Alfonso Verduzco Ruiz, a Mexican national, was previously removed from the United States in 2000. He returned illegally and was later arrested in 2018 after admitting to DHS officers that he had been previously removed. DHS sought to reinstate his prior removal order under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Ruiz argued that applying the reinstatement provision was impermissibly retroactive because his mother had filed an I-130 petition on his behalf in 1992, which was approved in 1993, before IIRIRA took effect. He also claimed a due process violation because his attorney was not invited to attend the meeting where DHS reinstated the order. The Ninth Circuit reviewed whether the application of IIRIRA was retroactive and whether the denial of counsel required a presumption of prejudice.
The panel addressed two primary issues. First, regarding retroactivity, the court applied the standard that a law is impermissibly retroactive only if it cancels rights that vested before its effective date. Citing Montoya v. Holder, the court explained that the mere filing and approval of an I-130 petition creates no vested right to apply for adjustment of status. A right vests only when the alien affirmatively acts to substantially further their expectation of relief, such as by applying for adjustment of status or consular processing. Because Verduzco Ruiz took no affirmative step to adjust his status before IIRIRA went into effect, he had no vested right for IIRIRA to cancel. Second, regarding the right to counsel, the court distinguished reinstatement proceedings from full removal proceedings. While prejudice is conclusively presumed when counsel is denied at a merits hearing before an immigration judge, the court held that this exception does not apply to reinstatement proceedings. Reinstatement proceedings are summary in nature, similar to expedited removal, where the effect of counsel's absence can be readily assessed. Therefore, an alien must show actual prejudice to obtain relief for a due process violation based on the denial of counsel. The court found Verduzco Ruiz failed to show prejudice because his argument that counsel could have prevented reinstatement relied on an incorrect legal theory regarding retroactivity and was speculative regarding DHS's discretionary authority.
The reinstatement order stands, leaving the petitioner subject to immediate removal without relief. The decision clarifies that in reinstatement proceedings, the burden is on the alien to prove actual prejudice from the denial of counsel, rather than relying on a presumption. It also reinforces that an approved visa petition alone does not protect an alien from retroactive application of reinstatement provisions if they have not actively sought adjustment of status.
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