FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE RIVERA VEGA,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 19-71750

Agency No.

A022-870-507

OPINION

On Petition for Review of an Order

of an Immigration Judge

Argued and Submitted March 11, 2022

Pasadena, California

Filed July 8, 2022

Before: Sandra S. Ikuta, Kenneth K. Lee, and

Danielle J. Forrest, Circuit Judges.

Opinion by Judge Lee
2 RIVERA VEGA V. GARLAND

SUMMARY*

Immigration

Denying Jorge Rivera Vega’s petition for review of an 

order of an Immigration Judge, the panel held that: 1) the 

permanent inadmissibility bar of the Illegal Immigration 

Reform and Immigrant Responsibility Act of 1996 (IIRIRA) 

applied retroactively to Rivera Vega such that he was 

ineligible for adjustment of status; 2) his prior removal order 

was properly reinstated; 3) his statutory right to counsel in 

reasonable fear proceedings was not violated; and 4) the IJ 

properly rejected his claim for protection under the 

Convention Against Torture (CAT).

Rivera Vega was deported in 1991, but illegally reentered the next week. In 2001, he applied for adjustment, 

the United States Citizenship and Immigration Services 

(USCIS) denied that application in 2019, and Rivera Vega’s 

prior removal order was reinstated. An asylum officer then 

determined that Rivera Vega lacked a reasonable fear of 

persecution or torture if returned to Mexico, and an IJ 

affirmed.

Before this court, Rivera Vega claimed that USCIS 

erroneously concluded that he was statutorily ineligible for 

adjustment. Because USCIS was required to decide his 

adjustment application before his removal order could be 

reinstated, the panel explained that, if USCIS erred as to 

adjustment, the panel was required to vacate the 

reinstatement order and remand to USCIS.

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
RIVERA VEGA V. GARLAND 3

USCIS denied Rivera Vega’s adjustment application for 

three reasons, the last of which being that he was 

permanently inadmissible under 8 U.S.C. 

§ 1182(a)(9)(C)(i)(II) and not eligible for a waiver of 

inadmissibility. The inadmissibility bar of 

§ 1182(a)(9)(C)(i)(II) was enacted as part of IIRIRA and 

provides that any alien who is removed and later illegally reenters is permanently inadmissible. The panel explained that 

each of the reasons proffered by USCIS, if valid, 

independently barred Rivera Vega’s claim. The panel 

observed that USCIS factually erred on its first two grounds, 

but concluded that it lacked jurisdiction to review such 

factual findings under Patel v. Garland, 142 S. Ct. 1614 

(2022), and therefore, his claim was independently barred on 

those grounds. In the alternative, the panel concluded that 

his claim would still be barred because the third reason for 

denying adjustment was valid. In doing so, the panel 

rejected his contention that the permanent inadmissibility 

bar should not apply to individuals, like himself, who 

illegally re-entered before IIRIRA’s effective date of April 

1, 1997.

Specifically, the panel held that the permanent 

inadmissibility bar applies retroactively to unlawful 

reentries made before IIRIRA’s effective date—provided 

the alien failed to apply for adjustment before that date—

because doing so does not impose a new legal consequence 

based on past conduct. First, the panel explained that Rivera 

Vega did not have a vested right in adjustment relief 

because, before IIRIRA, he was eligible to adjust, but his 

failure to do so before the effective date doomed his claim. 

Second, IIRIRA imposed a new legal consequence on Rivera 

Vega not for his pre-IIRIRA illegal reentry but because of 

his illegal presence after IIRIRA; if he had departed the 

country and remained abroad for ten years, he would have 
4 RIVERA VEGA V. GARLAND

been eligible for a waiver of inadmissibility—and thus 

adjustment—by the time USCIS decided his application. 

Lastly, given IIRIRA’s aims of toeing a harder line on 

immigration and limiting the availability of discretionary 

relief, it would be anomalous for Rivera Vega to obtain, 

through an immigration infraction, a perpetual right to seek 

relief at his own convenience. Accordingly, the panel held 

that USCIS correctly denied Rivera Vega’s application, and 

his removal order was therefore properly reinstated. 

As to his reasonable fear hearing, Rivera Vega argued 

that his right to counsel was violated because the IJ 

conducted his hearing without his counsel present. In

Orozco Lopez v. Garland, 11 F.4th 764 (9th Cir. 2021), this 

court held that aliens are statutorily entitled to counsel, at no 

expense to the government, at their reasonable fear hearings. 

However, the court cabined this right to being notified of the 

right to counsel and given the opportunity to obtain counsel. 

The panel concluded that Rivera Vega’s right to counsel was 

not violated, explaining that he knew of this right, he 

received a notice advising him of his right to counsel, and 

apparently retained an attorney for the hearing, but the 

attorney failed to appear.

