Opinion
CIVIL ACTION NO. SA-02-CA-0267 NN
January 13, 2003
MEMORANDUM OPINION AND ORDER
I. Introduction
Petitioner Lakram Misir filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, and a motion for temporary restraining order ("TRO"). He seeks declaratory and injunctive relief and an emergency order staying execution of the Immigration and Naturalization Service's ("INS") reinstatement of his exclusion order under which he will be removed from the United States. Docket Entry 1.
The District Court Judge, to whom this case was originally assigned, granted petitioner's request for a TRO staying the petitioner's removal from his current location. He then referred this matter to me for all pre-trial proceedings, including the scheduling of an evidentiary hearing and the entry of proposed findings of fact and conclusions of law with respect to petitioner's request for injunctive relief. Docket Entries 2 3. Subsequent to the referral of this cause, the parties agreed to combine the trial on the merits with petitioner's request for preliminary injunctive relief. Docket Entries 8 12. INS also agreed to extend the TRO pending final resolution of the case. Upon the parties' consent and consistent with 28 U.S.C. § 636 (c), the case was reassigned to me for all purposes, including trial and entry of judgment. Docket Entry 20.
Respondents, the INS and United States Attorney General John Ashcroft (referred collectively herein as "Respondent" or the "INS"), have moved for dismissal, or alternatively, for summary judgment, of petitioner's application for a writ of habeas corpus and of his complaint for declaratory and injunctive relief. Docket Entry 21. Respondent maintains that dismissal of this cause is appropriate because the court lacks subject-matter jurisdiction. Respondent has also more recently filed a motion to dissolve the TRO by asserting that the Republic of Guyana, petitioner's receiving country, has communicated to the INS that its embassy will soon be issuing the travel documents needed to effectuate petitioner's removal. Docket Entry 24.
On April 8, 2002, I held an evidentiary hearing on the case and took the matter under advisement pending post-hearing briefing from the parties. In addition to their post-hearing briefing, petitioner was also requested to file a supplemental brief distinguishing the recent decision rendered by the Fifth Circuit Court of Appeals in Ojeda-Terrazas v. Ashcroft, 290 F.3d 292 (5th Cir. 2002). Docket Entry 23. The case is now ready for disposition.
II. Factual Background
The following facts are not in dispute:
1. Petitioner is a thirty-five year old male, native and citizen of Guyana. Petitioner has a history of attempting to illegally enter the United States through the use of invalid passports and/or other counterfeit documents.
2. He first encountered the INS on March 22, 1991 when he illegally entered the United States and was served with papers initiating his removal. He was released on bond and failed to appear for an Immigration Court hearing on September 9, 1991. See Docket Entry 1, at 2 and Docket Entry 21, at 3. In lieu of deportation, the INS eventually returned petitioner back to Guyana.
3. According to petitioner, on December 30, 1994, petitioner's mother, Bispatti Ramlagan, a naturalized United States citizen, filed an application on his behalf requesting the INS to grant him permanent resident status. According to the document attached to his complaint, it appears that the INS granted the petition for an adjustment of status on September 21, 1995. Docket Entry 1, Exhibit A. Petitioner, however, has failed to produce any evidence that he pursued this application or that he was ever issued a valid immigrant visa as a result of the application. In fact, petitioner's subsequent actions of attempting to illegally reenter the United States demonstrate that he did not reasonably expect that permanent resident status was ever conferred on him.
4. On September 15, 1996, the INS apprehended petitioner attempting to again illegally reenter the United States through Buffalo, New York. He was detained and was charged with entering the United States by fraud, and for not being in possession of any type of required valid visa or valid "travel document." Docket Entry 21, at 3, Attachment 1.
5. Petitioner was immediately placed in exclusion proceedings. Shortly thereafter, an Immigration Judge held a hearing to determine why petitioner should not be excluded and deported from the United States.
6. The Immigration Judge entered his decision on October 1, 1996 ordering petitioner excluded and deported from the United States. Docket Entry 21, Attachment 2. As the Immigration Judge's Order indicates, petitioner opted to waive his rights to appeal the order of exclusion and the same became final. Id. There is no indication in the record that petitioner ever challenged the Immigration Judge's decision to exclude him by relying on his alleged application for an adjustment of status.
7. On December 16, 1996, the INS effectuated the Order of Exclusion and petitioner was deported to Guyana. Id. at Attachment 3.
