By Mary Kenney, AILF and 
Trina Realmuto, Van Der Hout & Brigagliano
REVISED - November 1, 2001

This practice advisory will discuss whether reinstatement of removal under INA §241(a)(5), 8 U.S.C. §1231(a)(5), can be applied retroactively to a person 1) whose prior order of deportation pre-dated IIRIRA or 2) who illegally reentered the country prior to the effective date of IIRIRA. The 4th Circuit's recent decision, Velasquez-Gabriel v. INS, __ F.3d. __ , WL 2001 951583(4th Cir. 2001), is limited to its very specific facts and should not govern whether the statute is impermissibly retroactive if applied in other situations. 

In the §212(c) context, these arguments may assist individuals who would be eligible to request a reopening of the prior deportation order but for the fact that INS reinstates the prior order under §241(a)(5). 

The information in this advisory is accurate and authoritative, but does not substitute for individual legal advice supplied by a lawyer familiar with a client's case. 

What is reinstatement of removal? 

INA §241(a)(5), enacted by §305(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-575 (1996), authorizes INS to automatically reinstate a prior removal order in cases where an individual left the U.S. following a final order of removal and subsequently reentered the country illegally. INA §241(a)(5) reads as follows:

(5) Reinstatement of removal orders against those 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.

The INS regulations implementing this section are extremely broad. First, INS interprets "a prior order of removal" as encompassing prior orders of deportation and exclusion. 8 C.F.R. §241.8(a). Some courts have upheld this interpretation. See, e.g., Velasquez-Gabriel, supra. Additionally, except in the 9th Circuit, INS takes the position that §241(a)(5) can be applied retroactively to reentries before April 1, 1997, the effective date of IIRIRA § 305(a). Finally, INS has implemented reinstatement as a summary proceeding: under the regulations, an individual is subject to an order of reinstatement and removal by an agent without any opportunity for a hearing before an IJ or review by the BIA. 8 C.F.R. §241.8(a). 1

Does an individual have an opportunity to respond in reinstatement proceedings?

After a Notice of Intent to Reinstate a prior order is served, an individual must note on the Notice Form (INS Form I-871) whether he or she wishes to contest the determination by checking a box on the form. The individual is then allowed to make a written or oral statement. 8 C.F.R. §241.8(b). The INS agent is authorized to only consider the following issues, however: whether the individual is the subject of a prior removal/deportation order; whether the individual is in fact the person who was previously removed; and whether the alien unlawfully reentered the U.S. 8 C.F.R. §241.8(a). 

Despite the limited review allowed by the regulations, attorneys should make all possible legal and factual arguments in opposition to the reinstatement proceedings. Attorneys should request that the INS present evidence of the client's prior order, departure and subsequent reentry. Attorneys should also attempt to present all evidence that can be secured in support of the client's position. This is particularly important if the client wishes to file a petition for review of the reinstatement order, since the court's review will be limited to the record. INA §242(b)(4), 8 C.F.R. §1252(b)(4). 

Can a reinstatement order be appealed?

Yes. The only two circuit courts to address the issue have both found that federal court review of an order of reinstatement is available by means of a petition for review. Castro-Cortez v. INS, 239 F.3d 1037 (9th Cir. 2001); Velasquez-Gabriel, supra. Thus, to appeal a reinstatement order attorneys must file a petition for review within 30 days of the date the reinstatement order was issued. The petition for review must be filed in the circuit court having jurisdiction over the place the reinstatement order was issued. Should another circuit decide that reinstatement orders should be appealed via a habeas corpus petition, and dismiss the petition for review, you will still be able to file a habeas petition because there is no deadline for filing these.

The 30-day deadline for filing a petition for review is jurisdictional, which means that if you miss the deadline, you cannot file it later. INA§242(b)(1), 8 U.S.C. §1252(b)(1). When INS initiates a reinstatement, it will issue a "Notice of Intent/Order to Reinstate Prior Order," form I-871. The bottom box on this document, when signed by the INS agent, is the order. Thus, it is the date of this signature (or service of the order if not served within 30 days of the signature) that triggers the appeal deadline for filing a petition for review. 

