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Case Name:
Case Number: Date Filed: 
99-70267 01/23/01 



                                                     No. 99-70267
                                                     INS No.

                                                     No. 99-70357
                                                     INS No.

A.K.A. Francisco Mario Funes,
                                                     No. 99-70474
                                                     INS No.
JANET RENO, Attorney General,

Petitions for Review from the
Board of Immigration Appeals


                                                     No. 99-35786
                                                     D.C. No.
RICHARD C. SMITH, District                            CV-98-00803-TSZ
Director and JANET RENO, Attorney

                                                     Nos. 99-35314

JANET RENO, Attorney General,
                                                     D.C. No.
RICHARD EUGENE SMITH, and                             CV-98-01371-TSZ

Appeals from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding

Argued and Submitted
July 14, 2000--San Francisco, California

Filed January 23, 2001

Before: William C. Canby, Jr., Stephen Reinhardt, and
Ferdinand F. Fernandez, Circuit Judges.

Opinion by Judge Reinhardt;
Dissent by Judge Fernandez



Marc Van Der Hout, and Trina Realmuto, San Francisco, Cal-
ifornia, for petitioners Carlos Castro-Cortez; Jose Luis
Araujo; and Mario Funes-Quevado.

Camille K. Cook, San Francisco, California, for petitioner
Carlos Castro-Cortez.

Lisa Ellen Seifert, Olympia, Washington, for petitioner
Ramon Rueda.

Matt Adams, Northwest Immigrant Rights Project, Granger,
Washington, for petitioner Nestor Salinas-Sandoval.

Marc Van Der Hout and Trina Realmuto, The American
Immigration Lawyers Association and the National Immigra-
tion Project of the National Lawyers Guild, San Francisco,

California, amici curaie for petitioner Nestor Salinas-

Timothy P. McIlmail, Civil Division, United States Depart-
ment of Justice, Washington, D.C., for the respondents.

REINHARDT, Circuit Judge:

The Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996 (IIRIRA) Pub. L. No. 104-208, 110 Stat.
3009-546 (1996) breathed new life into a dormant provision
of the Immigration and Nationality Act (INA) that permitted
the INS to reinstate prior orders of removal against aliens who
reentered the United States.1 The revised provision, codified
at INA S 241(a)(5), 8 U.S.C. S 1231(a)(5), not only expands
the types of orders subject to reinstatement, but constrains the
relief available to aliens whose orders are reinstated. When
implementing the revised provision, the government decided
to change the practice set forth in its prior regulations which
provided aliens subject to orders of reinstatement with hear-
ings before an Immigration Judge (IJ). Instead, the INS insti-
tuted a new procedure whereby it reinstated such orders and
removed such aliens without affording hearings of any sort.
1 The concept of "removal" of aliens was also introduced by IIRIRA,
and replaces two related concepts: "exclusion " and "deportation." The for-
mer reinstatement provision, INA S 242(f), 8 U.S.C. S 1252(f) (repealed
1996), only permitted reinstatement of certain deportation orders, and did
not apply to exclusion orders. The S 242(f) (repealed 1996) authority
seems to have fallen into desuetude before its repeal. It has not been con-
sidered in a reported court of appeals opinion since 1978, nor has it been
discussed in a reported Board of Immigration Appeals opinion since 1966.
See United States v. Pereira, 574 F.2d 103, 104 (2d Cir. 1978); Matter of
Ibarra-Obando, 12 I. & N. Dec. 576 (BIA 1966).

In this case, we are asked to decide whether the govern-
ment's new reinstatement procedure violates the Due Process
Clause of the Fifth Amendment. We are also asked to decide
whether the new procedure actually applies to the aliens in
this case, because all five petitioners reentered the United
States before IIRIRA became effective. While we seriously
doubt that the government's new reinstatement procedure
comports with the Due Process Clause, we need not decide
that question here; instead, we hold that INA S 241(a)(5) does
not apply to aliens who reentered the United States before
IIRIRA's effective date.


This opinion consolidates five cases in which the govern-
ment, pursuant to INA S 241(a)(5), reinstated old orders of
deportation or exclusion. In two of those cases, the govern-
ment has executed the reinstatement, and the aliens appeal
from abroad. In the other cases, the government or the district
court stayed the execution of the reinstated order. Below we
explain the facts surrounding each of the reinstatements.2

A. Carlos Castro-Cortez

Carlos Castro-Cortez (hereinafter Castro) is a 42-year-old
native of Mexico who has resided in the United States nearly
2 As explained in detail in Section III below, these cases reach us with
a paltry administrative record because the INS took actions against the
petitioners without affording them an opportunity for a hearing. On
appeal, some of the petitioners submitted affidavits that are not in the
administrative record. Because the aliens were not afforded administrative
hearings, they had no opportunity to place the information in the affidavits
into the record. We may "decide [these direct appeals] only on the admin-
istrative record" on which the INS based its decision. INA S 242(b)(4)(A),
8 U.S.C. S 1252(b)(4)(A). In this background section, we describe the
facts surrounding the aliens' cases, including the facts in the affidavits that
are outside the administrative record, for context and informational pur-
poses only. We base our decision solely on the administrative records
before us.

continuously since 1975. In 1982, he married a United States
citizen, and together they have two children. On February 9,
1976, Castro received an Order to Show Cause charging him
with deportability for having entered the United States with-
out inspection. The events that followed are in dispute.
According to Castro, he asked to see a judge but was told by
INS officials that the judge was sick. INS officials then told
him that if he signed a paper, he could voluntarily depart the
United States. On February 12, Castro departed the United
States without having seen a judge or having been advised
that he was required to remain outside the United States for
a particular length of time. He reentered the United States
about two months later.

The INS contends that Castro was validly deported. It has
produced a document stamped "deport to Mexico " with an
illegible signature beneath it. However, there is no written
record of a deportation hearing or any evidence that Castro
ever appeared before an IJ.3 Regulations in place at the time
required that, even if an alien conceded deportability, the IJ
was directed to "enter a summary decision on Form I-38, if
deportation is ordered, or on Form I-39, if voluntary departure
is granted with an alternate order of deportation. " 8 C.F.R.
S 242.18(b) (1984). The INS has failed to produce any of the
documents that, in 1976, IJs were required to execute to order
an alien deported or to grant an alien voluntary departure.

Following his almost immediate reentry, Castro made sev-
eral attempts to legalize his status. In 1987, he applied for a
visa under the "Special Agricultural Workers Program"
(SAW). In a sworn declaration, he states that he left the
United States in 1995 to visit a sick relative in Mexico, and
3 Petitioner's counsel made two written requests pursuant to the Free-
dom of Information Act to obtain the tapes of any deportation proceedings
involving Castro, and received the following response from the INS. "An
additional search was made for INS audio tapes relating to the subject. No
audio tapes were found."

that he returned to the United States via direct flight to San
Francisco where, on approximately November 29, he was
admitted by an INS inspector who examined his employment
authorization card. Castro last entered the United States under
a SAW applicant authorization.

When Castro learned in 1996 that his legalization petition
had been denied, his wife filed an immediate relative visa
petition, and it was approved on May 15, 1997. On that day,
Castro then filed an application for adjustment of status under
INA S 245(a), 8 U.S.C. S 1255(a).

On March 11, 1998, Castro and his counsel appeared at the
INS office for a routine adjustment interview. The INS there-
upon arrested Castro and informed him that his 1976 deporta-
tion was being reinstated. The INS interviewed Castro, and he
explained that his most recent entry had been with permission
at the San Francisco airport. When asked whether he had ever
been deported, he responded that he did not remember
exactly, and said "I do not remember talking to a judge." The
next day, Castro was served with a Notice of Intent/Decision
to Reinstate Prior Order. The INS informed his counsel that
it intended to remove him to Mexico that same day, and his
counsel intervened and thereafter obtained a stay of removal
from this court.

