Argued and Submitted, Pasadena, California: February
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A074-388-525.
Charles Medina, Buena Park, California, for Petitioner.
Manuel A. Palau, United States Department of Justice, Washington, D.C., for Respondent.
Before: Jerome Farris, N. Randy Smith, and Paul J. Watford, Circuit Judges. Opinion by Judge Farris.
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, 126 S.Ct. 2422, 165 L.Ed.2d 323 (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. 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 ...