Lastly, Rivera Vega claimed that the IJ erred in 

adjudicating his claim for CAT relief by requiring that the 

feared torturer be a government official and ignoring the 

possibility of mere government acquiescence to torture 

conducted by a private actor. However, the panel explained 

that, if an alien fails to show a reasonable possibility of 

future torture, then government acquiescence is irrelevant. 

Here, the IJ concluded that Rivera Vega had not even 

suffered past persecution, let alone torture, because the only 

time he was harmed in Mexico was when he was assaulted 
RIVERA VEGA V. GARLAND 5

outside a bar in 1976. The panel concluded that this finding 

was supported by substantial evidence.

COUNSEL

Megan Brewer (argued) and Stacy Tolchin, Law Offices of 

Stacy Tolchin, Pasadena, California, for Petitioner.

Jaclyn E. Shea (argued), Trial Attorney; Derek C. Julius, 

Assistant Director; Brian Boynton, Acting Assistant 

Attorney General; Criminal Immigration Team, Office of 

Immigration Litigation, Civil Division, United States 

Department of Justice, Washington, D.C.; for Respondent.

OPINION

LEE, Circuit Judge:

This case involves facts spanning over three decades, a 

tortuous procedural history, and inexplicable factual errors 

made by the United States Citizenship and Immigration 

Services (USCIS). But ultimately the outcome hinges on 

whether we apply retroactively a provision in the Illegal 

Immigration Reform and Immigrant Responsibility Act of 

1996 (IIRIRA) preventing “inadmissible” aliens from 

adjusting their status to lawful permanent residents. If it 

applies retroactively, petitioner Jorge Rivera Vega—who is 

considered “inadmissible” because he re-entered unlawfully 

after being removed in 1991—cannot seek adjustment of his 

immigration status.

We hold that IIRIRA’s permanent inadmissibility 

provision applies retroactively because doing so does not 
6 RIVERA VEGA V. GARLAND

impose a new legal consequence based on past conduct. 

Rivera Vega had no vested right to the discretionary relief of 

adjustment of immigration status because he failed to timely 

seek such relief. And the IIRIRA provision does not 

penalize Rivera Vega’s pre-IIRIRA act of unlawfully reentering the United States but rather the post-IIRIRA 

conduct of illegally remaining here. We thus deny the 

petition.

BACKGROUND

Decades ago, Jorge Rivera Vega, a native of Mexico, 

unlawfully entered the United States but was deported on 

January 30, 1991. Just a week later, however, Rivera Vega 

illegally re-entered the United States and remained off the 

radar of immigration authorities for decades. In 2001, he 

sought discretionary relief to adjust his status and become a 

lawful permanent resident.

But Rivera Vega’s potential path to becoming a lawful 

permanent resident was not so straightforward. Typically, 

an alien who enters the United States illegally may be 

removed from the country after a hearing before an 

Immigration Judge (IJ). 8 U.S.C. §§ 1182, 1227, 1229a; 

8 C.F.R. § 1240.1(a)(1). If he re-enters unlawfully, 

however, the prior removal order may be reinstated via a 

summary proceeding without a hearing. 8 U.S.C. 

§ 1231(a)(5); 8 C.F.R. § 241.8(a). And important here, once 

a removal order is reinstated, an alien is generally precluded 

from seeking “any relief.” 8 U.S.C. § 1231(a)(5). That 

would have seemingly precluded Rivera Vega from seeking 

adjustment of status to a lawful permanent resident.

But until a reinstatement order has issued, an alien can 

still seek discretionary relief to become a lawful permanent 

resident. If granted, such relief would forgive his prior 
RIVERA VEGA V. GARLAND 7

immigration violations and shield him from removal. See

8 U.S.C. § 1255(i); see also Patel v. Garland, __ U.S.__, 

142 S. Ct. 1614, 1619 (2022) (the granting of adjustment of 

status is “a matter of grace” committed to the discretion of 

the Attorney General. (quoting INS v. St. Cyr, 533 U.S. 289, 

308 (2001))). Here, despite USCIS’s initial insistence that 

the reinstatement order had been issued in 2010, it had not.

But it still was not clear sailing for Rivera Vega. An 

alien must meet certain statutory criteria to be eligible for 

discretionary relief of adjustment of status. The criteria 

changed when Congress enacted IIRIRA, which was passed 

on September 30, 1996 and became effective on April 1, 

1997. See Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33, 

45 (2006) (citing Pub. L. 104-208, div. C, 110 Stat. 3009-

546). IIRIRA made it harder for aliens to adjust their 

immigration status. Id. at 33–35. For example, an alien is 

ineligible for status adjustment if he falls into one of the 

many classes of “inadmissible” aliens created by IIRIRA, 

including unlawfully re-entering the United States after 

being removed. See 8 U.S.C. § 1182. Rivera Vega thus 

would be an “inadmissible” alien under IIRIRA. But that 

still did not completely close the door for Rivera Vega. 