8. On August 23, 2000, petitioner presented a Trinidad passport and other counterfeit documents in an attempt to enter the United States illegally, this time through Laredo, Texas. Petitioner was not allowed into the United States and he was turned over to Mexican immigration officials. Id. at Attachment 4.
9. While it is unclear what actions, if any, the Mexican immigration officials took concerning the petitioner, the record reveals that four days later, on August 27, 2000, petitioner illegally reentered the United States by wading across the Rio Grande approximately one and one half miles east of the Eagle Pass Port of Entry, in Texas. Petitioner's efforts to illegally reenter the country were caught on stationary video cameras, and the United States Border Patrol quickly apprehended him, along with three Mexican nationals. Id.
10. At that time, and according to the narrative provided by Jose Sifuentes, INS Senior Patrol Agent, petitioner indicated he was "amenable to a reinstatement of a prior order of removal issued on October 1, 1996." Id.
11. On August 27, 2000, agent Sifuentes notified petitioner that he was an alien subject to a prior order of deportation/exclusion/removal entered on October 1, 1996. Id. at Attachment 5. Petitioner was also notified that, in accordance with § 241(a)(5) of the INA and 8 C.F.R. § 241.8, he was removable as an alien who had illegally reentered the United States after having been previously removed or departed voluntarily while under an order of exclusion, deportation or removal, and therefore, was subject to removal by reinstatement of the prior order. Id.
12. Petitioner was notified that he could contest the determination by making a written or oral statement to an immigration officer. Id. He was also informed that he did not have the right to a hearing before an immigration judge. Id. Again, there is no indication on the record that petitioner ever mentioned to the immigration officer that he had a previously approved petition for an adjustment of status, as grounds for challenging the INS' action of reinstating his prior order of exclusion.
13. Indeed, petitioner acknowledged in writing that he did not wish to make a statement contesting the determination. Id.
14. The INS, through its Patrol Agent in Charge, Gordon F. Schneider, then determined that petitioner is subject to removal through reinstatement of the prior order, in accordance with § 241(a)(5) of the INA, and entered the reinstatement. Id.
15. Ever since the entry of the order of reinstatement, petitioner has been in custody. The INS represents that it has utilized reasonable diligence in attempting to remove petitioner. It appears that since October of 2000, the INS has made numerous attempts at obtaining the necessary "travel documents" from the Republic of Guyana to effectuate the removal. Id. at Attachment 6.
16. Further, the INS represents that petitioner has made no attempts to establish that there is no reasonable expectation that he will not be accepted back into Guyana. In fact, it now appears that the consulate of Guyana is ready to issue the travel documents needed to effectuate petitioner's removal from the United States and return him to his country. Docket Entry 24.
17. This action, requesting habeas corpus review, as well as seeking declaratory and injunctive relief, commenced on March 18, 2002, is petitioner's first attempt to challenge the order of reinstatement. Docket Entry 1.
18. Other than his 1994 application for an adjustment of status, no other application for an adjustment of status has been filed on petitioner's behalf. According to the record, petitioner did not bring the 1994 application to the attention of the Immigration Judge who held a hearing on his removal proceedings back in 1996, nor to the Immigration Officer who reinstated the order of exclusion in 2000. He relies on it now as a means to preclude the INS from applying the § 241(a)(5) expedited reinstatement proceedings. Indeed, it is petitioner's position that he should be given the opportunity to have new removal proceedings before an immigration judge where he could reassert his request for an adjustment of status as a defense to the order of reinstatement. Docket Entry 11, at 3.
"Travel document" refers to a passport or other document which is valid for admission of the bearer into a foreign country. Section 101(a)(30) of the Immigration and Nationality Act ("INA") of 1952, as amended, 8 U.S.C. § 1101 (a)(30). See Docket Entry 21, at fn.4.
For purposes of this suit, "exclusion" proceedings apply to those aliens who are apprehended at the border, are not allowed entry into the country and are then removed from the country; whereas, "deportation" proceedings apply to those aliens who gain entry into the country and are then subsequently removed. Docket Entry 21, at 4 fn.5.
On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigration Responsibility Act of 1996 ("IIRIRA") into law. In Section 304(a) of IIRIRA, Congress abolished the old distinction between "deportation" and "exclusion" orders, and instituted a new form or proceeding known as "Removal." See 8 U.S.C. § 1229, 1229a (Supp. 2002). Section 309(d)(2) of the IIRIRA states that "[f]or purposes of carrying out the [INA] . . . 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." This language clearly makes INA § 241(a)(5) applicable to orders of exclusion.
