                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-9-2003

Avila-Macias v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket 01-4307




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Recommended Citation
"Avila-Macias v. Atty Gen USA" (2003). 2003 Decisions. Paper 511.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/511


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                                  PRECEDENTIAL

                                          Filed January 23, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 01-4307


                   ANTONIO AVILA-MACIAS,
                                  Petitioner
                                  v.
             JOHN ASHCROFT, Attorney General
               of the United States of America,
                                     Respondent

 ON APPEAL FROM THE UNITED STATES IMMIGRATION
           & NATURALIZATION SERVICE
          Agency No. 0090-1: A39 292 486

         Submitted Under Third Circuit LAR 34.1(a)
                    January 10, 2003

   Before: SCIRICA, BARRY, and SMITH, Circuit Judges

              (Opinion Filed: January 23, 2003*)




* This Opinion was originally issued as a not-precedential opinion. By
Order of the Court dated May 9, 2003, the Opinion was designated for
publication.
                                   2


                          Ronald D. Richey, Esq.
                          Ronald D. Richey & Associates
                          966 Hungerford Drive
                          Suite 8B
                          Rockville, MD 20850
                          Attorney for Petitioner
                          Emily A. Radford, Esq.
                          Terri J. Scadron, Esq.
                          John M. McAdams, Jr., Esq.
                          Papu Sandhu, Esq.
                          United States Department of Justice
                          Office of Immigration Litigation
                          Ben Franklin Station
                          P.O. Box 878
                          Washington, D.C. 20044
                          Attorneys for Respondent


                    OPINION OF THE COURT

BARRY, Circuit Judge:
   On November 29, 2001, the Immigration and
Naturalization Service (“INS”) issued an order reinstating a
prior order of deportation against petitioner Antonio Avila-
Macias pursuant to Section 305(a)(5) of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”).1 Avila-Macias appeals, arguing that (1)
Section 305(a)(5) does not apply to him because he was
previously deported as opposed to removed; (2) applying
Section 305(a)(5) in his case would be impermissibly
retroactive because he was deported prior to April 1, 1997,
the effective date of IIRIRA; (3) the reinstatement order was
invalid because it did not specify where and when he
illegally reentered the United States and because his
counsel was not notified of its issuance; and (4) the

1. Section 305(a)(5) of IIRIRA became Section 241(a)(5) of the
Immigration and Nationality Act and is codified at 8 U.S.C. § 1231(a)(5).
We will refer to this provision as “Section 305(a)(5).”
                              3


deportation order which underlies the order                 of
reinstatement is vulnerable to collateral attack.
   We have jurisdiction pursuant to Section 242(a)(1) of the
Immigration and Nationality Act, which is codified at 8
U.S.C. § 1252(a)(1), and will affirm for the reasons we
summarize as follows. First, Section 309(d)(2) of IIRIRA
provides 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.”
There is no reason to limit the applicability of this broadly-
worded provision in the ways that Avila-Macias advocates.
Second, while Avila-Macias was deported prior to the
effective date of IIRIRA, he does not allege that he illegally
reentered the United States prior to it. Thus, the
consequences of his actions at the time that he illegally
reentered are the consequences he faces now. Third,
neither the fact that the INS did not specify where or when
Avila-Macias reentered nor the fact that his counsel was
not notified that reinstatement proceedings had been
initiated invalidates the reinstatement order which was
issued in this case. Finally, while Avila-Macias may be able
to collaterally attack the underlying deportation order
elsewhere, we are precluded from reviewing it in a
reinstatement proceeding. See 8 U.S.C. § 1231 (a)(5).

                              I.
  Avila-Macias is a native Mexican and citizen of Mexico
who entered the United States without inspection in 1979,
when he was five years old. He became a lawful permanent
resident in 1985. In 1995, he was convicted of “corporal
injury to spouse/co-habitant/child’s parent” and of vehicle
theft, and in 1996, he was convicted of second-degree
burglary. Later in 1996, the INS issued an order to show
cause charging him with deportability as an alien convicted
of an aggravated felony. An immigration judge found that
Avila-Macias was deportable as charged and that he was
not eligible for relief from deportation, and ordered him
deported to Mexico. Avila-Macias, who was not represented
by counsel, waived his right to appeal to the Board of
Immigration Appeals. On January 22, 1997, he was
deported to Mexico.
                                   4


   Although, pursuant to 8 U.S.C. § 1182(a)(9)(A)(ii)(I), Avila-
Macias was barred from re-entering the United States for
ten years following his removal, he reentered within that
time. On October 16, 2001, the INS served him with Form
I-871, entitled “Notice of Intent/Decision to Reinstate Prior
Order,” which alleged that he was removed on January 22,
1997 and that he had illegally re-entered on an unknown
date and at an unknown place. On November 29, 2001, the
INS issued a final order of reinstatement against him.2

