Noriega Aramillo v. Branch , 111 F. App'x 573 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 8 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
JUAN FERNANDO NORIEGA
ARAMILLO,
Petitioner, No. 03-9612
v. (INS No. A78 904 760)
STEVEN BRANCH, Officer in (Petition for Review)
Charge; SCOTT WEBER, District
Director, BICE; NANCY
ALCANTAR, “FOD”; CHARLES
DEMORE, “SAIC”; JOHN
ASHCROFT; and TOM RIDGE,
Respondents.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge , BRISCOE and HARTZ , Circuit Judges.
Petitioner Juan Fernando Noriega Aramillo appeals the decision of the
Bureau of Immigration and Customs Enforcement (BICE) reinstating a previous
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
order removing him from the United States. See 8 U.S.C. § 1231(a)(5).
Petitioner asserts that the statute authorizing BICE to reinstate the previous order
is unconstitutionally retroactive as applied to him. He further asserts that he is
eligible to seek an adjustment of status under the LIFE Act. See 8 U.S.C.
§ 1255(i). We have jurisdiction to review the reinstatement order under 8 U.S.C.
§ 1252(a), and affirm.
I. BACKGROUND
Petitioner is a native and citizen of Mexico. He illegally entered the
United States in 1993 and again on April 19, 1998. While attempting to gain
entry in 1998, Petitioner falsely represented that he was a United States citizen.
The Immigration and Naturalization Service (INS) 1 issued an Order of Removal,
and Petitioner was removed to Mexico. Later that year Petitioner illegally
reentered the United States. Shortly thereafter, on August 30, 1998, he married
Rocio Ruiz, a United States citizen, and then sought adjustment of status under 8
U.S.C. § 1255, based on his marriage.
In October 2003 Petitioner appeared at the Salt Lake City office of the
Bureau of Citizenship and Immigration Services for an interview regarding his
On March 1, 2003, the INS ceased to exist as an agency within the
1
Department of Justice. Its enforcement functions were transferred to the
Department of Homeland Security. See Homeland Security Act of 2002, Pub. L.
No. 107-296, 116 Stat. 2135 (2002).
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application for adjustment of status. He was arrested because he had been
previously deported from the United States on several occasions. On
November 10, 2003, BICE reinstated Petitioner’s 1998 removal order under 8
U.S.C. § 1231(a)(5). On November 12, 2003, Petitioner filed an application for a
writ of habeas corpus in the United States District Court for the District of Utah.
The district court transferred the matter to this court under 28 U.S.C. § 1631. We
subsequently issued an Order construing the habeas application as a petition for
review.
II. DISCUSSION
Petitioner asserts that the reinstatement provision, 8 U.S.C. § 1231(a)(5),
has improperly been applied retroactively against him. It states:
If the Attorney General finds that an alien has reentered the
United States illegally after having been removed . . ., 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). The provision was enacted as part of the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No.
104-208, 110 Stat. 3009, on September 30, 1996, and became effective on April 1,
1997.
We see no retroactive effect of the statute because the relevant
event—reentry after having been removed—occurred after the statute’s April 1,
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1997, effective date. Petitioner attempted to enter the United States in 1998 and
was removed; he illegally reentered and got married later that year. Petitioner
overlooks these events and seems to base his retroactivity argument on his 1993
illegal entry. To be sure, if Petitioner’s most recent entry into the country had
predated IIRIRA, there would be a retroactivity issue. Compare Arevalo v.
Ashcroft, 344 F.3d 1, 15 (1st Cir. 2003) (§ 1231(a)(5) not applicable to alien who
reentered before IIRIRA effective date), Bejjani v. INS, 271 F.3d 670, 684-87
(6th Cir. 2001) (same), and Castro-Cortez v. INS, 239 F.3d 1037, 1051-52 (9th
Cir. 2001) (same), with Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 106-09 (4th
Cir. 2001) (§ 1231(a)(5) applies to alien who reentered before IIRIRA effective
date), and Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 299-302 (5th Cir. 2002)
(same). But here, the relevant unlawful reentry occurred in 1998, after the
statute’s effective date. See Avila-Macias v. Ashcroft, 328 F.3d 108, 114 (3d Cir.
2003) (“[a]pplying IIRIRA to [the petitioner] . . . does not have an impermissible
retroactive effect because the consequences of an illegal reentry at the time that
he reentered are the consequences he faces now”); Warner v. Ashcroft, 378 F.3d
526, 530-31 (6th Cir. 2004) (because the petitioner reentered the United States
after IIRIRA’s effective date, there was “no pre-enactment conduct sufficient to
constitute a basis for a retroactivity claim,” and the petitioner “was on notice of
the consequences of his illegal reentry before he chose to illegally reenter the
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United States”); Lopez v. Heinauer, 332 F.3d 507, 512 (8th Cir. 2003) (“[t]here
can be no retroactive effect from applying IIRIRA’s reinstatement procedures . . .
where the statute was in effect at the time of [the] illegal reentry”); Perez-
Gonzales v. Ashcroft, 379 F.3d 783, 787 (9th Cir. 2004) (following Avila-
Macias). We therefore reject Petitioner’s claim that the reinstatement provision
has been retroactively applied.
Petitioner also asserts that he is eligible for an adjustment of status under
the LIFE Act, 8 U.S.C. § 1255(i). The LIFE Act, however, requires that
applicants be “admissible to the United States for permanent residence.” 8 U.S.C.
§ 1255(i)(2)(A). Petitioner is inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii)
because he previously sought admission by falsely representing himself to be a
United States citizen. See Padilla v. Ashcroft, 334 F.3d 921, 925-26 (9th Cir.
2003). Petitioner has not pointed to any legal basis for a waiver of such
ineligibility. Thus, we conclude that Petitioner is ineligible for adjustment of
status under the LIFE Act.
III. CONCLUSION
The petition for review is DENIED.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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