Dissenting:

These cases involve aliens who came to our country illegally, were discovered, and who were accorded the procedural and due *1054 process rights we offer before they were deported. Nothing deterred, and with nothing if not disdain for our laws, they almost immediately reentered illegally. 1 They were not unique, and Congress was very concerned about the problems that they and others caused.

An objective observer would have asked, as Congress did, just what was the purpose of all of that procedure, all of those punctilious niceties, which can take years to complete, if the person could just step back into the country a few days later and have the roundelay go on? Society might well have saved its time and concern in the first place; after all, it could not protect itself against the alien’s improper presence anyway. In an attempt to correct that problem, Congress took an existing concept and expanded it. In what is now 8 U.S.C. § 1231 (a)(5), Congress decided to allow what amounts to recognition and execution of the prior judgment. It declared:

Id. 2

We are now told that in enacting the provision, which was clearly designed to deny benefits to aliens who had already been removed, 3 Congress largely failed in its purpose. Aliens, like those at hand, who came back in before the effective date of the provision, are not even affected by it. They may continue to reap the benefits of their wrongdoing; they may demand relief despite the fact that they have already been removed once before, or, in theory, even more than once. Why? Because Congress did not declare that § 1281(a)(5) is meant to be retroactive. I cannot agree with that argument.

No doubt law is purposive in nature— that purpose being the good ordering of society — and that makes truly retroactive legislation seem to be the very antithesis of law. 4 A person cannot conform yesterday’s actions to today’s ukase. So, we at least assume that legislation is prospective in nature. Judicial decisions are, of course, different — they, presumably, declare what the law has been and are retrospective. But what is it to say that a law is prospective or retrospective? Clearly enough, if Holmes’ bad man 5 decides to do an act today and garners a benefit today, which the existing law permits, there is something wrong about legislating tomorrow that the act was not permitted at all and that the benefit must be taken away. But it is different when that bad man goes on committing those acts in the hope that at a later time he will get a benefit, or a reprieve. What if society enacts legislation to thwart that hope before the bad man reaches his goal? Is that suspect? I think not. In that vein, the Supreme Court has laid out a test to help us decide *1055 the retrospectivity issue on a day-to-day basis.

Pure theory aside, the test does generally permit legislation with retroactive effect, but we must first ask “whether Congress has expressly prescribed the statute’s proper reach.” Landgraf v. USI Film Prods., 511 U.S. 244, 280 , 114 S.Ct. 1483, 1505 , 128 L.Ed.2d 229 (1994). If so, we need go no further. If not, we must then go on to ask “whether the new statute would have retroactive effect.” Id. In so doing, we must ask ourselves “whether it 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.” Id. If we then decide that it does have retroactive effect, “it does not govern absent clear congressional intent favoring such a result.” Id. In all of that, however, we should not lose sight of the fact that the point of this exercise is to avoid sweeping away properly settled expectations, see id. at 266 , 114 S.Ct. at 1497 , and that in making the analysis we are making “a common sense, functional judgment.” Martin v. Hadix, 527 U.S. 343, 357 , 119 5.Ct. 1998, 2006, 144 L.Ed.2d 347 (1999). In my opinion, a proper application of these rules to this statute yields the answer that the statute is not retrospective in fact, but if it is dubbed retrospective, that is precisely what Congress intended it to be.

I agree that Congress did not expressly say that the statute is retroactive, although it is plain that it speaks to something that happened in the past. There was a removal. In a vast number of cases that must have occurred before the statute was enacted. At any rate, the point is that the statute will always initially key on an event that at least commenced in the past. That event, of course, was not an act of the alien. It was an act of the government, often including the judicial system, that sent him from this country — the order of removal.

Undoubtedly the statute also considers acts of the alien — his illegal reentry and illegally remaining here. Even entry, however, is not a simple past act; it is, in fact, an offense which continues far beyond the instant of entry itself. The entry may be a separate act, but its effect continues, and is also embedded in the “found in” crime which, itself, is a continuing crime. United States v. Ruelas-Arreguin, 219 F.3d 1056, 1061-62 (9th Cir.2000); United States v. Pacheco-Medina, 212 F.3d 1162, 1165-66 (9th Cir.2000); United States v. Ramirez-Valencia, 202 F.3d 1106, 1110 (9th Cir.2000); United States v. Rivera-Ventura, 72 F.3d 277, 282 (2d Cir.1995).

Even laying aside the significant fact that the wrongdoing continues, the prior order itself has a continuing effect. The statutory language of § 1231(a)(5) merely underscores the force and effect of that prior order, and treats it as most judgments would be treated; the prevailing party is allowed to seek to execute upon the judgment in its favor. True it is that the judgment has already been executed upon once, but there is nothing unusual about allowing multiple executions on a judgment until the full relief under it has been obtained. The purpose and effect of § 1231(a)(5) is simply to assure that the prevailing party continues to prevail, as indeed it should.

It is also true that § 1231(a)(5) expressly provides that the alien may not deflect his removal by obtaining other relief, 6 but the previous possibility that he might have obtained that relief does not change the chemistry at work here. The mere possibility that he may have obtained discretionary relief from deportation conferred no settled right upon him, and its unavailability does not increase his liability for past actions — he was always liable to removal. Nor does it impose any new duties — his *1056 duty was always to remain out of this country once he was sent out of it. All the change did was preclude him from thwarting the execution of the existing judgment against him by reliance upon his own clearly illegal activities. He never had the right to demand an exercise of leniency in the first place, or, for that matter, to insist that society allow him to ask for it.

