Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-1-2005

Dinnall v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 04-2415




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                                          PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
            __________________________

                      No. 04-2415
               ________________________

             HAROLD GEORGE DINNALL

                                          Petitioner

                             v.

       ALBERTO GONZALES,* Attorney General
           Of the United States of America,

                                          Respondent

*Substituted pursuant to Federal Rule of Appellate Procedure
                          43(c)(2)

           ______________________________

                  On Petition for Review
          from the Board of Immigration Appeals
                   BIA No. A27 931 848

                   Argued: May 5, 2005

   Before: McKee, Smith, Van Antwerpen Circuit Judges
             (Opinion Filed: September 1, 2005)

DEREK W. GRAY, Esq., (Argued)
Steel, Rudnick & Ruben
1608 Walnut Street
Suite 1500
Philadelphia, PA 19103

Attorney for Petitioner

PETER D. KEISLER, Esq.
Assistant Attorney General Civil Division

JULIA DOIG WILCOX, Esq.
Senior Litigation Counsel

ARTHUR L. RABIN, Esq.
Trial Attorney

JEFFREY J. BERNSTEIN, Esq. (Argued)
U.S. Department of Justice
Civil Division
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044

Attorneys for Respondent


                           OPINION


                              2
McKee, Circuit Judge

       Harold Dinnall petitions for review of an order of the
Bureau of Immigration and Customs Enforcement (“BICE”),
Department of Homeland Security (“DHS”), reinstating his prior
order of deportation and ordering his removal under Section
241(a)(5) of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1231(a)(5) (2000), enacted as part of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”).1 Dinnall argues that the reinstatement provision is
impermissibly retroactive. We agree. For the reasons that
follow, we will grant the petition for review and vacate
reinstatement of the deportation order.

                      I. BACKGROUND

       Dinnall is a native and citizen of Jamaica who entered the
United States in the 1980's. It is unclear if he entered illegally
or on a visitor visa, but the distinction is irrelevant to our
resolution of the issues raised in this appeal.

      After Dinnall was “pulled over” for a traffic violation, on
August 10, 1987, the Immigration and Naturalization Service


   1
    For the sake of uniformity, we will cite to the INA section
numbers throughout with an initial cross-reference to their
section numbers in Title 8 of the United States Code.
Accordingly, we will cite 8 U.S.C. § 1231(a)(5) as INA §
241(a)(5); however opinions cited herein may also refer to
this provision as IIRIRA § 305(a)(5).

                                3
(“INS”)2 took him into custody and issued an Order to Show
Cause (“OSC”), charging him with being deportable from the
United States pursuant to former Section 241(a)(2) of the INA.
That section pertains to aliens who entered the United States
without immigration inspection. The INS subsequently released
Dinnall from custody on a $10,000.00 bond. On September 23,
1987, the INS sent Dinnall a hearing notification letter,
informing him that he was scheduled for a hearing date before
an Immigration Judge on October 7, 1987. Dinnall contends
that he never received the letter as it was sent to the wrong
address. There is record support for that contention.3 Dinnall
failed to appear at his October 7, hearing, and the IJ ordered him
deported in absentia. The INS issued a warrant of deportation
on November 20, 1987.

       That warrant was not served before Dinnall left the
United States and went to Jamaica on January 4, 1988. Under
the regulations then in effect, Dinnall was considered to have
“self-deported.” See 8 C.F.R. § 243.5 (1987) (“Any alien who
has departed from the United States while an order of


   2
    On March 1, 2003, the Immigration and Naturalization
Service ceased to exist as an independent agency within the
Department of Justice and its functions were transferred to the
newly formed Department of Homeland Security. See
Homeland Security Act, 116 Stat. 2135, Pub. L. 107-296
(2002). The former INS was divided into three separate
agencies: United States Immigration and Customs
Enforcement; Bureau of Customs and Border Protection; and
the United States Citizenship and Immigration Services.
   3
    The address that Dinnall gave the immigration officials in
August was 

th St., Miami, FL 33313. The
hearing notification letter was sent to 

th St.,
Miami, FL 33126; the wrong zip code.

                                4
deportation is outstanding shall be considered to have been
deported in pursuance of law.”). Because Dinnall left under an
order of deportation, he could not legally reenter the United
States for a period of five years. However, he returned to the
United States two days after he left.

        In 1994, Dinnall was again taken into custody by the INS,
and the INS issued another OSC. That OSC charged him with
illegally re-entering the United States following deportation.
Dinnall posted a $10,000.00 bond.4

       In January, 1998, Dinnall married a United States citizen,
and he now has at least one child who is also a United States
citizen.5 In May, 2004, the BICE again took Dinnall into
custody, and on May 13, 2004, the BICE reinstated Dinnall’s
1987 deportation order, pursuant to § 241(a)(5). A warrant of
removal was issued on the same date. As of the date this case
was argued, Dinnall remained in custody at York County Prison.

        Dinnall filed a Petition for Review and a motion to stay
deportation with this court on May 20, 2004, and on June 17,
2004 we ordered Dinnall’s deportation stayed pending a
decision on his Petition for Review to address his contention
that the reinstatement provision is impermissibly retroactive as




   4
    Although not relevant to the present appeal, Dinnall
asserts that the INS never filed the 1994 OSC with an
Immigration Court. According to Dinnall, the Executive
Office for Immigration Review has no record of deportation
proceedings against him after the 1987 proceedings.
   5
    In May 2004, Dinnall’s wife filed a fiancé visa
application on his behalf.

