Gregorio Perez-Gonzalez v. John Ashcroft, Attorney General

Gregorio Perez-Gonzalez petitions for review of the reinstatement of his prior deportation order by the Immigration and Naturalization Service (“INS”). He challenges the INS’s interpretation of the Immigration and Nationality Act (“INA”) § 241(a)(5), 8 U.S.C. § 1231 (a)(5) (“the reinstatement provision”), on both statutory and constitutional grounds. We hold that the reinstatement provision is not imper-missibly retroactive when applied to deportation orders that occurred before the passage of the 1996 revisions to the INA. However, we conclude that the INS did err in holding that the reinstatement provision categorically bars Perez-Gonzalez from receiving adjustment of status under INA § 245(i), 8 U.S.C. § 1255 (i). We remand in order for the agency to consider whether to exercise its discretion to grant Perez-Gonzalez’s application for adjust ment of status. We do not reach Perez-Gonzalez’s argument that there was a due process violation in this ease, because we address his injury on narrower grounds.

I. Factual and Procedural History

Gregorio Perez-Gonzalez was born in Tumbiseatio, Mexico in 1971. He first entered the United States without inspection in 1992. In October 1994,…