O’neill Warner v. John Ashcroft

*This decision was originally issued as an “unpublished decision”
filed on April 16, 2004. On July 2, 2004, the court designated the opinion
as one recommend ed for full-text publication.
**The Honorable Joseph M. Hood, United States District Judge for
the Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0245P (6th Cir.)
File Name: 04a0245p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
O’NEILL WARNER,
Petitioner,
v.
JOHN ASHCROFT, et al.,
Respondent.
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No. 02-3676
On Appeal from the Board of Immigration Appeals.
No. A74 124 572.
Submitted: March 12, 2004
Decided and Filed: April 16, 2004*
Before: MERRITT and DAUGHTREY, Circuit Judges;
HOOD, District Judge.**
2 Warner v. Ashcroft, et al. No. 02-3676
_________________
COUNSEL
ON BRIEF: Scott E. Bratton, MARGARET WONG &
ASSOCIATES CO., Cleveland, Ohio, for Petitioner. Papu
Sandhu, Allen W. Hausman, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
_________________
OPINION
_________________
HOOD, District Judge. In this appeal, we are called upon
to review an order of exclusion issued by the United States
Immigration and Naturalization Service (“INS”). After
reviewing the briefs of the parties in light of the applicable
law, we are not persuaded that the INS erred in reinstating
Petitioner’s order of exclusion.
I. FACTUAL BACKGROUND
Petitioner Warner is a citizen and native of Jamaica. In
July 1996, Warner first attempted to enter the United States
by presenting a fraudulent passport to immigration authorities
at Miami International Airport. On July 5, 1996, he was
deported from the United States pursuant to an order of
exclusion. Petitioner then illegally reentered the United
States without inspection in July 1998. After he reentered the
United States, he married a United States citizen. On
April 30, 2001, Petitioner filed an I-130/485 application
attempting to gain legal residency. This application,
however, was denied by the INS based on his illegal reentry
after his exclusion in 1996.
On June 11, 2002, the INS issued a Notice of Intent to
Reinstate Prior Order against Warner. In response to this
Notice, Warner submitted a vague written statement in which

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No. 02-3676 Warner v. Ashcroft, et al. 3
he indicated that he feared returning to Jamaica because of the
crime and the poor educational system. There was no stated
fear of being persecuted or tortured by the Jamaican
Government or some group in Jamaica. On July 11, 2002, the
INS reinstated Warner’s prior order of exclusion pursuant to
INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), which authorizes the
Attorney General to reinstate a prior order of removal against
an alien who illegally enters the country after execution of
that order and provides for the removal of the alien without
any additional administrative proceedings.
On June 19, 2002, Warner filed a petition for review in this
Court challenging the INS’ reinstatement order and seeking
a stay of removal. On August 13, 2002, the Court denied the
motion for a stay of removal. On August 5, 2002, Petitioner
filed his first proof brief in which he challenged, among other
things, the INS’ failure to provide him with a “reasonable
fear” interview based on his fear of returning to Jamaica.
Subsequently, the parties agreed to suspend the briefing
schedule while the INS provided Warner with a reasonable
fear determination. On October 15, 2002, the INS determined
that Warner did not have a reasonable fear of returning to
Jamaica. This determination was affirmed by an immigration
judge. Warner then filed his amended proof brief on January
9, 2003. In his amended brief, Warner does not challenge the
INS’ or the immigration judge’s determination that he does
not have a reasonable fear of being removed to Jamaica.
Rather, Petitioner raises various issues regarding § 241(a)(5)
of the Immigration and Nationality Act and its applicability
to the reinstatement of his order of exclusion.
II. JURISDICTION
This Court has jurisdiction over Warner’s petition for
review pursuant to 8 U.S.C. § 1252(b) of the Immigration and
Nationality Act (“INA”), which authorizes the courts of
appeals to review orders of removal.
4 Warner v. Ashcroft, et al. No. 02-3676
III. DISCUSSION
Petitioner Warner presents four main issues for this Court
to review: (1) whether INA § 241(a)(5) applies to orders of
exclusion; (2) whether the application of INA § 241(a)(5) to
orders of exclusion issued before April 1, 1997 is
impermissibly retroactive; (3) whether INA §241(a)(5)
violates Petitioner’s due process rights; and (4) whether the
INS erroneously reinstated the order of exclusion against
Petitioner after denying his adjustment of status application
because of INA § 241(a)(5).
