1 ICE is a successor agency to the Immigration and

Naturalization Service (“INS”) after immigration enforcement

functions were transferred from the Department of Justice to the

Department of Homeland Security on March 1, 2003. Mortera-Cruz

v. Gonzales, 409 F.3d 246, 248 n.1 (5th Cir. 2005).

1

United States Court of Appeals

Fifth Circuit

FILED

June 25, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 05-60231

______________________

ALEXIS SILVA ROSA,

Petitioner,

versus

ALBERTO R. GONZALES, UNITED STATES ATTORNEY GENERAL,

Respondent.

Petition for Review of an Order 

of the Board of Immigration Appeals 

________________________________________________

Before DAVIS, DENNIS, and PRADO, Circuit Judges.

DENNIS, Circuit Judge.

In this immigration case, the petitioner challenges the

Immigration and Customs Enforcement’s (“ICE”)1 reinstatement of a

previous removal order under 8 U.S.C. § 1231(a)(5) as impermissibly

retroactive. 

We affirm the decision to reinstate the removal order, because

the application of 8 U.S.C. § 1231(a)(5) is not impermissibly

retroactive in this case. The statute does not impair any rights
2 On certain documents, the petitioner’s last name is listed

as “Silva Rosa,” while on other documents, the name is listed as

“Sylva Rosa.” We will identify the petitioner as “Silva Rosa” in

this opinion.

2

the petitioner possessed when he acted, increase his liability for

past conduct, or impose new consequences with respect to past

conduct already completed. 

I. Facts and Procedural Background

Petitioner Alexis Silva Rosa,2 a citizen of Honduras, entered

the United States without inspection in 1990. He was apprehended

and, after a deportation hearing, ordered to be removed by the

Immigration and Naturalization Service (“INS”) a few months later.

Silva Rosa was deported to Honduras on May 16, 1990. In June 1990,

he again entered the United States without inspection. In January

1993, Silva Rosa married Julia Garza, a Mexican national and lawful

permanent resident of the United States. In August 1993, Garza

filed an immigrant relative visa petition on Silva Rosa’s behalf;

this petition was approved in March of 1994, but the visa was not

immediately available to him. Based on certain priority factors

and preferences for different classes of applicants, his visa would

only be immediately available to him at some indefinite point in

the future. 

On September 30, 1996, Congress passed, and the President

signed into law, the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Pub. L. 104-208, 110 Stat.
3

3009-546. Section 305 of IIRIRA created Section 241(a)(5) in the

Immigration and Naturalization Act, codified at 8 U.S.C. §

1231(a)(5), which authorizes the Attorney General to reinstate a

prior removal order of an illegally reentered alien and to remove

the alien without additional administrative proceedings and limits

the opportunity for relief. The effective date of this statute was

April 1, 1997. IIRIRA’s reinstatement provision extended

previously inapplicable reinstatement procedures to aliens, like

Silva Rosa, who illegally reentered after being previously deported

solely based on their entry into the United States without

inspection. Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 296 (5th

Cir. 2002). For this class of aliens, IIRIRA’s reinstatement

provision also eliminates previously available discretionary

relief, such as an adjustment of status, when they are subject to

reinstated removal proceedings. See Morales-Izquierdo v. Gonzales,

486 F.3d 484, 494 (9th Cir. 2007). 

His visa became immediately available to him in February 1998

after IIRIRA's effective date. In October 2000, Silva Rosa filed an

application for adjustment of status. In 2005, after hearing

nothing about his case, he went to an ICE office to inquire about

his case. At this point, ICE realized that Silva Rosa had been

previously deported and had illegally reentered the United States.

On February 22, 2005, ICE reinstated Silva Rosa’s prior order of

removal pursuant to 8 U.S.C. § 1231(a)(5). 
4

Silva Rosa now petitions for review of the reinstatement of

the removal order under 8 U.S.C. § 1231(a)(5). He argues that

applying section 1231(a)(5) to him is impermissibly retroactive,

because he married a lawful permanent resident of the United States

and obtained an approved immigrant relative visa petition before

IIRIRA’s enactment. He argues he is now entitled to and had

reasonably expected an adjustment of status as relief against

removal, which was available to him under the state of the law preIIRIRA. Such relief, he asserts, is a vested right or settled

expectation that, by virtue of section 1231(a)(5), has now been

impermissibly taken away.

II. Analysis

A. Standard of Review

This court has jurisdiction to review the reinstatement of a

deportation order. Ojeda-Terrazas, 290 F.3d at 295. Whether the

reinstatement provision of IIRIRA may be applied retroactively to

Silva Rosa is an issue of law that this court reviews de novo. See

Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 302 (5th Cir. 1999)

(citing Graham v. Johnson, 168 F.3d 762, 772 (5th Cir. 1999)). 

