                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 03-1970
                               ________________

Fernando Lopez-Flores,                  *
                                        *
            Petitioner,                 *
                                        *
      v.                                *
                                        *      Petition for Review of an Order
Department of Homeland Security;        *      of the Bureau of Immigration and
Bureau of Immigration and               *      Customs Enforcement.
Customs Enforcement; Bureau of          *
Citizenship & Immigration               *
Services; Gerard Heinauer, District     *
Director; Ben Bandanza, Assistant       *
District Director of Detention and      *
Deportation,                            *
                                        *
            Respondents.                *

                               ________________

                               Submitted: March 12, 2004
                                   Filed: July 15, 2004
                               ________________

Before WOLLMAN, FAGG, and HANSEN, Circuit Judges.
                        ________________

HANSEN, Circuit Judge.

      Fernando Lopez-Flores petitions this court for review of an order entered by
the Bureau of Immigration and Customs Enforcement (BICE), reinstating his prior
order of deportation and ordering his removal under § 241(a)(5) of the Immigration
and Nationality Act (INA), 8 U.S.C. § 1231(a)(5), enacted as part of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No.
104-208, 110 Stat. 3009-546 (1996).1 We have jurisdiction to review the
reinstatement of a prior deportation order pursuant to § 242 of the INA, 8 U.S.C.
§ 1252 (2000). For the reasons stated below, we grant the petition for review and
vacate the reinstatement of the deportation order.

                                   I. Background

      Lopez-Flores, a citizen of Mexico, illegally entered the United States without
inspection in August of 1992. In December of 1992, the Immigration and
Naturalization Service (INS) found him to be a deportable alien and issued an order
allowing Lopez-Flores to depart voluntarily prior to March 7, 1993. Lopez-Flores did
not depart prior to that date. In April of 1994, the INS entered an order of
deportation, and on May 3, 1994, Lopez-Flores departed the United States.

        On April 3, 1995, less than one year later, Lopez-Flores illegally reentered the
United States. In December of 1995, Lopez-Flores and his sponsoring employer filed
an application for work authorization – Alien Employment Certification – with the
Department of Labor. It was not until February 5, 2001, over five years after the
initial application, that the Department of Labor approved the Alien Employment
Certification. While the application was pending, Congress enacted § 241(a)(5) of
the INA, which became effective on April 1, 1997. In June of 2001, Lopez-Flores's
employer filed a Petition for Alien Worker – Form 140. In July of 2001, the INS
approved the Petition for Alien Worker, but noted that "[t]he evidence indicates that


      1
       For the sake of uniformity, we will cite to the INA section numbers throughout
with an initial cross-reference to their very different section numbers in Title 8 of the
United States Code.
                                           2
[Lopez-Flores] is not eligible to file an adjustment of status application."
(Petitioner’s App. at 20.)

       In January of 2002, based on the approval of his employment-based immigrant
petition, Lopez-Flores filed an application to adjust status to legal permanent
resident – Form 485 – representing that he had never been ordered removed from the
United States. On February 27, 2003, the INS denied the application, noting that
Lopez-Flores was ineligible for an adjustment of status under § 212 of the INA, 8
U.S.C. § 1182(a)(9)(C), because he was an alien who was previously unlawfully
present in the United States for more than one year and who had subsequently
reentered the United States illegally. Lopez-Flores filed a timely notice of appeal
with the Administrative Appeals Unit of the INS arguing that he was wrongfully
denied the opportunity to file a Form I-2122 in conjunction with his Form 485. (Ad.
R. at 120.) Lopez-Flores had no opportunity to pursue this appeal because on April
10, 2003, the BICE3 served him with a notice of intent to reinstate his prior
deportation order pursuant to § 241(a)(5). Lopez-Flores filed a petition for review
and a motion for a stay of removal. This court denied the motion, and he was
deported on June 23, 2003. Relying on our decision in Alvarez-Portillo v. Ashcroft,
280 F.3d 858 (8th Cir. 2002), Lopez-Flores argues that § 241(a)(5) has an
impermissible retroactive effect when applied to disallow aliens like himself, who


