            RECOMMENDED FOR FULL-TEXT PUBLICATION
                 Pursuant to Sixth Circuit Rule 206                          2    Warner v. Ashcroft, et al.                 No. 02-3676
         ELECTRONIC CITATION: 2004 FED App. 0245P (6th Cir.)
                     File Name: 04a0245p.06                                                     _________________
                                                                                                     COUNSEL
UNITED STATES COURT OF APPEALS
                                                                             ON BRIEF: Scott E. Bratton, MARGARET WONG &
                   FOR THE SIXTH CIRCUIT                                     ASSOCIATES CO., Cleveland, Ohio, for Petitioner. Papu
                     _________________                                       Sandhu, Allen W. Hausman, UNITED STATES
                                                                             DEPARTMENT OF JUSTICE, Washington, D.C., for
 O’NEILL WARNER,               X                                             Respondent.
                   Petitioner, -                                                                _________________
                                -
                                -   No. 02-3676
          v.                                                                                        OPINION
                                -
                                 >                                                              _________________
                                ,
 JOHN ASHCROFT , et al.,        -                                              HOOD, District Judge. In this appeal, we are called upon
                 Respondent. -                                               to review an order of exclusion issued by the United States
                                -                                            Immigration and Naturalization Service (“INS”). After
                                -                                            reviewing the briefs of the parties in light of the applicable
                               N                                             law, we are not persuaded that the INS erred in reinstating
   On Appeal from the Board of Immigration Appeals.                          Petitioner’s order of exclusion.
                   No. A74 124 572.
                                                                             I. FACTUAL BACKGROUND
                    Submitted: March 12, 2004                                   Petitioner Warner is a citizen and native of Jamaica. In
                                                         *                   July 1996, Warner first attempted to enter the United States
               Decided and Filed: April 16, 2004                             by presenting a fraudulent passport to immigration authorities
                                                                             at Miami International Airport. On July 5, 1996, he was
  Before: MERRITT and DAUGHTREY, Circuit Judges;                             deported from the United States pursuant to an order of
              HOOD, District Judge.**                                        exclusion. Petitioner then illegally reentered the United
                                                                             States without inspection in July 1998. After he reentered the
                                                                             United States, he married a United States citizen. On
                                                                             April 30, 2001, Petitioner filed an I-130/485 application
                                                                             attempting to gain legal residency. This application,
    *
      This decision was originally issued as an “unpublished decision”
                                                                             however, was denied by the INS based on his illegal reentry
filed on April 16, 2004. On July 2, 2004, the court designated the opinion   after his exclusion in 1996.
as one recommend ed for full-text publication.
                                                                               On June 11, 2002, the INS issued a Notice of Intent to
    **                                                                       Reinstate Prior Order against Warner. In response to this
      The Honorable Joseph M. Hood, United States District Judge for
the Eastern District of Kentucky, sitting by designation.                    Notice, Warner submitted a vague written statement in which

                                    1
No. 02-3676                   Warner v. Ashcroft, et al.     3    4      Warner v. Ashcroft, et al.                  No. 02-3676

he indicated that he feared returning to Jamaica because of the   III. DISCUSSION
crime and the poor educational system. There was no stated
fear of being persecuted or tortured by the Jamaican                Petitioner Warner presents four main issues for this Court
Government or some group in Jamaica. On July 11, 2002, the        to review: (1) whether INA § 241(a)(5) applies to orders of
INS reinstated Warner’s prior order of exclusion pursuant to      exclusion; (2) whether the application of INA § 241(a)(5) to
INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), which authorizes the      orders of exclusion issued before April 1, 1997 is
Attorney General to reinstate a prior order of removal against    impermissibly retroactive; (3) whether INA §241(a)(5)
an alien who illegally enters the country after execution of      violates Petitioner’s due process rights; and (4) whether the
that order and provides for the removal of the alien without      INS erroneously reinstated the order of exclusion against
any additional administrative proceedings.                        Petitioner after denying his adjustment of status application
                                                                  because of INA § 241(a)(5).
   On June 19, 2002, Warner filed a petition for review in this
Court challenging the INS’ reinstatement order and seeking        A. INA § 241(a)(5) and its Application to the
a stay of removal. On August 13, 2002, the Court denied the          Reinstatement of Exclusion Orders
motion for a stay of removal. On August 5, 2002, Petitioner
filed his first proof brief in which he challenged, among other     Petitioner contends that INA § 241(a)(5) cannot be used to
things, the INS’ failure to provide him with a “reasonable        reinstate his final order of exclusion. INA § 241(a)(5) states:
fear” interview based on his fear of returning to Jamaica.