                                   II.
  The first question presented is whether Section 305(a)(5),
which gives the Attorney General the authority to reinstate
a prior order of removal where an alien has illegally
reentered the United States, also permits the reinstatement
of a prior order of deportation.3 Before IIRIRA, individuals
who were “ineligible for admission into the United States
and were never admitted into the United States were
referred to as ‘excludable,’ while aliens who had gained
admission, but later became subject to expulsion from the
United States, were referred to as ‘deportable.’ ” United
States v. Lopez-Vasquez, 227 F.3d 476, 479 n.2 (5th Cir.
2000). After IIRIRA, aliens who were previously referred to
as “excludable” are termed “inadmissible,” and the term

2. On December 8, 2001, Avila-Macias filed a motion to re-open the prior
deportation proceedings with an immigration judge in Imperial,
California. The motion was denied on April 26, 2002 and Avila-Macias
appealed to the Board of Immigration Appeals. His appeal is currently
pending. On March 13, 2002, he filed a petition for a writ of habeas
corpus in the U.S. District Court for the Eastern District of
Pennsylvania. The petition was transferred to the U.S. District Court for
the Southern District of California, where it is pending.
3. The full text of Section 305(a)(5) is as follows: “(5) REINSTATEMENT
OF REMOVAL ORDERS AGAINST ALIENS ILLEGALLY REENTERING.— If
the Attorney General finds that an alien has reentered the United States
illegally after having been removed or having departed voluntarily, under
an order of removal, 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 Act, and the
alien shall be removed under the prior order at any time after the
reentry.”
                              5


“removal proceedings” covers proceedings applicable to both
inadmissible and deportable aliens. Id. Thus, a reference to
an order of removal would encompass an order of
deportation. See Bejjani v. INS, 271 F.3d 670, 674 n.2 (6th
Cir. 2001)(IIRIRA replaced the concepts of exclusion and
deportation with the concept of removal); Omar v. INS, 298
F.3d 710, 712 n.2 (8th Cir. 2002)(IIRIRA eliminated the
previous legal distinction between deportation and removal
proceedings); United States v. Lopez-Gonzalez, 183 F.3d
933, 934 (9th Cir. 1999)(same); United States v. Pantin, 155
F.3d 91, 92 (2d Cir. 1998) (same).
  Avila-Macias essentially argues that, in spite of these
changes, the words “deportation” and “removal” are not
interchangeable, thus attempting to limit the applicability
of Section 309(d)(2) of IIRIRA, which provides as follows:
“TRANSITIONAL REFERENCES.—For purposes of carrying
out the Immigration and Nationality Act, as amended by
this subtitle— . . . (2) 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.”
   Avila-Macias argues that Section 309(d)(2) does not apply
as broadly as it appears, because if it did it would render
superfluous Congress’ reference to orders of exclusion and
deportation in IIRIRA § 308(d)(4)(J), which amended 8
U.S.C. § 1326(a) and which penalizes aliens who reenter the
United States after having “been denied admission,
excluded, deported, or removed.” This argument has been
rejected by several Courts of Appeals. See, e.g., Lopez-
Gonzalez, 183 F.3d at 935 (“any distinction between
deportation and removal is legally insignificant for purposes
of § 1326”); United States v. Pena-Renovato, 168 F.3d 163,
164 (5th Cir. 1999)(same); Pantin, 155 F.3d at 92-93
(same). We, too, will not ignore the plain language of
Section 309(d)(2) or the other provisions of IIRIRA which
eliminate the distinction between deportation and removal,
in order to read Section 308(d)(4)(J).
  Avila-Macias’ second argument with regard to Section
309(d)(2) is that it only applies to transitional rules cases,
which are those cases in which the alien was in exclusion
or deportation proceedings before IIRIRA’s effective date,
but in which a hearing was not held until after the effective
                                    6


