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Keywords

liabilitystatutevisa
statutehearingdeportationnaturalization

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Silva Rosa v. Gonzales

Facts

Petitioner Alexis Silva Rosa, a citizen of Honduras, entered the United States without inspection in 1990 and was ordered to be removed shortly thereafter. After being deported, he reentered the U.S. illegally in 1990 and married a lawful permanent resident in 1993. An immigrant relative visa petition was approved for him in 1994, but the visa was not immediately available. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) was enacted, which included provisions that affected his eligibility for adjustment of status. His visa became available only after IIRIRA's effective date, and in 2005, ICE reinstated his prior removal order.

Petitioner Alexis Silva Rosa, a citizen of Honduras, entered the United States without inspection in 1990. He was apprehended and, after a deportation hearing, ordered to be removed by the Immigration and Naturalization Service ('INS') a few months later. Silva Rosa was deported to Honduras on May 16, 1990. In June 1990, he again entered the United States without inspection.

Issue

Whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) was impermissibly retroactive as applied to petitioner.

Whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) is impermissibly retroactive as applied to Silva Rosa.

Rule

The court applied a two-step test to determine if a statute has an impermissibly retroactive effect, assessing whether Congress expressly prescribed the statute's reach and whether applying the statute retroactively would impair rights a party possessed when he acted, increase liability for past conduct, or impose new duties regarding completed transactions.

To determine whether a statute has an effect that is impermissibly retroactive, we apply a two-step test.

Analysis

The court found that the application of 8 U.S.C. 1231(a)(5) did not impair any rights the petitioner possessed when he acted, nor did it impose new consequences on his past conduct. The petitioner had not established a vested right or settled expectation for an adjustment of status because he had only completed the first step of the adjustment process, and his visa was not available until after IIRIRA's effective date. Therefore, the court concluded that the retroactive application of IIRIRA did not violate any rights.

The court found that the application of 8 U.S.C. 1231(a)(5) does not impair any rights the petitioner possessed when he acted, nor does it impose new consequences on his past conduct.

Conclusion

The court denied the petition for review and affirmed the decision to reinstate the removal order, concluding that the application of 8 U.S.C. 1231(a)(5) was not impermissibly retroactive.

The court denied the petition for review and affirmed the decision to reinstate the removal order.

Who won?

The Immigration and Customs Enforcement (ICE) prevailed in the case as the court upheld the reinstatement of the removal order, finding that the application of the statute was not retroactive.

The Immigration and Customs Enforcement (ICE) prevailed in the case as the court upheld the reinstatement of the removal order.

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