                               5
applied to him.6

       Dinnall’s Petition presents a legal question, and our
review is therefore de novo; the agency’s views garner no
special deference. See INS v. St. Cyr, 

, 321 n.45
(2001) (“We only defer . . . to agency interpretations of statutes
that, applying the normal tools of statutory construction, are
ambiguous. Because a statute that is ambiguous with respect to
retroactive application is construed under our precedent to be
unambiguously prospective, there is, for Chevron purposes, no
ambiguity in such a statute for an agency to resolve.”) (citations
and quotations marks omitted); see also Arevalo v. Ashcroft, 

, 9-10 (1st Cir. 2003) (explaining that “courts, rather than
agencies, are best equipped to make the constitutionally tinged
judgment calls inherent in retroactivity determinations”);
Sarmiento Cisneros v. United States Attorney General, 

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

, 300 n.53 (5th Cir. 2002) (same); Bejjani v. INS,

, 679 (6th Cir. 2001) (same).

                       II. DISCUSSION

        Dinnall’s sole argument on appeal is that INA § 241(a)(5)
may not be applied retroactively to aliens who reentered the
United States prior to IIRIRA’s effective date because the
statute impairs certain rights that these aliens possessed prior to




   6
     Because an order reinstating a prior removal order is “the
functional equivalent of a final order of removal,” Arevalo v.
Ashcroft, 

, 9-10 (1st Cir. 2003), we have
jurisdiction to hear Dinnall’s petition. See INA § 242(a), 8
U.S.C. § 1252(a) (2000); Avila-Macias v. Ashcroft, 

, 110 (3d Cir. 2003).

                                6
that time.7

       A. Retroactivity

       Congress may undoubtedly enact statutes that operate
retroactively. See Landgraf v. USI Film Prods., 

,
267 (1994). However, since retroactive legislation can
potentially alter the consequences of actions already taken, we
must presume that Congress intends legislation to only act
prospectively. 

        In Landgraf, the Supreme Court established guidelines
for determining whether a statute enacted after a particular event
can alter the legal consequences of that event. The result is a
two-part inquiry that “demands a commonsense, functional
judgment” and “should be informed and guided by familiar
considerations of fair notice, reasonable reliance, and settled
expectations.” Martin v. Hadix, 

, 357-58 (1999)
(internal quotations marks omitted).

        We must first determine if Congress has declared
whether the statute should have retroactive effect. 

. “In answering this question, courts should
employ the customary rules of statutory construction, assaying
the language of the statute itself and then considering its
structure and purpose.” 

. If the statute
itself does not sufficiently denote the temporal reach of its
provisions, there is a “presumption against statutory
retroactivity,” and further inquiry should follow. Ponnapula v.
Ashcroft, 

, 487 (3d Cir. 2004).

       In conducting this further inquiry, we must consider


   7
   We will discuss the legislative background of IIRIRA in
more detail below.

                                7
whether retroactive application of the statute “would impair
rights a party possessed when he acted, increase a party’s
liability for past conduct, or impose new duties with respect to
transactions already completed.” 

;
accord St. 

(“A statute has retroactive effect
when it takes away or impairs vested rights acquired under
existing laws, or creates a new obligation, imposes a new duty,
or attaches a new disability, in respect to transactions or
considerations already past.”). If such ramifications loom, the
default rule is that the statute should not be construed to regulate
the past conduct. Hughes Aircraft Co. v. United States ex rel.
Schumer, 

, 946 (1997).

       However, the mere fact that a new statute has some
retroactive effect does not automatically resolve step two of the
Landgraf inquiry. A new law is not impermissibly retroactive
simply because it has implications for completed events.
"[A]pplication of new statutes passed after the events in suit is
unquestionably proper in many situations." 

.      Rather, the statute's temporal reach becomes
unacceptable only when its retroactive application would
significantly impair existing rights and thereby disappoint
legitimate expectations. Gen. Motors Corp. v. Romein, 

, 191(1992).

         Although our inquiry considers disappointed
expectations, we have not required the party opposing
application of an amendment to establish actual reliance on the
prior statute. See 

. Indeed, any
requirement of a “quantum of evidence regarding the subjective
intent of the party seeking to avoid retroactive application . . .
[is] in tension with the language of presumption in Landgraf and
its progeny . . . [and] incorrectly focuses attention on the
particular facts and circumstances of the party before the court.”

“The likelihood that the party before the court did or


                                 8
did not in fact rely on the prior state of the law is not germane
to the question of retroactivity. Rather, courts are to concentrate
on the group to whose conduct the statute is addressed.” 

       B. Section 241(a)(5)

       Here, the government reinstated the 1987 in absentia
deportation order against Dinnall under INA § 241(a)(5). This
section states:

       Reinstatement of removal orders 8 against aliens
       illegally reentering

       If the Attorney General finds that an alien has
       reentered the United States illegally after having
       been removed or having departed voluntarily,
       under an order of removal, the prior order of
       removal is reinstated from its original date and is
       not subject to being reopened or reviewed, the
       alien is not eligible and may not apply for any
       relief under this chapter, and the alien shall be
       removed under the prior order at any time after
       the reentry.