Under the law, he could obtain a discretionary waiver of this 

inadmissibility in some cases by filing a Form I-212. See id. 

§§ 1182, 1255(a).

So, in 2004, while his application for adjustment of 

status remained pending, Rivera Vega filed a Form I-212 

seeking a waiver of inadmissibility. Despite USCIS’s 

initial—and yet again erroneous—conclusion that he was 

denied the waiver, Rivera Vega in fact received a waiver of 

§ 1182(a)(9)(A)(ii)’s ten-year inadmissibility bar in 2005. 

See id. § 1182(a)(9)(A)(ii) (making any previously removed 

alien inadmissible for 10 years).
8 RIVERA VEGA V. GARLAND

For the next decade, Rivera Vega’s adjustment of status 

application remained in limbo. On March 20, 2019, Rivera 

Vega appeared for an interview with USCIS to determine his 

eligibility for adjustment of status. 8 C.F.R. § 245.2(a)(1) 

(granting USCIS authority to adjudicate applications for 

adjustment of status outside of removal proceedings).

About a month later on April 16, USCIS denied Rivera 

Vega’s application to adjust his immigration status. The 

agency concluded that Rivera Vega was statutorily ineligible 

for adjustment of status because: (1) in 2010, the Department 

of Homeland Security (DHS) had reinstated Rivera Vega’s 

1991 removal order, rendering him ineligible for “any relief” 

under § 1231(a)(5); (2) Rivera Vega was inadmissible for 

ten years under § 1182(a)(9)(A)(ii) and he failed to obtain a 

waiver of inadmissibility; and (3) Rivera Vega was 

permanently inadmissible under § 1182(a)(9)(C)(i)(II) and 

was ineligible for a waiver of inadmissibility. As noted 

earlier, the first two grounds were factually wrong at the 

time.

A few weeks later on May 17, agents from the United 

States Immigration and Customs Enforcement (ICE) 

arrested Rivera Vega. On the same day, DHS reinstated 

Rivera Vega’s 1991 removal order.

Because Rivera Vega expressed a fear of returning to 

Mexico, an asylum officer interviewed him. Rivera Vega’s 

counsel appeared at the interview. The asylum officer 

determined that Rivera Vega lacked a reasonable fear of 

persecution or torture if returned to Mexico and referred the 

case to an IJ for reasonable fear review proceedings.

Rivera Vega appeared before the IJ in June 2019. 

Though Rivera Vega expected his counsel to be there, his 

attorney did not show. Rivera Vega told the IJ that he was 
RIVERA VEGA V. GARLAND 9

under the impression that his attorney would be present, so 

the IJ checked for a notice of representation or 

correspondence from Rivera Vega’s attorney but found 

neither. When Rivera Vega still expressed trepidation about 

proceeding without counsel, the IJ responded:

Okay, well, sir, there’s a limited amount of 

time that I have available for me to review the 

findings of the asylum officer. And in these 

proceedings the attorneys are not allowed to 

argue or to present evidence because all my 

job is today is to review what already 

occurred with you and the asylum officer. Do 

you understand?

Rivera Vega then agreed to proceed without counsel.

The IJ reviewed the asylum officer’s notes with Rivera 

Vega. Rivera Vega testified that he feared returning to 

Mexico because of criminals, but he confirmed that the only 

harm he suffered in Mexico was when someone randomly 

assaulted him outside a bar in 1976. Moreover, Rivera Vega 

has never been harmed by the Mexican government, nor 

does he fear future harm from the government. After 

listening to Rivera Vega’s testimony, the IJ held that Rivera 

Vega lacked a reasonable fear of persecution or torture. 

Rivera Vega had not suffered past harm rising to the level of 

persecution, let alone torture, and there was no evidence that 

any harm was inflicted by the government on account of a 

protected ground. Rivera Vega was removed to Mexico the 

next day on June 14, 2019.

Rivera Vega timely petitioned for review with this court, 

challenging: (1) the April 16, 2019, USCIS decision denying 

his adjustment of status application; (2) the May 17, 2019, 
10 RIVERA VEGA V. GARLAND

reinstatement of removal order; and (3) the IJ’s June 13, 

2019, negative reasonable fear determination.

Months later, on November 27, 2019, USCIS reopened 

its April 16, 2019, order. USCIS acknowledged that one of 

its stated reasons for denying the application—that Rivera 

Vega’s 1991 removal order was reinstated in 2010—was 

erroneous. That same day, USCIS administratively closed 

Rivera Vega’s application because the agency concluded 

that it lacked jurisdiction as Rivera Vega was “currently in 

proceedings before an [IJ].” 8 C.F.R. §§ 245.2(a)(1), 

1245.2(a)(1).

Almost a year later, on November 23, 2020, USCIS 

issued a new decision denying Rivera Vega’s adjustment of 

status application.1 Because Rivera Vega departed the 

United States on June 14, 2019—after DHS reinstated his 

removal order and while his application was still pending—

USCIS considered the application to be abandoned. See id. 