III. Analysis
Petitioner challenges the reinstatement of the prior exclusion order through an application for writ of habeas corpus, brought pursuant to 28 U.S.C. § 2241. He also seeks release on bond and a declaration that reinstatement of the exclusion order, together with the current order of removal, is null and void as a violation of due process. Before addressing the merits of petitioner's claims, however, I must first consider whether I have jurisdiction to do so.A. Lack of Jurisdiction to Review the Reinstated Exclusion Order
Petitioner claims his reinstated removal order is unlawful because he was not granted a hearing before an Immigration Judge for consideration of his adjustment of status request, pursuant to § 240, 8 U.S.C. § 1229a. Docket Entry 1, at (unnumbered) 3-4; and Docket Entry 11, at 3. Respondent contends jurisdiction to review petitioner's claims relating to his reinstated removal order lies solely in the Fifth Circuit Court of Appeals through a petition for direct review, pursuant to 8 U.S.C. § 1252 (a)(b)(9). Docket Entry 21, at 8. Petitioner claims that he has exhausted all of his limited administrative remedies, and since the Board of Immigration Appeals has held that it has no jurisdiction to consider a challenge to a reinstated deportation or exclusion order, this § 2241 habeas corpus action is properly brought in this court. Docket Entry 1 (citing In Re G-N-C, 22 I. N. Dec. (BNA) 281 (BIA 1998)). Both parties rely upon I.N.S. v. St. Cyr, 533 U.S. 289 (2001) to support their opposing positions. Docket Entries 1 18.
Respondent cites to: Castro-Cortez v. INS., 239 F.3d 1037, 1042-46 (9th Cir. 2001), Alvarez-Portillo v. Ashcroft, 280 F.3d 858 (8th Cir. 2002), cert. denied, 71 U.S.L.W. 3390 (Jan. 13, 2003) andVelasquez-Gabriel v. Crocetti, 263 F.3d 102 (4th Cir. 2001), as supportive authority for its position that judicial review of reinstated orders lies only in the courts of appeals on direct review, and not by means of habeas corpus in the district courts. Docket Entry 21, at 8-9.
Respondent correctly argues that petitioner should have brought his proceeding for review of the reinstatement order in the Fifth Circuit Court of Appeals because his cause or claim has arisen from "an action taken or proceeding brought to remove him from the United States." See 8 U.S.C. § 1252 (a)(b)(9), Reno v. American-Arab Anti-Discrimination Committee ("AADC"), 525 U.S. 471, 483 (1999) and Avala v. Reno, 995 F. Supp. 717, 718 (W.D. Tex. 1998) (finding that district court lacked jurisdiction pursuant to § 242(g), 8 U.S.C. § 1252 (g), to entertain an alien's request for mandamus and injunctive relief because "the alien is seeking to preclude the Attorney General from executing the final order of removal against her.").
Since the filing of this case, the Fifth Circuit in Ojeda-Terrazas v. Ashcroft, a case where the petitioner alien challenged the INS's reinstatement of his prior order of deportation, concluded that INA § 242(a)-(b) granted the courts of appeal with jurisdiction to review the legality of the reinstatement order, but not the merits of petitioner's prior order of deportation which had been reinstated. 290 F.3d at 294 (citing to INA § 242(a)-(b), 8 U.S.C. § 1252 (a)-(b)). The Court stated that according to § 242(a)-(b) of the INA, the courts of appeals have subject matter jurisdiction over "final orders of removal." Id.
The Court in Ojeda-Terrazas also considered § 241(a)(5), the provision of the INA that governs the expedited reinstatement of prior orders of removal, the same provision at issue in this case. Id. at 295 (quoting § 241(a)(5)). Section 241(a)(5) provides, in relevant part, that a "prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed." Id. The Ojeda-Terrazas Court determined that while a reinstatement order is not literally an "order of removal" because it merely reinstates a previously issued order of removal or deportation, reinstatement of Ojeda-Terrazas' previous deportation order is nevertheless a final order of the INS. TheOjeda-Terrazas Court thus concluded that § 242 granted it with the authority to review the lawfulness of the reinstatement order, but that § 241(a)(5) limited that review to the reinstatement order itself. In other words, the Court of Appeals cannot "reopen or review" the merits of the petitioner's underlying prior deportation order. Id.