8 U.S.C. § 1231(a)(5). This statute was enacted on September 30,
1996 as part of IIRIRA, and had an effective date of April 1,
1997.

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


   8
    For all relevant purposes in this appeal, the terms
“deportation” and “removal” are used interchangeably. See

.

                                9
INA § 242(f) (repealed 1997), stated:
       Unlawful reentry

       Should the Attorney General find that any alien
       has unlawfully reentered the United States after
       having previously departed or been deported
       pursuant to an order of deportation, whether
       before or after June 27, 1952, on any ground
       described in any of the paragraphs enumerated in
       subsection (e) of this section [covering
       deportation based on various enumerated reasons
       including commission of alien smuggling and
       other criminal offenses], the previous order of
       deportation shall be deemed to be reinstated from
       its original date and such alien shall be deported
       under such previous order at any time subsequent
       to such reentry. For the purposes of subsection (e)
       of this section the date on which the finding is
       made that such reinstatement is appropriate shall
       be deemed the date of the final order of
       deportation.

        The new reinstatement statute therefore differs from its
predecessor in three important ways: (1) it applies to all prior
removal, deportation, and exclusion orders, not just to certain
grounds of deportation (such as criminal offenses); (2) it
prohibits reopening or review of the prior removal order; and (3)
it prohibits any applications for relief. Furthermore, the prior
statute did not apply to aliens such as Dinnall whose basis for
deportation was solely their illegal entry. Rather, under the prior
statute, aliens who illegally reentered were entitled to a new
deportation proceeding before again being deported. Under the
new statute, all aliens who illegally reenter the United States
following their removal or deportation have their prior
deportation orders summarily reinstated without any opportunity

                                10
to attack their underlying deportation orders or to seek new
forms of relief from removal or deportation.

        Moreover, the Attorney General has promulgated a new
procedure to implement the new reinstatement statute, and that
is codified at 8 C.F.R. § 241.8 (2004). The new regulations
delegate the Attorney General’s reinstatement authority to
immigration officers (rather than immigration judges) outside
the course of formal removal proceedings. Under the former
regulation, an alien subject to a reinstatement order was entitled
to a hearing before an Immigration Judge, who was charged
with determining the identity of the alien, whether the alien had
previously been deported, and whether the alien illegally
reentered the United States. 8 C.F.R. § 242.23 (repealed 1997).
At the hearing before the IJ, the alien could contest the charges
and the evidence, present his or her own evidence, and apply for
relief from deportation. The alien also had the right to counsel,
and the right to appeal an adverse decision to the Board of
Immigration Appeals. See 

current regulations, the
government is still required to determine the identity of the
alien, whether the alien has previously been deported, and
whether the alien illegally reentered the United States. 8 C.F.R.
§ 241.8. However, the alien is not allowed a hearing before an
IJ, nor does the alien have a right to counsel. 8 C.F.R. §
241.8(a).     Rather, an immigration official makes the
abovementioned inquiries and determines whether to issue a
reinstatement order. 8 C.F.R. §§ 241.8(a)(1)-(3).9


   9
     This new regulation was found unconstitutional in
Morales-Izquierdo
v. Ashcroft, 

(9th Cir. 2004). The court found
that 8 C.F.R. § 241.8 was ultra vires, as it conflicted with the
clear and unambiguous provision of Section 240(a) of the
INA, which specifies that immigration judges must conduct
all proceedings for deciding inadmissibility or deportability of

                               11
        C. The Parties’ Arguments.

       As noted earlier, Dinnall was ordered deported on
October 7, 1987 and he left the United States under that order of
deportation on January 4, 1988, to reenter the United States on
January 6, 1988. Employing a Landgraf analysis, Dinnall first
maintains that Congress clearly did not intend § 241(a)(5) to
apply to these events occurring before the effective date of §
241(a)(5). He reaches this conclusion because: (1) § 241(a)(5)
eliminated the retroactivity language of the prior reinstatement
provision, and did not simply leave it intact or modify the date;
see INA § 242(f) (repealed 1997) (specifying that reinstatement
was applicable to reentries “whether before or after June 27,
1952"); (2) Congress considered and rejected new language that
would have applied the new reinstatement provision to pre-
enactment illegal reentries;10 (3) elsewhere in the statute, where
IIRIRA changes rules for conduct that occurred prior to its


aliens. 

Dinnall has not raised this issue in his
Petition for Review.
   10
     The House and Senate reports indicate that the language
of the statute, prior to being amended, stated:

        Should the Attorney General find that any alien
        has unlawfully reentered the United States after
        having previously departed or been deported
        pursuant to an order of deportation, whether
        before or after the date of enactment of this Act,
        on any ground described in any of the
        paragraphs enumerated in subsection (e) . . .

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

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

(emphasis added).

                                12
effective date, Congress specifically indicated that the relevant
sections would apply to pre-enactment conduct; see, e.g.,
IIRIRA § 321 (modifying the definition of the term “aggravated
felony” and providing that the new definition applies regardless
of whether the conviction was entered “before, on, or after the
date of enactment”); and (4) Congress failed to include language
explicitly making the provision retroactive.