B. Discussion

The question before this court is whether IIRIRA is

impermissibly retroactive as applied to Silva Rosa. To determine

whether a statute has an effect that is impermissibly retroactive,

we apply a two-step test. First, the court determines “whether
5

Congress has expressly prescribed the statute's proper reach.”

Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). This court,

in Ojeda-Terrazas, “conclude[d] that it is unclear whether Congress

intended that [8 U.S.C. § 1231(a)(5)] apply retroactively.” 290

F.3d at 300; see also Fernandez-Vargas v. Gonzales, 126 S. Ct.

2422, 2430 (2006) (“Common principles of statutory interpretation

fail to unsettle the apparent application of [8 U.S.C. §

1231(a)(5)] to any reentrant present in the country, whatever the

date of return.”). 

Since the first step does not resolve the question, we proceed

to the second step, which analyzes “whether the statute, if applied

retroactively, ‘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.’”

Ojeda-Terrazas, 290 F.3d at 300 (quoting Landgraf, 511 U.S. at

280). The Supreme Court has described the imposition of new duties

on completed transactions also as the imposition of new burdensome

consequences or disabilities on past conduct. Fernandez-Vargas,

126 S. Ct. at 2432 & n.10. We have also noted that any retroactive

effect on “settled expectations” and “vested rights” may be

impermissible. See Ojeda-Terrazas, 290 F.3d at 301-302; Griffon v.

U.S. Dep’t. of Health and Human Servs., 802 F.2d 146, 153-154 (5th

Cir. 1986); see also Fernandez-Vargas, 126 S. Ct. at 2427-28.

Appellant makes two arguments regarding impermissible retroactive
6

effects; (1) the combination of his marriage to a lawful permanent

resident and an approved immigrant relative visa petition would

constitute a “vested right” or “settled expectation” that he is

still eligible to adjust status as relief from removal and (2) that

new consequences, i.e., the application of removal proceedings to

his class of aliens, are imposed on an already completed past

transaction, i.e., his illegal reentry into this country without

inspection. See Fernandez-Vargas, 126 S. Ct. at 2432 & n.10

(noting the two types of retroactivity claims). 

1. Petitioner’s Marriage to A Lawful Permanent Resident and

Approved Immigrant Relative Visa Petition Does Not Create A Vested

Right or Settled Expectation. 

The petitioner argues that the combination of his marriage to

a lawful permanent resident and an approved immigrant relative visa

petition constitutes a “vested right” or “settled expectation.” 

As background, the process to obtain an adjustment of status

includes several steps. First, an alien has to establish his

eligibility and then he must actually apply. For the situation

here, an alien married to a lawful permanent resident, his spouse

must first file an immigrant relative visa petition. The petition

must then be approved. Once approved, the alien must wait until

the visa is available. Due to numerical limitations, visas are

made immediately available on a certain date based on several

priority factors and preferences. The alien is prima facie

eligible for the adjustment of status when his visa becomes
3 The Court left open the question of “whether an alien's

marriage or application for adjustment of status before the

statute's effective date . . . renders the statute impermissibly

retroactive when it is applied to the alien.” Fernandez-Vargas,

126 S. Ct. at 2427 n.5 (citing Alvarez-Portillo, 280 F.3d at 862,

867); see also id. at 2433. 

7

immediately available and the alien then applies for adjustment.

See generally 8 U.S.C. §§ 1151(b)(2)(A)(i), 1153(a)(2), 1255(a),

1255(i)(2); Diarra v. Gonzales, 137 F. App’x 627, 632 n.5 (5th Cir.

2005) (per curiam) (unpublished). Once an application is

submitted, the Attorney General can then decide whether to adjust

the alien’s status. 8 U.S.C. § 1255(a). The question before this

court is at what stage can an alien obtain a vested right or

settled expectation that he can adjust his status as relief from

removal. 

The Eighth Circuit, in Alvarez-Portillo v. Ashcroft, concluded

that the retroactive application of IIRIRA impermissibly impacted

the reasonable expectation that an illegal alien could defend

against later removal by seeking an adjustment of status, where the

alien married a United States citizen. 280 F.3d 858, 866-867 (8th

Cir. 2002). The appellant heavily relies on Alvarez-Portillo to

argue that marriage to a lawful permanent resident would suffice to

create a “reasonable expectation” protected from IIRIRA’s

retroactive effect. 

While the Supreme Court has not explicitly rejected AlvarezPortillo,

3 the Court’s opinion in Fernandez-Vargas casts doubt on
8

its continued validity. In fact, the Eighth Circuit recently noted

that Fernandez- Vargas effectively overruled Alvarez-Portillo’s

conclusion that marriage to a U.S. citizen by itself creates a

reasonable expectation of relief from removal that is protected

from IIRIRA’s reach. See Gonzalez v. Chertoff, 454 F.3d 813, 818

& n.4 (8th Cir. 2006); see also Valdez-Sanchez v. Gonzales, 485

F.3d 1084, 1089 n.4 (10th Cir. 2007). 

