Almost 24 years ago, Congress added four new grounds of inadmissibility, all of which went into effect on April 1, 1997: the three-year bar for departing after accruing more than 180 days of unlawful presence; the ten-year for departing after accruing a year or more of unlawful presence; and the two “permanent” bars for departing and illegally reentering (or attempting to do so) after either accruing at least one year of unlawful presence or after being ordered removed, excluded or deported. While the three- and ten-year bars can be waived before those time periods have run, the permanent bars require the person to reside abroad for ten years before applying for a waiver.

The whole concept of unlawful presence had been newly minted at that time, and therefore the first two bars could not possibly be applied to actions preceding April 1, 1997. Nor could the permanent bar relating to departure and unlawful reentry after the accrual of at least one year of unlawful presence. That left the question of whether the other permanent bar could be applied retroactively to unlawful reentries after a deportation or exclusion order and before the law’s effective date. For example, would the permanent bar attach to a person who was deported in 1991, illegally reentered the next week, and applied for adjustment of status in 2001? The agency interpreting this law two months after it went into effect determined that it could not, and that interpretation has guided its enforcement and application ever since. But a recent Ninth Circuit decision, Vega v. Garland, No. 19-71750 (9th Cir. July 8, 2022), has discarded that long-held position and found that the law applies retroactively.

The facts in the case spanned three decades and comprise the hypothetical above, except U.S. Citizenship and Immigration Services denied the person’s adjustment application in 2019, citing the permanent bar. The person, Mr. Vega, appealed and argued that he should not be punished for conduct that preceded the effective date of a law that imposed new legal consequences to that conduct. Relying on Supreme Court precedent, the three-judge panel found that the law could be applied retroactively since it was not Mr. Vega’s 1991 reentry that was being punished but rather his “illegal presence” and “unlawfully remaining here” after April 1, 1997. In other words, it was his failure to remain abroad for ten years and apply for a waiver that was being punished, despite the fact that in 1991 there was no legal requirement that he do so. Or it was his failure to depart and take such action after April 1, 1997, even though the agency enforcing this provision had determined that it did not apply to him.

The appellate court first determined that Congress was silent as to the law’s retroactive application. Nor had the issue ever been decided by the Ninth Circuit, thus making it one of first impression. In determining whether retroactive application of a law is improper, one test is whether it imposed a “new legal consequence” on account of past conduct. In order to avoid answering that in the affirmative when applied to Mr. Vega’s facts, the court first admonished him for his failure to apply for adjustment before the law went into effect on April 1, 1997. It then drew parallels to the Supreme Court’s decision in Fernandez-Vargas v. Gonzalez, which held that the reinstatement of removal provision of INA § 241(a)(5) did apply retroactively. In that case, the Court pointed to a 180-day lag between the law’s passage on Sept. 30, 1996, and its April 1, 1997, effective date. Such a “grace period” allowed persons otherwise subject to reinstatement of removal the opportunity to file for adjustment of status and avoid the law’s application. The Ninth Circuit applied the same logic and determined that this permanent bar provision applies retroactively and that it is legally proper to do so. It found that Mr. Vega “does not have a vested right in the adjustment of status claim that retroactive application of [the permanent bar] extinguishes.”

The three circuit court judges were all Republican presidential appointees chosen for their conservative views: two by President Donald Trump and one by President George W. Bush. The decision covers those states within the Ninth Circuit: Alaska, Arizona, California, Washington, Oregon, Montana, Nevada, Idaho, and Hawaii. Practitioners whose clients reside in those states should screen adjustment of status applicants for possible applicability of this new interpretation of the permanent bar. Most clients who reentered the United States illegally after being deported or removed will be discouraged from applying for adjustment of status — assuming they are eligible — due to possible application of reinstatement of removal. So, this ruling may have limited adverse effect.