date. See IIRIRA § 309(c)(2). In such cases, the Attorney
General can elect to apply the provisions of IIRIRA. Avila-
Macias argues that Section 309(d)(2) permits only those
final orders of deportation or exclusion which were entered
in transitional rules cases to be treated as removal orders
in future reinstatement proceedings.
   Avila-Macias does not point to anything in the statute or
in the cases to support this interpretation of Section
309(d)(2). The transitional rules are contained in Section
309(c) of IIRIRA, which is captioned “TRANSITION FOR
ALIENS IN PROCEEDINGS” and which begins by limiting
its applicability to aliens in exclusion or deportation
proceedings before IIRIRA’s effective date. While Section
309(d) is captioned “TRANSITIONAL REFERENCES,” it
provides that it applies to “any reference in law,” “for
purposes of carrying out the Immigration and Nationality
Act.” In addition, if Section 309(d)(2) applied only to those
transitional rules cases where the Attorney General chose
to apply IIRIRA, it would be unnecessary, because, as noted
above,    IIRIRA    eliminates   the    distinction  between
deportation and exclusion proceedings and subsumes both
under the rubric of removal.4
  Avila-Macias argues, next, that IIRIRA’s reinstatement
provision was impermissibly retroactive as applied to him
because the underlying deportation order was issued prior
to IIRIRA’s effective date. To determine if a statute applies
to events which occurred prior to its enactment, a two-
prong test is applied. See Landgraf v. USI Film Products,
511 U.S. 244, 280 (1994); Perez v. Elwood, 294 F.3d 552,
558 (3d Cir. 2002). First, a court must determine whether
Congress’ intent with regard to temporal reach is clear from
the language of the statute. If it is not, the court must
determine whether application of the statute to pre-
enactment conduct would have a retroactive effect. If so,

4. Avila-Macias’ final argument with regard to Section 309(d)(2) is that it
would have an impermissibly retroactive effect if it were applied in cases
where either the issuance of the deportation order or the illegal reentry
occurred prior to the effective date of IIRIRA. This argument fails for the
reasons given below with regard to Avila-Macias’ argument that the
reinstatement statute would have an impermissibly retroactive effect
were it applied to him.
                                     7


“the court should presume that the legislation does not
apply to the conduct in question, and apply it only
prospectively.” Perez, 294 F.3d at 558.
  With regard to the first prong of the Landgraf test, Avila-
Macias argues that Congress’ intent that the reinstatement
provision not be applied retrospectively is clear, for the
reasons given by the Ninth Circuit in Castro-Cortez v. INS,
239 F.3d 1037, 1050-1052 (9th Cir. 2001). See also Bejjani,
271 F.3d at 676-687 (same).5 Thus, he argues that
Congress clearly did not intend retrospective application
because while the prior reinstatement provision specified
that it applied to aliens who “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 . . . ,” the new reinstatement
provision is silent. Compare 8 U.S.C. § 1252(f)(repealed in
1996) with IIRIRA § 305(a)(5). While the omission of
retroactivity language provides some support for Avila-
Macias’ argument regarding Congress’ intent, it does not
constitute an express mandate regarding the statute’s
temporal reach. See Landgraf, 511 U.S. at 280.
  Avila-Macias also points to several sections of IIRIRA
which implicate conduct occurring before the statute was
enacted, and in which Congress specified that the new rule
applied to pre-enactment conduct. See, e.g., IIRIRA
§§ 342(b) (incitement of terrorist activity ground for
exclusion regardless of when it occurs); 347(c) (unlawful
voting ground for exclusion regardless of when it occurs).
By negative implication, Avila-Macias argues, the absence
of such specification in Section 305(a)(5) indicates that
Congress did not intend it to be applied to deportation

5. This case is distinguishable from Bejjani and Castro-Cortez because in
those cases the aliens illegally reentered prior to IIRIRA’s effective date.
Here, Avila-Macias was deported prior to IIRIRA’s effective date, but he
does not claim to have reentered prior to it. In his brief, he frames the
issue as whether the new statute “should be applied retroactively to
conduct, i.e. issuance of Petitioner’s January 1997 Deportation Order,
that takes place before its enactment.” Brief at 13. It is not necessarily
the case that Congress would intend that aliens who illegally reentered
the country prior to the effective date of the statute be treated the same
as those who reentered afterwards.
                                   8


orders entered prior to the statute’s effective date. This
“negative implication” argument fails because IIRIRA also
contains sections in which Congress specified that the
section did not apply to pre-enactment conduct.6 See, e.g.,
IIRIRA §§ 344(c)(false claim of citizenship ground for
exclusion only where it occurred on or after date of
enactment); 352(b) (renouncing citizenship for taxation
purposes ground for exclusion only where it occurred on or
after date of enactment).
   Avila-Macias presses on, however, arguing that because
Congress enacts legislation with the Landgraf rule in mind,
where it is silent it can be presumed that it did not intend
for it to be applied retrospectively. This argument fails as
well because it could just as easily be argued that Congress
remained silent in the expectation that courts would
proceed to the second step of the Landgraf analysis,
determine whether the provision would have a retroactive
effect and, if it did, only then decline to apply it
retrospectively. What is clear is that Congress’ intent with
regard to the temporal reach of Section 305(a)(5) of IIRIRA
is not clear. See Alvarez-Portillo v. Ashcroft, 280 F.3d 858,
865 (8th Cir. 2002)(Congress’ intent unclear); Ojeda-
Terrazas v. Ashcroft, 290 F.3d 292, 299 (5th Cir.
2002)(same); Velasquez-Gabriel v. Crocetti, Jr., 263 F.3d
102, 108 (4th Cir. 2001)(same).
  Turning to Landgraf’s second prong, “ ‘[t]he inquiry into
whether a statute operates retroactively demands a
commonsense, functional judgment about ‘whether the new
provision attaches new legal consequences to events
completed before its enactment.’ ” INS v. St. Cyr, 533 U.S.
289, 321 (2001). A new statute may not “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.” Landgraf, 511 U.S. at 280.

