- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 03-07-2014
- Case #: 11-72483
- Judge(s)/Court Below: Circuit Judge Farris for the Court; Circuit Judges N.R. Smith and Watford
- Full Text Opinion
After illegally entering the United States, Martha Guadalupe Montoya was ordered removed from the country. Montoya illegally re-entered the United States again, but this time her brother filed a Form I-130 petition based on their familial relationship. The petition was approved and while Montoya was on the waiting list to receive her visa, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“the Act”) went into effect changing deportation and removal order laws. The Act affected Montoya by reinstating her prior removal order. Montoya petitioned for review of the reinstatement. Montoya argued that since the Act took effect after the filing of her Form I-130 petition, the Act was retroactive in regards to her. Retroactivity claims are analyzed by considering whether the application creates new consequences for past acts or cancels vested rights. A “family-based adjustment of status” requires approval of an I-130 petition filed by a family member, placement on a waiting list, and application for adjustment of status. Even though Montoya’s I-130 had been approved and she had been placed on the waiting list for a visa, the Ninth Circuit determined that those steps were not enough to create a vested right to ultimately apply for adjustment of status, because she had only been passive in the status adjustment process and had not actually applied for adjustment before the Act took effect. Becuase Montoya had not applied for adjustment of status before the Act went into effect, she did not have a vested right and the reinstatement of her prior removal was applicable. DENIED.