        Under the second prong of the Landgraf inquiry, Dinnall
argues that, even if Congress’s intent is unclear, retroactive
application of § 241(a)(5) would “attach new legal
consequences to events that occurred before enactment of the
statute and impair rights that [Dinnall] possessed at the time of
his reentry.” Specifically, Dinnall points to the fact that, under
§ 241(a)(5), he can no longer attempt to reopen his prior
deportation order or have it reviewed, and he can no longer
apply for discretionary relief such as voluntary departure.11
Lastly, Dinnall contends that he detrimentally relied on the
previous reinstatement statute by paying a $10,000.00 bond so
that he would have the opportunity to have a hearing before an


   11
     The regulations in effect at the time of Dinnall’s illegal
reentry provided the following as to voluntary departure:


        [I]f the alien establishes that he/she is willing
        and has the immediate means with which to
        depart promptly from the United States, an
        immigration judge may authorize the alien to
        depart voluntarily from the United States in lieu
        of deportation within such time as may be
        specified by the immigration judge when first
        authorizing voluntary departure, and under such
        conditions as the district director shall direct.
8 C.F.R. 244.1 (1987).

                               13
Immigration Judge and apply for relief from deportation.

        The government counters by arguing that, (1) in Avila-
Macias v. Ashcroft, 

(3d Cir. 2003), we decided
that § 241(a)(5)’s language is not sufficiently clear to determine
the statute’s temporal reach, and (2) the application of §
241(a)(5) does not impair any vested rights or impose any new
obligations on Dinnall.

        D. Analysis

              1. The First Prong of Landgraf

       In Avila-Macias, we were called upon to decide whether
§ 241(a)(5) was impermissibly retroactive when applied to an
alien who was deported prior to the effective date of IIRIRA,
but who did not claim to have reentered prior to the effective

. In analyzing Avila-Macias’s claim under
Landgraf’s first prong, we rejected arguments almost identical
to those put forth by Dinnall and concluded, “[w]hat is clear is
that Congress’ intent with regard to the temporal reach of
Section 305(a)(5) of IIRIRA is not 

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


   12
     The Courts of Appeals for the Sixth and Ninth Circuits
have reached a different result under the first prong of the
Landgraf analysis. In 

, and Castro-
Cortez v. INS, 

, 1053 (9th Cir. 2001), those
courts concluded that Congress did not intend § 241(a)(5) to
apply retroactively. In reaching this result, both courts relied
primarily on Congress’s elimination of the explicit retroactive
language contained in former § 242(f), the legislative history
of § 241(a)(5), and Congress’s silence on the retroactivity of
this provision.
        However, every other circuit court of appeals that has

                               14
Congress did not specify § 241(a)(5)’s temporal reach, we need
not revisit that question again here. Rather, we can proceed to
the second inquiry under Landgraf .13

              2. The Second Prong of Landgraf


considered the retroactivity of § 241(a)(5) has held, as we
held in Avila-Macias, that there is no clear indication of
Congress’s intent regarding the provision’s retroactive effect.
See Faiz-Mohammad v. Ashcroft, 

, 804 (7th Cir.
2005); Sarmiento 

; 

; 

; Alvarez-
Portillo v. Ashcroft, 

, 865 (8th Cir. 2002);
Velasquez-Gabriel v. Crocetti, 

, 108 (4th Cir.
2001). In light of their analysis under prong one, these courts
proceeded to analyze the retroactivity of § 241(a)(5) under the
second prong of the Landgraf test. These cases are discussed
in more detail below.
   13
     In analyzing Avila-Macias’s claim under the second
prong of Landgraf, we stated, “[a]pplying IIRIRA to [Avila-
Macias] – an alien who was deported prior to [IIRIRA’s]
effective date, but who reentered afterwards – does not have
an impermissible retroactive effect because the consequences
of an illegal reentry at the time that [Avila-Macias] reentered
are the consequences he faces now.” 

Because Dinnall, unlike Avila-Macias, reentered the United
States prior to IIRIRA’s effective date, Avila-Macias does not
advance our Landgraf analysis here. Indeed, we stated in
Avila-Macias that, had the petitioner reentered the United
States before IIRIRA’s effective date, “he could at least
plausibly argue that he did so believing (1) that he would be
entitled to a hearing at which he could contest the legality of
his underlying deportation order and (2) that he would be
entitled to apply for discretionary relief.” 

                              15
        Under the second part of our Landgraf inquiry we must
determine whether applying § 241(a)(5) to Dinnall would have
an impermissible retroactive effect. See 

. Dinnall contends that, under § 241(a)(5), not only did he
lose his right to counsel, his right to develop a record and his
right to have a hearing before an IJ, he also lost his right to
apply for discretionary relief from deportation (i.e. voluntary
departure) before a neutral judge and to have his original in
absentia deportation order reopened and reviewed so that he
could argue lack of notice.

