Jose Ortega v. Eric Holder, Jr.

Filing

FILED OPINION (JEROME FARRIS, N. RANDY SMITH and PAUL J. WATFORD) DENIED. Judge: JF Authoring. FILED AND ENTERED JUDGMENT. [9036742]

Case: 10-71084

03/31/2014

ID: 9036742

DktEntry: 43-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSE ORTEGA,

No. 10-71084
Petitioner,
v.

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

Agency No.
A091-027-066

OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 10, 2014—Pasadena, California
Filed March 31, 2014
Before: Jerome Farris, N. Randy Smith, and Paul J.
Watford, Circuit Judges.
Opinion by Judge Farris

Page: 1 of 5

Case: 10-71084

2

03/31/2014

ID: 9036742

DktEntry: 43-1

ORTEGA V. HOLDER
SUMMARY*

Immigration
The panel denied Jose Ortega’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 his prior order of removal.
The panel held that application to Ortega of the
reinstatement statute was not impermissibly retroactive,
because he had taken no action to vest any right he may have
initially had to renew his application for adjustment of status.

COUNSEL
Eric Bjotvedt (argued), Phoenix, Arizona, for Petitioner.
Manuel A. Palau (argued), Tony West, Erica B. Miles, and
Aric A. Anderson, 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.

Page: 2 of 5

Case: 10-71084

03/31/2014

ID: 9036742

ORTEGA V. HOLDER

DktEntry: 43-1

Page: 3 of 5

3

OPINION
FARRIS, Circuit Judge:
Petitioner Jose Ortega is a native and citizen of Mexico
who illegally entered the United States on or about August
14, 1984. On August 21, 1984, he was ordered deported to
Mexico and returned there, but he re-entered the United
States on August 25, 1984. In December 1984, he
fraudulently married a U.S. citizen so as to obtain
immigration relief, and he applied to adjust his status to that
of a lawful permanent resident after his spouse filed an I-130
petition. Before the application was acted on, the citizenspouse withdrew her I-130 petition and admitted that the
marriage was a fraud. Ortega’s application was accordingly
denied in 1987. Ortega continued to remain illegally in the
U.S. until December 1, 2009, at which point his 1984
deportation order was reinstated.
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 reinstatement and eliminated nearly 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 postIIRIRA reinstatement provisions).
Ortega now challenges the reinstatement of his removal
order under the Act as an impermissibly retroactive

Case: 10-71084

4

03/31/2014

ID: 9036742

DktEntry: 43-1

ORTEGA V. HOLDER

application of a statute. Specifically, he argues that the Act
cannot retroactively eliminate his right to renew his
application for relief from reinstatement. We have
jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D). The
retroactive applicability of statutes is reviewed de novo.
Valencia-Alvarez v. Gonzales, 469 F.3d 1319, 1326 (9th Cir.
2006).
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 44 n.10. The
propriety of retroactively applying 8 U.S.C. § 1231(a)(5) has
been directly addressed by both the Supreme Court and the
Ninth Circuit. In Fernandez-Vargas, 548 U.S. at 37, the
Supreme Court held that the provision did not create new
consequences for past acts when applied to continuing
violators of immigration laws. We addressed the Act’s effect
on the cancellation of vested rights in Ixcot v. Holder,
646 F.3d 1202 (9th Cir. 2011). There, an alien’s pending preAct application for relief prevented the retroactive application
of the new reinstatement provisions. Id. at 1212. Unlike the
alien in Fernandez-Vargas, the alien in Ixcot affirmatively
took pre-enactment action so as to change his legal status, and
his expectation of relief therefore became a “vested” right
that could not be “impair[ed].” Id. at 1213.
Whether a right has “vested” is 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.” FernandezVargas, 548 U.S. at 44 n.10. This requirement is animated by
the underlying justification for the presumption against

Page: 4 of 5

Case: 10-71084

03/31/2014

ID: 9036742

ORTEGA V. HOLDER

DktEntry: 43-1

Page: 5 of 5

5

retroactivity: individuals must be able to guide their conduct
in the context of a system that respects “fair notice,
reasonable reliance, and settled expectations.” I.N.S. v. St.
Cyr, 533 U.S. 289, 316, 321 (2001). 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. Fernandez-Vargas, 548 U.S. at 44 n.10.
Ortega’s retroactivity argument fails, as he has taken no
action to vest any right he may have initially had. Ortega’s
initial application for adjustment of status was denied on the
merits in 1987. Ten years would pass until the Act would
become effective, but during this decade Ortega did nothing
to renew his application—for example, he did not re-marry
another citizen or re-acquire an I-130 from his initial spouse,
nor did he ever re-apply for adjustment of status. The
Supreme Court explicitly stated that the right to initially
apply for adjustment of status was not vested unless the alien
took action to elevate it “above the level of hope.” Id. The
same must be true, then, of the right to renew an application
for adjustment, and like the alien in Fernandez-Vargas,
Ortega did nothing before the Act’s effective date. Id. There
was no pending application at the time the law came into
effect, as in Ixcot, 646 F.3d at 1213. Ortega had no vested
right. The petition is DENIED.