Subsequently, the parties agreed to suspend the briefing              If the Attorney General finds that an alien has reentered
schedule while the INS provided Warner with a reasonable              the United States illegally after having been removed or
fear determination. On October 15, 2002, the INS determined           having departed voluntarily, under an order of removal,
that Warner did not have a reasonable fear of returning to            the prior order of removal is reinstated from its original
Jamaica. This determination was affirmed by an immigration            date and is not subject to being reopened or reviewed, the
judge. Warner then filed his amended proof brief on January           alien is not eligible and may not apply for any relief
9, 2003. In his amended brief, Warner does not challenge the          under this [Act], and the alien shall be removed under the
INS’ or the immigration judge’s determination that he does            prior order at any time after the reentry.
not have a reasonable fear of being removed to Jamaica.
Rather, Petitioner raises various issues regarding § 241(a)(5)    INA § 241(a)(5), 8 U.S.C. § 1231(a)(5). This provision of the
of the Immigration and Nationality Act and its applicability      INA was enacted as part of the Illegal Immigration Reform
to the reinstatement of his order of exclusion.                   and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-
                                                                  208, 110 Stat. 3009 (1996), on September 30, 1996 and
II. JURISDICTION                                                  became effective on April 1, 1997. Prior to the enactment of
                                                                  the IIRIRA, INA § 242(f) governed the reinstatement of
  This Court has jurisdiction over Warner’s petition for          orders of deportation. INA § 242(f) did not apply to reentries
review pursuant to 8 U.S.C. § 1252(b) of the Immigration and      occurring after prior orders of exclusion. Petitioner Warner
Nationality Act (“INA”), which authorizes the courts of           contends that this newer provision, INA § 241(a)(5), likewise
appeals to review orders of removal.                              does not apply to the reinstatement of prior orders of removal
                                                                  since the terms deportation and exclusion are absent from its
                                                                  language.
No. 02-3676                   Warner v. Ashcroft, et al.      5    6    Warner v. Ashcroft, et al.                   No. 02-3676

  Respondent argues that INA § 241(a)(5) does indeed allow         (6th Cir. 2001), this Court held that INA § 241(a)(5) could
for the reinstatement of prior exclusion orders. The language      not be applied retroactively to reinstate prior orders of
in IIRIRA § 309(d)(2), 110 Stat, 3009-627, provides that an        removal of aliens who reentered the country prior to April 1,
order of removal includes “an order of exclusion and               1997, which is the effective date of INA § 241(a)(5). Bejjani
deportation or an order of deportation.”             Therefore,    at 687. However, the Bejjani case does not address the
Respondent asserts that the references to removal within the       present issue of an alien who illegally reentered the U.S. after
INA § 241(a)(5) provision likewise apply to orders of              April 1, 1997 but whose first order of exclusion was entered
exclusion. Petitioner Warner attempts to rebut Respondent’s        before April 1, 1997.
argument by claiming that IIRIRA § 309(d)(2) is merely part
of IIRIRA’s transitional rules. Petitioner believes that this         The Supreme Court has set forth a retroactivity test in
case is governed by IIRIRA’s permanent rules as codified in        Landgraf v. USI Film Products, 511 U.S. 244 (1994). The
the INA. The Fourth Circuit has addressed this same issue in       first inquiry into determining whether a new statute applies to
Velasquez-Ghabriel v. Crocetti, 263 F.3d 102 (4th Cir. 2001).      pre-enactment events is whether Congress had spoken on the
In Velasquez-Ghabriel, the court rejected the notion that          statute’s reach. Landgraf at 280. This inquiry involves two
IIRIRA § 309(d)(2) applies only in “transitional rule” cases.      parts: (1) whether Congress has expressly prescribed for the
According to the Fourth Circuit, § 309(c) of the IIRIRA            statute’s temporal reach; and, if not (2) whether Congress’
“establishes transitional rules for ongoing proceedings, but       intent can be clearly ascertained from the text, structure and
there is no indication that § 309(d) is also a transitional rule   history of the legislation. Bejjani at 677. If Congress has
that applies solely to ongoing, not post-enactment,                spoken on the issue, the inquiry is over and Congress’ intent
proceedings. In fact, such a reading would eviscerate              controls. Id. However, if Congress has not spoken on the
IIRIRA's streamlined removal procedures by resurrecting the        issue, “the court must determine whether the new statute
distinctions between ‘removal,’ ‘deportation,’ and ‘exclusion’     would have a retroactive effect, i.e. whether it would impair
that § 309(d)(2) sought to abolish.” Velasquez-Gabriel at          rights a party possessed when he acted, increase a party’s
105.                                                               liability for past conduct, or impose new duties with respect
                                                                   to transactions already completed.” Landgraf at 280.