B. Jose Luis Araujo

Jose Luis Araujo is a citizen of Mexico who has resided in
the United States since approximately 1979. In 1996, Araujo
married a United States citizen, and he has a United States cit-
izen son from a prior marriage. According to Araujo's affida-
vit, on the morning of March 2, 1999, he was awakened by
INS officers who had arrived at his Fremont, California home
to apprehend him. He was handcuffed, placed in a car, and
delivered to the San Francisco offices of the INS. There he
confirmed that he was Jose Luis Araujo, whereupon he was
told that he was "going straight to Mexico." He was not per-

mitted to contact his wife or his attorney. He remained in cus-
tody until that evening, when he was driven to the airport and
flown to Phoenix, Arizona. When he arrived there, he was
placed on a bus and driven to Nogales, Mexico, where he was
deposited at 6:00 A.M. on March 3, with neither money nor
identification. He remains in Mexico awaiting disposition of
this petition.

The prior order of deportation that the INS reinstated was
issued in 1983, when Araujo was deported after entering the
United States without inspection. Araujo reentered the United
States shortly after his deportation. Over the years, he has
attempted on several occasions to legalize his status. He was
approved for relative immigrant visas in 1980 and 1981. In
1996, Araujo's wife filed an immediate relative visa petition
and Araujo applied for adjustment of status, paying the pen-
alty fee assessed against aliens who entered without inspec-
tion. At the time of Araujo's arrest and expulsion in March
1999, the INS had not adjudicated his adjustment application.4

Araujo petitions this court to review the INS's decision
reinstating his 1983 deportation. Because the government no
longer permits aliens subject to reinstatement to appear before
an IJ or appeal to the Board of Immigration Appeals (BIA),
this forum is the first one in which Araujo has sought to chal-
lenge the deportation.

C. Francisco Mario Funes-Quevado

Francisco Funes-Quevado (hereinafter Funes) is a native of
El Salvador who entered the United States in 1982. He has
been married to a United States citizen for nine years, and has
4 Araujo points to evidence in his INS file suggesting that he would have
been approved for adjustment of status had the INS not elected to invoke
S 241(a)(5) against him. The file contains letters addressed to him and his
attorney confirming that he had been granted permanent resident status,
but those letters were never sent.

two children. On February 18, 1986, the INS ordered Funes
excluded from the United States. He was excluded, returned
within a month, and has resided in this country since then.

In 1991, the INS granted Funes Temporary Protected Sta-
tus, which was valid through 1994. The next year, Funes
applied for adjustment of status. Four years later, in 1999,
while the application was still pending, Funes went to the INS
office for a routine adjustment of status interview. According
to Funes, instead of interviewing him, the INS handcuffed and
detained him, and released him after he requested to speak
with his attorney. At that time, he was told the INS would
schedule a hearing for him before an IJ. The next day, the INS
arrested Funes at his place of employment and served him
with a Notice of Intent/Decision to Reinstate Prior Order. The
form contains a place for the alien to indicate whether he
wants to make a statement. Funes said that he did wish to
make a statement, and then asked to speak with his attorney.
Around midnight that night, without providing him with
access to counsel, the INS deported Funes to El Salvador.
Like Araujo, Funes appeals to this court from abroad, bring-
ing his first challenge to the reinstatement of his deportation.

D. Ramon Rueda

Ramon Rueda is a citizen of Mexico who initially entered
the United States without inspection in 1990. He remained in
the United States through 1996, when he traveled to Mexico
for a short visit with family. When he attempted to come
home to the United States without inspection, he was appre-
hended, and on April 3, 1996, ordered excluded, at which
time he was returned to Mexico.

Rueda reentered the United States a few days later. On
October 25, 1997, Rueda married a United States citizen, and
she subsequently filed an application on his behalf pursuant
to INA S 245(i) for permanent residence. Notwithstanding
Rueda's illegal reentry, the INS accepted Rueda's application,

along with $1,280 in filing fees. On June 4, 1998, the Ruedas
went to the INS office for an interview concerning their appli-
cation. Instead of discussing the application, the government
arrested Rueda and served him with a Notice of Intent/
Decision to Reinstate Prior Order. On the form, Rueda indi-
cated that he wished to make a statement. The form indicates
that on the same day an INS officer determined that Rueda
was subject to reinstatement and signed a pre-printed state-
ment on the bottom of the form certifying that he had
reviewed "any statements made or submitted in rebuttal."
There is no indication in the record of what statement Rueda
made, or whether he was actually afforded an opportunity to
make a statement.

The INS has not executed the reinstated exclusion order.
While in INS custody, Rueda filed a petition for habeas cor-
pus with the district court.5 It rejected Rueda's habeas peti-
tion, and this appeal followed.

E. Nestor Salinas-Sandoval

Nestor Salinas-Sandoval (hereinafter Salinas) is a native of
Mexico who came to the United States around 1987. He was
deported to Mexico in December 1990, and reentered the
United States without inspection in April 1991. On August
15, 1996, he married a United States citizen, and together
with his wife, they are raising a daughter from her previous

On February 7, 1997, before IIRIRA's effective date but
after its enactment, Salinas and his wife filed for adjustment
of status pursuant to INA S 245(i) and paid filing fees totaling
$1,250. The INS accepted this application and the fees not-
withstanding the fact that Salinas had reentered the United
States without authorization. More than a year after filing the
5 On June 12, 1998, after posting a $10,000 bond, Rueda was released
from custody and placed on supervised release pending exclusion.

application, Salinas went to the INS office to inquire about its
status. The INS then detained him and presented him with a
Notice of Intent/Decision to Reinstate Prior Order.

As explained above, the notice has a box where the alien
indicates whether or not he wants to make a statement, and
then signs his name. No choice concerning making a state-
ment was made on Salinas's form and the signature line reads
"does not wish to sign." While Salinas was in custody, his
counsel contacted the INS District Director, who agreed to
have Salinas placed on supervised release instead of being
immediately deported.

When the INS notified Salinas that it intended to deport
him in two weeks, he filed a petition in the district court seek-
ing habeas corpus relief. The district court granted Salinas's
petition for habeas corpus and ordered the INS to consider his
application for adjustment of status without regard to
S 241(a)(5). Salinas timely appealed that order because the
district court did not provide all the relief he sought. The gov-
ernment cross-appealed, arguing that S 241(a)(5) bars all dis-
cretionary relief, including relief under S 245(i).


As explained above, these cases reach this court in two
ways: on direct review from the INS, and on appeal from the
district court's habeas corpus rulings. We consider our juris-
diction to entertain each type of appeal in turn.

A. Direct review

IIRIRA significantly revised the Immigration and National-
ity Act's procedures for judicial review. See INA S 242, 8
U.S.C. S 1252. INA S 242(a)(1) generally authorizes the
courts of appeals to review orders of removal. The govern-
ment concedes that S 242 authorizes review of reinstatement
orders, and we agree. Because S 242 authorizes judicial

review of final orders of removal and nothing in that section
suggests that the scope of review should be limited in cases
such as these, we conclude that we have jurisdiction to review
directly petitioners' claims that the reinstatement orders vio-
late their constitutional rights and are not authorized by the

Reinstatement orders are not literally orders of removal
because the orders merely reinstate previously issued removal
(or, in these cases, deportation and exclusion) orders. How-
ever, on the basis of this court's precedent applying the pre-
cursor to S 242, we conclude that S 242(a)(1), which
authorizes review of "order[s] of removal, " authorizes review
of reinstatement orders. Section 242 replaced the INA's previ-
ous judicial review procedures, which were codified at INA
S 106, 8 U.S.C. S 1105a (repealed 1996). Like S 242, the for-
mer procedures authorized us to review "orders of deporta-
tion." S 106(a). In the new procedures, Congress substituted
the word "removal" for "deportation," and made other
changes not relevant here. One aspect of the authorization of
judicial review that did not change is that both under the old
law and under the new law, review is limited to what are now
known as orders of "removal," and were then referred to as
orders of "deportation."