§ 245.2(a)(4)(ii).

Rivera Vega argues that an adjustment of status 

application must be properly adjudicated before a removal 

order may be reinstated. Thus, Rivera Vega contends that 

only the April 16, 2019, order denying adjustment of 

status—and not the later decisions on November 27, 2019, 

and November 23, 2020—may support the May 17, 2019, 

reinstatement order. Rivera Vega also claims that the April 

16 order erroneously concluded that he was statutorily 

ineligible for adjustment of status. And because his 

reinstatement order turned on an erroneous denial of 

1 On December 23, 2020, Rivera Vega filed a motion to reconsider 

the November 23, 2020, decision. USCIS denied the motion on February 

17, 2021.
RIVERA VEGA V. GARLAND 11

adjustment of status, Rivera Vega requests that we vacate his 

reinstatement order and remand for USCIS to consider 

whether to grant his application.

Should we affirm his reinstatement order, Rivera Vega 

seeks vacatur of the IJ’s June 13, 2019, negative reasonable 

fear determination. By proceeding without his attorney, 

Rivera Vega claims that the IJ violated his right to counsel 

in reasonable fear hearings under Orozco-Lopez v. Garland, 

11 F.4th 764 (9th Cir.), reh’g denied, 2021 U.S. App. LEXIS 

34171 (9th Cir. Nov. 17, 2021). Alternatively, Rivera Vega 

argues that the IJ ignored the possibility of “government 

acquiescence” to torture, and thus applied an incorrect legal 

standard to his claim under the Convention Against Torture 

(CAT).

STANDARD OF REVIEW

We review jurisdictional and legal questions in the 

context of immigration proceedings de novo. Bonilla v. 

Lynch, 840 F.3d 575, 581 (9th Cir. 2016); Abdisalan v. 

Holder, 774 F.3d 517, 521 (9th Cir. 2014). We review an 

IJ’s negative reasonable fear determination for substantial 

evidence. Andrade-Garcia v. Lynch, 828 F.3d 829, 831 (9th 

Cir. 2016).

DISCUSSION

I. Rivera Vega’s removal order was properly reinstated 

because he was permanently inadmissible under 

8 U.S.C. § 1182(a)(9)(C)(i)(II), and thus ineligible for 

adjustment of status.

If an alien has a pending adjustment of status application, 

USCIS “is required to consider whether to exercise its 

discretion in the alien’s favor before it can proceed with 
12 RIVERA VEGA V. GARLAND

reinstatement proceedings.” See Perez-Gonzalez v. 

Ashcroft, 379 F.3d 783, 795 (9th Cir. 2004) (emphasis 

added), overruled on other grounds by Gonzales v. DHS, 

508 F.3d 1227 (9th Cir. 2007). That means that we review 

only USCIS’s initial April 16, 2019, order denying Rivera 

Vega’s adjustment of status application—and not the later 

two orders—in assessing the May 17, 2019, reinstatement 

order. If USCIS mistakenly concluded that Rivera Vega was 

statutorily ineligible for adjustment of status in that April 16 

order, we must vacate the May 17 reinstatement order and 

“remand to the USCIS for a discretionary determination on 

appropriate legal grounds.” Id. at 795–96.2

In its April 16, 2019, order, USCIS offered three reasons 

why Rivera Vega was ineligible for adjustment of status to a 

lawful permanent resident: (1) DHS in 2010 had purportedly 

reinstated Rivera Vega’s 1991 removal order, rendering him 

ineligible for “any relief” under § 1231(a)(5); (2) Rivera 

Vega was inadmissible for ten years under 

§ 1182(a)(9)(A)(ii) and he failed to obtain a waiver of 

inadmissibility; and (3) Rivera Vega was permanently 

2 The government argues that we lack jurisdiction to review 

USCIS’s eligibility determinations because the April 16 order denying 

Rivera Vega’s application is not an “order of removal.” See 8 U.S.C. 

§ 1252(a)(1). While we agree that the statutory text plainly limits 

judicial review to only a “final order of removal,” we have held in an 

almost identical case that a petition challenging a denial of adjustment 

of status can “properly [be] construed as a challenge to an ‘order of 

removal’” because his adjustment of status application is “inextricably 

linked” to his reinstatement order. Morales-Izquierdo v. DHS, 600 F.3d 

1076, 1082–83 (9th Cir. 2010). Put another way, if Rivera Vega is 

granted the relief he seeks—“adjustment of status to that of an LPR 

[Legal Permanent Resident]—the Reinstatement Order would be 

rendered invalid.” Id. We are bound to follow this precedent and cannot 

overrule a prior panel decision even if we disagree with it. See Miller v. 

Gammie, 335 F.3d 889, 893 (9th Cir. 2003).
RIVERA VEGA V. GARLAND 13

inadmissible under § 1182(a)(9)(C)(i)(II) and was ineligible 

for a waiver of inadmissibility.