6. We note that in Section 324 of IIRIRA, which governs the penalty for
reentry after deportation, Congress specified that the new penalty
provision applies in cases in which departure occurred before, on, or
after the effective date of enactment as long as reentry occurred on or
after the date of enactment. It could well be argued that this is likely
what Congress intended with regard to the reinstatement provision as
well.
                             9


   Section 305(a)(5) “expands the types of orders subject to
reinstatement, provides that the prior order of removal is
not subject to being reopened or reviewed, and bars aliens
from applying for any form of relief, other than a claim for
asylum.” Bejjani, 271 F.3d at 675. In addition, under the
prior implementing regulations, an alien in reinstatement
proceedings had a right to counsel, to develop a record, and
to a hearing before an immigration judge. Id. Under the new
regulations, aliens have none of these rights; instead, an
immigration officer determines whether reinstatement is
appropriate. See 8 C.F.R. § 241.8.
   Avila-Macias claims that applying these new rules to him
would be impermissibly retroactive because he “had no
notice, before leaving the United States, of the
consequences of an illegal reentry.” Brief at 18. If he had
reentered prior to the effective date of IIRIRA, he could at
least plausibly argue that he did so believing (1) that he
would be entitled to a hearing at which he could contest
the legality of his underlying deportation order and (2) that
he would be entitled to apply for discretionary relief. See
Gallo-Alvarez v. Ashcroft, 266 F.3d 1123, 1129 (9th Cir.
2001). He does not argue that he reentered before IIRIRA’s
effective date, however. Applying IIRIRA to him — an alien
who was deported prior to its effective date, but who
reentered afterwards — 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.
   Avila-Macias’ third argument is that the notice of
reinstatement proceedings which was issued to him was
invalid because it did not give the date and place of his
reentry. He is wrong. Neither the reinstatement statute nor
its implementing regulation requires the INS to specify the
date and place of an alien’s illegal reentry in the notice of
reinstatement proceedings. See IIRIRA § 305(a)(5); 8 C.F.R.
§ 241.8(a).
  The fact that Avila-Macias’ counsel of record was not
notified that reinstatement proceedings had been initiated
is also not a ground for invalidating the reinstatement
order. To prevail on his claim that the failure to notify his
counsel violated his right to due process of law, Avila-
                              10


Macias would have to show that he was prejudiced. See,
e.g., Ojeda-Terrazas, 290 F.3d at 7; Campos-Sanchez v. INS,
164 F.3d 448, 450 (9th Cir. 1999). This he cannot do,
because he concedes that he is subject to a prior order of
deportation and that he illegally reentered the United
States. This is all that the immigration officer was required
to find before issuing the reinstatement order. See 8 C.F.R.
§ 241.8(a).
  Finally, Avila-Macias seeks to collaterally attack the order
of deportation underlying the reinstatement order. He
argues that the immigration judge erred when he found
that Avila-Macias was ineligible for discretionary relief from
deportation because discretionary relief under former
Section 212(c) of the Immigration and Nationality Act,
which was amended by the Antiterrorism and Effective
Death Penalty Act of 1996 and then repealed by IIRIRA,
remains available to aliens “whose convictions were
obtained     through      plea   agreements       and     who,
notwithstanding those convictions, would have been eligible
for § 212(c) relief at the time of their plea under the law
then in effect.” St. Cyr, 533 U.S. at 326.
   Whether he is right or wrong, we lack jurisdiction over
his challenge to the 1997 deportation order. Section
305(a)(5) provides that “the prior order of removal is
reinstated from its original date and is not subject to being
reopened or reviewed.” See Gomez-Chavez v. Perryman, 308
F.3d 796, 801 (7th Cir. 2002); Ojeda-Terrazas, 290 F.3d at
295. Whether another court has jurisdiction over his claim
is not an issue we need address. Suffice it to say, Avila-
Macias has filed a petition for a writ of habeas corpus now
pending in the District Court of Southern California and
the issue can be raised and decided there. See, e.g., Smith
v. Ashcroft, 295 F.3d 425, 429 (4th Cir. 2002)(holding that
the district court had jurisdiction over a challenge to the
underlying order of removal in a Section 305(a)(5) case).

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