   Despite Petitioner Warner’s attempts to employ rules of
statutory construction to support his argument, this Court            Since § 241(a)(5) is silent as to its temporal reach, courts
finds that removal orders in INA § 241(a)(5) include               must look to other evidence to ascertain Congress’ intent. In
exclusion and deportation orders. IIRIRA § 309(d)(2)               Bejjani, this Court found that the decision to completely
specifically provides for such an interpretation. Being that       eliminate the retroactive language found in the preceding
IIRIRA § 309(d)(2) is not merely a transitional rule, orders of    statute, § 242(f), from the new § 241(a)(5) statute was
removal include orders of exclusion for purposes of INA            evidence sufficient to show that Congress did not intend for
§ 241(a)(5).                                                       § 241(a)(5) to apply to reentries occurring prior to the
                                                                   statute’s effective date. Bejjani at 686. However, the
B. Retroactivity Analysis                                          rationale set forth in Bejjani is not directly on point in the
                                                                   instant action since Petitioner Warner reentered the United
  Petitioner argues that INA § 241(a)(5) is impermissibly          States after the effective date of § 241(a)(5). In this action,
retroactive when applied to orders of exclusion issued before      there exists no pre-enactment conduct sufficient to constitute
IIRIRA’s enactment date. In Bejjani v. INS, 271 F.3d 670           a basis for a retroactivity claim.
No. 02-3676                   Warner v. Ashcroft, et al.      7    8       Warner v. Ashcroft, et al.                           No. 02-3676

   Petitioner Warner attempts to base his retroactivity            determination through a written or oral statement. Id. After
argument on the fact that he was excluded and deported prior       all of these procedures have been completed, the alien shall be
to IIRIRA’s enactment. He claims that he was not, at that          removed under the previous order of exclusion or removal.
time, on notice that he could be later subjected to a              C.F.R. § 241.8 (c).
streamlined removal process if he illegally reentered the
country. However, this argument is unpersuasive. “A statute           Petitioner argues that his due process rights were violated
does not operate ‘retrospectively’ merely because it is applied    by the fact that his exclusion order was reinstated under
in a case arising from conduct antedating the statute’s            § 241(a)(5) without him being able to apply for any type of
enactment ... or upsets expectations based in prior law.”          relief. Additionally, Warner believes the procedures
Landgraf at 269. Petitioner Warner was on notice of the            associated with the reinstatement process, set forth in C.F.R.
consequences of his illegal reentry before he chose to illegally   § 241.8, deny him procedural due process. Particularly,
reenter the United States. Therefore, this Court finds no          Petitioner Warner contends that he was denied a hearing
impermissible retroactive effect.                                  before an immigration judge, a right to appeal to the BIA, the
                                                                   right to develop a record, representation by counsel, a right to
C. Due Process                                                     request relief, and adequate notice of the government’s
                                                                   intended action, all in violation of his due process rights.
  Petitioner Warner claims that the application of INA
§ 241(a)(5) and 8 C.F.R. § 241.8 to this case violates his due       Respondent argues that Warner’s due process claim must
process rights. Aliens subject to orders of reinstatement enjoy    fail because he has not shown he was prejudiced by the
Fifth Amendment protection. Castro-Cortez v. I.N.S., 239           claimed constitutional violations. Such proof of prejudice is
F.3d 1037, 1049 (9th Cir. 2001). Even if an alien enters the       necessary to establish a due process violation in an
United States illegally, he or she “may be expelled only after     immigration hearing. Ojeda-Terrazas v. Ashcroft, 290 F.3d
proceedings conforming to traditional standards of fairness        292, 302 (5th Cir. 2002); United States v. Proa-Tovar, 975
encompassed in due process of law.” Shaughnessy v. United          F.2d 592, 595 (9th Cir. 1992)(en banc). Petitioner Warner
States ex rel Mezei, 345 U.S. 206, 212 (1953).                     has not shown any prejudice resulting from the alleged
                                                                   constitutional deficiency. He never, within his briefs,
  8 C.F.R. § 241.8 provides that an alien who illegally            contests the fact that he is an illegally reentering alien.