      Because numerous other courts have previously
addressed prong two of Landgraf’s retroactivity analysis in the
immigration context, it is helpful to first discuss these cases in
some detail.

            a). INS v. St. Cyr, 

(2001)

        Any discussion of the case law in this area must begin
with the Supreme Court’s decision in St. Cyr. T h e r e , t h e
Court held that the provisions of IIRIRA precluding aliens who
were removable because of aggravated felony convictions from
applying for discretionary relief from deportation did not apply
to aliens who pled guilty to aggravated felonies prior to the
statute’s 

. The Court reasoned that
IIRIRA’s elimination of section 212(c) relief had an
impermissible retroactive effect on St. Cyr and other defendants
who had entered into plea agreements before IIRIRA’s
amendments to that section. The Supreme Court explained that
“IIRIRA’s elimination of any possibility of § 212(c) relief for
people who entered into plea agreements with the expectation
that they would be eligible for such relief clearly attaches a new
disability, in respect to transactions or considerations already
past.” 

(citations and internal quotation marks


                               16
omitted).

b). Ponnapula v. Ashcroft, 

(3d Cir. 2004)

        In Ponnapula, we also addressed 212(c) waivers, albeit
in a slightly different context. There, we were faced with the
question of whether the application of IIRIRA § 304(b) would
have an impermissibly retroactive effect on an alien who turned
down a misdemeanor plea agreement and went to trial while
former § 212(c) was still in effect and was convicted of a felony
by the 

. Ponnapula had gone to trial
relying on his counsel’s advice that, even if he were found
guilty, he would likely not receive a sentence that would render
him ineligible for § 212(c) relief because of his very minor role
in the offense. 

held that IIRIRA’s repeal of
discretionary relief from deportation was impermissibly
retroactive with respect to aliens who turned down a plea
agreement and elected to go to trial in reasonable reliance on the
availability of such relief. 

       We also rejected the government’s argument that St. Cyr
rested on the existence of the quid pro quo of criminal plea
agreements, and we distanced ourselves from those courts of
appeals that have interpreted St. Cyr as requiring as much. 

Specifically, we disagreed with other courts’ Landgraf
and St. Cyr analysis where those courts (1) failed to note
Landgraf’s presumption against retroactivity; (2) required actual
reliance on the prior statute; and (3) imposed an evidentiary
burden of proving reliance. 

492-93. We
concluded that, not only does the Supreme Court favor a
“reasonable reliance” formulation over an “actual reliance” one,
but also, the Landgraf line of cases demonstrates that courts are
to concentrate on “the group to whose conduct the statute is
addressed” rather than the party before the court. 

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


                               17
retroactive without establishing that some (or all) members of
the group affected by the change in law relied on the prior state
of the law.” 

v. Ashcroft, 

(7th Cir. 2005)

        In Faiz-Mohammad, the Court of Appeals for the
Seventh Circuit held that, “because § 241(a)(5) operates to
impair rights [Mr. Faiz-Mohammad] possessed when he acted,
namely his ability to apply for discretionary relief, [§ 241(a)(5)]
may not be applied retroactively” to 

. The
petitioner had reentered the United States and applied for
adjustment of status before IIRIRA became effective. 

The court concluded that, even though he had no
guarantee of a favorable decision in his application for
adjustment of status, § 241(a) still constituted a “new disability”
that did not exist prior to IIRIRA’s passage. The court
explained that “the second step of Landgraf does not address
only the tak[ing] away or impair[ing] of vested rights; it also
asks whether retroactive application would create[] a new
obligation, impose[] a new duty, or attach[] a new disability.”

(internal quotation marks omitted).


   14
     The court reserved judgment on whether its retroactivity
analysis would differ if the petitioner had applied for
discretionary relief prior to IIRIRA’s effective 

n.10. In a subsequent opinion the Seventh Circuit
resolved this issue. The court held that Ҥ 1231(a)(5) is not
impermissibly retroactive when applied to an alien who
reentered the United States before IIRIRA’s effective date but
did not apply for adjustment of status until after the Act
became effective.” Labojewski v. Gonzalez, 

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

(10th Cir. 2005), petition for cert. filed, 

(Apr. 12, 2005).

                                18
  d). Sarmiento Cisneros v. Ashcroft, 

(11th
                        Cir. 2004)

       In Sarmiento Cisneros, the petitioner illegally reentered
the United States and applied for adjustment of status after
having been deported. 

. His application was
based on his marriage to a United States citizen. 

occurred before IIRIRA became effective. The petitioner’s
status was adjusted. 

the years that followed,
the INS took a variety of adverse actions against him. In 2003,
the BICE reinstated Sarmiento Cisneros’s prior deportation
order and issued a warrant of removal. 

had
applied for discretionary relief before the effective date of
IIRIRA, the court concluded that § 241(a)(5)’s elimination of
the availability of discretionary relief attached a “new disability
to a completed transaction.” 

The court rejected the
argument that § 241(a)(5)’s elimination of relief cannot be
impermissibly retroactive because the relief is discretionary. 

explained that St. Cyr directed a court to consider “an
alien’s reasonable reliance on the continued availability of
discretionary relief from deportation when deciding whether the
elimination of such relief has a retroactive effect.” 

court held that § 241(a)(5) would have an
impermissible retroactive effect if applied to the petitioner. 

      e). Arevalo v. Ashcroft, 

(1st Cir. 2003)

       In Arevalo, the petitioner illegally reentered the United
       States in 

. In August, 1990, the
       petitioner’s father, a legal permanent resident, filed a visa
       petition on her behalf and it was later approved. 

