                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MARTHA GUADALUPE MONTOYA,                No. 11-72483
                   Petitioner,
                                          Agency No.
                v.                       A074-388-525

ERIC H. HOLDER, JR., Attorney
General,                                  OPINION
                        Respondent.


       On Petition for Review of an Order of the
           Board of Immigration Appeals

                Argued and Submitted
       February 10, 2014—Pasadena, California

                 Filed March 7, 2014

        Before: Jerome Farris, N. Randy Smith,
         and Paul J. Watford, Circuit Judges.

               Opinion by Judge Farris
2                     MONTOYA V. HOLDER

                           SUMMARY*


                           Immigration

    The panel denied Martha Guadalupe Montoya’s petition
for review of the Department of Homeland Security’s
reinstatement pursuant to the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 of her prior order of
removal.

    The panel held that application to Montoya of the Act’s
reinstatement statute was not impermissibly retroactive even
though her brother had filed a Form I-130 petition for alien
relative on her behalf before the Act’s effective date. The
panel wrote that the reinstatement provisions could
permissibly be applied to Montoya because she took no
pre-enactment action sufficient to create a vested right to
apply for adjustment of status.


                            COUNSEL

Charles Medina, Buena Park, California, for Petitioner.

Manuel A. Palau, United States Department of Justice,
Washington, D.C., for Respondent.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    MONTOYA V. HOLDER                          3

                          OPINION

FARRIS, Circuit Judge:

    The petitioner, Martha Guadalupe Montoya, is a native
and citizen of Mexico who illegally entered the United States
and was ordered removed on January 25, 1996. In February
1996, she re-entered the United States illegally and remained
there. On January 7, 1997, her brother—a United States
citizen—filed a Form I-130 petition for a visa based on a
family relationship, and it was approved. She was then placed
on a waiting list to receive the visa.

    During this time, the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 took effect (on April
1, 1997). Pub. L. No. 104-208, div. C, 110 Stat. 3009–546.
The Act changed the law regarding reinstatements of
deportation or removal orders: it expanded the class of aliens
eligible for this reinstatement and eliminated all forms of
relief from the process. 8 U.S.C. § 1231(a)(5) (“the alien is
not eligible and may not apply for any relief under this
chapter”); Fernandez-Vargas v. Gonzales, 548 U.S. 30, 34
(2006); see also Arevalo v. Ashcroft, 344 F.3d 1, 5 (1st Cir.
2003) (enumerating differences between pre- and post-
IIRIRA reinstatement provisions).

    While on the waiting list but after the effective date of the
Act, the Department of Homeland Security issued a
reinstatement of Montoya’s prior removal order (on August
24, 2011). She now petitions for review of this reinstatement,
arguing that the application of the reinstatement statute in the
Act is impermissibly retroactive with respect to her, as her
Form I-130 was filed prior to the Act’s effective date. The
retroactive applicability of statutes is reviewed de novo.
4                   MONTOYA V. HOLDER

Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1326 (9th Cir.
2006). This Court has jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(2)(D).

    When, as here, Congress has not spoken explicitly with
respect to a statute’s temporal reach, we analyze retroactivity
claims by assessing whether the application would (1) create
new consequences for past acts or (2) cancel vested rights.
Fernandez-Vargas, 548 U.S. at 37, 44 n.10. The retroactive
applicability of 8 U.S.C. § 1231(a)(5) has been directly
addressed by both the Supreme Court and the Ninth Circuit.
See id. at 44–45 (holding that the provision did not create new
consequences for past acts when applied to continuing
violators of immigration laws); Ixcot v. Holder, 646 F.3d
1202, 1212–13 (9th Cir. 2011) (holding that alien’s pending
pre-Act application for relief prevented the retroactive
application of the new reinstatement provisions). What
distinguishes Ixcot from Fernandez-Vargas is that the alien
in the former case affirmatively took pre-enactment action so
as to change his legal status, while the alien in the latter case
did nothing. Fernandez-Vargas, 548 U.S. at 45–46; Ixcot,
646 F.3d at 1212–13.

    Whether a right has “vested” is therefore primarily
determined by an individual’s actions—the inquiry looks to
whether a person has “availed” himself of the right, or “took
action that enhanced [its] significance to him in particular.”
Fernandez-Vargas, 548 U.S. at 44 n.10. Still, any action
taken must “elevate [the expectation] above the level of
hope,” and therefore actions that do little to substantially
further the individual’s expectation of relief are insufficient
to create a vested right. Id.
                    MONTOYA V. HOLDER                           5

    The central question here is whether the filing and
approval of a Form I-130 “Petition for Alien Relative” before
the Act’s effective date is sufficient to create a vested right to
ultimately apply for adjustment of status relief. Approval of
a Form I-130 is only the first step in the process towards a
“family-based adjustment of status”: (1) the I-130 is approved
after being filed by a petitioning family member of the alien
that is a U.S. citizen or permanent resident, (2) the alien is
placed on a waiting list for a visa based on country of origin
and year of application, and (3) when this is completed the
alien may apply for adjustment of status and expect
adjudication of that application. Matter of Hashmi, 24 I. & N.
Dec. 785, 789 (BIA 2009). This circuit has not addressed a
case in which only an I-130 has been filed before the Act’s
effective date, but the Fifth and Seventh Circuits have held
that filing and approval of an I-130 is not sufficient to create
a vested right. Silva Rosa v. Gonzales, 490 F.3d 403, 407–08
(5th Cir. 2007); Labojewski v. Gonzales, 407 F.3d 814, 822
(7th Cir. 2005).

     We agree with the Fifth and Seventh Circuits: the mere
filing and approval of a Form I-130 creates no vested right to
apply for adjustment of status. This is informed by several
considerations. First, it is not the alien who actually files the
form, but rather the petitioning family member. See Matter of
Hashmi, 24 I. & N. at 789. Next, it is not the alien who places
herself on the waiting list, but rather the agency. Id. Finally,
even after the (usually lengthy) waiting period has elapsed, it
is still up to the alien to then affirmatively apply for
adjustment. Id. (“Once the I-130 is approved and an
immigrant visa is immediately available, the respondent may
apply for adjustment of status”) (emphasis added). Up until
this last step—the application—the alien is but a passive
recipient of the benefits of other parties’ actions. Such
6                  MONTOYA V. HOLDER

passive participation does not raise the alien’s expectations
“above the level of hope.” Fernandez-Varga, 548 U.S. at 44
n.10. Here, Montoya’s brother filed an I-130 on her behalf
and the government placed her on the waiting list. She did not
apply for adjustment of status. She took no pre-enactment
action sufficient to create a vested right to apply for
adjustment, and therefore the reinstatement provisions of the
Act can be permissibly applied to her.

    The petition is DENIED.
