Fernandez-Vargas v. Gonzales
In 2003, the United States reinstated a 1981 deportation order against Fernandez, issuing a warrant commanding that Fernandez be taken into custody and removed from the United States. Fernandez has entered and been deported from the United States numerous times; after being deported in 1981, he again entered illegally and lived in the United States for many years. In 2001, he married an American citizen. Fernandez was arrested while he applied for permanent resident status. Fernandez then filed his petition with the Tenth Circuit Court of Appeals, arguing that his prior deportation order could not be reinstated before a decision was made on his application for permanent resident status, and further, that if § 1231(a)(5) barred him from applying for legal status, it could not be applied because the law was passed in 1997, years after his 1981 deportation order was issued.
Section 1255(i) of the Immigration and Nationality Act (INA) allows an alien who entered the United States without inspection to apply to become a legal resident. Section 1231(a)(5), also called the reinstatement statute, provides that a prior deportation order against an alien may be reinstated if that alien re-enters the United States, and also that the alien in question is barred from seeking any relief under the INA. The court denied Fernandez’s petition for review, finding that the reinstatement statue barred Fernandez from applying for legal status, and that this bar was not an impermissible retroactive effect.
Question Presented:
Whether 8 U.S.C. § 1231(a)(5), which provides for the reinstatement of a previous order of removal against an alien who has illegally re-entered the United
States, applies to an alien whose illegal re-entry predated the effective date of the provision?