A. INA § 241(a)(5) and its Application to the
Reinstatement of Exclusion Orders
Petitioner contends that INA § 241(a)(5) cannot be used to
reinstate his final order of exclusion. INA § 241(a)(5) states:
If the Attorney General finds that an alien has reentered
the United States illegally after having been removed or
having departed voluntarily, under an order of removal,
the prior order of removal is reinstated from its original
date and is not subject to being reopened or reviewed, the
alien is not eligible and may not apply for any relief
under this [Act], and the alien shall be removed under the
prior order at any time after the reentry.
INA § 241(a)(5), 8 U.S.C. § 1231(a)(5). This provision of the
INA was enacted as part of the Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-
208, 110 Stat. 3009 (1996), on September 30, 1996 and
became effective on April 1, 1997. Prior to the enactment of
the IIRIRA, INA § 242(f) governed the reinstatement of
orders of deportation. INA § 242(f) did not apply to reentries
occurring after prior orders of exclusion. Petitioner Warner
contends that this newer provision, INA § 241(a)(5), likewise
does not apply to the reinstatement of prior orders of removal
since the terms deportation and exclusion are absent from its
language.

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No. 02-3676 Warner v. Ashcroft, et al. 5
Respondent argues that INA § 241(a)(5) does indeed allow
for the reinstatement of prior exclusion orders. The language
in IIRIRA § 309(d)(2), 110 Stat, 3009-627, provides that an
order of removal includes “an order of exclusion and
deportation or an order of deportation.” Therefore,
Respondent asserts that the references to removal within the
INA § 241(a)(5) provision likewise apply to orders of
exclusion. Petitioner Warner attempts to rebut Respondent’s
argument by claiming that IIRIRA § 309(d)(2) is merely part
of IIRIRA’s transitional rules. Petitioner believes that this
case is governed by IIRIRA’s permanent rules as codified in
the INA. The Fourth Circuit has addressed this same issue in
Velasquez-Ghabriel v. Crocetti, 263 F.3d 102 (4th Cir. 2001).
In Velasquez-Ghabriel, the court rejected the notion that
IIRIRA § 309(d)(2) applies only in “transitional rule” cases.
According to the Fourth Circuit, § 309(c) of the IIRIRA
“establishes transitional rules for ongoing proceedings, but
there is no indication that § 309(d) is also a transitional rule
that applies solely to ongoing, not post-enactment,
proceedings. In fact, such a reading would eviscerate
IIRIRA's streamlined removal procedures by resurrecting the
distinctions between ‘removal,’ ‘deportation,’ and ‘exclusion’
that § 309(d)(2) sought to abolish.” Velasquez-Gabriel at
105.
Despite Petitioner Warner’s attempts to employ rules of
statutory construction to support his argument, this Court
finds that removal orders in INA § 241(a)(5) include
exclusion and deportation orders. IIRIRA § 309(d)(2)
specifically provides for such an interpretation. Being that
IIRIRA § 309(d)(2) is not merely a transitional rule, orders of
removal include orders of exclusion for purposes of INA
§ 241(a)(5).
B. Retroactivity Analysis
Petitioner argues that INA § 241(a)(5) is impermissibly
retroactive when applied to orders of exclusion issued before
IIRIRA’s enactment date. In Bejjani v. INS, 271 F.3d 670
6 Warner v. Ashcroft, et al. No. 02-3676
(6th Cir. 2001), this Court held that INA § 241(a)(5) could
not be applied retroactively to reinstate prior orders of
removal of aliens who reentered the country prior to April 1,
1997, which is the effective date of INA § 241(a)(5). Bejjani
at 687. However, the Bejjani case does not address the
present issue of an alien who illegally reentered the U.S. after
April 1, 1997 but whose first order of exclusion was entered
before April 1, 1997.