1996, Arevalo applied for an adjustment of
       status. Six years later, the INS notified Arevalo that it
       would not entertain her application. 

                                19
       subsequently invoked § 241(a)(5) to resurrect her prior
       deportation order and detained Arevalo pending removal.
       

of Appeals for the First Circuit concluded
       that applying § 241(a)(5) would have an impermissible
       retroactive effect because Arevalo “already had filed for
       relief when Congress amended the statute. Discarding
       her application now would deprive her both of a right
       that she once had and of the reasonable expectation that
       she would have the opportunity to convince the Attorney
       General to grant her relief.” 

      f). Lattab v. Ashcroft, 

(1st Cir. 2004)

       In Lattab, however, the Court of Appeals for the First
Circuit held that “application of § 241(a)(5) to deprive an alien
who illegally reentered the country before IIRIRA’s effective
date of the ability to apply for relief for which the alien did not
theretofore qualify is not impermissibly 

. While Lattab had illegally reentered the United States
prior to IIRIRA’s effective date, he did not marry a United
States citizen until 1999, and it wasn’t until 2000 that he sought
to have his status adjusted. 

Lattab does not further
our inquiry here, however, because the court noted that it was
not deciding “the retroactive application of § 241(a)(5) to all
aliens who reentered illegally before April 1, 1997, nor [was it
deciding] the case of an alien illegally present in the United
States who had a potential defense to deportation before IIRIRA
took effect but had not yet applied for relief when IIRIRA
eliminated that defense.” 

v. Ashcroft, 

(8th Cir.
                             2002)

       The Court of Appeals for the Eighth Circuit has decided
two cases on this issue. In Alvarez-Portillo, the court concluded


                                20
that, under the second prong of the Landgraf inquiry, the
majority of the reinstatement statute may be applied
retroactively to aliens illegally reentering the country prior to the
statute’s effective date; however, the provision of the statute
precluding an alien subject to reinstatement from applying for
any relief “under this chapter” may not. 

. The
petitioner there illegally entered the United States in 1993. He
was subsequently deported, but reentered illegally 12 days later.

In 2001, he and his wife visited an INS district office
to apply for an adjustment of his status to permanent resident
alien, and the INS reinstated his 1993 deportation order.

       The court explained:

       Alvarez-Portillo, who was deported and illegally
       reentered in late 1993, married a United States
       citizen in 1996, prior to the effective date of §
       241(a)(5). At that time, long-standing INS
       practice created a reasonable expectation that he
       could defend against later deportation or removal
       by seeking a discretionary adjustment of status to
       lawful permanent resident.

The court expressly rejected the contention that §
241(a)(5) had no impermissible retroactive effect because the
illegal reentrant could have applied for adjustment of status
before IIRIRA’s enactment. Instead, the court concluded that §
241(a)(5)’s “may not apply for any relief under this chapter”
clause attaches new legal consequences to Alvarez-Portillo’s
prior actions. 

prior law Alvarez-Portillo could
have filed for a discretionary adjustment of status or sought the
adjustment as a defense to a subsequent deportation proceeding.
“He chose to wait, and § 241(a)(5) as applied by the INS has
now deprived him of that defense.” 

Lopez-Flores v. Dept. of Homeland Security, 

(8th Cir. 2004)

        In Lopez-Flores, the petitioner had illegally reentered the
United States prior to IIRIRA’s enactment and in 1995 filed an
application for work authorization with his sponsoring
employer. Congress enacted IIRIRA and § 241(a)(5) while that
application was pending. The INS ultimately approved Lopez-
Flores’ work petition, but refused to adjust his status. Instead,
it reinstated the prior order of deportation. 

        On appeal, the government argued that the case was
distinguishable from Alvarez-Portillo because obtaining an
employment-based visa is a much more complicated and lengthy
process than receiving an immediate relative visa. The court
rejected that distinction because it “has no bearing on the
reasonableness of Lopez-Flores’s expectation that the
opportunity to pursue such a defense would be available to him
in later instituted deportation.” 

The court continued:
“[h]ad Respondents shown that Lopez-Flores’s application for
adjustment of status was utterly without merit or that such relief
was unavailable to him as a matter of law prior to the enactment
of § 241(a)(5), we would conclude that any retroactive
application of § 241(a)(5) was harmless error.” 

ultimately concluded that Lopez-Flores had the right to renew
his application for adjustment of status in a subsequent
deportation proceeding. 

      I). Ojeda-Terrazas, 

(5th Cir. 2002)

        The court in Ojeda-Terrazas held that the reinstatement
statute applies retroactively to aliens who illegally reentered the
country prior to IIRIRA’s effective date. 

. The
petitioner there had not applied for, nor had he argued that he
was eligible to apply for, any form of discretionary relief.


                                22
Relying substantially on St. Cyr, the court determined that he
therefore “had no reasonable expectation of having a hearing
before an immigration judge rather than an INS official when he
illegally reentered the United States in 1991.” 

  j). Velasquez-Gabriel v. Crocetti, 

(4th Cir.
                            2001)

        In Velasquez-Gabriel, the court also concluded that §
241(a)(5) did not operate in an impermissibly retroactive manner
when applied to an alien who illegally reentered the United
States prior to the effective date of the statute. Petitioner’s wife
filed a petition on his behalf and petitioner filed an application
to adjust his status based on his marriage to a U.S. citizen seven
months after IIRIRA took effect (and 21 months after his
marriage to a U.S. 