Accordingly, because direct review, albeit limited, was available to the petitioner in the Fifth Circuit Court of Appeals, this court lacks jurisdiction to review the legality of the reinstatement order. See also Gomez-Chavez v. Perryman, 308 F.3d 796, 800 (7th Cir. 2002) (where the Court held that appropriate means for an alien to challenge reinstatement was to appeal to the Court of Appeals, not to bring proceedings in District Court for mandamus, declaratory judgment, or habeas corpus).
Pursuant to 8 U.S.C. § 1252 (b)(1), petitioner had thirty days from the entry of the final deportation order to file a petition for direct review with the Fifth Circuit. Petitioner's reinstatement order, which for purposes of § 1252 is considered a final order by the INS, was entered on August 27, 2000. There is no evidence that petitioner initiated a timely appeal for direct review with the Fifth Circuit. His first attempt at challenging the INS's reinstatement order occurred almost two years after the entry of the reinstatement order, through the filing of this § 2241 action. Moreover, petitioner was not required to exhaust any administrative remedies before seeking direct review in the Fifth Circuit, because there are no viable administrative remedies to a reinstatement order. See Castro-Cortez, 239 F.3d at 1045; andGallo-Alvarez v. Ashcroft, 266 F.3d 1123, 1128 (9th Cir. 2001).
B. Habeas Corpus Jurisdiction
To the extent I have jurisdiction pursuant to 28 U.S.C. § 2241 to review pure questions of law with respect to whether a petitioner's constitutional rights have been violated, I will review petitioner's claims. St. Cyr, 533 U.S. at 305-07. Petitioner contends he should have the right to attack reinstatement of his prior exclusion order collaterally in some forum and that INA § 241(a)(5) violates procedural due process both on its face and as applied to him because it provides no mechanism for a hearing before an immigration judge. He also contends it is unconstitutional to apply § 241(a)(5) of the INA retroactively to exclusion or deportation orders entered before its enactment and that the INS's application of the statute to him has an impermissible retroactive effect.
1. Due Process Concerns
Petitioner is the unmarried son of Bisspatti Ramlagan, a United States citizen. Ms. Ramlagan filed a petition on his behalf in 1994 requesting that he be conferred permanent resident status. Petitioner contends that INS approved the petition and that "a visa is readily available to Mr. Misir, should his adjustment of status to permanent residence be granted." Docket Entry 28, at 1. Petitioner asks that he be granted a new hearing before an immigration judge and afforded the opportunity to present evidence on the issues concerning his return to the United States, as well as provide him with the means to seek lawful status through his mother. Docket Entry 11, at 3. Petitioner states that he was entitled to apply for an adjustment of status under the former INA as a defense to exclusion, and to now deprive him of that entitlement violates his due process rights. Id. Petitioner further argues that even though he was born in Guyana, his family has resided in the United States for many years. If his deportation is not prevented, petitioner will be separated from his family and would suffer irreparable harm because he will be deemed an inadmissible alien. Petitioner contends that even if his status is unlawful, he should be able to obtain (or at least try to obtain) lawful permanent resident status, based upon his mother's approved petition and pending application. Docket Entry 28, at 3.
Contrary to petitioner's arguments, he cannot seek adjustment of status because the INS reinstated his 1996 exclusion order under INA § 241(a)(5). This provision was enacted as part of the IIRIRA, which although enacted on September 30, 1996, became effective on April 1, 1997. Before the reform, an alien who reentered the United States illegally after having been deported was placed in a new round of deportation proceedings. The Attorney General could reinstate a prior order of deportation against certain illegally reentering aliens under § 242(f), but the aliens were entitled in the regular proceedings to apply for relief each time they illegally reentered. 8 C.F.R. § 242.23.
Congress found the pre-IIRIRA procedures cumbersome, duplicative, and futile. See H.R. Rep. 104-469(I), 1996 WL 168955 at *107 ("Existing procedures to deny entry to and remove illegal aliens from the United States are cumbersome and duplicative. Removal of aliens who enter the United States illegally, even those who are ordered deported after a full due process hearing, is an all-too-rare event."); and 140 Cong. Rec. S3068-02, 3068 (daily ed. March 16, 1994) (statement of Senator Roth), 1994 WL 83492 at *4 ("even when the system works and a criminal alien is deported, reentry into the United States is so easy that it makes the whole process to be a giant exercise in futility."). Congress enacted the provisions of INA § 241(a)(5), as amended by IIRIRA § 305, to address these concerns.