Under the former judicial review procedures, courts of
appeals reviewed final orders under S 106(a) that, while not
literally orders of deportation, gave effect to such orders.
Among the orders reviewed were orders of reinstatement
issued under the predecessor provision to S 241(a)(5).6 See
Palma v. INS, 318 F.2d 645, 649 & n.3 (6th Cir. 1963). Simi-
6 The prior provision, which was eliminated by IIRIRA, was codified at
INA S 242(f), 8 U.S.C. S 1252(f) (repealed 1996). IIRIRA replaced the
prior INA S 242 with the current INA S 242, a section concerning judicial
review. Confusingly, this opinion must consider both the repealed INA
S 242(f), governing reinstatement of deportations, and the new INA S 242,
which concerns judicial review of removal orders.

larly, we construed S 106(a) as authorizing this court to
review denials of motions to reopen cases in which aliens are
ordered deported, even though the order denying the motion
to reopen is not literally an order of deportation. See, e.g.
Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir. 2000).
Orders denying motions to reopen, like reinstatement orders,
give effect to previously issued deportation orders. We con-
clude that S 242, like former S 106, authorizes review of
S 241(a)(5) reinstatement orders.

The parties question whether direct judicial review is
authorized because in United States v. Martinez-Vitela, 193
F.3d 1047, 1052 (9th Cir. 1999), withdrawn, 213 F.3d 1205
(9th Cir. 2000), we asserted without support that an order
reinstating a prior removal, pursuant to S 241(a)(5), is not
subject to judicial review. Section 241(a)(5) contains a limita-
tion on judicial review -- it provides that "the prior order of
removal . . . is not subject to being reopened or reviewed."
(emphasis added). However, by its terms, this bar applies not
to the reinstatement order, but to the prior removal order
which is being reinstated. The INA simply does not provide
support for the contention in our withdrawn opinion that rein-
statement orders are not subject to judicial review pursuant to
S 242.7

Finally, the government contends that we lack jurisdiction
over some of these petitions because the petitioners failed to
7 The government agrees. In its brief to this court, it states "Respondent
disagrees with this Court's interpretation" in Martinez-Vitela that
S 241(a)(5) precludes judicial review of reinstated orders under S 242. In
an attempt to reconcile Martinez-Vitela with the principle that some forum
must exist to raise constitutional challenges toS 241(a)(5), the government
contends that S 242(a)(1) must be interpreted to provide that forum, but
that the forum is limited to the constitutional minimum. Of course, since
Martinez-Vitela has been withdrawn, there is no authority that supports the
contention that review under S 242 is limited to constitutional challenges.
We therefore reject the claim that we have authority to review only peti-
tioners' constitutional challenges.

exhaust administrative remedies prior to contesting the rein-
statements in court. Final orders are not subject to review
unless the alien has exhausted administrative remedies. See
INA S 242(d)(1). When the government decides to reinstate
an alien's removal under S 241(a)(5), it presents the alien with
a form entitled "Notice of Intent/Decision to Reinstate Prior
Order." The form contains a statement to be signed by an INS
official stating that "the existence of a right to make a written
or oral statement contesting this determination[was] commu-
nicated to the alien." The form has a line for the alien to sign
next to the following statement: "I __ do __ do not wish to
make a statement contesting this determination." In some of
the cases now before us, the aliens either indicated that they
did not wish to make a statement or did not check either box.
As to such aliens, the government argues that they have failed
to exhaust available administrative remedies.

This argument is without merit for two reasons. First, the
limited opportunity for the alien "to make a statement contest-
ing this determination" simply does not qualify as an adminis-
trative remedy. Salinas, for example, chose not to make a
statement but still sought administrative relief. He asked his
lawyer to contest the determination and, at the same time,
declined to plead his own case verbally, having had absolutely
no advance notice, no opportunity to review or produce docu-
ments, and no opportunity to consult with, much less be repre-
sented by, counsel. The proffered opportunity to make a
statement does not, under any standard, qualify as an adminis-
trative remedy, and therefore "failure to exhaust " that oppor-
tunity does not affect the right to appeal.

Second, even if the opportunity provided did constitute an
administrative remedy, it would not be a remedy that must be
exhausted before an appeal could be taken to this court. As
noted above, the INA requires that the "alien has exhausted
all administrative remedies available to the alien as of right."
INA S 242(d)(1). The INS regulations governing the process
described above are in a section of the regulations titled "No-

tice," and do not require reconsideration of the final determi-
nation even if the alien chooses to make a statement. 8 C.F.R.
S 241.8(b). In fact, the regulations specifically deny the alien
any right to a hearing before an IJ. 8 C.F.R. S 241.8(a). The
aliens in these cases were merely provided with the opportu-
nity to make a statement to the decision-maker who had
already "determined" that the alien was subject to removal. 8
C.F.R. S 241.8(b). The only action to be taken by the officer
who receives the statement is to "consider whether the alien's
statement warrants reconsideration of the determination." Id.

In this regard, the alien's ability to make a statement is sim-
ilar to an alien's ability to file a motion to reopen a BIA deci-
sion. See 8 C.F.R. S 3.2. When the BIA receives such a
motion, it need only consider whether to reopen its prior
order, but it is not required to do so. Castillo-Villagra v. INS,
972 F.2d 1017, 1023-24 (9th Cir. 1992).8  In that case, we held
that because the BIA need not actually reopen its prior deci-
sion, a motion to reopen is considered a request for discretion-
ary relief, and does not constitute a remedy that must be
exhausted. Id.

Like the motion to reopen in Castillo-Villagra , the opportu-
nity to make a statement is not an "administrative remed[y]
available to the alien as of right," because the government is
not required to reconsider its prior decision. Rather, the offi-
cer need only consider whether to reconsider a final determi-
nation. Because the relief is discretionary, it is not a remedy
8 Castillo-Villagra applied the pre-IIRIRA exhaustion requirement, 8
U.S.C. S 1105a(c) (repealed 1996), that was replaced with INA
S 242(d)(1). That provision read as follows:"An order of deportation or
of exclusion shall not be reviewed by any court if the alien has not
exhausted the administrative remedies available to him as of right under
the immigration laws and regulations." 8 U.S.C.S 1105a(c). The "avail-
able as of right" language was not modified by IIRIRA, and therefore our
precedent concerning its interpretation applies to INA S 242(d)(1) just as
it did to its predecessor.

as of right that must be exhausted before judicial review is
authorized. See S 242(d)(1).

B. Habeas Corpus

Rather than appealing directly to this court, petitioners
Rueda and Salinas filed habeas corpus petitions in the district
court to challenge the reinstatement orders. The government
contends that INA S 242(b)(9) divests the district court of
jurisdiction to hear petitioners' habeas corpus petitions, and
establishes the exclusive procedures for challenging removal
orders.9 The district court rejected that argument, and consid-
ered the petitions on the merits. In doing so, it erroneously
posited that the INA precludes direct judicial review of rein-
statement orders. The error was not surprising, given that we
had so held in an opinion that we subsequently withdrew. See
Martinez-Vitela, 193 F.3d at 1052. Citing our precedent that
"the district court retains [habeas corpus ] jurisdiction under
28 U.S.C. S 2241 when the petitioner has no other judicial
remedy," Magana-Pizano v. INS, 152 F.3d 1213, 1216 (9th
Cir.), amended, 159 F.3d 1217 (9th Cir. 1998), vacated, 526
U.S. 1001 (1999), the district judge then concluded that he
retained jurisdiction to hear petitioners' habeas claims
because no judicial review was otherwise available.