If a petition for habeas corpus rather than a petition for review has already been filed, and the district court determines that a petition for review is required, the court may be willing to transfer the case to the court of appeals pursuant to 28 U.S.C. §1631. Your argument for transfer will be particularly strong if you filed the habeas petition within thirty days of the date of the reinstatement order. 

Does the term "removal order" in §241(a)(5) include all prior orders of deportation and exclusion?

IIRIRA §309(d)(2) states that any reference in law to an order of removal shall be deemed to include an order of exclusion and/or deportation. The INS argues that IIRIRA §309(d)(2) requires that the reference to an order of removal in §241(a)(5) be deemed to include an order of deportation or exclusion in all situations. However, it is a basic rule of statutory construction that all terms in a statute must be given effect. Notwithstanding IIRIRA §309(d)(2), Congress chose in other sections of IIRIRA to specifically designate both removal orders and deportation and/or exclusion orders, thus differentiating between the three. See, e.g., 8 U.S.C. § 1326(a)(1) (1998) as amended by IIRIRA §308(d)(4)(J) (specifying an "order of exclusion, deportation, or removal"). While IIRIRA §309(d)(2) must have some meaning, if it is applied to all situations, Congress' specification of both removal orders and deportation/exclusion orders in other sections of IIRIRA would be superfluous. There are two arguments that harmonize all of these IIRIRA provisions, so that none are rendered superfluous:

1. §241(a)(5) should be read as including only orders of deportation or exclusion that are issued in those transitional rule cases in which the Attorney General, under IIRIRA §309(c)(2), elected to apply the new provisions of IIRIRA, including §241(a)(5), to pending deportation and exclusion proceedings. Where §309(c)(2) is invoked, resulting orders of deportation and exclusion would be deemed to be orders of removal for purposes of, inter alia, §1231(a)(5), thus giving effect to IIRIRA §309(d)(2); or

2. §241(a)(5) should be read as applying only to deportation and exclusion orders issued after April 1, 1997 in transitional rule cases. Where an individual subject to a post-April 1, 1997 order of deportation or exclusion in a transitional rule case reenters illegally after April 1, 1997, § 309(d)(2) could be invoked to make §241(a)(5) applicable to that deportation/exclusion order. Thus, IIRIRA §309(d)(2) would be given effect without impermissibly applying §1231(a)(5) retroactively or violating due process. 

The 4th Circuit has specifically rejected a similar argument in Velasquez-Gabriel, supra. The 9th Circuit found it unnecessary to resolve this issue in Castro-Cortez. However, in a subsequent decision, the 9th Circuit held - without discussion - that §241(a)(5) could be applied to pre-IIRIRA orders. Gallo-Alvarez v. Ashcroft, __ F.3d __, 2001 US App. Lexis 20662 (9th Cir., Sept 21, 2001). Arguably, this decision is not binding on future panels within the 9th Circuit because of the absence of any discussion. See, e.g., Magnin v. Commissioner, 184 F.3d 1074, 1077 (9th Cir. 1999) ("When a case assumes a point without discussion, the case does not bind future panels"). Moreover, a petition for rehearing of this decision has been filed on behalf of AILA/AILF and other immigration organizations in their role as amici. The issue of the scope of the term "order of removal" as used in §241(a)(5) has not been decided in other circuits.

Does the application of §241(a)(5) to individuals who either were ordered deported/excluded before April 1, 1997 or who illegally reentered the country before that date raise retroactivity concerns?

There is a two-step process to determine whether a new statute should be applied retroactively to conduct that takes place before its enactment. Landgraf v. USI Film Products, 511 U.S. 244 (1994). The first question is whether Congress expressed a clear intent as to the statute's temporal reach. If it did, then this intent governs. Where there is no clear Congressional intent as to the statute's temporal reach, a court must determine whether the statute, if applied to earlier conduct, would have a retroactive effect. 

There is a strong argument, adopted by the 9th Circuit, that Congress intended §241(a)(5) to only apply prospectively. Castro-Cortez v. INS, 239 F.3d 1037 (9th Cir. 2001). Even where a court is unwilling to find this Congressional intent, there is a second, strong argument that application of §241(a)(5) to either pre-IIRIRA deportation/exclusion orders or to reentries that occurred prior to the statute's effective date is impermissibly retroactive. 