Under this new provision, the Attorney General may reinstate the removal order of any alien who has previously been removed or who departed voluntarily under an order of removal. If an order is reinstated, no new administrative proceedings are required. The INS may simply execute the original deportation order a second time. The statute provides;
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 reentry.8 U.S.C. § 1231 (a)(5) (§ 241(a)(5)). Pursuant to § 241(a)(5), the INS promulgated regulations outlining the procedures for reinstating an alien's prior deportation or exclusion order. Under the regulations, the alien is not entitled to a hearing before an immigration judge. 8 C.F.R. § 241.8 (a). Rather, an INS officer determines (1) the identity of the alien; (2) whether the alien was subject to a prior order of removal; and (3) whether the alien unlawfully reentered the United States. Id. The alien then has an opportunity to make a statement. 8 C.F.R. § 241.8 (b). The officer determines whether this statement warrants reconsideration. Id. An alien who expresses a fear of persecution upon return to the country of removal is referred to an asylum officer. § 241.8(e). If that officer determines his fear is reasonable, the alien may apply for withholding of removal. Id.
In a disputed case, the INS must verify the identity of the alien by comparing the fingerprints of the alien who was previously deported contained in INS records with those of the alien who is the subject of the reinstatement proceedings. See 8 C.F.R. § 241.8 (a)(2).
As discussed by the Fifth Circuit in Ojeda-Terrazas, the key differences between the current reinstatement procedure under § 241(a)(5) and the former procedure under repealed § 242(f) significant to this case are:
1. § 241(a)(5) extends the reinstatement procedures to those aliens, like petitioner, whose initial removals were based upon entry without inspection. Under the former provision, § 242(f), reinstatement was only available for those aliens whose previous order of deportations was based on one of the enumerated grounds (which did not include lack of inspection). Therefore, under the old statute, petitioner would have been presumably entitled to a new deportation procedure rather than being limited to the reinstatement procedure.
2. Section 241(a)(5) does not allow judicial review of the underlying previous removal order, as discussed above. Section 242(f), however, allowed the alien to attack the merits of a previous removal order.
3. The regulations implementing § 241(a)(5) allow an immigration officer to determine, following the three-step analysis discussed above, whether reinstatement is proper. Under § 242(f), an immigration judge made the determination.
The INS reinstated petitioner's 1996 exclusion order in August of 2000, has recently obtained travel documentation, and intends to execute petitioner's removal unless this court intervenes. Petitioner has not sought review of his current removal order in the Fifth Circuit Court of Appeals. Petitioner does not dispute that he received the full panoply of review in accordance with the requirements of due process when he was deported in 1996. He does not deny that he was deportable in 1996 nor has he attacked the factual findings reached by the immigration judge in support of his finding of deportability. Moreover, petitioner does not complain of any deficiencies in those proceedings or complain that the 1996 order was improper or contrary to law. Rather, petitioner contends the reinstatement mechanism of § 241(a)(5) is unconstitutional, facially and as applied to him, because it (1) denies him the opportunity to collaterally attack the reinstatement of his exclusion order and (2) denies him a second round of procedural due process. Petitioner's claims lack merit.
I am guided by the Ninth Circuit case of Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169 (9th Cir. 2001), in addressing these issues. The Court in Alvarenga-Villalobos held that: (1) an alien who was deported for crimes involving moral turpitude and illegally reentered the United States was not entitled to collaterally attack the previous deportation order; and (2) that the procedure under INA § 241(a)(5) does not violate due process by omitting a mechanism for a hearing for previously deported aliens who have already received one full and fair hearing, including the right to judicial review. Id. at 1173. TheAlvarenga-Villalobos Court further recognized that the due process requirements are less stringent for orders used in non-criminal deportations than for orders used in criminal prosecutions. Id.