In cases such as these, where the claims could have been
brought in this court in the first instance, Congress has pro-
vided a jurisdiction-saving tool that permits us to transfer the
cases to this court and consider the petitions as though they
had never been filed in the district court. See 28 U.S.C.
S 1631; Clark v. Busey, 959 F.2d 808, 812 (9th Cir. 1991)
(transfer statute corrects lack of jurisdiction when cases are
"actually transferred" or "transferrable"). The transfer statute
authorizes us to transfer these cases to ourselves if: (1) we
9 This position is directly contrary to our holding in Flores-Miramontes
v. INS, 212 F.3d 1133, 1139-41 (9th Cir. 2000) that S 242(b)(9) does not
preclude the availability of habeas corpus relief.

would have been able to exercise jurisdiction on the date that
they were filed in the district court; (2) the district court
lacked jurisdiction over the cases; and (3) the transfer is in the
interests of justice. Kolek v. Engen, 869 F.2d 1281, 1284 (9th
Cir. 1988). As we explain below, all three conditions are met.

1. Jurisdiction to Hear Petitions Had They Been Filed in
      This Court

As explained in Part A above, this court has jurisdiction to
hear appeals of final orders reinstating prior removal orders.
Therefore, Rueda and Salinas could have brought their
appeals directly to this court. INA S 242(b)(1) provides that
appeals must be brought within thirty days. Rueda filed his
habeas corpus petition less than a week after the government
reinstated his exclusion order, and therefore at a time when
we would have been able to exercise jurisdiction had his
appeal been filed in this court. Salinas filed his habeas corpus
petition on September 30, 1998, less than 30 days after the
INS issued its final notice on September 15, 1998 that it
intended to deport him.10 Accordingly, as with Rueda's peti-
tion, we would have had jurisdiction over Salinas's petition
had it been filed in this court.

2. District Court Lacked Jurisdiction.

The second criterion that must be satisfied before the trans-
fer statute is invoked is that the district court must have
lacked jurisdiction to entertain the habeas corpus petition. As
explained above, the district court based its conclusion that it
10 While the INS initially served Salinas with a notice to reinstate his
deportation on June 3, 1998, we conclude, in light of all of the circum-
stances, that the September 15, 1998 notice was the event that triggered
the 30 day time limit for filing an appeal. The district court reached the
same conclusion. It explained that on June 3, in response to Salinas's
counsel's objection to the reinstatement, the INS District Director "appar-
ently canceled the reinstatement of the . . . deportation order [issued on
that date]."

had jurisdiction to consider the petition on the erroneous, if
understandable, assumption that this court lacked jurisdiction
to consider the matter on direct appeal.

District courts are authorized by 28 U.S.C. S 2241 to con-
sider petitions for habeas corpus. That section does not specif-
ically require petitioners to exhaust direct appeals before
filing petitions for habeas corpus.11 However, we require, as
a prudential matter, that habeas petitioners exhaust available
judicial and administrative remedies before seeking relief
under S 2241. United States v. Pirro, 104 F.3d 297, 299 (9th
Cir. 1997); Brown v. Rison, 895 F.2d 533, 535 (9th Cir.

In Brown, we explained that the exhaustion requirement in
S 2241 cases is subject to waiver because it is not a "jurisdic-
tional" prerequisite. Brown, 895 F.2d at 535. Our conclusion
that it is not "jurisdictional" is based on the fact that exhaus-
tion is not required by statute. See id. Of course, the transfer
statute requires that the transferor court have a "want of juris-
diction." 28 U.S.C. S 1631. While the S 2241 exhaustion
requirement may be characterized as "not jurisdictional"
because it is a prudential -- rather than a statutory -- limit on
jurisdiction, we nonetheless conclude that it suffices to com-
ply with the want of jurisdiction requirement in the transfer

The purpose of the transfer statute is to eliminate" `the risk
of filing in the wrong court.' " Rodriguez-Roman v. INS, 98
F.3d 416, 424 (9th Cir. 1996) (quoting Dornbusch v. Commis-
sioner of Internal Revenue Svc., 860 F.2d 611, 614 (5th
Cir.1988) (per curiam)); see In Re McCauley, 814 F.2d 1350,
1351-52 (9th Cir. 1987). In Rodriguez-Roman, we transferred
a case to this court in which venue was lacking in the court
11 In contrast, 28 U.S.C. S 2254, which governs habeas corpus petitions
filed by petitioners in state custody, specifically requires that petitioners
exhaust other avenues of relief. See S 2254(b)(1).

in which it was filed, although inappropriate venue is not
actually want of jurisdiction. Rodriguez-Roman , 98 F.3d at
424. We did so in light of clear congressional intent that " `a
case mistakenly filed in the wrong court [should ] be trans-
ferred as though it had been filed in the transferee court on the
date in [sic] which it was filed in the transferor court.' " Alex-
ander v. Commissioner of Internal Revenue, 825 F.2d 499,
501 (D.C. Cir. 1987) (quoting 128 Cong. Rec. 3572 (1982)).

Prudential limits, like jurisdictional limits and limits on
venue, are ordinarily not optional. The district court was not
authorized to hear these petitions under S 2241, because direct
review was available. Accordingly, we conclude that the
transfer statute is an appropriate mechanism to cure the filing
defect by taking jurisdiction and directly reviewing these
cases because the district court, based on prudential con-
straints, could not entertain them.

3. Transfer Is in the Interests of Justice 

When a petitioner files in the wrong court based on a good
faith error about the appropriate forum for his claim, it is in
the interests of justice to transfer the case to cure the want of
jurisdiction. Rodriguez-Roman, 98 F.3d at 424. In this case,
petitioners had good reason to believe that direct review was
not available and that a habeas corpus petition was their only
avenue to secure judicial review. This court reached the same
conclusion in Martinez-Vitela, and the government had taken
the position that direct review was not available.

Under the circumstances, it is in the interests of justice to
exercise our authority under the transfer statute. Because the
conditions of the transfer statute are satisfied, we deem these
appeals transferred to this court and proceed to the merits.


Petitioners contend that INA S 241(a)(5) violates their right
to procedural due process by summarily expelling them from

the country solely on the basis of the evaluation of an INS
agent, with no opportunity for a hearing before an Immigra-
tion Judge (IJ). The government's procedures, the petitioners
contend, are deficient because they deny them: a hearing
before an IJ; a right to appeal to the BIA; a right to develop
a record; representation by counsel; and adequate notice of
the government's intended action. The reinstatement process
raises very serious due process concerns, and is caused not by
a change mandated by Congress as part of IIRIRA, but by an
administrative decision to amend the regulations governing
reinstatement proceedings in the wake of IIRIRA.