In Fernandez-Vargas, the Court noted that any expected relief

from removal under a “reasonable expectation” or “vested rights”

theory must be “something more substantial than inchoate

expectations and unrealized opportunities.” Fernandez-Vargas, 126

S. Ct. at 2432 n.10. This court has never determined whether a

marriage to a lawful permanent resident and an approved immigrant

relative visa petition give rise to any vested right or settled

expectations of relief from removal. Nevertheless, for

continuances of removal proceedings based on an alien’s petition

for adjustment of status, we note that the right to adjust status

and relief from removal are not vested when an applicant only

completes the first of several steps to become eligible for

discretionary relief, such as filing a labor certification

petition. Ahmed v. Gonzales, 447 F.3d 433, 437-439 (5th Cir.

2006). Silva Rosa similarly did no more than the first step

towards an adjustment of status with his approval of an immigrant

relative visa petition before the effective date of IIRIRA. As
4 As with Ahmed, we leave open the possibility that

establishing eligibility or significant progress past the first

stages would be sufficient to vest rights either in a continuance

or retroactivity context. Cf. Ahmed, 447 F.3d at 438-439 & n.3

(emphasizing that petitioner only was at the “first preliminary

step”).

9

with the alien in Ahmed, Silva Rosa was not yet eligible to apply

for an adjustment of status. Id. at 438 & n. 3 (noting that Ahmed

still needed to complete several steps, including having a visa

available to him, before establishing eligibility to apply). In

Silva Rosa’s case, his visa was not yet available. An adjustment

of status application could not have been filed until the visa

became available. 8 U.S.C. § 1255(i)(2). Silva Rosa’s visa did

not become available until after IIRIRA’s effective date.

Therefore, Silva Rosa was not eligible to apply for an adjustment

of status before IIRIRA’s effective date, and, thus, rights to an

adjustment of status could not vest before IIRIRA’s effective date.

Just as in Ahmed, where the initial steps towards eligibility

for adjustment of status could not postpone the application of

removal proceedings, Silva Rosa’s preliminary steps can not

postpone the application of changes in the law to his ongoing

illegal presence.4

Adjustment of status is discretionary and Silva Rosa could not

have any settled expectations on when relief would be forthcoming

and under what legal conditions. Marriage to a legal permanent

resident, like employment, can only create reasonable expectations
5 Silva Rosa’s expectations concerning the availability of

relief under the Legal Immigration Family Equity (LIFE) Act of

2000, Pub. L. 106-553, 114 Stat. 2762A-143, and the LIFE

Amendments of 2000, Publ L. 106-554, 114 Stat. 2763A-314, after

the effective date of IIRIRA are irrelevant to the issue in this

case, which concerns IIRIRA’s potential impermissible retroactive

effects on his “settled expectations” that existed prior to

IIRIRA’s effective date.

10

in establishing the eligibility for an adjustment of status

application. These reasonable expectations only apply to the

alien’s successful passage through the preliminary stages of the

adjustment of status process at some indefinite point in the

future. Before obtaining eligibility to file an application and

without actually filing the application, an ineligible alien’s

expectation that a yet unfiled application would produce an

ultimately favorable result at a specified time is unreasonable and

unjustified. Compare Ahmed, 447 F.3d at 437-39 & n.3, with Diarra,

137 F. App’x at 632 n.5; see also Gonzalez, 454 F.3d at 818 & n.4;

Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 109-110 (4th Cir.

2001). 