reenters the United States does not have a right to a hearing      Therefore, even if Warner had been provided with a full
before an immigration judge regarding the reinstatement of a       hearing before an immigration judge, there is no doubt that
prior removal order. Rather, an immigration officer conducts       his prior exclusion order would have been reinstated. Since
an investigation in order to determine: (1) whether the alien      Warner has not demonstrated any prejudice, his due process
has been subject to a prior order; (2) whether the alien is in     claims must fail.1
fact an alien who was previously removed or departed
voluntarily under a prior order; and (3) whether the alien
unlawfully entered the United States after his removal.                1
                                                                         Responde nt also asserts that Petitioner’s due process argument fails
C.F.R. § 241.8(a). If the officer determines that an alien is      on its merits. The Supreme Court has stressed that “ove r no conceivab le
subject to having his removal order reinstated then the officer    subject is the legislative p ower of Co ngress more com plete tha n it is over
must provide written notice to the alien. C.F.R. § 241.8(b).       the admission of aliens.” Reno v. Flores, 507 U.S. 292, 305-06 (199 3).
Thereafter, the alien has the opportunity to contest the           Therefore, the role of the judiciary is limited and the Court should weigh
                                                                   heavily the government’s interests in a Mathews v. Eldridge, 424 U.S. 319
No. 02-3676                          Warner v. Ashcroft, et al.            9    10       Warner v. Ashcroft, et al.                     No. 02-3676

D. Application of § 241(a)(5) to §245(i)                                        removal are reinstated under § 241(a)(5) should not be
                                                                                eligible for relief under § 245(i). If such aliens could obtain
   Pursuant to INA § 245(i), Petitioner filed an I-130/485                      relief under § 245(i), they could avoid Congress’ bar on relief
adjustment of status application based on his marriage to a                     in § 241(a)(5) simply by applying for adjustment of status as
United States citizen. However, on June 11, 2002, the INS                       soon as they illegally enter the United States. Respondent
denied the adjustment of status application stating that                        contends that Congress has not excepted the relief available
Warner is statutorily ineligible to adjust his status because he                under § 245(i) from the § 241(a)(5) bar. Further, Respondent
had been previously ordered excluded and subsequently                           points out that Congress could have carved out such an
illegally entered the United States. Thereafter, the INS                        exception if it so wished.2 This Court finds that § 245(i) has
reinstated Petitioner’s prior order of exclusion pursuant to                    no effect upon § 241(a)(5)’s preclusion of other relief. See
§ 241(a)(5).                                                                    Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 862 (8th Cir.
                                                                                2002) (rejecting as meritless the argument that § 245(i)
   Warner believes that the INS erroneously concluded that he                   conflicts with and supercedes § 245(a)(5)). Therefore, aliens
was statutorily ineligible to adjust his status under INA                       such as Petitioner Warner whose prior orders of removal are
§ 245(i). According to Petitioner, an exception exists to INA                   reinstated under § 241(a)(5) are not eligible for relief under
§ 245's general rule that an alien entering the country without                 § 245(i).
inspection is statutorily barred from adjustment of status.
This exception provides that an alien who is physically                         IV. CONCLUSION
present in the U.S. but who “entered the United States without
inspection ... may apply to the Attorney General for the                          Accordingly, the INS did not err in reinstating Petitioner
adjustment of status to that of an alien admitted for lawful                    Warner’s order of exclusion under § 241(a)(5). Therefore, the
permanent residence.” INA § 245(i). Petitioner Warner                           decision by the INS is hereby AFFIRMED.
claims that § 245(i) allows him to adjust his status. He asserts
that § 245(i) does not cross-reference § 241(a)(5) nor does it
mention any language that would bar adjustment to aliens
who illegally reentered the U.S. after being deported. Prado
Hernandez v. Reno, 86 F.Supp.2d 1037, 1041 (W.D. Wash.
1999). Since § 245(i) does not specifically exclude aliens
subject to § 241(a)(5), Petitioner believes he should be
allowed to change his status under § 245(i).
  INA § 241(a)(5) states that aliens who fall under this
provision “are not eligible and may not apply for any relief
under this chapter.” Therefore, aliens whose prior orders of

                                                                                     2
                                                                                       Congress has set forth specific exceptions to the reinstatement
(1976), due pro cess determination. Although it appears likely that             provision of § 241(a)(5) for certain Nicaraguan, Cuban, and Haitian
Petitioner’s due p rocess claim would fail on its merits, this Court need not   app licants in § 1505 of the Life Act Amendments of 2000, P.L. 106-554,
add ress the m erits since there exists no d emo nstration of prejudice.        114 Stat, 2763 (20 00).
