Summary
The Ninth Circuit denied Alfonso Verduzco Ruiz’s petition for review of the Department of Homeland Security’s reinstatement of his prior removal order. The court held that applying the Illegal Immigration Reform and Immigrant Responsibility Act of 1996’s expanded reinstatement provision was not impermissibly retroactive and that, assuming a due process right to counsel in reinstatement proceedings, Verduzco Ruiz failed to show prejudice from counsel’s absence.
Topics
Practice areas
Questions Presented
- Whether applying IIRIRA's expanded reinstatement provision, 8 U.S.C. § 1231(a)(5), to Verduzco Ruiz was impermissibly retroactive because an I-130 petition had been filed and approved before IIRIRA's effective date.
- Whether Verduzco Ruiz was entitled to relief based on an alleged due process violation arising from the absence of his counsel during DHS reinstatement proceedings.
- Whether prejudice should be presumed when counsel is absent during reinstatement proceedings.
- Whether Verduzco Ruiz demonstrated a plausible scenario in which counsel's presence would have changed the outcome of the reinstatement proceedings.
Holdings
- Applying IIRIRA's expanded reinstatement provision to Verduzco Ruiz was not impermissibly retroactive because the pre-IIRIRA filing and approval of an I-130 petition did not create a vested right to immigration relief, adjustment of status, or consular processing.
- An alien must show prejudice to obtain relief for a due process violation based on denial of any right to counsel that may exist in reinstatement proceedings; prejudice is not conclusively presumed.
- Verduzco Ruiz was not entitled to relief because he failed to identify a plausible scenario in which counsel's presence would have changed the reinstatement outcome.
Key quotations
“Thus, we hold that it is not impermissibly retroactive to apply IIRIRA’s expanded reinstatement provision to him.” (8)
“Accordingly, we hold that an alien must show prejudice to obtain relief for a due process violation based on denial of any right to counsel that may exist in reinstatement proceedings.” (14)
“Accordingly, we hold that he is not entitled to relief because he was not prejudiced by his attorney’s absence from the reinstatement proceedings.” (15)
Factual background
Verduzco Ruiz, a Mexican citizen, was the beneficiary of an I-130 petition filed and approved in 1992-1993, but he did not apply for adjustment of status or otherwise apply for lawful status before IIRIRA took effect on April 1, 1997. He was ordered removed and removed in 2000, later reentered without inspection, and in 2018 was placed in reinstatement proceedings after DHS discovered his prior removal and unlawful reentry. At the May 2018 reinstatement meeting, DHS advised him of his rights, including the opportunity to consult counsel, but he declined to make a statement or sign the acknowledgement; he did not contest the factual predicates for reinstatement or claim fear of persecution or torture.
Procedural history
DHS first reinstated Verduzco Ruiz's prior removal order in February 2018, but later cancelled that order after discovering that the acknowledgement-and-response section was blank. DHS reinstated the order again in May 2018 after advising Verduzco Ruiz of his rights and allowing him to consult with counsel. Verduzco Ruiz petitioned the Ninth Circuit for review, and the court stayed removal pending review.