Each of the three reasons proffered by USCIS, if valid, 

independently bars Rivera Vega’s claim. While USCIS 

factually erred on its first two reasons, we lack jurisdiction 

to review factual findings under the Supreme Court’s recent 

decision in Patel. __ U.S.__, 142 S. Ct. at 1623, 1627

(holding that federal courts can review “constitutional 

claims and questions of law” but lack “jurisdiction to review 

facts found as part of discretionary-relief proceedings under 

§ 1255”). The erroneous factual findings underlying the first 

two reasons proffered by USCIS cannot be disturbed under 

Patel, and so Rivera Vega’s claim is independently barred 

on those grounds. In the alternative, Rivera Vega’s claim 

would still be barred because USCIS’s third reason for 

denying his petition for adjustment of status is valid.

Under § 1182(a)(9)(C)(i)(II), any alien who is removed 

and later re-enters the United States illegally is permanently 

inadmissible. Further, an alien cannot obtain a waiver of 

permanent inadmissibility under § 1182(a)(9)(C)(ii) until he 

departs the United States and remains abroad for ten years. 

Gonzales, 508 F.3d at 1242 (holding that an alien “who is 

inadmissible under subsection (a)(9)(C)(i)(II) is also 

ineligible to adjust his status . . . from within the United 

States” because of subsection (a)(9)(C)(ii)’s ten-year 

waiting period) (adopting Matter of Torres-Garcia, 23 I. & 

N. Dec. 866 (B.I.A. 2006)).

Rivera Vega disputes neither that he was earlier removed 

and unlawfully re-entered, nor that he failed to remain 

outside the United States for ten years, as required to obtain 

a waiver. Rather, he argues that the inadmissibility ground 

at § 1182(a)(9)(C)(i)(II) does not apply to individuals, like 

himself, who illegally re-entered the United States before
14 RIVERA VEGA V. GARLAND

IIRIRA went into effect. In other words, Rivera Vega 

contends that it would be impermissibly retroactive to apply 

this IIRIRA provision to his pre-IIRIRA reentry.

We have long recognized the presumption that “the legal 

effect of conduct should ordinarily be assessed under the law 

that existed when the conduct took place.” Hughes Aircraft 

Co. v. United States ex rel. Schumer, 520 U.S. 939, 946 

(1997) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 

265 (1994)). But this presumption against retroactive 

legislation is not absolute: we “read laws as prospective in 

application unless Congress unambiguously instructed 

retroactivity.” Vartelas v. Holder, 566 U.S. 257, 266 (2012).

To determine whether legislation applies retroactively, 

we first look to the statute’s text to determine “whether 

Congress has expressly prescribed the statute’s proper 

[temporal] reach.” Fernandez-Vargas, 548 U.S. at 37 

(quoting Landgraf, 511 U.S. at 280). If the statute’s text is 

silent, we next ask whether the statute “attaches new legal 

consequences to events completed before its enactment.” 

Maldonado-Galindo v. Gonzales, 456 F.3d 1064, 1067 (9th 

Cir. 2006) (quoting St. Cyr, 533 U.S. at 321). If we answer 

yes, then we apply the presumption by “construing the 

statute as inapplicable to the event or act in question.” 

Fernandez-Vargas, 548 U.S. at 37–38.

Neither the Supreme Court nor our circuit has decided 

whether § 1182(a)(9)(C)(i)(II)’s permanent inadmissibility 

bar applies to pre-IIRIRA reentries.3

 Section 1182(a)(9)(C) 

3 Rivera Vega claims that we have already decided this issue in his 

favor. In a footnote in Carrillo de Palacios v. Holder, we said that the 

permanent inadmissibility bar applies to aliens “who enter or attempt to 

re-enter the United States unlawfully any time on or after April 1, 1997.” 
RIVERA VEGA V. GARLAND 15

is silent about its temporal reach: it requires a past act of 

illegal reentry but makes no mention of when that reentry 

must occur. Thus, we must proceed to the next question of 

whether applying the inadmissibility bar to Rivera Vega’s 

pre-IIRIRA reentry would impose a “new legal 

consequence[]” on account of past conduct. MaldonadoGalindo, 456 F.3d at 1067. We conclude that it does not.

First, Rivera Vega does not have a vested right in the 

relief he seeks. Before IIRIRA, Rivera Vega was eligible to 

adjust his status. But such relief depended on Rivera Vega 

applying for it, and his failure to do so until after IIRIRA 

went into effect dooms his claim. See Fernandez-Vargas, 

548 U.S. at 45–46; see also Ixcot v. Holder, 646 F.3d 1202, 

1212 (9th Cir. 2011) (In determining whether an application 

of IIRIRA is impermissibly retroactive, “the most salient 

fact . . . is whether an alien filed for relief before IIRIRA’s 

effective date.”) (emphasis in original).