. The INS denied
petitioner’s application and reinstated his prior order of
deportation pursuant to § 241(a)(5). 

relied heavily on St. Cyr. The court first
rejected the government’s contention that Velasquez-Gabriel
could not prevail because the relief he was seeking was
discretionary. 

Next, the court explained that in St.
Cyr, the Supreme Court “heavily relied on two factors not
present here: (1) aliens like St. Cyr had a significant likelihood
of receiving the relief they sought under the old law and (2) they
almost certainly relied upon that likelihood to their detriment.”

marks omitted). The court determined
that Velasquez-Gabriel had not shown either a reasonable
likelihood of success under pre-IIRIRA law, nor a detrimental
reliance on pre-IIRIRA law. 

The court noted that
Velasquez-Gabriel’s sole reliance argument was that he and his
wife relied on his ability to adjust his status in the United States
when they got married. 

                                23
        Citing Hughes Aircraft, 

, the court noted
that the fact that petitioner “did not detrimentally rely on prior
law may not, however, foreclose a claim that § 241(a)(5)
nonetheless operates retroactively.” 

court
concluded that it need not decide that question because there
was “a far simpler reason compelling [the court’s] conclusion
that the application of § 241(a)(5) is not impermissibly
retroactive in this case: not until well after § 241(a)(5) took
effect did [petitioner] apply to adjust his status or did his wife
file for a visa petition on his behalf.” 

Claim.

        As previously noted, Dinnall maintains that § 241(a)(5)
is impermissibly retroactive because retroactive application of
the statute “would impair rights he possessed when he acted.”
Specifically, he argues that (1) his prior deportation order can no
longer be reopened or reviewed, and (2) he can no longer apply
for discretionary relief such as voluntary departure.

        We need not spend much time analyzing Dinnall’s first
contention because, as Dinnall’s counsel conceded at argument,
prior to IIRIRA’s effective date, Dinnall could not reopen the
deportation order either. Indeed, the regulations in effect when
Dinnall illegally reentered the United States unequivocally
prohibited Dinnall from moving to reopen his deportation
proceedings. Those regulations provided, in relevant part:

       A motion to reopen . . . shall not be made by or on
       behalf of a person who is the subject of
       deportation proceedings subsequent to his
       departure from the United States.

8 C.F.R. § 3.2 (1987).



                                24
        Dinnall’s second contention – that § 241(a)(5) impairs his
right to apply for discretionary relief such as voluntary departure
– is more troubling. We note at the outset that it is clear under
St. Cyr that our analysis is not altered because voluntary
departure is a discretionary form of relief rather than a defense
to removal. As the Court noted there, we must consider an
“alien’s reasonable reliance on the continued availability of
discretionary relief from deportation when deciding whether the
elimination of such relief has a retroactive effect,” since “[t]here
is a clear difference, for the purposes of retroactivity analysis,
between facing possible deportation and facing certain
deportation.” St. 

, 325; accord Sarmiento

; 

.

        Dinnall would have to leave the United States whether he
was deported or granted voluntary departure. Therefore, the
distinction in St. Cyr between facing possible deportation and
certain deportation may at first seem inapplicable here. There is,
however, a crucial distinction that our analysis cannot ignore.
Voluntary departure is not tantamount to deportation. Rather, it
is a form of relief granted in lieu of deportation. See 8 C.F.R.
244.1 (1987). Accordingly, the consequences for Dinnall if
deported differ substantially from the consequences that he
would face if granted voluntary departure. The law when
Dinnall illegally reentered the country barred aliens such as
Dinnall who departed the United States under an order of
deportation from returning to the United States for five years.
Bill Ong Hing, Handling Immigration Cases, § 9.21, at 310
(1985). However, no such time bar was erected against aliens
who were granted voluntary departure. Such an alien could
return to the United States at any time so long as he or she was
otherwise eligible to enter as an immigrant or nonimmigrant.
Steel on Immigration Law, § 14.48, at 452. If § 241(a)(5)
applies retroactively to Dinnall, he would forever be precluded
from applying for this discretionary relief. That sanction


                                25
“attaches a new disability” to Dinnall “[with] respect to
transactions or considerations already past.” See St. 

; accord 

.

        Moreover, the government concedes that Dinnall’s illegal
reentry would not render him completely ineligible for this form
of discretionary relief. Rather, the government maintains that
his illegal reentry would “constitute[] an ‘adverse factor’ in the
immigration judge’s discretionary determination.” Government
brief at 14; see 

(“Had
Respondents shown that Lopez-Flores’s application for
adjustment of status was utterly without merit or that such relief
was unavailable to him as a matter of law prior to the enactment
of § 241(a)(5), we would conclude that any retroactive
application of § 241(a)(5) was harmless error.”). Although
Dinnall has no guarantee of a favorable decision on his
voluntary departure application, because § 241(a)(5) constitutes
a “new disability” that did not exist prior to IIRIRA’s passage,
he nevertheless had a reasonable expectation of an avenue of
relief before IIRIRA was enacted that he no longer has. See St.

.

