Dinnall v. Gonzales (421 F.3d 247, 2005)

OPINION

MCKEE, Circuit Judge.

Harold Dinnall petitions for review of an order of the Bureau of Immigration and Customs Enforcement (“BICE”), Department of Homeland Security (“DHS”), reinstating his prior order of deportation and ordering his removal under Section 241(a)(5) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231(a)(5) (2000), enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). Dinnall argues that the reinstatement provision is impermissibly retroactive. We agree. For the reasons that follow, we will grant the petition for review and vacate reinstatement of the deportation order.

I. BACKGROUND

Dinnall is a native and citizen of Jamaica who entered the United States in the 1980’s. It is unclear if he entered illegally or on a visitor visa, but the distinction is irrelevant to our resolution of the issues raised in this appeal.

After Dinnall was “pulled over” for a traffic violation, on August 10, 1987, the Immigration and Naturalization Service (“INS”) took him into custody and issued an Order to Show Cause (“OSC”), charging him with being deportable from the United States pursuant to former Section 241(a)(2) of the INA. That section pertains to aliens who entered the United States without immigration inspection. The INS subsequently released Dinnall from custody on a $10,000.00 bond. On September 23, 1987, the INS sent Dinnall a hearing notification letter, informing him that he was scheduled for a hearing date before an Immigration Judge on October 7, 1987. Dinnall contends that he never received the letter as it was sent to the wrong address. There is record support for that contention. Dinnall failed to appear at his October 7, hearing, and the IJ ordered him deported in absentia. The INS issued a warrant of deportation on November 20, 1987.

That warrant was not served before Dinnall left the United States and went to Jamaica on January 4, 1988. Under the regulations then in effect, Dinnall was considered to have “self-deported.” See 8 C.F.R. § 243.5 (1987) (“Any alien who has departed from the United States while an order of deportation is outstanding shall be considered to have been deported in pursuance of law.”). Because Dinnall left under an order of deportation, he could not legally reenter the United States for a period of five years. However, he returned to the United States two days after he left.

In 1994, Dinnall was again taken into custody by the INS, and the INS issued another OSC. That OSC charged him with illegally re-entering the United States following deportation. Dinnall posted a $10,000.00 bond.

In January, 1998, Dinnall married a United States citizen, and he now has at least one child who is also a United States citizen. In May, 2004, the BICE again took Dinnall into custody, and on May 13, 2004, the BICE reinstated Dinnall’s 1987 deportation order, pursuant to § 241(a)(5). A warrant of removal was issued on the same date. As of the date this case was argued, Dinnall remained in custody at York County Prison.

Dinnall filed a Petition for Review and a motion to stay deportation with this court on May 20, 2004, and on June 17, 2004 we ordered Dinnall’s deportation stayed pending a decision on his Petition for Review to address his contention that the reinstatement provision is impermissi-bly retroactive as applied to him.

Dinnall’s Petition presents a legal question, and our review is therefore de novo; the agency’s views garner no special deference. See INS v. St Cyr, 533 U.S. 289, 321 n. 45, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (