JORGE RIVERA VEGA V. MERRICK GARLAND, No. 19-71750 (9th Cir. 2022)
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Petitioner was deported in 1991 but illegally reentered the next week. In 2001, he applied for adjustment, the United States Citizenship and Immigration Services (“USCIS”) denied that application in 2019, and Rivera Vega’s prior removal order was reinstated. An asylum officer then determined that Rivera Vega lacked a reasonable fear of persecution or torture if returned to Mexico, and an IJ affirmed.
Denying Petitioner’s petition for review, the Ninth Circuit held that: 1) the permanent inadmissibility bar of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) applied retroactively to Petitioner such that he was ineligible for adjustment of status; 2) his prior removal order was properly reinstated; 3) his statutory right to counsel in reasonable fear proceedings was not violated, and 4) the IJ properly rejected his claim for protection under the Convention Against Torture (“CAT”).
Specifically, the court held that the permanent inadmissibility bar applies retroactively to unlawful reentries made before IIRIRA’s effective date—provided the alien failed to apply for adjustment before that date— because doing so does not impose a new legal consequence based on past conduct. First, the court explained that Petitioner did not have a vested right in adjustment relief. Second, IIRIRA imposed a new legal consequence on Petitioner not for his pre-IIRIRA illegal reentry but because of his illegal presence after IIRIRA. Lastly, given IIRIRA’s aims of toeing a harder line on immigration and limiting the availability of discretionary relief, it would be anomalous for Petitioner to obtain a perpetual right to seek relief at his own convenience.
Court Description: Immigration. Denying Jorge Rivera Vega’s petition for review of an order of an Immigration Judge, the panel held that: 1) the permanent inadmissibility bar of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) applied retroactively to Rivera Vega such that he was ineligible for adjustment of status; 2) his prior removal order was properly reinstated; 3) his statutory right to counsel in reasonable fear proceedings was not violated; and 4) the IJ properly rejected his claim for protection under the Convention Against Torture (CAT). Rivera Vega was deported in 1991, but illegally re- entered the next week. In 2001, he applied for adjustment, the United States Citizenship and Immigration Services (USCIS) denied that application in 2019, and Rivera Vega’s prior removal order was reinstated. An asylum officer then determined that Rivera Vega lacked a reasonable fear of persecution or torture if returned to Mexico, and an IJ affirmed. Before this court, Rivera Vega claimed that USCIS erroneously concluded that he was statutorily ineligible for adjustment. Because USCIS was required to decide his adjustment application before his removal order could be reinstated, the panel explained that, if USCIS erred as to adjustment, the panel was required to vacate the reinstatement order and remand to USCIS. RIVERA VEGA V. GARLAND 3 USCIS denied Rivera Vega’s adjustment application for three reasons, the last of which being that he was permanently inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(II) and not eligible for a waiver of inadmissibility. The inadmissibility bar of § 1182(a)(9)(C)(i)(II) was enacted as part of IIRIRA and provides that any alien who is removed and later illegally re- enters is permanently inadmissible. The panel explained that each of the reasons proffered by USCIS, if valid, independently barred Rivera Vega’s claim. The panel observed that USCIS factually erred on its first two grounds, but concluded that it lacked jurisdiction to review such factual findings under Patel v. Garland, 142 S. Ct. 1614 (2022), and therefore, his claim was independently barred on those grounds. In the alternative, the panel concluded that his claim would still be barred because the third reason for denying adjustment was valid. In doing so, the panel rejected his contention that the permanent inadmissibility bar should not apply to individuals, like himself, who illegally re-entered before IIRIRA’s effective date of April 1, 1997. Specifically, the panel held that the permanent inadmissibility bar applies retroactively to unlawful reentries made before IIRIRA’s effective date—provided the alien failed to apply for adjustment before that date— because doing so does not impose a new legal consequence based on past conduct. First, the panel explained that Rivera Vega did not have a vested right in adjustment relief because, before IIRIRA, he was eligible to adjust, but his failure to do so before the effective date doomed his claim. Second, IIRIRA imposed a new legal consequence on Rivera Vega not for his pre-IIRIRA illegal reentry but because of his illegal presence after IIRIRA; if he had departed the country and remained abroad for ten years, he would have 4 RIVERA VEGA V. GARLAND been eligible for a waiver of inadmissibility—and thus adjustment—by the time USCIS decided his application. Lastly, given IIRIRA’s aims of toeing a harder line on immigration and limiting the availability of discretionary relief, it would be anomalous for Rivera Vega to obtain, through an immigration infraction, a perpetual right to seek relief at his own convenience. Accordingly, the panel held that USCIS correctly denied Rivera Vega’s application, and his removal order was therefore properly reinstated. As to his reasonable fear hearing, Rivera Vega argued that his right to counsel was violated because the IJ conducted his hearing without his counsel present. In Orozco Lopez v. Garland, 11 F.4th 764 (9th Cir. 2021), this court held that aliens are statutorily entitled to counsel, at no expense to the government, at their reasonable fear hearings. However, the court cabined this right to being notified of the right to counsel and given the opportunity to obtain counsel. The panel concluded that Rivera Vega’s right to counsel was not violated, explaining that he knew of this right, he received a notice advising him of his right to counsel, and apparently retained an attorney for the hearing, but the attorney failed to appear. Lastly, Rivera Vega claimed that the IJ erred in adjudicating his claim for CAT relief by requiring that the feared torturer be a government official and ignoring the possibility of mere government acquiescence to torture conducted by a private actor. However, the panel explained that, if an alien fails to show a reasonable possibility of future torture, then government acquiescence is irrelevant. Here, the IJ concluded that Rivera Vega had not even suffered past persecution, let alone torture, because the only time he was harmed in Mexico was when he was assaulted RIVERA VEGA V. GARLAND 5 outside a bar in 1976. The panel concluded that this finding was supported by substantial evidence.
The court issued a subsequent related opinion or order on August 31, 2023.
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