Montoya v. Holder, No. 11-72483 (9th Cir. 2014)
Annotate this CaseWhile on the waiting list but after the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. 1231(a)(5), DHS issued a reinstatement of petitioner's removal order. Petitioner sought review of this reinstatement, arguing that the application of the reinstatement statute in the Act was impermissibly retroactive with respect to her, as her Form I-130 was filed prior to the Act's effective date. The court agreed with the Fifth and Seventh Circuits and held that the mere filing and approval of a Form I-130 created no vested right to apply for adjustment of status. In this case, petitioner's brother filed an I-130 on her behalf and the government placed her on the waiting list. She did not apply for adjustment of status. She took no pre-enactment action sufficient to create a vested right to apply for adjustment, and therefore the reinstatement provisions of the Act could be permissibly applied to her. Accordingly, the court denied the petition for review.
Court Description: Immigration. The panel denied Martha Guadalupe Montoya’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 her prior order of removal. The panel held that application to Montoya of the Act’s reinstatement statute was not impermissibly retroactive even though her brother had filed a Form I-130 petition for alien relative on her behalf before the Act’s effective date. The panel wrote that the reinstatement provisions could permissibly be applied to Montoya because she took no pre-enactment action sufficient to create a vested right to apply for adjustment of status.
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