FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JORGE RIVERA VEGA, No. 19-71750 Petitioner, Agency No. v. A022-870-507 MERRICK B. GARLAND, Attorney General, OPINION Respondent. On Petition for Review of an Order of an Immigration Judge Argued and Submitted March 11, 2022 Pasadena, California Filed July 8, 2022 Before: Sandra S. Ikuta, Kenneth K. Lee, and Danielle J. Forrest, Circuit Judges. Opinion by Judge Lee 2 RIVERA VEGA V. GARLAND SUMMARY * Immigration Denying Jorge Rivera Vega’s petition for review of an order of an Immigration Judge, the panel held that: 1) the permanent inadmissibility bar of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) applied retroactively to Rivera Vega such that he was ineligible for adjustment of status; 2) his prior removal order was properly reinstated; 3) his statutory right to counsel in reasonable fear proceedings was not violated; and 4) the IJ properly rejected his claim for protection under the Convention Against Torture (CAT). Rivera Vega was deported in 1991, but illegally re- entered the next week. In 2001, he applied for adjustment, the United States Citizenship and Immigration Services (USCIS) denied that application in 2019, and Rivera Vega’s prior removal order was reinstated. An asylum officer then determined that Rivera Vega lacked a reasonable fear of persecution or torture if returned to Mexico, and an IJ affirmed. Before this court, Rivera Vega claimed that USCIS erroneously concluded that he was statutorily ineligible for adjustment. Because USCIS was required to decide his adjustment application before his removal order could be reinstated, the panel explained that, if USCIS erred as to adjustment, the panel was required to vacate the reinstatement order and remand to USCIS. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. RIVERA VEGA V. GARLAND 3 USCIS denied Rivera Vega’s adjustment application for three reasons, the last of which being that he was permanently inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(II) and not eligible for a waiver of inadmissibility. The inadmissibility bar of § 1182(a)(9)(C)(i)(II) was enacted as part of IIRIRA and provides that any alien who is removed and later illegally re- enters is permanently inadmissible. The panel explained that each of the reasons proffered by USCIS, if valid, independently barred Rivera Vega’s claim. The panel observed that USCIS factually erred on its first two grounds, but concluded that it lacked jurisdiction to review such factual findings under Patel v. Garland, 142 S. Ct. 1614 (2022), and therefore, his claim was independently barred on those grounds. In the alternative, the panel concluded that his claim would still be barred because the third reason for denying adjustment was valid. In doing so, the panel rejected his contention that the permanent inadmissibility bar should not apply to individuals, like himself, who illegally re-entered before IIRIRA’s effective date of April 1, 1997. Specifically, the panel held that the permanent inadmissibility bar applies retroactively to unlawful reentries made …
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