The Supreme Court’s decision in Fernandez-Vargas

guides our analysis. The Court there held that IIRIRA’s 

reinstatement provision applied to individuals who reentered the United States before the Act’s effective date. Id.

at 33. It emphasized the 180-day lag between IIRIRA’s 

passage on September 30, 1996, and its effective date on 

April 1, 1997. Id. at 45; see § 309(a), 110 Stat. 3009-625. 

This provided the alien with “a grace period between the 

unequivocal warning that a tougher removal regime lay 

708 F.3d 1066, 1070 n.3 (9th Cir. 2013) (quoting Immigration and 

Naturalization Service, Interim Guidance on New Grounds of 

Inadmissibility (June 17, 1997), as reprinted in 74 No. 25 Interpreter 

Releases 1033). But Carrillo involved an alien that unlawfully reentered after IIRIRA went into effect, see id. at 1070–71, so the 

applicability of § 1182(a)(9)(C)(i)(II) to pre-IIRIRA reentries was not at 

issue.
16 RIVERA VEGA V. GARLAND

ahead and actual imposition of the less opportune terms of 

the new law.” Id. During this grace period, the alien could 

have applied for adjustment of status, which would have 

transformed his “inchoate expectation” of relief into a 

“vested right.” Id. at 44, n.10. But the alien took no action, 

so retroactive application of the reinstatement provision did 

not deprive him of anything to which he was previously 

entitled. Id.

Like the alien in Fernandez-Vargas, Rivera Vega failed 

to apply for adjustment of status before IIRIRA’s effective 

date. Rivera Vega last entered the United States in 1991, 

years before IIRIRA’s passage. Yet he never applied for 

relief during that time. And even after IIRIRA was enacted, 

Rivera Vega did not seek relief during the six-month grace 

period. Because of his inaction, Rivera Vega does not have 

a vested right in the adjustment of status claim that 

retroactive application of § 1182(a)(9)(C)(i)(II) 

extinguishes. See Montoya v. Holder, 744 F.3d 614, 617 

(9th Cir. 2014) (explaining that “[u]p until this last step—the 

application—the alien” has no “vested right to apply for 

adjustment [of status]”); cf. Ixcot, 646 F.3d at 1213 (holding 

that IIRIRA’s “reinstatement provision is impermissibly 

retroactive . . . when applied to an immigrant . . . who 

applied for immigration relief prior to IIRIRA’s effective 

date”).

Second, IIRIRA imposes a new legal consequence on 

Rivera Vega—indefinite ineligibility for adjustment of 

status—not for his pre-IIRIRA illegal reentry but because of 

his continuous illegal presence within the United States after

IIRIRA went into effect. In layman’s terms, he is not being 

penalized for illegally re-entering in 1991 (before IIRIRA 

went into effect) but for unlawfully staying here after 

IIRIRA’s effective date.
RIVERA VEGA V. GARLAND 17

Again, the Court’s decision in Fernandez-Vargas is 

instructive. The Court determined that the reinstatement 

provision targets the alien’s “conduct of remaining in the 

country after entry.” Fernandez-Vargas, 548 U.S. at 44. 

Though the statute requires a past act of illegal reentry, it 

“applies to stop an indefinitely continuing violation that the 

alien himself could end at any time by voluntarily leaving 

the country.” Id. Thus, “the alien’s choice to continue his 

illegal presence, after illegal reentry and after the effective 

date of the new law” subjects him to reinstatement, “not a 

past act that he is helpless to undo.” Id.

Like its reinstatement provision, IIRIRA’s permanent 

inadmissibility bar targets Rivera Vega’s continuous illegal 

presence. Id. Section (a)(9)(C) is titled “Aliens unlawfully

present after previous immigration violations,” 8 U.S.C. 

§ 1182(a)(9)(C) (emphasis added), showing that Congress 

intended to limit relief given Rivera Vega’s illegal presence 

after his unlawful reentry. See Almendarez-Torres v. United 

States, 523 U.S. 224, 234 (1998) (noting that a statute’s title 

may be used to interpret the statute).

An alien is also eligible to obtain a waiver of permanent 

inadmissibility if he departs the United States and remains 

abroad for ten years. See § 1182(a)(9)(C)(ii); Gonzales, 

508 F.3d at 1242. If not for Rivera Vega’s continued 

presence within the United States since 1991, he would have 

been statutorily eligible for a waiver of inadmissibility—and 

thus adjustment of status—by the time USCIS decided his 

application in 2019. Rivera Vega was not “helpless to undo” 

the consequences of his pre-IIRIRA conduct. Cf. Vartelas, 

566 U.S. at 270 (holding that an IIRIRA provision 

precluding foreign travel by LPRs with certain pre-IIRIRA 

convictions was impermissibly retroactive because the alien 
18 RIVERA VEGA V. GARLAND

was “helpless to undo” the crime (quoting FernandezVargas, 548 U.S. at 44)).