      2
       Pursuant to 8 C.F.R. § 212.2, an alien who is otherwise inadmissible under
§ 212, for failing to seek permission to reenter the United States after a prior
deportation, may file Form I-212 for nunc pro tunc permission to reenter in
conjunction with an application for adjustment of status. The approval of Form I-212
retroactively cancels the disqualifying effect of the prior deportation.
      3
        Effective March 1, 2003, the Immigration and Naturalization Service ceased
to exist, and its interior enforcement functions were transferred to the Department of
Homeland Security, Bureau of Immigration and Customs Enforcement (BICE). See
Homeland Security Act of 2002, Pub. L. No. 107-296, § 441, 116 Stat. 2135, 2178
(2002).
                                          3
reentered the United States prior to the effective date of that amendment, from
seeking discretionary adjustment of status as a defense to the reinstatement of
deportation.

                                   II. Discussion

       In Alvarez-Portillo, we held that § 241(a)(5), under which an alien subject to
reinstatement may not apply for any relief "under this chapter" of the INA, could not
be applied retroactively to an alien who had illegally reentered the United States
prior to the enactment of the IIRIRA because that alien had a "reasonable
expectation" that he could apply for adjustment of status as a defense to removal.
Id. at 867. Under pre-IIRIRA administrative practice, aliens in deportation
proceedings were allowed to defend against removal by seeking and obtaining an
adjustment of status to lawful permanent resident. Alvarez-Portillo illegally
reentered the United States and married a United States citizen prior to the enactment
of § 241(a)(5). We noted that Alvarez-Portillo's marriage to a United States citizen
"would have made him a likely candidate for adjustment of status," id. at 862, and
that "[u]nder prior law, Alvarez-Portillo had a reasonable expectation he could either
file for a discretionary adjustment of status, or wait and seek the adjustment as a
defense to a later deportation proceeding," id. at 867. Because § 241(a)(5)
eliminated this potential defense, we concluded that § 241(a)(5) had an
impermissible retroactive effect on Alvarez-Portillo's reinstatement and removal
proceeding.

       Respondents seek to distinguish this case from Alvarez-Portillo on two bases.
First, Respondents argue that Lopez-Flores could not have had a "reasonable
expectation" of receiving an adjustment of status prior to the enactment of
§ 241(a)(5) because his application for work authorization had not yet been approved
and because his application for adjustment was based on his employment status
rather than his marriage to a United States citizen, as was the case in Alvarez-

                                          4
Portillo. Specifically, Respondents note that the process to receive an employment-
based visa is much more complicated and lengthy than the process to receive an
immediate relative visa. While we agree that this fact may have some effect on the
success of such a defense, it has no bearing on the reasonableness of Lopez-Flores's
expectation that the opportunity to pursue such a defense would be available to him
in later instituted deportation proceedings. Had Respondents shown that Lopez-
Flores's application for adjustment of status was utterly without merit or that such
relief was unavailable to him as a matter of law prior to the enactment of § 241(a)(5),
we would conclude that any retroactive application of § 241(a)(5) was harmless
error. However, the fact that Lopez-Flores may have been a weaker candidate than
Alvarez-Portillo for discretionary adjustment of status does not change the fact that
he had a reasonable expectation that such a defense would be available to him to
assert in a subsequent deportation proceeding. Cf. Alvarez-Portillo, 280 F.3d at 867
("There is a clear difference . . . between facing possible deportation and facing
certain deportation.") (internal marks omitted).