The Supreme Court has set forth a retroactivity test in
Landgraf v. USI Film Products, 511 U.S. 244 (1994). The
first inquiry into determining whether a new statute applies to
pre-enactment events is whether Congress had spoken on the
statute’s reach. Landgraf at 280. This inquiry involves two
parts: (1) whether Congress has expressly prescribed for the
statute’s temporal reach; and, if not (2) whether Congress’
intent can be clearly ascertained from the text, structure and
history of the legislation. Bejjani at 677. If Congress has
spoken on the issue, the inquiry is over and Congress’ intent
controls. Id. However, if Congress has not spoken on the
issue, “the court must determine whether the new statute
would have a retroactive effect, i.e. whether it 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 at 280.
Since § 241(a)(5) is silent as to its temporal reach, courts
must look to other evidence to ascertain Congress’ intent. In
Bejjani, this Court found that the decision to completely
eliminate the retroactive language found in the preceding
statute, § 242(f), from the new § 241(a)(5) statute was
evidence sufficient to show that Congress did not intend for
§ 241(a)(5) to apply to reentries occurring prior to the
statute’s effective date. Bejjani at 686. However, the
rationale set forth in Bejjani is not directly on point in the
instant action since Petitioner Warner reentered the United
States after the effective date of § 241(a)(5). In this action,
there exists no pre-enactment conduct sufficient to constitute
a basis for a retroactivity claim.

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No. 02-3676 Warner v. Ashcroft, et al. 7
Petitioner Warner attempts to base his retroactivity
argument on the fact that he was excluded and deported prior
to IIRIRA’s enactment. He claims that he was not, at that
time, on notice that he could be later subjected to a
streamlined removal process if he illegally reentered the
country. However, this argument is unpersuasive. “A statute
does not operate ‘retrospectively’ merely because it is applied
in a case arising from conduct antedating the statute’s
enactment ... or upsets expectations based in prior law.”
Landgraf at 269. Petitioner Warner was on notice of the
consequences of his illegal reentry before he chose to illegally
reenter the United States. Therefore, this Court finds no
impermissible retroactive effect.
C. Due Process
Petitioner Warner claims that the application of INA
§ 241(a)(5) and 8 C.F.R. § 241.8 to this case violates his due
process rights. Aliens subject to orders of reinstatement enjoy
Fifth Amendment protection. Castro-Cortez v. I.N.S., 239
F.3d 1037, 1049 (9th Cir. 2001). Even if an alien enters the
United States illegally, he or she “may be expelled only after
proceedings conforming to traditional standards of fairness
encompassed in due process of law.” Shaughnessy v. United
States ex rel Mezei, 345 U.S. 206, 212 (1953).
8 C.F.R. § 241.8 provides that an alien who illegally
reenters the United States does not have a right to a hearing
before an immigration judge regarding the reinstatement of a
prior removal order. Rather, an immigration officer conducts
an investigation in order to determine: (1) whether the alien
has been subject to a prior order; (2) whether the alien is in
fact an alien who was previously removed or departed
voluntarily under a prior order; and (3) whether the alien
unlawfully entered the United States after his removal.
C.F.R. § 241.8(a). If the officer determines that an alien is
subject to having his removal order reinstated then the officer
must provide written notice to the alien. C.F.R. § 241.8(b).
Thereafter, the alien has the opportunity to contest the
8 Warner v. Ashcroft, et al. No. 02-3676
1Responde nt also asserts that Petitioner’s due process argument fails
on its merits. The Supreme Court has stressed that “over no conceivable
subject is the legislative p ower of Co ngress more com plete tha n it is over
the admission of aliens.” Reno v. Flores, 507 U.S. 292, 305-06 (199 3).
Therefore, the role of the judiciary is limited and the Court should weigh
heavily the government’s interests in a Mathews v. Eldridge, 424 U.S. 319
determination through a written or oral statement. Id. After
all of these procedures have been completed, the alien shall be
removed under the previous order of exclusion or removal.
C.F.R. § 241.8 (c).
Petitioner argues that his due process rights were violated
by the fact that his exclusion order was reinstated under
§ 241(a)(5) without him being able to apply for any type of
relief. Additionally, Warner believes the procedures
associated with the reinstatement process, set forth in C.F.R.
