Ortega v. Holder

Individuals must take actual action to establish expectation of vested rights to defeat reinstatement of a deportation order.

Jose Ortega entered the United States illegally in 1984 and was subsequently deported. He then returned to the United States again in 1984 and attempted to enter into a sham marriage with a US citizen to gain legal permanent resident status. Ortega’s spouse admitted to the fraud and his application for I-130 petition was denied. He remained in the U.S. until 2009 when his deportation order was reinstated. In the meantime, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was passed. Ortega then filed a petition for review challenging the reinstatement of his deportation order claiming such reinstatement was a retroactive application of the statute .The Court analyzes retroactivity claims by assessing if the application would (1) create "new consequence [for] past acts" or "(2) cancel vested rights. Ortega makes a vested right argument. Whether a right has “vested” is determined primarily an individual’s actions and whether he has “availed himself of the right” or “took action that enhanced its significance to him in particular. This analysis requires the individual perform some actions that cause expectation above a level of hope. Here, Ortega did nothing to vest any rights he may have had and therefore the can be no retroactive claim. Petition DENIED.