Br. 36. But reentry is a completed act." And it is the

act of illegal reentry, rather than the state of being unlawfully

present in the United States, that renders one ineligible for re-

lief under INA § 241(a\(5)."”

part of ITRIRA, Congress specified that certain individuals may receive

such relief only once. See 8 U.S.C. § 1229c{c).

'" Further, despite the government's erroneous suggestion otherwise, see

Resp. Br. 3, 14, even after ITRIRA an alien granted voluntary departure

who subsequently reentered illegally would not be subject to INA

§ 241(a5) or the criminal prohibition against reentry.

" The government has previously acknowledged this, arguing that an

alien unlawfully present by virtue of having overstayed his visa would be

eligible for adjustment of status but that “[i}f, however, the alien entered

the United States iMlegally after deportation, he would”—as a result of

INA § 241(anS}—"be ineligible for any relief, including adjustment of

status.” Gov't Br. in Castro-Cortez, 2000 WL 34430709, at *33.

' Even apart from INA § 241(a)(5), other statutory provisions make

clear that illegal reentry is a “completed” act. First, reentry without au-

thorization after having previously been deported is, without more, a

crime. See 8 U.S.C. § 132644). Second, illegal reentry itself, independent

1S

2. Interpreting INA § 241(a)(5) to deny petitioner the right

to seek cancellation of removal would also be impermissibly

retroactive. See Pet. Br. 39-41. The government argues that

because petitioner was ineligible for suspension of deporta-

tion for some time after his reentry, denying him the oppor-

tunity to seek such relief does not give INA § 241(a)(5) ret-

roactive effect. Resp. Br. 40-41. This argument is based on

the unstated—and incorrect—assumption that even if peti-

tioner’s reentry is a completed act to which INA § 241(a)(5)

attaches new legal consequences, it is the on/y such act. As of

1989—well before IIRIRA—petitioner had, through affirma-

tive conduct, established seven years continuous presence in

the United States. Pet. App. 3a. By virtue of that completed

act, he became entitled to seek suspension of deportation. See

Pet. Br. 39-41. Applying INA § 241(a)(5) to deprive him of

the opportunity to seck its successor, cancellation of removal,

would therefore be impermissible.””

3. Denying petitioner the right to seck adjustment of

status is also impermissibly retroactive. Pet. Br. 41. Although

such relief was not available in 1982, Resp. Br. 38, it was

available years before the enactment of I[RIRA, and the gov-

ernment ignores the fact that, but for INA § 241(a)(5), peti-

tioner, upon marriage to a U.S. citizen, could have sought ad-

of any ensuing unlawful presence in the United States, renders a removed

person inadmissible. See 8 U.S.C. § 1182(aX9M Ai): see also Gov't Br.

in Sarmiento Cisneros, at *46—*47 (acknowledging that “inadmissibility™

is “one consequence of * * * illegal reentry”).

* The government's argument that petitioner could have no “settled ex-

pectation” that he would ever become eligible for suspension or cancella-

tron, Resp. Br. 41, inappropriately corflates his expectation at the time of

reentry with his expectation after 1989, when he satisfied the criteria for

suspension of deportation. It is also inconsistent with Sr. Cyr's recogm-

tron that “|t}here is a clear difference, for the purposes of retroactivity

atialysis, between facing possible deportation and facing certain deporta

tion.” 533 US. at 325. At the time of his reentry, petitioner knew that he

faced “possible” deportation, but he also knew that one reason such de-

portation was not “certain” was that he might eventually satisty the crite-

ria for suspension of deportation.

16

justment of status as a defense to deportation. Indeed, before

IIRIRA, petitioner could have married his long-time partner

even after initiation of deportation proceedings and then in-

voked this defense. See Pet. Br. 41 n.19, 43.7"

4. The government claims that removal under INA

§ 241(a)(5) merely “has the effect of undoing the act of ille-

gal reentry, not penalizing it.” Resp. Br. 35. But as the gov-

ernment elsewhere concedes, petitioner's removal under INA

§ 241(a)(5) in fact “trigger[s] two separate constraints on

admission that were enacted by IIRIRA,” Resp. Br. 40 n.16,

and to which petitioner was not previously subject.”

First, removal renders Petitioner inadmissible under 8

U.S.C. § 1182(aX9) Ail). Because this bar is triggered by

a removal order, see ihid., petitioner would not now be sub-

ject to it if he had been granted voluntary departure (which is

“in lieu” of removal, 8 U.S.C. § 1229c(a)(1)), cancellation of

removal, or adjustment of status.”

Second, removal under INA § 241(a)(5) also renders peti-

*' The government also argues that adjustment of status is “merely a pro-

cedural mechanism” governing “the location from which * * * an alien

may seek discretionary admission into the country—and not his substan-

tive entitlement to admission.” Resp. Br. 39. But as the government itself

acknowledges, the very act of removal alters petitioner's “substantive en-

titlement to admission” by rendering him statutorily inadmissible from

any location. See Resp. Br. 40 n. 16; see also pages 16-17, infra.