The new reinstatement of removal provision, INA
S 241(a)(5), provides in full that:

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

This provision makes no mention whatsoever of the proce-
dures to be used to implement it. As noted above,S 241(a)(5)
modified and replaced a provision of the INA providing for
reinstatement of orders of deportation. See INA S 242(f)
(repealed 1996).12 The new provision substantively differs
12 Section 242(f) provided:

      "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 alien smuggling; criminal offenses; failure

from its predecessor in that: it applies not just to certain
deportations, but to all orders of removal; it prohibits review
of the underlying removal order; it deems the alien ineligible
for other relief; and it eliminates language in the prior provi-
sion making it applicable to cases pending before enactment
of the reinstatement provision. In one important respect, the
reinstatement provision was not modified -- in neither ver-
sion did Congress specify the procedures to be used to effec-
tuate the reinstatements.13

The regulation implementing the former reinstatement pro-
vision specifically afforded the alien the right to appear before
an IJ to contest the reinstatement. 8 C.F.R. S 242.23 (repealed
1997). It charged the IJ with determining: the identity of the
alien; whether the alien was previously deported under a pro-
vision of the act subjecting him to reinstatement; and whether
the alien illegally reentered the United States. C.F.R.
S 242.23(c). Under the new reinstatement statute, the govern-
ment must still determine the alien's identity, the terms on
which the alien left this country, and whether the alien ille-
gally reentered. Nevertheless, the revised regulations imple-
menting the new provision eliminate the basic procedural
safeguards of C.F.R. S 242.23, and replace them with a sum-
      to register and falsification of documents; and national security
      grounds], 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."
13 The significance of this omission is heightened by the fact that
IIRIRA amended other parts of the statute to expedite removal of aliens
from this country. See, e.g. IIRIRA S 302(a) (amending INA
S 235(b)(1)(A) (8 U.S.C. S 1225(b)(1)(A)) to authorize an INS officer to
remove arriving aliens without providing the aliens a hearing before an IJ).
Had Congress intended to change the reinstatement procedures by elimi-
nating the alien's right to appear before an IJ and contest the reinstatement
order, it undoubtedly would have done so.

mary process in which an Immigration Officer alone makes
the relevant determinations. 8 C.F.R. S 241.8 (1999).

As to petitioners' due process claim, there is no dispute that
aliens subject to orders of reinstatement enjoy Fifth Amend-
ment protection. In Yamataya v. Fisher, 189 U.S. 86 (1903),
the Supreme Court rejected the due process claim of a Japa-
nese woman challenging an order of deportation, but made
clear that the Due Process Clause governs the behavior of
administrative officials charged with implementing the immi-
gration laws:

      [T]his court has never held, nor must we now be
      understood as holding, that administrative officers,
      when executing the provisions of a statute involving
      the liberty of persons, may disregard the fundamen-
      tal principles that inhere in "due process of law " as
      understood at the time of the adoption of the Consti-

Yamataya, 189 U.S. at 100. The Court has thus far never
wavered from the core principle that "aliens who have once
passed through our gates, even illegally, may be expelled only
after proceedings conforming to traditional standards of fair-
ness encompassed in due process of law." Shaughnessy v.
United States ex rel. Mezei, 345 U.S. 206, 212 (1953)
(emphasis added);14 see also Getachew v. INS, 25 F.3d 841,
845 (9th Cir. 1994).

The Due Process Clause requires that aliens "threatened
with deportation" are provided the right to "a full and fair
hearing." Getachew, 25 F.3d at 845. A neutral judge is one of
the most basic due process protections. Marincas v. Lewis, 92
F.3d 195, 204 (3d Cir. 1996). Nevertheless, the government
14 In contrast, Mezei holds that aliens "on the threshold of initial entry"
are only entitled to the process provided by Congress. Mezei, 345 U.S. at

fails to utilize its stable of neutral IJs to consider whether to
issue reinstatement orders, and instead leaves that decision to
INS Immigration Officers. Marincas holds that the use of
Asylum Officers rather than IJs to adjudicate asylum applica-
tions made by stowaways deprives the applicants of due pro-
cess. Id. In light of Marincas, we have serious doubt whether
the use of Immigration Officers to determine whether to rein-
state removal orders comports with due process.

Not only are aliens subject to reinstatement denied the
opportunity to appear before an impartial decision-maker, but
the regulations do not provide them with access to counsel.
Thus, according to Castro, when he was apprehended at the
INS offices, his lawyer was present; however, Castro was
denied access to him when he was presented with the notice
of intent to reinstate his deportation, and when he was inter-
viewed. Similarly, according to Funes, he requested access to
counsel, but his request was denied. Fundamental to due pro-
cess is the right to counsel, and we have previously held that,
in deportation hearings, aliens have the "right to obtain coun-
sel of their choice at their own expense." Orantes-Hernandez
v. Thornburgh, 919 F.2d 549, 554 (9th Cir. 1990). We see no
reason why this right does not apply in the case of reinstate-
ment proceedings.

Finally, an alien cannot receive a full and fair hearing
unless he has the right to place information into the adminis-
trative record. Getachew, 25 F.3d at 845. The INS's reinstate-
ment procedures provide the alien with no opportunity to do
so. While the alien may "make a statement," he has no right
to introduce documents to be considered by the governmental
decision-maker. Denial of this right not only jeopardizes the
chances for a fair determination initially, but it hampers our
review of the INS decision. The INA precludes us from con-
sidering facts not in the administrative record, INA
S 242(b)(4), and it also prohibits us from remanding this mat-
ter to the district court for fact-finding. INAS 242(a)(1).
Thus, were we required to determine the validity of Castro's

contention that he had not actually been deported or his claim
that he had not actually illegally reentered, we would be
deprived of the benefit of any evidence that Castro wished to
introduce. Under the regulations, aliens such as Castro have
no opportunity to introduce evidence before the Immigration
Officer, and the INA prohibits them from introducing evi-
dence in the federal courts. The contention that this procedure
comports with fundamental notions of due process is difficult
for us to comprehend.

Whether the INS procedures codified at 8 C.F.R.S 241.8
meet the minimum protections required by the Due Process
Clause is an important question of first impression. Neverthe-
less, while we have serious doubts as to the constitutionality
of these procedures, we do not decide that question because
we may rule in petitioners' favor on a narrower ground. As
we conclude below, the new statutory provision does not
apply in their cases.


[1] The orders the government reinstated in these cases
were not orders of "removal," but "deportation" and "exclu-
sion" orders that pre-date IIRIRA (and its introduction into
immigration law of the concept of "removal"). Petitioners
contend that they are not subject to INA S 241(a)(5) for two
reasons. First, they argue that INA S 241(a)(5) applies only to
orders of removal, not orders of deportation and exclusion.
Second, they assert that INA S 241(a)(5), which became
effective on April 1, 1997, see IIRIRA S 309(a), applies only
to illegal reentries after that date.

As to their first argument, the government notes that while
INA S 241(a)(5) does not specifically refer to deportation or
exclusion orders, the IIRIRA transition rules provide that
"any reference in law to an order of removal shall be deemed
to include a reference to an order of exclusion and deportation
or an order of deportation." IIRIRA S 309(d)(2). If IIRIRA

S 309(d)(2) were applied in these cases, the reference to an
"order of removal" in INA S 241(a)(5) would include the
deportation and exclusion orders reinstated against the peti-
tioners, thereby making them subject to INA S 241(a)(5).
Petitioners argue, however, that IIRIRA S 309(d)(2) does not
apply to reinstatements initiated, as were theirs, after April 1,
1997, because it is merely a part of IIRIRA's special rules
applicable only to those proceedings that were in process at
the time the new statute took effect.

[2] We need not resolve this issue because we agree with
petitioners' second argument -- that whether or not INA
S 241(a)(5) may be used to reinstate orders of deportation and
exclusion, it does not apply retroactively to aliens who reen-
tered the United States before IIRIRA's effective date.
Because all five petitioners reentered before that date, the stat-
utory provision is not applicable to them.

