Verduzco Ruiz, a Mexican national, had his 2000 removal order reinstated by the Department of Homeland Security in 2018 after he was discovered during an adjustment of status interview. His mother had filed an I-130 visa petition for him in 1992 that was approved in 1993, but he never applied for lawful permanent residence. He was removed in 2000, illegally re-entered, and was married to a U.S. citizen who filed another I-130 petition for him in 2017.
Writing for the three-judge panel, Judge Richard Tallman rejected Verduzco Ruiz's retroactivity argument, reasoning that 'the mere filing and approval of a Form I-130 creates no vested right to apply for adjustment of status.' The court explained that until an alien takes affirmative steps to adjust status, 'the alien is but a passive recipient of the benefits of other parties' actions.' On the due process claim, Tallman distinguished reinstatement proceedings from full removal hearings, noting that unlike contested merits hearings where prejudice is presumed, 'the effect of counsel's absence during the initial interaction with DHS officers can readily be assessed.'
Verduzco Ruiz had initially challenged a 2018 reinstatement order that was cancelled due to a clerical error, prompting DHS to reinstate the order again in May 2018. During both proceedings, he was advised of his rights including the right to counsel, but his attorney was not invited to attend the reinstatement meetings. The Ninth Circuit stayed his removal order pending the appeal.
The decision clarifies that aliens must demonstrate actual prejudice from denial of counsel in reinstatement proceedings, similar to expedited removal cases, rather than having prejudice presumed as in full removal hearings. The ruling reinforces that IIRIRA's expanded reinstatement provisions can be applied to aliens who began the immigration process before the 1996 law took effect, as long as they had not taken concrete steps toward obtaining status.