* Even if INA § 241(aX5) did simply “undo” the act of illegal reentry,

that would not mean that it may be applied retroactively. Restitution is,

by definition, designed to “undo™ the consequences of past conduct. Yet

restitution orders can constitute a criminal penalty, and thus be subject to

the Ex Post Facto Clause’s ban on retroactive application. See

Pasquantino vy. United States, 544 U.S. 349 (2005), United States v.

Leahy, F.3d __, 2006 WL. 335806, at *3-*5 (3d Cir. 2006).

** The government mistakenly cites to § 1182(aX9AMi), see Resp. Br.

40 1.16, which applies only to arriving aliens.

** This bar would render petitioner inadmissible for either 10 or 20 years.

By contrast, under pre-IIRIRA law, petitioner would have been subject to

at most a S-year ban on admissibility if he had been deported. See &

U.S.C. § 1 182(a6 B) (1996).

17

tioner inadmissible under 8 U.S.C. § 1182(a)9)B). The

government concedes that this provision—which had no par-

allel under prior law—imposes an “added burden” on peti-

tioner, but asserts that “its application raises no issue of ret-

roactive unfairness” because “|t}hat added burden arises only

by virtue of petitioner's continued unlawful presence in the

United States after IIRIRA’s effective date.” Resp. Br. 40

n.16. This 10-year admissibility bar is not triggered, how-

ever, unless an alien “depart|s] or [is] remov{ed] from the

United States.” 8 U.S.C. § 1182(a)(9)(B)iIl). Thus, peti-

tioner would not be subject to it had he been granted cancel-

lation of removal or adjustment of status.

In sum, applying INA § 241(a)(5) to petitioner “impair{s]

rights [he] possessed when he acted” and “increase[s] [his]

liability for past conduct.” Landgraf, 511 U.S. at 280. Thus,

its application to petitioner is impermissibly retroactive.”

C. Petitioner had a cognizable expectation that he

would be eligible for relief from deportation.

The government seeks to excuse INA § 241(a)(5)’s retro-

active effect on petitioner by advancing two arguments to

discredit his claim of reasonable reliance on, and settled ex-

pectation in, the availability of discretionary relief from de-

portation. But as we explained, see Pet. Br. 46-48, petitioner

** Contrary to the government's suggestion, Resp. Br. 32-33, Alimann,

which ts in any event inapplicable, see page 11 & n.13, supra, does not in

any way undermine this conclusion. Unlike the situation here. in which

petitioner had a pre-existing nght to seek rehef from deportation and now

faces increased liability for past acts, the petitioner in Altmann, the Re-

public of Austria, neither had a pre-existing mght to mmunity nor faced

increased liability as a consequence of the FPSIA. See Altmann, 541 US.

at 694 695. To the extent that the government, through its reliance on

Altmann, is waplicitly suggesting that Landgraf ts mapplicable to immi-

gration cases, that suggestion is erroneous: This Court has consistently

applied the presumption against retroactivity im the mmnugration contest.

See. ¢.2., St Cyr, 533 US. at 315-316; Kessler v. Srecher, WO7 US. 22,

W19399), Chew Heong v. United States, 112 U.S. 536, 589 (1884).

18

need not prove actual reliance. The government’s arguments

fail, moreover, because it is entirely reasonable to assume

that petitioner and others who reentered before IIRIRA and

remained in the country thereafter acted, at least in part, with

the legitimate expectation that they would be eligibie for

such relief.” See Pet. Br. 45-46.

1. The government first asserts that eligibility for discre-

tionary relief from deportation could not possibly have moti-

vated petitioner and others to act given the danger of criminal

prosecution. Resp. Br. 37. But the actual threat of criminal

sanction for reentry before IIRIRA was extremely remote. In

1982—the year petitioner reentered the United States—the

INS located 970,246 deportable aliens, but only 10,058, or

1.04%, were convicted of immigration violations. In 1996—

the last full year before IIRIRA took effect—the INS located

1,649,986 deportable aliens, but only 12,086, or 0.73%, were

convicted of immigration violations.””

These low conviction rates reflect the fact that, before

IIRIRA, discretionary relief was the rule rather than the ex-

ception: In 1982, the year of petitioner's reentry, the INS

granted voluntary departure to 812,572 deportable aliens, or

*” Migration is “an investment decision.” Gordon H. Hanson & Antonio

Spilimbergo, //legal Immigratnon, Border Enforcement, and Relative

Wages: Evidence from Apprehensions at the U_S.-Mexico Border, 89 AM.

ECON. Rev. 1337, 1338 0.5 (Dec. 1999). As such, “[pjotential migrants

estimate the costs and benefits” of migration, and in so doing consider

“the likelihood of being able to avoid deportation.” Douglas S. Massey,

Theories of International Migration: A Review and Appraisal, 19 Popu

LATION & DEV. REV. 431, 434 (Sept. 1993),

*” Even these numbers exaggerate the risk of prosecution for illegal reen-

try. In 1982, only 341 people, or 0.035% of the deportable aliens located

in the US that year, were convicted of illegal reentry after deportation. In

1996, only 2.331 people, or 0.14%, were similarly convicted. Moreover,

those who were convicted of an immigration violation faced compara-

tively light sentences of, on average. approximately 6 months in both

1982 and 1996. See 1985 STATISTICAL YEARBOOK OF THE INS 176, 213

(1986), 1996 STATISTICAL YEARBOOK OF THE INS 173 (1997), 1998 Sta

TISTICAL YEARBOOK OF THE INS 207, 235 (2000).

