On Petition for Review from the Board of Immigration Appeals BIA No. A27 931 848.
The opinion of the court was delivered by: McKee, Circuit Judge
Before: McKee, Smith, Van Antwerpen Circuit Judges.
Harold Dinnall petitions for review of an order of the Bureau of Immigration and Customs Enforcement ("BICE"), Department of Homeland Security ("DHS"), reinstating his prior order of deportation and ordering his removal under Section 241(a)(5) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1231(a)(5) (2000), enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA").*fn1 Dinnall argues that the reinstatement provision is impermissibly retroactive. We agree. For the reasons that follow, we will grant the petition for review and vacate reinstatement of the deportation order.
Dinnall is a native and citizen of Jamaica who entered the United States in the 1980's. It is unclear if he entered illegally or on a visitor visa, but the distinction is irrelevant to our resolution of the issues raised in this appeal.
After Dinnall was "pulled over" for a traffic violation, on August 10, 1987, the Immigration and Naturalization Service ("INS")*fn2 took him into custody and issued an Order to Show Cause ("OSC"), charging him with being deportable from the United States pursuant to former Section 241(a)(2) of the INA. That section pertains to aliens who entered the United States without immigration inspection. The INS subsequently released Dinnall from custody on a $10,000.00 bond. On September 23, 1987, the INS sent Dinnall a hearing notification letter, informing him that he was scheduled for a hearing date before an Immigration Judge on October 7, 1987. Dinnall contends that he never received the letter as it was sent to the wrong address. There is record support for that contention.*fn3 Dinnall failed to appear at his October 7, hearing, and the IJ ordered him deported in absentia. The INS issued a warrant of deportation on November 20, 1987.
That warrant was not served before Dinnall left the United States and went to Jamaica on January 4, 1988. Under the regulations then in effect, Dinnall was considered to have "self-deported." See 8 C.F.R. § 243.5 (1987) ("Any alien who has departed from the United States while an order of deportation is outstanding shall be considered to have been deported in pursuance of law."). Because Dinnall left under an order of deportation, he could not legally re-enter the United States for a period of five years. However, he returned to the United States two days after he left.
In 1994, Dinnall was again taken into custody by the INS, and the INS issued another OSC. That OSC charged him with illegally re-entering the United States following deportation. Dinnall posted a $10,000.00 bond.*fn4
In January, 1998, Dinnall married a United States citizen, and he now has at least one child who is also a United States citizen.*fn5 In May, 2004, the BICE again took Dinnall into custody, and on May 13, 2004, the BICE reinstated Dinnall's 1987 deportation order, pursuant to § 241(a)(5). A warrant of removal was issued on the same date. As of the date this case was argued, Dinnall remained in custody at York County Prison.
Dinnall filed a Petition for Review and a motion to stay deportation with this court on May 20, 2004, and on June 17, 2004 we ordered Dinnall's deportation stayed pending a decision on his Petition for Review to address his contention that the reinstatement provision is impermissibly retroactive as applied to him.*fn6
Dinnall's Petition presents a legal question, and our review is therefore de novo; the agency's views garner no special deference. See INS v. St. Cyr, 533 U.S. 289, 321 n.45 (2001) ("We only defer . . . to agency interpretations of statutes that, applying the normal tools of statutory construction, are ambiguous. Because a statute that is ambiguous with respect to retroactive application is construed under our precedent to be unambiguously prospective, there is, for Chevron purposes, no ambiguity in such a statute for an agency to resolve.") (citations and quotations marks omitted); see also Arevalo v. Ashcroft, 344 F.3d 1, 9-10 (1st Cir. 2003) (explaining that "courts, rather than agencies, are best equipped to make the constitutionally tinged judgment calls inherent in retroactivity determinations"); Sarmiento Cisneros v. United States Attorney General, 381 F.3d 1277, 1280 (11th Cir. 2004) (same); Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 300 n.53 (5th Cir. 2002) (same); Bejjani v. INS, 271 F.3d 670, 679 (6th Cir. 2001) (same).
Dinnall's sole argument on appeal is that INA § 241(a)(5) may not be applied retroactively to aliens who reentered the United States prior to IIRIRA's effective date because the statute impairs certain rights that these aliens possessed prior to that time.*fn7
Congress may undoubtedly enact statutes that operate retroactively. See Landgraf v. USI Film Prods., 511 U.S. 244, 267 (1994). However, since retroactive legislation can potentially alter the consequences of actions already taken, we must presume that Congress intends legislation to only act prospectively. Id. at 272-73.
In Landgraf, the Supreme Court established guidelines for determining whether a statute enacted after a particular event can alter the legal consequences of that event. The result is a two-part inquiry that "demands a commonsense, functional judgment" and "should be informed and guided by familiar considerations of fair notice, reasonable reliance, and settled expectations." Martin v. Hadix, 527 U.S. 343, 357-58 (1999) (internal quotations marks omitted).
We must first determine if Congress has declared whether the statute should have retroactive effect. Landgraf, 511 U.S. at 280. "In answering this question, courts should employ the customary rules of statutory construction, assaying the language of the statute itself and then considering its structure and purpose." Arevalo, 344 F.3d at 10. If the statute itself does not sufficiently denote the temporal reach of its provisions, there is a "presumption against statutory retroactivity," and further inquiry should follow. Ponnapula v. Ashcroft, 373 F.3d 480, 487 (3d Cir. 2004).
In conducting this further inquiry, we must consider whether retroactive application of the statute "would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Landgraf, 511 U.S. at 280; accord St. Cyr, 533 U.S. at 321 ("A statute has retroactive effect when it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past."). If such ramifications loom, the default rule is that the statute should not be construed to regulate the past conduct. Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 946 (1997).
However, the mere fact that a new statute has some retroactive effect does not automatically resolve step two of the Landgraf inquiry. A new law is not impermissibly retroactive simply because it has implications for completed events. "[A]pplication of new statutes passed after the events in suit is unquestionably proper in many situations." Landgraf, 511 U.S. at 273. Rather, the statute's temporal reach becomes unacceptable only when its retroactive application would significantly impair existing rights and thereby disappoint legitimate expectations. Gen. Motors Corp. v. Romein, 503 U.S. 181, 191(1992).
Although our inquiry considers disappointed expectations, we have not required the party opposing application of an amendment to establish actual reliance on the prior statute. See Ponnapula, 373 F.3d at 489-90. Indeed, any requirement of a "quantum of evidence regarding the subjective intent of the party seeking to avoid retroactive application . . . [is] in tension with the language of presumption in Landgraf and its progeny . . . [and] incorrectly focuses attention on the particular facts and circumstances of the party before the court." Id. at 491. "The likelihood that the party before the court did or did not in fact rely on the prior state of the law is not germane to the question of retroactivity. Rather, courts are to concentrate on the group to whose conduct the statute is addressed." Id. at 493.
Here, the government reinstated the 1987 in absentia deportation order against Dinnall under INA § ...