Here, Silva Rosa’s visa became immediately available only after

IIRIRA’s effective date, and he was therefore eligible to apply for

status adjustment only after IIRIRA came into effect, which he did

in 2000.5 Therefore, without establishing eligibility to submit an

application before IIRIRA, Silva Rosa only had “inchoate

expectations” that a favorable adjustment of status decision would

issue before IIRIRA’s effective date. 
11

When an alien establishes eligibility and actually submits an

application for adjustment of status before IIRIRA, our sister

circuits have generally concluded that the application suffices as

a “completed transaction,” and therefore IIRIRA cannot

impermissibly apply to these applications retroactively. See

Valdez-Sanchez, 485 F.3d at 1090-91 (“Like the aliens in the cases

from the First, Seventh, and Eleventh Circuits, Petitioner applied

for discretionary relief in the form of an adjustment of status

prior to IIRIRA's enactment, relief that was available to him at

the time.”) (emphasis added). The Eighth Circuit in Gonzalez now

seems to also adhere to this approach. See Gonzalez, 454 F.3d at

818 (“Also like Fernandez-Vargas, Gonzalez had a six-month grace

period between the passage of IIRIRA and its effective date in

which he ‘could have ended his illegal presence’ or applied for

adjustment of status based on his 1993 marriage.”) (quoting

Fernandez-Vargas, 126 S. Ct. at 2432) (emphasis added). In this

case, Silva Rosa did not submit an application before IIRIRA’s

effective date, but only obtained an approved immigrant relative

visa petition that was not immediately available. Any preliminary

steps, such as an approved immigrant relative visa petition in this

case, are not equivalent to an actual application and do not give

rise to any vested rights or settled expectations. See Labojewski

v. Gonzales, 407 F.3d 814, 822 (7th Cir. 2005) (“Although the

filing of a visa application is a prerequisite to the filing of an
12

application for adjustment of status, it is not the equivalent of

an adjustment of status application and is not the sort of

‘completed transaction’ that gives rise to vested rights or settled

expectations for purposes of the presumption against

retroactivity.”). The Fourth Circuit reached the same conclusion

we reach here on fairly similar facts. See Velasquez-Gabriel, 263

F.3d at 109. 

2. IIRIRA does not create new consequences with regard to any

past completed transactions in this case, such as an illegal

reentry into the United States. 

While Fernandez-Vargas left open the previous issue, the

Supreme Court directly confronted this issue. In Fernandez-Vargas,

like Silva Rosa, the petitioner reentered the United States after

he was deported. Fernandez-Vargas, 126 S. Ct. at 2427. Living here

for over 20 years he married a U.S. citizen in 2001 after IIRIRA’s

effective date. Id. He filed for adjustment of status in 2001, at

which point the Government reinstated removal proceedings against

him. Id. He argued unsuccessfully that IIRIRA is impermissibly

retroactive because IIRIRA created harsher penalties for a past

completed act, his illegal act of reentry. Id. at 2432 & n.10.

Silva Rosa makes a similar argument here suggesting that IIRIRA’s

harsher legal regime, i.e., no adjustment of status defense and

other procedural processes, is a new duty or burdensome consequence

for his past illegal reentry. The Supreme Court rejected this

argument. Instead, Fernandez-Vargas holds that IIRIRA does not
13

retroactively affect the past act of illegal reentry into this

country, but rather focuses on the alien’s continued illegal

presence post-entry. 126 S. Ct. at 2432-33. The Supreme Court

notes: 

[8 U.S.C. 1231(a)(5)] does not penalize an alien for the

reentry (criminal and civil penalties do that); it

establishes a process to remove him under the prior order

at any time after the reentry. . . Thus, it is the

conduct of remaining in the country after entry that is

the predicate action; the statute applies to stop an

indefinitely continuing violation that the alien himself

could end at any time by voluntarily leaving the country.

Id. at 2432 (citations and internal quotations omitted). Therefore,

IIRIRA does not impermissibly attach new consequences to a

completed past act, i.e., an illegal reentry, but rather, with fair

notice, changes the legal regime for an alien’s ongoing violation.

Id. at 2432-33 & n.11. 

Accordingly, Silva Rosa cannot also have any settled

expectation that his statutory rights and obligations solely attach

to his act of illegal reentry and the state of law at that time.

Cf. id. His continued illegal presence incurs continued and

changing legal consequences, duties, and rights. See id.

Therefore, when IIRIRA was enacted, a grace period was provided

before IIRIRA’s harsher legal regime was applied to these ongoing

violations. During that grace period, Silva Rosa “not only [could]

have chosen to end his continuing violation and his exposure to the

less favorable law, he even had an ample warning that the new law
6 As noted in the previous section, Silva Rosa could not

vest any rights or have any settled expectations with regard to

preserving his ability to adjust status before the change in law. 

He did have other, though admittedly harsh, options. He could

have, as suggested in Fernandez-Vargas, ended his illegal

presence and left the United States. See 126 S. Ct. at 2432. 

14

could be applied to him and ample opportunity to avoid that very

possibility by leaving the country and ending his violation in the

period between enactment of [8 U.S.C. § 1231(a)(5)] and its

effective date.” Fernandez-Vargas, 126 S. Ct. at 2432. While

Silva Rosa may have had limited options to alleviate the impact of

IIRIRA’s less favorable regime, he at least had the notice and

opportunity to pursue those options. 

Therefore, IIRIRA does not impose any new consequences on his

past act, i.e., his illegal re-entry, but rather gave advance

notice on the changing legal regime attached to his continuing

violation, i.e., his continued illegal presence in this country.

IIRIRA’s grace period provided the opportunity to pursue any

options, such as vesting any available rights,6 to alleviate the

impact of the new law on his situation. See id. at 2432-433. Thus,

Silva Rosa can not now argue that reinstatement of the order is

impermissibly retroactive. 

Conclusion

For the these reasons, Silva Rosa’s petition for review is

DENIED. The order for removal is AFFIRMED.