1. Congress intended the statute to only apply prospectively. 

The 9th Circuit has held that INA §241(a)(5) is not applicable to anyone who reentered the U.S. prior to April 1, 1997. Castro-Cortez, supra. Applying ordinary rules of statutory construction, the Court found three significant indications that Congress intended that the statute only apply prospectively. First, the Court found significant the fact that Congress removed the retroactive language contained in INA §242(f) (§241(a)(5)'s predecessor) when it enacted §241(a)(5). The prior statute specified that the reinstatement procedures applied to reentries that occurred either before or after the statute's effective date. Second, the Court noted that in other sections of IIRIRA, Congress specified that those sections were to apply to pre-enactment conduct. By negative implication, see Lindh v. Murphy, 521 U.S. 320 (1997), the absence of such specification in §241(a)(5) indicates that Congress did not intend it to be applied to past conduct. Finally, the Court found instructive Congress' silence as to temporal reach. Since Congress is deemed to enact legislation with the Landgraf rule in mind, Congress was on notice that if it wanted a provision to be retroactively applied, it had to explicitly state that intent.

Thus, in the 9th Circuit, if an individual is notified of INS' intent to reinstate a prior order based upon a reentry that occurred before April 1, 1997, you should demand termination of the reinstatement proceeding under Castro-Cortez. If INS proceeds to issue an order, and you believe that Castro-Cortez governs, you should immediately file a petition for review and seek a stay of removal while the case is under review. Additionally, INS has taken the position in at least one case that Castro-Cortez' holding applies to any case in which the prior order originated in the 9th Circuit. Thus, outside of the 9th Circuit, an individual may still benefit from Castro-Cortez if the prior order was issued in the 9th Circuit and if the individual reentered before April 1, 1997.

In Velasquez-Gabriel, the 4th Circuit rejected the interpretation of §241(a)(5) as being prospective only, and thus this argument may not be possible in that circuit.2 In all other circuits, Castro-Cortez should be cited when arguing that Congress did not intend INA §241(a)(5) to apply to cases in which the illegal reentry occurred before April 1, 1997.

Moreover, under the reasoning of Castro-Cortez, the argument exists that a prospective reading of the statute precludes its application in any case in which the prior order pre-dated April 1, 1997, regardless of the date of the reentry. In Castro-Cortez, all of the petitioners reentered the U.S. prior to April 1, 1997, and thus the Court was not called upon to determine if a prospective reading of §241(a)(5) precluded the statute's application to a case in which the prior order pre-dated IIRIRA and the reentry occurred after April 1, 1997. 

2. Application of §241(a)(5) to orders of deportation and/or reentries that 
occurred before April 1, 1997, would be impermissibly retroactive.

Even if a court is unwilling to find that Congress intended that §241(a)(5) be applied prospectively, reinstatement of removal in cases in which the prior order and/or the reentry occurred before April 1, 1997 may still be impermissible under the second step of Landgraf. The second step of the retroactivity analysis requires a determination as to whether §241(a)(5), if applied to prior orders and/or reentries occurring before April 1, 1997, would have a retroactive effect. There are strong arguments that it would:

a. The Supreme Court has made clear that a statute has a retroactive effect if
 "it attaches new legal consequences to events completed before its enactment," Landgraf, supra, or if 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." INS v. St. Cyr, 121 S.Ct. 2271, 2290-91 (June 25, 2001), quoting Landgraf. St Cyr found that altering or eliminating the opportunity for relief - even discretionary relief such as §212(c) - constituted a "new disability." St. Cyr, 121 S.Ct. at 2290. 