Likewise, in Ojeda-Terrazas, the Fifth Circuit held that the petitioner could not show that the application of the expedited reinstatement procedures set forth in § 241(a)(5) of the IIRIRA, and its regulations, 8 C.F.R. § 241.8 (a), was prejudicial, as required to show a violation of his due process rights. 290 F.3d at 302. The Fifth Circuit stated that while the Fifth Amendment of the United States Constitution guarantees aliens due process of law in deportation hearings, to succeed in a collateral attack of a deportation order on due process grounds, an alien must first demonstrate that he has suffered actual prejudice. Id. The Court noted that Ojeda-Terrazas, as the petitioner in the instant case, did not dispute his identity, that he was subject to a prior deportation or exclusion order, and that he illegally reentered the United States. Id. In so doing, the Court in Ojeda Terrazas concluded that petitioner admitted that all the predicate findings that the immigration officer made to reinstate his prior deportation order were true. The Court further considered that Ojeda-Terrazas did not assert that, if given the procedural safeguards he sought, the result in this case would be any different. Id. Therefore, the Court concluded that Ojeda-Terrazas did not suffer any actual prejudice as a result of the new reinstatement procedures, and therefore the Court did not reach the merits of his due process claims.Id. For the same reasons articulated in Ojeda-Terrazas, I find that petitioner has not established that he was prejudiced as a result of the INS' actions to reinstate his prior order of exclusion.
For instance, the Court noted that Ojeda-Terrazas had not alleged that he feared persecution upon his return to Mexico, his home country.Id. Petitioner has also not made such argument in this case.
Further, I do not find persuasive petitioner's arguments that if given an opportunity to contest the reinstatement order through his application for an adjustment of status in a new removal proceedings before an immigration judge, that the outcome of his case would be any different. According to § 245(a) of the INA, 8 U.S.C. § 1255 (a), adjustment of status is a form of discretionary relief that permits an alien who is eligible to receive a visa and be admitted as a resident to avoid having to return to his home country and obtain his visa from abroad. Docket Entry 21, at 11 fn.6. In other words, an alien who has already legally entered the United States as a non-immigrant can "adjust his status" to that of a lawful permanent resident, without having to leave the country and apply for a visa abroad. According to the federal regulations, adjustment of status is available, at the "discretion" of the Attorney General, if (1) the alien makes an application for adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to the alien at the time his application is filed. 8 C.F.R. § 245.1. See also Obitz v. I.N.S., 623 F.2d 1331 (9th Cir. 1980).
From the outset, it appears that petitioner was ineligible to apply for adjustment of status because he has never been admitted into the country or paroled following inspection by an immigration officer. See 8 C.F.R. § 245.1 (b)(3). Nor are the exceptions of 8 U.S.C. § 245 (i) applicable to him because he has never been allowed entry or considered "physically present" in the country. Also, under prior law, an alien who was not in deportation or exclusion proceedings could apply for discretionary adjustment of status by filing an application for that relief with the appropriate District Director of the INS. See 8 C.F.R. § 245.2 (a) (1998). If an alien was in deportation proceedings ( i.e., proceedings to remove an alien who was illegally present in the United States), he could file an adjustment application with the immigration judge in the context of those proceedings. If an alien, however, was in an exclusion proceedings ( i.e., proceedings barring admission of an alien into the United States), as petitioner was in 1996, he could not file an adjustment application with the immigration judge, and was required to apply to the appropriate District Director for this discretionary relief. Docket Entry 21, at fn.6 (citing In Re Jose Castro-Padron, 21 I N. Dec. 379 (BIA 1996)). Thus, under the law in effect prior to the enactment of the reinstatement order, petitioner had no ability to apply for an adjustment of status during the course of his proceedings, because he was in exclusion proceedings where an application for adjustment of status was not permitted. Petitioner's only recourse at the time was to apply for discretionary relief with the appropriate INS District Director.
It is well-settled, however, that failure to receive relief that is purely discretionary in nature does not amount to a deprivation of a liberty interest. See Garcia-Mir v. Meese, 788 F.2d 1446, 1452 (11th Cir.), cert. denied, 479 U.S. 889 (1986). In Garcia-Mir, a group of Cuban aliens claimed a liberty interest in remaining paroled, that is, in being allowed to enter the United States while their immigration proceedings were being completed. The Eleventh Circuit reasoned that when a statute or regulation does not limit the executive's discretion to award relief, a mere expectancy of such relief does not give rise to a liberty interest protected by the Due Process Clause. Id. at 1452. Aliens do not enjoy constitutionally protected interests in either the adjustment of immigration status or "deferred action" by the INS. See Achacoso-Sanchez v. I.N.S., 779 F.2d 1260, 1265 (7th Cir. 1985) (holding that aliens did not enjoy a protectable liberty interest in the reopening of deportation proceedings of the adjustment of immigrant status). See also Velasco-Gutierrez v. Crossland, 732 F.2d 792, 797 (10th Cir. 1984) (holding "deferred action" by the INS does not give rise to a constitutionally protected liberty interest because the INS has "unfettered" discretion to determine who is entitled to deferred action). Similarly, "suspension of deportation" is an act of grace subject to the Attorney General's unfettered discretion and is not protected by due process. See I.N.S. v. Yueh-Shaio Yang, 519 U.S. 26, 29 (1996). The INS in this case was entitled to proceed on the basis of the earlier order of exclusion and not reward petitioner for his illegal reentry. Petitioner in this case remains removable despite his application for adjustment of status. The INS has not denied him fundamental fairness by making him ineligible for a second round of time-consuming and expensive due process hearings and appeals. Aliens removable under § 241(a)(5) have already received all of the process that they are due under the Constitution.