Lastly, we note that retroactive application of IIRIRA’s 

permanent admissibility bar dovetails with Congress’s intent 

to “toe[] a harder line,” Fernandez-Vargas, 548 U.S. at 34–

35, and “limit[] the availability of discretionary relief from 

deportation,” Castello-Diaz v. AG of the U.S., 174 Fed. 

Appx. 719, 724 (3d Cir. 2006). Given IIRIRA’s aims, it 

would be anomalous for Rivera Vega to obtain, through a 

past immigration infraction, a perpetual right to seek relief 

at his own convenience. Before IIRIRA, Congress left ajar 

the door for relief. But Congress closed it on April 1, 1997.

We thus hold that § 1182(a)(9)(C)(i)(II) applies 

retroactively to unlawful reentries made before April 1, 

1997, provided the alien failed to apply for adjustment of 

status before that date.4

 Because Rivera Vega did not file 

his application until 2001, his application must be 

adjudicated under IIRIRA’s eligibility criteria. Rivera Vega 

is thus permanently inadmissible, and he is ineligible for a 

waiver of inadmissibility on account of his lengthy presence 

4 Though not mentioned by either party, the former Immigration and 

Naturalization Service issued a memo months after IIRIRA went into 

effect explaining that an alien’s “unlawful or attempted unlawful reentry 

must have occurred on or after April 1, 1997” for § 1182(a)(9)(C)(i)(II) 

to apply. See 74 No. 25 Interpreter Releases at 1035. Notably, the memo 

offers guidance but does not provide any analysis to support it. The 

government is not bound by this interpretation because the memo lacks 

the force of law. See W. Radio Servs. Co., Inc. v. Espy, 79 F.3d 896, 900 

(9th Cir. 1996). We also do not defer to the memo’s interpretation 

because this non-binding guidance is “‘entitled to respect’ . . . only to the 

extent that [it has] the ‘power to persuade.’” Christensen v. Harris Cnty., 

529 U.S. 576, 587 (2000) (quoting Skidmore v. Swift & Co., 323 U.S. 

134, 140 (1944)). For the reasons stated, we find the memo’s analysis—

or lack of it—unpersuasive.
RIVERA VEGA V. GARLAND 19

in the United States. USCIS correctly denied Rivera Vega’s 

application, and his removal order was properly reinstated.

II. Rivera Vega’s statutory right to counsel in 

reasonable fear proceedings was not violated.

Rivera Vega next argues that his right to counsel was 

violated because the IJ conducted his reasonable fear hearing 

without his counsel present.5 In the time between when 

Rivera Vega filed his Opening and Reply Briefs, we held in 

Orozco-Lopez v. Garland that aliens “whose removal orders 

have been reinstated are statutorily entitled to counsel, at no 

expense to the government, at their reasonable fear hearings 

before an IJ.” 11 F.4th at 780.6

But Orozco-Lopez cabined this right to only being 

notified of the right to counsel and given the opportunity to 

obtain counsel. We limited that right because 8 C.F.R. 

5 Though neither party raised the issue of “exhaustion,” we note that 

Rivera Vega exhausted his right to counsel claim because he complained 

to the IJ about his counsel’s absence. See Barron v. Ashcroft, 358 F.3d 

674, 677 (9th Cir. 2004) (“[E]xhaustion of administrative remedies is a 

prerequisite to our jurisdiction.”); cf. Brezilien v. Holder, 569 F.3d 403, 

408–09, 412 (9th Cir. 2009) (holding that an alien did not exhaust his 

right to counsel claim because he failed to complain to the IJ about his 

counsel’s absence).

6 The government urges us to remand for the IJ to determine in the 

first instance whether Rivera Vega’s right to counsel was violated. We 

decline to do so because “whether [an] IJ’s denial of a continuance 

violated [an alien’s] statutory right to counsel . . . is a question of law 

which we review de novo.” Id. at 774 (first alteration in original) 

(quoting Montes-Lopez v. Holder, 694 F.3d 1085, 1088 (9th Cir. 2012)). 

While an IJ should use its expertise to make initial determinations about 

factual issues, we may appropriately decide legal issues in the first 

instance. See id. at 779 (deciding whether an alien’s right to counsel was 

violated).
20 RIVERA VEGA V. GARLAND

§ 208.31(g)(1) requires that “[i]n the absence of exceptional 

circumstances,” the reasonable fear hearing should be 

conducted “within 10 days of the filing of the Notice of 

Referral” with the IJ. Id. (alteration in original) (quoting 

§ 208.31(g)(1)). And because of § 208.31(g)(1)’s ten-day 

deadline, we held that an IJ may conduct the hearing even if 

the alien is without counsel so long as the alien was 

“informed of the entitlement to counsel and ha[d] an 

opportunity to seek counsel within § 208.31(g)(1)’s 

constraints.” Id. at 778–79 (holding that an alien’s right to 

counsel was not violated because the asylum officer gave 

him “a list of free legal service providers” eight days before 

his reasonable fear hearing).