§ 241.8, deny him procedural due process. Particularly,
Petitioner Warner contends that he was denied a hearing
before an immigration judge, a right to appeal to the BIA, the
right to develop a record, representation by counsel, a right to
request relief, and adequate notice of the government’s
intended action, all in violation of his due process rights.
Respondent argues that Warner’s due process claim must
fail because he has not shown he was prejudiced by the
claimed constitutional violations. Such proof of prejudice is
necessary to establish a due process violation in an
immigration hearing. Ojeda-Terrazas v. Ashcroft, 290 F.3d
292, 302 (5th Cir. 2002); United States v. Proa-Tovar, 975
F.2d 592, 595 (9th Cir. 1992)(en banc). Petitioner Warner
has not shown any prejudice resulting from the alleged
constitutional deficiency. He never, within his briefs,
contests the fact that he is an illegally reentering alien.
Therefore, even if Warner had been provided with a full
hearing before an immigration judge, there is no doubt that
his prior exclusion order would have been reinstated. Since
Warner has not demonstrated any prejudice, his due process
claims must fail.1

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No. 02-3676 Warner v. Ashcroft, et al. 9
(1976), due pro cess determination. Although it appears likely that
Petitioner’s due p rocess claim would fail on its merits, this Court need not
add ress the m erits since there exists no d emo nstration of prejudice.
D. Application of § 241(a)(5) to §245(i)
Pursuant to INA § 245(i), Petitioner filed an I-130/485
adjustment of status application based on his marriage to a
United States citizen. However, on June 11, 2002, the INS
denied the adjustment of status application stating that
Warner is statutorily ineligible to adjust his status because he
had been previously ordered excluded and subsequently
illegally entered the United States. Thereafter, the INS
reinstated Petitioner’s prior order of exclusion pursuant to
§ 241(a)(5).
Warner believes that the INS erroneously concluded that he
was statutorily ineligible to adjust his status under INA
§ 245(i). According to Petitioner, an exception exists to INA
§ 245's general rule that an alien entering the country without
inspection is statutorily barred from adjustment of status.
This exception provides that an alien who is physically
present in the U.S. but who “entered the United States without
inspection ... may apply to the Attorney General for the
adjustment of status to that of an alien admitted for lawful
permanent residence.” INA § 245(i). Petitioner Warner
claims that § 245(i) allows him to adjust his status. He asserts
that § 245(i) does not cross-reference § 241(a)(5) nor does it
mention any language that would bar adjustment to aliens
who illegally reentered the U.S. after being deported. Prado
Hernandez v. Reno, 86 F.Supp.2d 1037, 1041 (W.D. Wash.
1999). Since § 245(i) does not specifically exclude aliens
subject to § 241(a)(5), Petitioner believes he should be
allowed to change his status under § 245(i).
INA § 241(a)(5) states that aliens who fall under this
provision “are not eligible and may not apply for any relief
under this chapter.” Therefore, aliens whose prior orders of
10 Warner v. Ashcroft, et al. No. 02-3676
2Congress has set forth specific exceptions to the reinstatement
provision of § 241(a)(5) for certain Nicaraguan, Cuban, and Haitian
app licants in § 1505 of the Life Act Amendments of 2000, P.L. 106-554,
114 Stat, 2763 (20 00).
removal are reinstated under § 241(a)(5) should not be
eligible for relief under § 245(i). If such aliens could obtain
relief under § 245(i), they could avoid Congress’ bar on relief
in § 241(a)(5) simply by applying for adjustment of status as
soon as they illegally enter the United States. Respondent
contends that Congress has not excepted the relief available
under § 245(i) from the § 241(a)(5) bar. Further, Respondent
points out that Congress could have carved out such an
exception if it so wished.2 This Court finds that § 245(i) has
no effect upon § 241(a)(5)’s preclusion of other relief. See
Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 862 (8th Cir.
2002) (rejecting as meritless the argument that § 245(i)
conflicts with and supercedes § 245(a)(5)). Therefore, aliens
such as Petitioner Warner whose prior orders of removal are
reinstated under § 241(a)(5) are not eligible for relief under
§ 245(i).
IV. CONCLUSION
Accordingly, the INS did not err in reinstating Petitioner
Warner’s order of exclusion under § 241(a)(5). Therefore, the
decision by the INS is hereby AFFIRMED.

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