Petitioner may have one legitimate avenue for relief. Under 8 U.S.C. § 1182 (a)(9)(B)(v), the Attorney General has the statutory power to waive the statute's general prohibition upon readmission to the United States for aliens subject to an order of removal, if the person is the spouse or child of a United States citizen or lawful permanent resident alien, and if the refusal of admission "would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien." Id. The Attorney General has sole and reviewable discretion to grant such waiver. Nonetheless, petitioner may be able to apply for a waiver from a location outside the United States and there is no way for me to know whether the Attorney General would exercise his discretion and grant petitioner a waiver. Having said that, however, I am unwilling to disturb the reinstatement order entered in this case. See Gomez-Chavez, 308 F.3d at 800-02 (where the Court held that expedited reinstatement process did not violate alien's due process rights, but recognized this other form of discretionary relief for aliens such as petitioner in this case).
2. Retroactivity Concerns
Petitioner contends that Congress did not intend INA § 241(a)(5) to apply retroactively to pre-IIRIRA exclusion or deportation orders. He claims that to apply it to him would have an impermissible retroactive effect because it impairs a right he possessed prior to its enactment. Docket Entry 1, at (unnumbered) 4. See Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994). I am not persuaded that retroactivity concerns arise from the government's application of the reinstatement statute to petitioner. The Fifth Circuit in Ojeda-Terrazas held, in a well-reasoned decision, that reinstatement orders do not operate in an impermissibly retroactive manner when they are applied to aliens who reentered prior to the effective date of the statute (April 1, 1997). 290 F.3d at 293, 297-301. The Court in Ojeda-Terrazas concluded that nothing in that petitioner's case supported detrimental reliance for purposes of assessing the retroactive effect of § 241(a)(5). Id. at 301-02 (distinguishing the case from the alien in St. Cyr who entered a plea agreement with the expectation that he would be entitled to obtain § 212(c) relief, 533 U.S. at 321-26). While the alien in Ojeda-Terrazas had also reentered illegally prior to the effective date of the IIRIRA, there is nothing which would lead me to believe that the same reasoning would not apply to aliens who, like petitioner, illegally reentered the country after the effective date of the IIRIRA. In fact, I am hard-pressed to find the merits of petitioner's retroactivity argument because his reentry in 2000 puts this proceeding clearly within the scope of § 241(a)(5). Petitioner, like Ojeda-Terrazas, has no legitimate expectation that he will be allowed admission into the United States. An alien such as petitioner, who was excluded and is therefore subject to a statutory bar to reentry, does not have any vested right to remain in the United States. 290 F.3d at 301-02. I cannot conclude that petitioner reasonably relied on the availability of relief (assuming relief was available) in deciding whether to reenter unlawfully. Based on the exclusion proceedings held 1996, it can be inferred that petitioner was put on notice that adverse consequences might result from any subsequent illegal reentry. Petitioner's arguments that the government should not have applied § 241(a)(5) to his 2000 reentry are meritless.
IV. Conclusion
Based on the foregoing, respondent's request to dissolve the TRO in this case (Docket Entry 24) is GRANTED. Respondent's motion to dismiss (Docket Entry 21) is GRANTED to the extent that the court lacks subject-matter jurisdiction over petitioner's challenges to the reinstated exclusion order. The application for writ of habeas corpus pursuant to 28 U.S.C. § 2241 and the complaint for declaratory and injunctive relief (Docket Entry 1) are both DENIED. This matter is DISMISSED. Any other motion currently pending is at this time DENIED AS MOOT.