Two recent Supreme Court opinions explain the procedure
we must follow in determining whether a new statute should
be retroactively applied to conduct that takes place before its
enactment. In Landgraf v. USI Film Products, 511 U.S. 244
(1994), the Supreme Court reaffirmed that "the presumption
against retroactive legislation is deeply rooted in our jurispru-
dence, and embodies a legal doctrine centuries older than our
Republic." Id. at 265; see also Hughes Aircraft Co. v. U.S. ex
rel. Schumer, 520 U.S. 939, 946 (1997). Because
"[e]lementary . . . fairness" requires that citizens be able to
conform their behavior to the law, Landgraf, 511 U.S. at 265,
the "principle that the legal effect of conduct should ordinar-
ily be assessed under the law that existed when the conduct
took place has timeless and universal appeal." Kaiser Alumi-
num and Chem. Corp. v. Bonjorno, 494 U.S. 827, 855 (1990).
Landgraf explains that a court must first determine "whether
Congress has expressly prescribed the statute's proper reach."
Landgraf, 511 U.S. at 280. If it has not, then a court must
determine whether the statute acts retroactively by assessing
whether it "takes away or impairs vested rights, " "creates a
new obligation," "imposes a new duty," or "attaches a new

disability, in respect to transactions or considerations already
past." Id. at 269 (internal citation omitted). If so, then absent
a plain statement to the contrary, courts should presume that
Congress does not intend that the statute be retroactively
applied. See id. at 280.

Shortly after it decided Landgraf, the Supreme Court
decided Lindh v. Murphy, 521 U.S. 320, 323 (1997), which
clarified the nature of the first inquiry under Landgraf. Lindh
makes explicit that the first step in determining whether the
change applies is to determine congressional intent using the
"normal rules" of statutory construction. Id. at 326.

[3] For three reasons, we conclude that Congress clearly
intended that the statute should not be applied retroactively to
aliens whose reentry occurred prior to its enactment. First, as
explained above, INA S 241(a)(5) replaced INAS 242(f)
(repealed 1996), which provided more limited authority to
reinstate deportations. The initial reinstatement provision was
enacted in 1952, and specified in the INA that it was applica-
ble to reentries "whether before or after June 27, 1952," the
provision's effective date. INA, Pub. L. No. 82-414, 66 Stat.
208 (1952). When Congress in 1996 rewrote the provision
and codified it at INA S 241(a)(5), rather than modifying the
retroactivity language to specify the effective date of IIRIRA,
or even simply leaving the retroactivity language as it was
(and thus in either case providing that the new, expanded rein-
statement authority would apply to reentries that occurred
before as well as after its effective date) it did the opposite.
It eliminated the retroactivity language completely. See
IIRIRA S 305(a).15 Congress's decision to remove the retroac-
tivity language from this part of the statute provides strong
support for the conclusion that it did not intend that the
15 Congress often leaves specific dates in statutory provisions without
updating the date when it revises the statute with the effect that the
updated provision applies retroactively from the initial, unchanged date in
the statute. See, e.g. 26 U.S.C. S 171(b)(1)(B)(ii).

revised provision be applied to reentries occurring before the
date of the statute's enactment.

[4] Second, examining the rest of IIRIRA provides further
evidence that Congress did not intend that S 241(a)(5) apply
to reentries that occurred prior to April 1, 1997, IIRIRA's
effective date. As explained below, in several other sections
of IIRIRA that change immigration rules for conduct that
takes place before the statute's effective date, Congress speci-
fied that the sections were to apply to such pre-enactment
conduct. That Congress specifically indicated that those sec-
tions would apply to pre-enactment conduct, and failed to do
so in S 241(a)(5), supports the view, by negative implication,
that S 241(a)(5) does not retroactively apply to aliens who
reentered the United States before April 1, 1997. See Lindh,
521 U.S. at 326-32.

For example, IIRIRA makes several amendments to the
INA's definitions, and specifies that those amendments are to
apply to conduct taking place before enactment of the
amended definitions. IIRIRA amends INA S 106, which con-
tains a modified definition of "aggravated felony," to provide
that "the term [aggravated felony] applies regardless of
whether the conviction was entered before, on, or after the
date of enactment of this paragraph." See IIRIRA S 321
(emphasis added).16 Similarly, as part of IIRIRA's extensive
expansion of grounds for exclusion and amendments to the
provisions authorizing waiver of exclusion, Congress specifi-
cally stated that conduct that occurred before enactment
would subject an alien to exclusion or prohibit a waiver. See,
e.g. IIRIRA S 347(c) (exclusion because of unlawful voting
applies to any alien who has voted "before, on, or after the
date of the enactment of this Act") (emphasis added); IIRIRA
S 351(c) (specifying that amendments to INASS 212(d)(11)
16 In another amendment to the definitions in the INA, Congress pro-
vided that the amended definitions of "conviction " and "term of imprison-
ment" "shall apply to convictions and sentences entered before, on, or
after the date of enactment of this Act." See IIRIRA S 322(c).

and 241(a)(1)(E)(iii) "shall apply to applications for waivers
filed before, on, or after the date of the enactment of this
Act") (emphasis added). Nevertheless, in INAS 241(a)(5),
Congress did not make the reinstatement provision applicable
to aliens who reentered the United States before enactment.

Finally, in this case congressional silence is instructive.
Notwithstanding whether a statute actually has an impermiss-
ibly retroactive effect, Congress is deemed to enact legislation
with Landgraf's "default rule" in mind. Lindh, 521 U.S. at
327-28. Accordingly, silence provides useful evidence as to
intent for the first step of Landgraf's two-part inquiry. The
Lindh Court explained that "[s]ince Landgraf was the Court's
latest word on the subject when the Act was passed, " Con-
gress was on notice as to the "wisdom of being explicit" if it
wanted a provision to be retroactively applied. Id. at 328.17

Thus, Congress's failure to include language applying
S 241(a)(5) to illegal reentries that occurred prior to IIRIRA's
enactment, combined with its decision to remove the express
language authorizing retroactive application that appeared in
its predecessor provision, and the fact that Congress expressly
made several other provisions of IIRIRA applicable to pre-
enactment behavior, requires the conclusion that Congress
intended S 241(a)(5) to encompass only post-enactment reen-
tries. See Valderrama-Fonseca v. INS, 116 F.3d 853, 856 (9th
Cir. 1997) (holding that Congress knew how to make
IIRIRA's provisions explicitly retroactive, and not having
done so, "we hesitate to read retroactivity into[it]") (footnote
17 This principle does not apply to statutory changes that are merely pro-
cedural. See Lindh, 521 U.S. at 328. As to such changes, Landgraf makes
clear that they generally may be applied to pending cases without concern
about retroactive effect. See Landgraf, 511 U.S. at 275. The change made
by S 241(a)(5), like the change at issue in Lindh, is not merely procedural
because it affects the availability of relief to aliens by denying them the
opportunity to apply for other relief under the act. Lindh, 521 U.S. at 327
(change to habeas corpus rules that alters standards of proof is not merely

omitted). Because congressional intent is clear, we have no
occasion to employ the second part of the Landgraf inquiry.

Finally, citing Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, 467 U.S. 837 (1984), the government argues
that we should defer to its interpretation concerning the appli-
cability of S 241(a)(5) to reentries occurring prior to the stat-
ute's effective date.18 In Matter of G-N-C-, Int. Dec. 3366
(BIA 1998), the BIA applied the reinstatement provision to an
alien who reentered the United States in 1995. To the extent
that Matter of G-N-C- constitutes an interpretation of the
applicability of S 241(a)(5) in cases such as these (it contains
no discussion of the retroactive application of the statute), it
is still not entitled to deference.

In Chevron, the Supreme Court explained that an agency's
interpretation of a statute must be accorded deference where
Congress has left a gap for it to fill or where it makes a rea-
sonable interpretation of a provision that is ambiguous or
uncertain. Chevron, 467 U.S. at 843-44; INS v. Aguirre-
Aguirre, 526 U.S. 415, 424 (1999). Chevron  deference is
predicated on the assumption that a statute's ambiguity consti-
tutes an "implicit delegation" to the agency to interpret the
statute. Food & Drug Admin. v. Brown & Williamson
Tobacco Corp., 120 S. Ct. 1291, 1314 (2000).