As the Fourth Circuit put it, “[l]ike a prisoner waiting for the executive pardon, [he] could hope for reprieve from deportation, yet hope does not establish a right to relief.” Appiah v. INS, 202 F.3d 704, 709 (4th Cir.2000). We have agreed that a desire to obtain a suspension of deportation is simply not a right at all. Certainly, a person who has been convicted under a criminal statute cannot claim some sort of reliance upon the existing law that will preclude a later denial of “eligibility for discretionary relief.” Magana-Pizano v. INS, 200 F.3d 603, 612 (9th Cir.1999); see also Samaniego-Meraz v. INS, 53 F.3d 254, 256 (9th Cir.1995). In my opinion, that same reasoning applies here — a person who illegally reenters this country cannot claim reliance on that bad act in order to assert eligibility for discretionary relief.

It is important to note that the situation here is quite unlike those where a person takes some legally proper action which can be said to confer a settled expectation upon him that he will at least garner consideration for some form of discretionary relief. See, e.g., Bowen v. Hood, 202 F.3d 1211, 1220-22 (9th Cir.2000) (if a person has already obtained eligibility for consideration for early prison release through the legal act of becoming involved in drug rehabilitation, that cannot be taken from him); id. at 1223-25 (Fernandez, J., concurring and dissenting) (same, but disagreeing on whether the threshold condition had been met); Magana-Pizano, 200 F.3d at 613 (when a person performed the legal act of pleading nolo contendere or guilty, he might have obtained a settled expectation to consideration for relief). Nothing of the sort exists here. To say that society must recognize some kind of reliance right because a person might have committed the crime of reentry and ignored the order of deportation in the hope that he could get a later reprieve is as bizarre as saying that a person might have committed a burglary with the hope of a reprieve in mind. The claimed settled expectation here is bottomed on nothing more than an illegal act, which continued to be illegal throughout the alien’s stay in this country. We might rightly ask how a person can demand a right (even one to consideration for discretionary relief) founded on nothing but his own wrongdoing. I would hold that he cannot.

Especially is all of that true once we recognize that while the prior solemn removal determination might have occurred in the past, it was not like a bursting balloon. Rather, its effect is a continuing event, just as the alien’s illegal entry and presence is a continuing event. Both are still fresh and in progress, and, as a matter of functional common sense, it is their present and future effect that is in play when we execute the prior order.

In fine, the statute does not deal with any vested rights or settled expectations arising out of the alien’s wrongdoing. Nor does it impose any new duties or new liabilities: It simply contains Congress’s determination that the kindness of the past has been counterproductive, if we are to take immigration policies seriously, and, therefore, removes the possibility of administrative conferral of leniency. That is not retroactive at all, and if we were to call it retroactive, Congress’s intent that the illegally present but persistent peregrine be removed from this country could not be more clear.

I recognize that to ultimately decide these cases, I would have to go on to determine whether the INS has properly adopted its rather harsh — even peculiar— notion of what process is due for the purpose of establishing the facts that allow execution on the prior order. It seems that the INS’s answer to this concern is that the alien is really entitled to no process at all before a determination to exe *1057 cute the order is made, although a kind of motion to reconsider is provided after the INS has unilaterally made its decision. See 8 C.F.R. § 241.8 (b). But the decision itself is made without allowing the alien to say anything, without an examination of the alien, and without any other process. I would also have to decide whether, based upon the record such as it is, 7 the facts support the INS’s determination. Castro, for example, argues that they do not. However, a lengthy analysis of those issues seems unnecessary to and inappropriate in this dissent. They are not decided by the majority, and addressing them here would come to nothing in light of its determination that the statute does not apply at all. Thus, I will not regale or bore the reader with further thoughts on those subjects. 8

All of that being said, who can overlook the fact that most of those who illegally reenter do not come here to commit still further wrongs? They, rather, are attracted to a country which, with its normal human faults, is one of the best places in the world to be, 9 and are often further attracted by close family ties as well. Still, they have no right — vested, settled, or otherwise — to amend our Constitution and laws in order to make passage between states of the world essentially the same as passage between states of the Union.

Thus, I respectfully dissent.

. Araujo, the next day; Rueda, a few days later; Funes, the next month; Salinas, four months later; Castro, within months. Castro does argue that his reentry was not illegal, and that he was not literally deported.

. The phrase "under this chapter” in the indented material is rendered "under this Act” in the statute. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. 104-208, § 305 , 110 Stat. 3009 -546, 3009-599 (1996) (adding § 241(a)(5) to the Immigration and Nationality Act).

. Removal includes deportation and exclusion. See IIRIRA § 309(d)(2); Prado Hernandez v. Reno, 86 F.Supp.2d 1037, 1040 (W.D.Wash.1999); Mendez-Tapia v. Sonchik, 998 F.Supp. 1105, 1108-09 (D.Ariz.1998).

. See Lon Fuller, The Morality of Law 39, 44 (1964).

. See Oliver W. Holmes, The Path of The Law, 110 Harv. L.Rev. 991, 992 (1997).

. See, e.g., 8 U.S.C. § 1229a(a)(l), 1229(b), 1255. Asylum and withholding are still available. See 8 C.F.R. § 241.8 (d).

. We are limited to the administrative record. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir.1996) (en banc).

. Perhaps needless to say, I do not join the majority’s musings on the subject in part III of its opinion, which, like mine, are nothing but dicta. As to its doubts about the use of immigration officers rather than IJ's, however, see United States v. Garcia-Martinez, 228 F.3d 956, 960-63 (9th Cir.2000).

.In my personal view, it is the very best place to be, but for purposes of an opinion one should avoid hyperbole.