Rivera Vega’s attorney was present during his 

reasonable fear interview with the asylum officer on June 4, 

2019. Thus, Rivera Vega knew of his right to counsel, as he 

had retained counsel. Rivera Vega also received a notice 

three days before his reasonable fear hearing explicitly 

advising him of his right “to be represented in this 

proceeding, at no expense to the government, by an 

attorney.” And Rivera Vega apparently retained an attorney 

for the hearing, telling the IJ that “[my attorney] was going 

to be here.” Rivera Vega’s attorney failed to appear for 

reasons unknown based on the record. (Rivera Vega: My 

attorney “said [the hearing] was going to be at 8:00 but they 

didn’t bring me out until 1:00. So, I don’t know if he came 

or did not.”). While Rivera Vega might have a grievance 

against his counsel, he cannot blame the government for 

inadequate notice or opportunity to obtain counsel. See id.

at 778–79. Indeed, the IJ even tried to assist Rivera Vega by 

checking for a notice of representation or correspondence 

from his attorney but found none. Considering the 

impending ten-day deadline, the IJ was not required to take 
RIVERA VEGA V. GARLAND 21

further remedial actions. Therefore, Rivera Vega’s right to 

counsel was not violated.7

III. The past harms Rivera Vega alleged did not rise 

to the level of torture, so the IJ did not need to 

explicitly consider “government acquiescence.”

Lastly, Rivera Vega claims that the IJ applied an 

erroneous legal standard in adjudicating his claim for CAT 

relief. According to Rivera Vega, the IJ “erroneously 

require[d] that the feared torturer be a government official” 

and ignored the possibility of mere “government 

acquiescence” to torture conducted by a private actor. But if 

an alien fails to show a “reasonable possibility” of future 

torture, 8 C.F.R. § 1208.31(c), then government 

acquiescence is irrelevant, as there is no torture for the 

government to give in to. See Orozco-Lopez, 11 F.4th at 780 

(rejecting alien’s claim that IJ erred by ignoring government 

acquiescence because “the harms he alleged did not rise to 

the level of torture”).

“Past torture is the first factor we consider in evaluating 

the likelihood of future torture.” Nuru v. Gonzales, 404 F.3d 

1207, 1217 (9th Cir. 2005). The lack of past persecution, a 

lesser harm than torture, necessarily encompasses a lack of 

7 In his Opening Brief, Rivera Vega also argues that he has a right 

to counsel under the Fifth Amendment’s Due Process Clause. But 

Congress has provided for “aliens [to] receive a full and fair hearing by 

providing a statutory right to counsel.” Hernandez-Gil v. Gonzales, 

476 F.3d 803, 806 (9th Cir. 2007). That is, Congress has statutorily 

provided that aliens are entitled to counsel at reasonable fear hearings at

no expense to the government. See 8 U.S.C. § 1362; see also OrozcoLopez, 11 F.4th at 777 (holding “that a reasonable fear hearing before an 

IJ is a type of ‘removal proceeding[]’ included in § 1362”). That due 

process entitlement was not infringed here for the reasons outlined 

above. Thus, Rivera Vega’s due process argument fails.
22 RIVERA VEGA V. GARLAND

past torture. See id. at 1224. The IJ concluded that Rivera 

Vega had not even suffered past persecution, let alone 

torture, because the only time he was harmed in Mexico was 

when he was assaulted outside a bar in 1976. This finding is 

supported by substantial evidence. See Orozco-Lopez, 

11 F.4th at 780 (affirming IJ’s conclusion that a single 

incident of robbery and another incident of kidnapping for 

ransom did not constitute torture). Therefore, the IJ properly 

rejected Rivera Vega’s CAT claim.

CONCLUSION

We hold that § 1182(a)(9)(C)(i)(II) retroactively applies 

to pre-IIRIRA reentries and that USCIS correctly 

determined that Rivera Vega was statutorily ineligible for 

adjustment of status. We also hold that Rivera Vega’s right 

to counsel in reasonable fear proceedings was not violated, 

and that the IJ properly denied Rivera Vega’s claim for CAT 

relief. We thus DENY Rivera Vega’s petition for review.8

8 Rivera Vega also requests that we order ICE to facilitate his return 

to the United States. Because we deny Rivera Vega’s petition for review, 

we decline to do so. See Del Cid Marroquin v. Lynch, 823 F.3d 933, 936 

(9th Cir. 2016) (DHS has “a policy of facilitating the return . . . of 

removed aliens whose petitions for review are granted.” (citing ICE 

Policy Directive 11061.1 (Feb. 24, 2012), https://www.ice.gov/doclib/f

oia/dro_policy_memos/11061.1_current_policy_facilating_return.pdf)).