INA §241(a)(5), if applied to prior orders and/or unlawful reentries that occurred before its effective date, would attach new legal consequences to those actions. Most significantly, it eliminates both the right to a hearing to contest deportability and all eligibility for relief from removal. In the reinstatement provision that existed prior to §241(a)(5), an individual was entitled to a hearing and also remained eligible to apply for relief. See former INA§242(f)(1995); 8 C.F.R. §242.23 (1995). Removal of this eligibility for relief in §241(a)(5) would thus constitute a new disability under St. Cyr. Additionally, Supreme Court precedent makes clear that an individual should have notice of the changed consequences of a new law prior to being subject to them. Since the law was not yet in effect at the time the prior order was issued, the individual had no notice before leaving the United States of the consequences of an illegal reentry. Cf., Martin v. Hadix, 527 U.S. 343 (1999) (finding a new statute setting attorney fees was notice to attorneys that any fees earned thereafter would be subject to the new fee rate). 

b. In St. Cyr, the Court found that individuals in the petitioner's situation 
reasonably would have relied upon the availability of §212(c) relief at the time that they accepted a plea. However, the Court's decision does not impose a requirement that an individual must show he or she relied upon prior law. To the contrary, Supreme Court precedent makes clear that reasonable reliance on prior law is not necessary to demonstrate a retroactive effect. See, e.g., Velasquez-Gabriel, citing Hughes Aircraft Co. v. United States, 520 U.S. 939 (1997) ("That Velasquez-Gabriel did not detrimentally rely on prior law may not, however, foreclose a claim that§241(a)(5) nonetheless operates retroactively"). 

Reasonable reliance is only one of numerous factors that can be used to determine the retroactive effect of a statute. In fact, the Supreme Court has recognized that reliance on existing law is unlikely when the relevant prior conduct - such as an illegal reentry - is itself unlawful. See Landgraf, supra ("concerns of unfair surprise and upsetting expectations are attenuated in the case of [unlawful conduct]"). The Court made clear that "even where the conduct in question is … illegal, a degree of unfairness is inherent whenever the law imposes additional burdens based on conduct that occurred in the past." Id. 

Thus, the argument regarding the retroactive effect of §241(a)(5) would differ from St. Cyr, since the plea agreement that triggered the retroactivity analysis in St. Cyr was not unlawful conduct. Instead, the argument would be premised on other Supreme Court precedent finding impermissible retroactive effect on prior unlawful conduct where there are new legal consequences, including new disabilities, which result from the unlawful conduct. See Landgraf, supra (unlawful sexual harassment); Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994) (unlawful racial discrimination); Hughes Aircraft Co., v. United States ex rel. Schumer, 520 U.S. 939 (1997) (false claim to the government).

What is the impact of Velasquez-Gabriel on the retroactivity argument, particularly in the 4th Circuit?

In Velasquez-Gabriel, the 4th Circuit held that §241(a)(5) was not impermissibly retroactive where the petitioner, who sought adjustment of status, delayed filing his adjustment application until well after the effective date of IIRIRA, even though he had the opportunity to file before the statute went into effect. The 4th Circuit ignored the effect of §241(a)(5) on the petitioner's illegal reentry, which had occurred prior to April 1997, and instead found that the statute could not retroactively attach new legal consequences to an application filed after the statute's effective date. 

In the 4th Circuit, attorneys can argue that Velasquez-Gabriel should be limited to its unique facts: a situation in which the petitioner had an available avenue for relief prior to §241(a)(5) becoming law, of which he failed to take advantage. This will not be the situation in most cases. In the case of an individual eligible for §212(c) relief but denied the opportunity to apply for it, there were no further avenues for relief for the individual to pursue. Thus, Velasquez-Gabriel may be distinguished on this basis. Without the delay issue to confuse the retroactivity analysis, the argument can instead focus on the retroactive effect of §241(a)(5) on the individual's prior order or reentry. 

In other circuits, the Supreme Court cases discussed in this memo can be used to demonstrate that the 4th Circuit failed to apply the correct retroactivity analysis when it failed to consider the effect of §241(a)(5) on the petitioner's reentry.

1 The statute, however, is silent about the right to a hearing, and the regulations are arguably ultra vires as to the statute and should be challenged as such. Moreover, due process requires a hearing before a fundamental liberty can be denied. See, e.g., Mathews v. Eldridge, 424 U.S. 319 (1976).
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2  Note, however, that the 4th Circuit’s decision did not contain any discussion of Congress’ removal of the retroactive language in former §242(f).  Thus the case is arguably distinguishable on that ground.
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