In this case, it is inconceivable that Congress intended to
delegate to the BIA the decision whether to apply INA
S 241(a)(5) to conduct that pre-dates its enactment. IIRIRA
contains extremely detailed transition rules dictating the
application of IIRIRA to past, present and future cases. See
18 The authority the government cites for the proposition that the statute
applies in these cases is the INS implementing regulation at 8 C.F.R.
S 241.8 (2000). That regulation authorizes the INS to reinstate orders of
exclusion and deportation as well as orders of removal, but it does not
specify whether orders can be reinstated against aliens who reentered prior
to April 1, 1997. Therefore, S 241.8 does not support the contention that
the government interprets the statute as applying to such reentries.

IIRIRA S 309. Because Congress assumed for itself the task
of determining when and how IIRIRA's various provisions
would become applicable, Chevron deference is not appropri-
ate. See Gorbach v. Reno, 219 F.3d 1087, 1093 (2000) (en
banc) (declining to apply Chevron deference because the stat-
ute at issue, taken as a whole, "leaves no room to infer an
implicit delegation").

Furthermore, we conclude that deference would be inappro-
priate in this case because the proper interpretation of the
applicability of S 241(a)(5) is clear. Under Chevron, a court
must first analyze the law applying normal principles of statu-
tory construction, and then defer to the agency if, after per-
forming that analysis, it concludes that the statute is
ambiguous or uncertain. Chevron, 467 U.S. at 843 n.9; INS v.
Cardoza-Fonseca, 480 U.S. 421, 446 (1987); Lujan-
Armendariz v. INS, 222 F.3d 728, 749 (9th Cir. 2000). As
explained above, traditional tools of statutory construction
demonstrate that S 241(a)(5) does not apply to reentries that
occur before April 1, 1997. Therefore, we have no occasion
to apply Chevron's deference rule.


The INS erred in reinstating petitioners' deportations pur-
suant to INA S 241(a)(5), because that section applies only to
aliens who reenter the United States after IIRIRA's effective
date. We therefore grant the petitions and remand to the INS
with instructions to vacate its orders reinstating the aliens'
prior deportation and exclusion orders.

As to petitioners Castro, Araujo, and Funes, the petitions
for review are GRANTED and the reinstatement orders are
VACATED. Respondents are directed to return Araujo and
Funes to the United States. As to petitioners Rueda and Sali-
nas, the matters are transferred to this court to be considered
as petitions for review, the petitions are GRANTED, and the

reinstatement orders are VACATED. All of the cases are
REMANDED for further proceedings not inconsistent with
this opinion.19



FERNANDEZ, Circuit Judge, Dissenting:

These cases involve aliens who came to our country ille-
gally, were discovered, and who were accorded the procedural
and due process rights we offer before they were deported.
Nothing deterred, and with nothing if not disdain for our laws,
they almost immediately reentered illegally.1 They were not
unique, and Congress was very concerned about the problems
that they and others caused.

An objective observer would have asked, as Congress did,
just what was the purpose of all of that procedure, all of those
punctilious niceties, which can take years to complete, if the
person could just step back into the country a few days later
19 We appreciate our dissenting colleague's thoughtful and entertaining
dissent, although we believe that the portion regarding the statute's retro-
activity is devoted too much to the rules of construction for ambiguous
provisions explicated in Landgraf and too little to the fact that Congress
simply decided, as the plain statutory language reflects, not to make the
provision in question applicable to re-entries that occurred prior to the date
of enactment -- hardly an unusual or surprising choice. What we regret,
however, is that our colleague did not follow what appears to have been
his inclination to recognize that the INS's regulations violate the Due Pro-
cess Clause. With his penchant for understatement, our colleague denomi-
nates the INS's view of due process as "peculiar " but concludes that it
would be inappropriate to pursue that view in a dissent. To the contrary,
we believe that pursuing that view would likely result in the dissent's
becoming a separate concurrence.
1 Araujo, the next day; Rueda, a few days later; Funes, the next month;
Salinas, four months later; Castro, within months. Castro does argue that
his reentry was not illegal, and that he was not literally deported.

and have the roundeley go on? Society might well have saved
its time and concern in the first place; after all, it could not
protect itself against the alien's improper presence anyway. In
an attempt to correct that problem, Congress took an existing
concept and expanded it. In what is now 8 U.S.C.
S 1231(a)(5), Congress decided to allow what amounts to rec-
ognition and execution of the prior judgment. It declared:

      If the Attorney General finds that an alien has reen-
      tered the United States illegally after having been
      removed or having departed voluntarily, under an
      order of removal, the prior order of removal is rein-
      stated from its original date and is not subject to
      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.


We are now told that in enacting the provision, which was
clearly designed to deny benefits to aliens who had already
been removed,3 Congress largely failed in its purpose. Aliens,
like those at hand, who came back in before the effective date
of the provision, are not even affected by it. They may con-
tinue to reap the benefits of their wrongdoing; they may
demand relief despite the fact that they have already been
removed once before, or, in theory, even more than once.
Why? Because Congress did not declare that S 1231(a)(5) is
meant to be retroactive. I cannot agree with that argument.

No doubt law is purposive in nature -- that purpose being
2 The phrase "under this chapter" in the indented material is rendered
"under this Act" in the statute. See Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, S 305, 110
Stat. 3009-546, 3009-599 (1996) (adding S 241(a)(5) to the Immigration
and Nationality Act.
3 Removal includes deportation and exclusion. See IIRIRA S 309(d)(2);
Prado Hernandez v. Reno, 86 F. Supp. 2d 1037, 1040 (W.D. Wash. 1999);
Mendez-Tapia v. Sonchik, 998 F. Supp. 1105, 1108-09 (D. Ariz. 1998).

the good ordering of society -- and that makes truly retroac-
tive legislation seem to be the very antithesis of law.4 A per-
son cannot conform yesterday's actions to today's ukase. So,
we at least assume that legislation is prospective in nature.
Judicial decisions are, of course, different -- they, presum-
ably, declare what the law has been and are retrospective. But
what is it to say that a law is prospective or retrospective?
Clearly enough, if Holmes' bad man5 decides to do an act
today and garners a benefit today, which the existing law per-
mits, there is something wrong about legislating tomorrow
that the act was not permitted at all and that the benefit must
be taken away. But it is different when that bad man goes on
committing those acts in the hope that at a later time he will
get a benefit, or a reprieve. What if society enacts legislation
to thwart that hope before the bad man reaches his goal? Is
that suspect? I think not. In that vein, the Supreme Court has
laid out a test to help us decide the retrospectivity issue on a
day-to-day basis.

Pure theory aside, the test does generally permit legislation
with retroactive effect, but we must first ask "whether Con-
gress has expressly prescribed the statute's proper reach."
Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S. Ct.
1483, 1505, 128 L. Ed. 2d 229 (1994). If so, we need go no
further. If not, we must then go on to ask "whether the new
statute would have retroactive effect." Id.  In so doing, we
must ask ourselves "whether it would impair rights a party
possessed when he acted, increase a party's liability for past
conduct, or impose new duties with respect to transactions
already completed." Id. If we then decide that it does have
retroactive effect, "it does not govern absent clear congressio-
nal intent favoring such a result." Id. In all of that, however,
we should not lose sight of the fact that the point of this exer-
cise is to avoid sweeping away properly settled expectations,
4 See Lon Fuller, The Morality of Law 39, 44 (1964).
5 See Oliver W. Holmes, The Path of The Law, 110 Harv. L. Rev. 991,
992 (1997).

see id. at 266, 114 S. Ct. at 1497, and that in making the anal-
ysis we are making "a common sense, functional judgment."
Martin v. Hadix, 527 U.S. 343, 357, 119 S. Ct. 1998, 2006,
144 L. Ed. 2d 347 (1999). In my opinion, a proper application
of these rules to this statute yields the answer that the statute
is not retrospective in fact, but if it is dubbed retrospective,
that is precisely what Congress intended it to be.

