* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 8 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JUAN FERNANDO NORIEGA ARAMILLO,

Petitioner, No. 03-9612

v. (INS No. A78 904 760) STEVEN BRANCH, Officer in Charge; SCOTT WEBER, District Director, BICE; NANCY ALCANTAR, “FOD”; CHARLES DEMORE, “SAIC”; JOHN ASHCROFT; and TOM RIDGE,

Respondents. (Petition for Review)

ORDER AND JUDGMENT *

Before TACHA, Chief Judge , BRISCOE and HARTZ , Circuit Judges. Petitioner Juan Fernando Noriega Aramillo appeals the decision of the Bureau of Immigration and Customs Enforcement (BICE ) reinstating a previous1 On March 1, 2003, the INS ceased to exist as an age ncy within the

Department of Justice. Its enforcement functions w ere transferred to the Department of Homeland Security. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002). -2- order removing him from the United States. See 8 U.S.C. § 1231(a)(5). Petitioner asserts that the statute authorizing BIC E to reinstate the previous order is unconstitutionally retroactive as applied to him . He further asserts that he is eligible to seek an adjustment of status under the LIFE Act. See 8 U.S.C. § 1255(i). We have jurisdiction to review the rein statement order under 8 U.S.C. § 1252(a), and affirm. I. BACKGROUND Petitioner is a native and citizen of Mexico. He i llegally entered the United States in 1993 and again on April 19, 1998. While attempting to gain entry in 1998, Petitioner falsely represented that he was a United States citizen. The Immigration and Naturalization Service (INS) 1 issued an Order of Removal, and Petitioner was removed to Mexico. Later that y ear Petitioner illegally reentered the United States. Shortly thereafter, o n August 30, 1998, he married Rocio Ruiz, a United States citizen, and then sough t adjustment of status under 8 U.S.C. § 1255, based on his marriage. In October 2003 Petitioner appeared at the Salt Lak e City office of the Bureau of Citizenship and Immigration Services for an interview regarding his-3-

application for adjustment of status. He was arres ted because he had been previously deported from the United States on sever al occasions. On November 10, 2003, BICE reinstated Petitioner’s 199 8 removal order under 8 U.S.C. § 1231(a)(5). On November 12, 2003, Petitio ner filed an application for a writ of habeas corpus in the United States DistrictCourt for the District of Utah. The district court transferred the matter to this c ourt under 28 U.S.C. § 1631. We subsequently issued an Order construing the habeas application as a petition for review. II. DISCUSSION Petitioner asserts that the reinstatement provision , 8 U.S.C. § 1231(a)(5), has improperly been applied retroactively against h im. It states:

If the Attorney General finds that an alien has ree ntered the United States illegally after having been removed . . ., the prior order of removal is reinstated from its original date andis not subject to being reopened or reviewed, the alien is not eligib le and may not apply for any relief under this chapter, and the al ien shall be removed under the prior order at any time after the reentry

. 8 U.S.C. § 1231(a)(5). The provision was enacted a s part of the Illegal Immigration Reform and Immigrant Responsibility Act(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, on September 30, 1996, andbecame effective on April 1, 1997. We see no retroactive effect of the statute because the relevant event—reentry after having been removed—occurred af ter the statute’s April 1,-4-

1997, effective date. Petitioner attempted to ente r the United States in 1998 and was removed; he illegally reentered and got marriedlater that year. Petitioner overlooks these events and seems to base his retroa ctivity argument on his 1993 illegal entry. To be sure, if Petitioner’s most re cent entry into the country had predated IIRIRA, there would be a retroactivity iss ue. Compare Arevalo v. Ashcroft , 344 F.3d 1, 15 (1st Cir. 2003) (§ 1231(a)(5) not applicable to alien who reentered before IIRIRA effective date), Bejjani v. INS , 271 F.3d 670, 684-87 (6th Cir. 2001) (same), and Castro-Cortez v. INS , 239 F.3d 1037, 1051-52 (9th Cir. 2001) (same), withVelasquez-Gabriel v. Crocetti , 263 F.3d 102, 106-09 (4th Cir. 2001) (§ 1231(a)(5) applies to alien who reent ered before IIRIRA effective date), and Ojeda-Terrazas v. Ashcroft , 290 F.3d 292, 299-302 (5th Cir. 2002) (same). But here, the relevant unlawful reentry oc curred in 1998, after the statute’s effective date. See Avila-Macias v. Ashcroft , 328 F.3d 108, 114 (3d Cir. 2003) (“[a]pplying IIRIRA to [the petitioner] . . . does not have an impermissible retroactive effect because the consequences of an i llegal reentry at the time that he reentered are the consequences he faces now”); W arner v. Ashcroft , 378 F.3d 526, 530-31 (6th Cir. 2004) (because the petitionerreentered the United States after IIRIRA’s effective date, there was “no pre-en actment conduct sufficient to constitute a basis for a retroactivity claim,” and the petitioner “was on notice of the consequences of his illegal reentry before he c hose to illegally reenter the-5-

United States”); Lopez v. Heinauer , 332 F.3d 507, 512 (8th Cir. 2003) (“[t]here can be no retroactive effect from applying IIRIRA’s reinstatement procedures . . . where the statute was in effect at the time of [the ] illegal reentry”); PerezGonzales v. Ashcroft , 379 F.3d 783, 787 (9th Cir. 2004) (following Avil aMacias ). We therefore reject Petitioner’s claim that the reinstatement provision has been retroactively applied. Petitioner also asserts that he is eligible for an adjustment of status under the LIFE Act, 8 U.S.C. § 1255(i). The LIFE Act, ho wever, requires that applicants be “admissible to the United States for permanent residence.” 8 U.S.C. § 1255(i)(2)(A). Petitioner is inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii) because he previously sought admission by falsely r epresenting himself to be a United States citizen. See Padilla v. Ashcroft , 334 F.3d 921, 925-26 (9th Cir. 2003). Petitioner has not pointed to any legal bas is for a waiver of such ineligibility. Thus, we conclude that Petitioner i s ineligible for adjustment of status under the LIFE Act. III. CONCLUSION The petition for review is DENIED. ENTERED FOR THE COURT

Harris L Hartz Circuit Judge