       The government argues that St. Cyr is “premised on a
reliance theory,” since “[t]he Supreme Court found that
application of the statutory bars had a retroactive effect only as
to those aliens who actually pled guilty to their disqualifying
crimes and who were otherwise eligible for such relief at the
time of their plea.” Government brief at 20 (emphasis in
original). Citing to several post St. Cyr decisions, the
government explains that, in those cases, the courts “found
ineligible for Section 212(c) relief those aliens who were
convicted of their crimes prior to enactment of the bars but who
did not fall within St. Cyr’s holding because they did not plead
guilty, and therefore did not rely on the availability of
immigration relief.” 

original).


                               26
       However, as Dinnall points out, the government’s
argument improperly implies that Dinnall must demonstrate
actual reliance on pre-IIRIRA law to show the impermissible
retroactive effect of § 241(a)(5). That is inconsistent with our
decision in Ponnapula.15 See 

.16


   15
    During oral argument, the government asserted that
Ponnapula was wrongly decided and should not be followed
because it is not consistent with Landgraf. We are, however,
bound by Ponnapula and its interpretation of Supreme Court
precedent. See Auguste v. Ridge, 

, 149 (3d Cir.
2005) (citing Third Circuit Internal Operating Procedure 9.1).
   16
     In Olatunji v. Ashcroft, 

, 394 (4th Cir.
2004), the court also concluded that subjective reliance on
prior law did not factor into its retroactivity analysis:

        Whether the particular petitioner did or did not
        subjectively rely upon the prior statute or
        scheme has nothing whatever to do with
        Congress’ intent . . . It is one thing to indulge
        the supportable presumption that Congress
        intends its enactments not to operate
        retroactively; it is another altogether to indulge
        the quite different, and unsupported and
        unsupportable, presumption that Congress so
        intends, but only where the particular
        petitioning party can prove that he subjectively
        relied on the prior statute to his detriment. In
        other words, where Congress has apparently
        given no thought to the question of retroactivity
        whatever, there is no basis for inferring that
        Congress’ intent was any more nuanced than
        that statutes should not be held to apply
        retroactively. Anything more, in the face of

                                27
In Ponnapula we found that a requirement of actual reliance
erects “too high a barrier to triggering the presumption against
retroactivity . . . [and] has the effect of treating Landgraf as
establishing a presumption in favor of retroactive application.”

(emphasis in original). Rather surprisingly, the
government fails to even mention Ponnapula in its brief. Thus,
the government does not mention that in Ponnapula we rejected
almost all of the post-St. Cyr precedent it relies upon to counter
Dinnall’s Landgraf analysis.17 See 

-
89 (“our interpretation of Landgraf and its progeny differs
somewhat from these Courts . . . we believe that other Courts of
Appeals have perhaps misapplied Landgraf in this area.”).

       Ponnapula also instructs us not to “focus[] attention on
the particular facts and circumstances of the party before the
court” because that was not the focus in St. Cyr. 

492.
 Instead, in St. Cyr, “[t]he discussion of the quid pro quo in
criminal plea agreements is directed at establishing, as a general
matter, the reasonable reliance of this class of aliens,
irrespective of the course of St. Cyr’s own plea negotiations.”

we focused our attention in Ponnapula on
the class of aliens who decided to proceed to trial and were
convicted prior to the effective date of IIRIRA’s repeal of §
212(c), 

`here, we focus our attention on the class of
aliens who chose to illegally reenter the United States prior to


        complete congressional silence, is nothing but
        judicial legislation.
   17
    The cases the government cites to, whose application of
Landgraf we disavowed in Ponnapula, include Rankine v.
Reno, 

(2d Cir. 2003); Chambers v. Reno, 

(4th Cir. 2002); Armendariz-Montoya v. Sonchik,

, 1121-22 (9th Cir. 2002); and Brooks v.
Ashcroft, 

, 1274 (11th Cir. 2002).

                               28
the enactment of § 241(a)(5), and who at the time of their
reentry, would have been eligible for voluntary departure. It is
not unreasonable to assume that many of these aliens may well
have reentered the country with the understanding that they
might be eligible for some form of discretionary relief. See e.g.,
 

(after illegal reentry alien
sought discretionary relief of adjustment of status due to
approved work visa application); 

(after
illegal reentry alien sought discretionary relief of adjustment of
status based on grant of family visa petition); 

(after illegal reentry alien sought
discretionary relief of adjustment of status due to marriage to a
U.S. citizen). Section 241(a)(5) “can be found impermissibly
retroactive without establishing that some (or all) members of
the group affected by the change in law relied on the prior state
of the law;” 

, therefore, our inquiry
is not resolved by focusing on whether Dinnall reentered with
the possibility of this relief in mind. Moreover, even if we were
to conclude that Dinnall’s interest in obtaining voluntary
departure at the time of illegal reentry was attenuated, “the fact
that an interest may have been attenuated . . . has had little
salience in the Supreme Court’s analysis of other retroactivity
questions.” 

       We therefore hold that applying § 241(a)(5) to Dinnall
has an impermissibly retroactive effect.

                     III. CONCLUSION

       For the reasons set forth above, we will grant Dinnall’s
Petition for Review and vacate the BICE’s order reinstating
Dinnall’s order of deportation.




                               29