I agree that Congress did not expressly say that the statute
is retroactive, although it is plain that it speaks to something
that happened in the past. There was a removal. In a vast
number of cases that must have occurred before the statute
was enacted. At any rate, the point is that the statute will
always initially key on an event that at least commenced in
the past. That event, of course, was not an act of the alien. It
was an act of the government, often including the judicial sys-
tem, that sent him from this country -- the order of removal.

Undoubtedly the statute also considers acts of the alien --
his illegal reentry and illegally remaining here. Even entry,
however, is not a simple past act; it is, in fact, an offense
which continues far beyond the instant of entry itself. The
entry may be a separate act, but its effect continues, and is
also embedded in the "found in" crime which, itself, is a con-
tinuing crime. United States v. Ruelas-Arreguin , 219 F.3d
1056, 1061-62 (9th Cir. 2000); United States v. Pacheco-
Medina, 212 F.3d 1162, 1165-66 (9th Cir. 2000); United
States v. Ramirez-Valencia, 202 F.3d 1106, 1110 (9th Cir.
2000); United States v. Rivera-Ventura, 72 F.3d 277, 282 (2d
Cir. 1995).

Even laying aside the significant fact that the wrongdoing
continues, the prior order itself has a continuing effect. The
statutory language of S 1231(a)(5) merely underscores the
force and effect of that prior order, and treats it as most judg-
ments would be treated; the prevailing party is allowed to
seek to execute upon the judgment in its favor. True it is that
the judgment has already been executed upon once, but there
is nothing unusual about allowing multiple executions on a
judgment until the full relief under it has been obtained. The

purpose and effect of S 1231(a)(5) is simply to assure that the
prevailing party continues to prevail, as indeed it should.

It is also true that S 1231(a)(5) expressly provides that the
alien may not deflect his removal by obtaining other relief,6
but the previous possibility that he might have obtained that
relief does not change the chemistry at work here. The mere
possibility that he may have obtained discretionary relief from
deportation conferred no settled right upon him, and its
unavailability does not increase his liability for past actions
-- he was always liable to removal. Nor does it impose any
new duties -- his duty was always to remain out of this coun-
try once he was sent out of it. All the change did was preclude
him from thwarting the execution of the existing judgment
against him by reliance upon his own clearly illegal activities.
He never had the right to demand an exercise of leniency in
the first place, or, for that matter, to insist that society allow
him to ask for it.

As the Fourth Circuit put it, "[l]ike a prisoner waiting for
the executive pardon, [he] could hope for reprieve from
deportation, yet hope does not establish a right to relief."
Appiah v. INS, 202 F.3d 704, 709 (4th Cir. 2000). We have
agreed that a desire to obtain a suspension of deportation is
simply not a right at all. Certainly, a person who has been
convicted under a criminal statute cannot claim some sort of
reliance upon the existing law that will preclude a later denial
of "eligibility for discretionary relief." Magana-Pizano v. INS,
200 F.3d 603, 612 (9th Cir. 1999); see also Samaniego-Meraz
v. INS, 53 F.3d 254, 256 (9th Cir. 1995). In my opinion, that
same reasoning applies here -- a person who illegally reen-
ters this country cannot claim reliance on that bad act in order
to assert eligibility for discretionary relief.

It is important to note that the situation here is quite unlike
those where a person takes some legally proper action which
can be said to confer a settled expectation upon him that he
6 See, e.g., 8 U.S.C. S 1229a(a)(1), 1229(b), 1255. Asylum and withhold-
ing are still available. See 8 C.F.R. S 241.8(d).

will at least garner consideration for some form of discretion-
ary relief. See, e.g., Bowen v. Hood, 202 F.3d 1211, 1220-22
(9th Cir. 2000) (if a person has already obtained eligibility for
consideration for early prison release through the legal act of
becoming involved in drug rehabilitation, that cannot be taken
from him); id. at 1223-25 (Fernandez, J., concurring and dis-
senting) (same, but disagreeing on whether the threshold con-
dition had been met); Magana-Pizano, 200 F.3d at 613 (when
a person performed the legal act of pleading nolo contendere
or guilty, he might have obtained a settled expectation to con-
sideration for relief). Nothing of the sort exists here. To say
that society must recognize some kind of reliance right
because a person might have committed the crime of reentry
and ignored the order of deportation in the hope that he could
get a later reprieve is as bizarre as saying that a person might
have committed a burglary with the hope of a reprieve in
mind. The claimed settled expectation here is bottomed on
nothing more than an illegal act, which continued to be illegal
throughout the alien's stay in this country. We might rightly
ask how a person can demand a right (even one to consider-
ation for discretionary relief) founded on nothing but his own
wrongdoing. I would hold that he cannot.

Especially is all of that true once we recognize that while
the prior solemn removal determination might have occurred
in the past, it was not like a bursting balloon. Rather, its effect
is a continuing event, just as the alien's illegal entry and pres-
ence is a continuing event. Both are still fresh and in progress,
and, as a matter of functional common sense, it is their pres-
ent and future effect that is in play when we execute the prior

In fine, the statute does not deal with any vested rights or
settled expectations arising out of the alien's wrongdoing. Nor
does it impose any new duties or new liabilities: It simply
contains Congress's determination that the kindness of the
past has been counterproductive, if we are to take immigration
policies seriously, and, therefore, removes the possibility of
administrative conferral of leniency. That is not retroactive at

all, and if we were to call it retroactive, Congress's intent that
the illegally present but persistent peregrine be removed from
this country could not be more clear.

I recognize that to ultimately decide these cases, I would
have to go on to determine whether the INS has properly
adopted its rather harsh -- even peculiar -- notion of what
process is due for the purpose of establishing the facts that
allow execution on the prior order. It seems that the INS's
answer to this concern is that the alien is really entitled to no
process at all before a determination to execute the order is
made, although a kind of motion to reconsider is provided
after the INS has unilaterally made its decision. See 8 C.F.R.
S 241.8(b). But the decision itself is made without allowing
the alien to say anything, without an examination of the alien,
and without any other process. I would also have to decide
whether, based upon the record such as it is,7 the facts support
the INS's determination. Castro, for example, argues that they
do not. However, a lengthy analysis of those issues seems
unnecessary to and inappropriate in this dissent. They are not
decided by the majority, and addressing them here would
come to nothing in light of its determination that the statute
does not apply at all. Thus, I will not regale or bore the reader
with further thoughts on those subjects.8 

All of that being said, who can overlook the fact that most
of those who illegally reenter do not come here to commit still
further wrongs? They, rather, are attracted to a country which,
with its normal human faults, is one of the best places in the
world to be,9 and are often further attracted by close family
7 We are limited to the administrative record. See Fisher v. INS, 79 F.3d
955, 963-64 (9th Cir. 1996) (en banc).
8 Perhaps needless to say, I do not join the majority's musings on the
subject in part III of its opinion, which, like mine, are nothing but dicta.
As to its doubts about the use of immigration officers rather than IJ's,
however, see United States v. Garcia-Martinez , 228 F.3d 956, 960-63 (9th
Cir. 2000).
9 In my personal view, it is the very best place to be, but for purposes
of an opinion one should avoid hyperbole.

ties as well. Still, they have no right -- vested, settled, or oth-
erwise -- to amend our Constitution and laws in order to
make passage between states of the world essentially the same
as passage between states of the Union.

Thus, I respectfully dissent.



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