       This brings us to the second distinguishing fact in this case. Unlike Alvarez-
Portillo, who merely intended or attempted to file an application for adjustment of
status, Lopez-Flores had already applied for, and was denied, an adjustment of status
prior to his reinstatement deportation proceeding. Thus, in this appeal, Lopez-Flores
essentially seeks relief that he has already received – an opportunity to be considered
for discretionary adjustment of status. Nevertheless, absent the effect of § 241(a)(5),
Lopez-Flores would have had the opportunity to renew his application for
adjustment of status in the context of a subsequent deportation proceeding. See 8
C.F.R. § 245.2(a)(5)(ii); Cardoso v. Reno, 216 F.3d 512, 518 (5th Cir. 2000)
(dismissing a direct appeal from the immigration judge's denial of an alien’s request
for adjustment of status, noting that she had to first exhaust her administrative
remedies by renewing her request upon the commencement of removal proceedings);
Randall v. Meese, 854 F.2d 472, 474-75 (D.C. Cir. 1988) (“Should the alien fail to
gain adjustment [in his initial application], he is entitled to a de novo review of his

                                          5
application in the context of deportation proceedings.”), cert. denied, 491 U.S. 904
(1989). In a deportation proceeding, the alien is accorded a plenary hearing; he has
the right to be represented by counsel, to introduce evidence, and to cross-examine
witnesses. 8 U.S.C. § 1229a; 8 C.F.R. § 1240.10. Thus, although Lopez-Flores's
initial application for adjustment of status was denied and he had no opportunity to
pursue his administrative appeal, absent the § 241(a)(5) provisions, he would have
had an opportunity to renew his application in the context of a subsequent
deportation proceeding. We conclude that he has the right to do so now.

       Respondents argue that we need not remand to allow Lopez-Flores another
opportunity to pursue adjustment of status because Lopez-Flores is ineligible for that
relief as a matter of law under both the current and the prior versions of the statute.
Compare 8 U.S.C. §1182(a)(9)(C) (2000) (stating in relevant part that aliens who are
inadmissible based on their unlawful presence in the United States for more than one
year or their reentry after a prior order of deportation are ineligible to receive visas
and ineligible to be admitted to the United States unless they wait at least ten years
to reenter), with 8 U.S.C. § 1182(a)(6)(B) (1994) (declaring aliens who have been
"arrested and deported" to be inadmissible, absent the consent of the Attorney
General, unless they wait at least five years to reenter). Even if these provisions do
apply to make Lopez-Flores ineligible for adjustment of status, the INA and its
accompanying regulations contain two separate waivers that serve to forgive a prior
deportation that would otherwise disqualify an applicant for adjustment of status.
Pursuant to 8 C.F.R. § 212.2, an individual seeking an adjustment of status may
petition the Attorney General to remove the prior deportation disqualifications
contained in 8 U.S.C. § 1182. In his administrative appeal from the denial of his
application to adjust status, Lopez-Flores argued that he was wrongfully prevented
from filing for a § 212 waiver.4 Similarly, under § 245A of the INA, 8 U.S.C.


      4
        Interestingly, it is through the § 212 waiver process that Alvarez-Portillo was
eligible to renew his adjustment of status application after we vacated the initial
                                           6
§ 1255a(d)(2)(B)(i), the Attorney General may waive a prior deportation as a ground
for exclusion in the case of an individual alien for "humanitarian purposes, to assure
family unity, or when it is otherwise in the public interest." Although Lopez-Flores
is not automatically entitled to these waivers, the possibility of receiving such
discretionary relief demonstrates that he is not absolutely ineligible for adjustment
of status.

      Because we recognize that these discretionary waivers may have allowed
Lopez-Flores to escape from his apparent statutory ineligibility, and because an
agency should have the first opportunity to interpret and apply its own regulations,
especially those involving such a degree of discretion, we conclude that the most
appropriate resolution in this case is to allow Lopez-Flores to raise all of these
defenses in a new deportation proceeding. We vacate the reinstatement of the prior
deportation order and remand for further proceedings not inconsistent with this
opinion.
                      ______________________________




reinstatement order in that case. (Br. for Petitioner at 19-20, Alvarez-Portillo v.
Ashcroft, 280 F.3d 858 (8th Cir. 2001) (No. 01-1430).)
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