19

83.7% of those it located; it deported only 14,518, or 1.5%.

In 1996, the year before ITRIRA took effect, the INS granted

voluntary departure to 1,572,798 people, or 95.3% of those it

located, and granted suspension of deportation to an addi-

tional 5,812 people; it deported only 50,064.°* Weighing the

minimal risk of criminal sanctions that deportable aliens

faced against the high likelihood of relief from deportation, it

would have been entirely reasonable for petitioner to act in

the expectation of receiving such relief.

2. The government also argues that, regardless of actual

motivation, petitioner, by virtue of his unlawful conduct, had

no legitimate expectation in relief from deportation. Resp.

Br. 11, 35. But the fact that petitioner reentered the country

illegally and remained here unlawfully does not undermine

the legitimacy of the settled expectation of eligibility to seek

such relief. This Court has consistently recognized that,

“le}ven when the conduct in question is morally reprehensi-

ble or illegal, a degree of unfairness is inherent whenever the

law imposes additional burdens based on conduct that oc-

curred in the past.” Landgraj. 511 U.S. at 283 n.35. See also

St. Cyr, $33 U.S. at 325;°" Hughes Aircraft, 520 U.S. at 952.

Indeed, the Ex Post Facto Clause and the antecedent princi-

ple of nulla poena sine lege, from which the presumption

against retroactivity is derived, see Landgraf, 511 U.S. at

** 1996 YEARBOOK 173; 1998 YEARBOOK 28.

” Trying to distinguish Sz. Cyr, the government argues that “ijn this

case, by contrast, no transaction or event akin to a guilty plea * * * that

occurred after petitioner reentered the United States could even arguably

be said to have independently piven rise to reasonable reliance interests

and settled expectations.” Resp. Br. 44. That is incorrect. As the govern-

ment notes, “[pljetitioner * * * could have left the country * * * at any

time and avoided the operation of Section 1231045). Resp. Br. 36. But

rather than leave, petitioner chose to stay and build a life here. By 1989

he had established a continuous presence of seven years im the United

States. That affirmative conduct made him cligible for suspension of de-

portation-and thus “independently |gave| rise to reasonable reliance inter-

ests and settled yawn

20 -

265-266, are paradigmatically applicable in criminal cases.

Focusing on petitioner’s conduct after reentry, the gov-

ernment also asserts that “there is no basis for recognizing

claims of reasonable reliance that accrued only by virtue of

petitioner’s continued ability to avoid detection.” Resp. Br.

47. Yet there is a statutory basis for recognizing petitioner’s

expectation that he would be eligible to seek suspension of

deportation by virtue of having established a continuous pres-

ence of seven years in the United States: Suspension of de-

portation and its successor, cancellation of removal, are de-

fenses to removal, and thus are available only to persons

unlawfully present in the United States.“’. Moreover, to be

eligible, a person must have been continuously present in the

United States for a specified period of time. See 8 U.S.C.

§ 1254(a)(1) (1996): 8 U.S.C. § 1229b(b). Thus, far from de-

feating his settled expectation, it is precisely petitioner’s con-

tinued unlawful presence that gives rise to his legitimate ex-

pectation that he would be eligible for suspension of deporta-

tion.”!

Thus, petitioner had a legitimate expectation that he

would be entitled to seek discretionary relief, and an interpre-

tation of INA § 241(a)(S) that would defeat that expectation

would be impermissibly retroactive.

CONCLUSION

The judgment of the court of appeals should be reversed.

The government asserts that petitioner “cannot now make a claim of

reasonable reliance premised on the previous availability of suspension of

deportation” because “he elected not to seek” such relief. Resp. Br. 49

n.20. But suspension of deportation is a defense to deportation, and thus

could not be sought by petitioner unless and uncil he was placed in depor-

tation proceedings. Denial of a previously available defense is impermis

sibly retroactive. See Pet. Br. 43 (citing cases).

' Statutes of limitations, the doctrine of laches, and the principle of ad-

verse possession demonstrate that the law routinely recognizes that even

wrongdoers can acquire legitimate expectations over time.

Respectfully submitted.

TODD LUNDELL

Mayer, Brown, Rowe &

Maw LLP

1675 Broadway

New York, NY 10019

J. CHRISTOPHER KEEN

Keen Law Offices, LLC

Jamestown Square

3585 N. University Ave.

Suite 250

Provo, U1 84604

DAVID M. GOSSETT

Counsel of Record

ANDREW TAUBER

Mayer, Brown, Rowe &

Maw LLP

1909 K Street, NW

Washington, DC 20006

(202) 263-3000

Counsel for Petitioner

MARCH 2006