By Attorneys Robert L. Reeves and Nancy E. Miller

There are limits to the power of the Department of Homeland Security to reinstate prior removal orders. That was the conclusion from the United States Court of Appeals for the Tenth Circuit in Valdez-Sanchez v. Gonzales when it held that section 241(a)(5) of the Immigration & Nationality Act (INA) which permits DHS to reinstate prior orders of removal is impermissibly retroactive under certain circumstances. The Tenth Circuit has jurisdiction over cases in Oklahoma, Kansas, New Mexico, Colorado, Wyoming, Utah and portions of Yellowstone National Park extending into Montana and Idaho.

Juan Luis Valdez-Sanchez had been deported in March of 1993. He reentered illegally in May of 1993. He married a United States citizen in 1995. She filed a family petition and he filed a concurring application for adjustment of status and he was granted conditional lawful permanent resident status in February of 1997. He filed a joint petition to remove the conditions of his status in 1999. That petition was still pending in 2001 when he and his wife divorced. He filed a petition for a waiver of the joint petition in 2001. In 2002, his petition was denied based on the prior deportation. DHS issued a Notice of Intent/Decision to Reinstate Prior Order in 2005. It did reinstate the prior deportation order.

Many cases have looked at the issue of retroactivity of reinstatement since the passage of the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA). IIRIRA was passed in 1996 and became effective on April 1, 1997. The United States Supreme Court dealt with this issue most recently in Fernandez-Vargas v. Gonzales in 2006. In that case, the Supreme Court held that the reinstatement provision was not impermissibly retroactive despite the fact that Fernandez-Vargas was both deported and illegally reentered prior to IIRIRA’s effective date because he did not take any steps to legalize his status prior to the change in law. The court held that he could have married the USC mother of his child and applied for legal status on that basis prior to 2001 when they actually did file. Because he did not do so, he was subject to the law at the time he filed for relief.

Contrary to Fernandez-Vargas, Valdez-Sanchez did file for relief prior to the change in law. He married a United States citizen who applied for legal status for him and obtained that status before IIRIRA became effective. On IIRIRA’s effective date, he was in lawful status. As such, the court held that the application of 241(a)(5) disturbed Valdez-Sanchez’ substantive rights or expectations such as the substantive relief that would be available to him. Under those circumstances, DHS may not apply the change in law retroactively.

In issuing this holding, the Tenth Circuit joins three other jurisdictions that have issued similar decisions. Arevalo v. Ashcroft in the First Circuit, Faiz-Mohammad v. Ashcroft in the Seventh Circuit and Cisneros v. United States Attorney General in the Eleventh Circuit have all reached the same conclusion. In each of those circuits, DHS may not reinstate prior removal orders where the immigrant was deported, illegally reentered and took steps to legalize, or did in fact legalize, his status prior to the effective date of IIRIRA.

The Ninth Circuit, which controls in California, has most recently discussed this issue in Perez-Gonzalez v. Ashcroft. In that case, the court held that, while the reinstatement provision was not impermissibly retroactive, immigrants could avoid its harsh consequences by applying for permission to reapply for admission simultaneous to the filing of the application for adjustment of status. The court further held that immigrants could file that application in the United States and seek relief without having to leave the country. However, the court also held that the relief must be sought before the reinstatement of the prior deportation order.

Because the law is in flux in this area and because so much is at stake, it is important to seek the advise and assistance of an experienced immigration lawyer if you have a prior deportation order and you believe you may be eligible to get a green card.