Retroactive Application of Immigration Law is Impermissible

JURIST Guest Columnists Ira Kurzban and Christopher Rickerd of Kurzban Kurzban Weinger Tetzeli & Pratt P.A. say that the US Supreme Court should not retroactively apply certain immigration laws when deciding Vartelas v. Holder because such a ruling would impose a new disability on the settled expectation of free travel by lawfully permanent residents...
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The Supreme Court oral arguments in Vartelas v. Holder on January 18 explored the application of the Court's retroactivity jurisprudence to one segment of Congress's 1996 amendment of the immigration laws. Petitioner Panagis Vartelas, a lawful permanent resident (LPR) with two US citizen children, was convicted of a non-deportable offense prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Until 1997, LPRs were generally permitted to travel outside the US for brief periods without facing impediments upon their return. IIRIRA added a section to the Immigration and Nationality Act (INA), which now states that LPRs returning from abroad "shall not be regarded as seeking an admission" unless they committed designated offenses.

In 2003, after a week-long visit with his parents in Greece, Vartelas was placed in removal proceedings based on his 1994 conviction because the immigration officer considered him to be inadmissible under IIRIRA. The question before the Supreme Court is whether applying IIRIRA to Vartelas in this manner was impermissibly retroactive. Both sides assumed that IIRIRA abrogated Rosenberg v. Fleuti, prompting an amicus brief [PDF] by the American Immigration Lawyers Association (AILA), which contends that allowance in Fleuti of "brief, casual, and innocent" departures by LPRs is, to the contrary, very much alive. Justice Breyer appeared to subscribe to this viewpoint at argument, stating that "as I read the statute, it isn't even clear whether it overrules Rosenberg v. Fleuti." Moreover, no due process questions regarding returning LPRs' rights at the border are presented, the long constitutional history of which AILA's brief also submitted to the Court.

As neither due process nor the continuing validity of Fleuti is at issue in Vartelas, the Court's decision will likely focus on the application of retroactivity precedents, chiefly Landgraf v. USI Film Products and Immigration and Naturalization Service v. St. Cyr. Important law may result on issues such as the role, if any, of reliance in retroactivity analysis, a question which has divided federal courts of appeals despite Supreme Court precedent counseling the examination of objective "settled expectations" rather than reliance. Counsel for Vartelas effectively stressed to the Court that, unlike ex post facto cases that arise in the criminal context, Congress could easily have specified the retroactive application of the INA, as it did elsewhere in IIRIRA. Counsel also dispelled attempts to fault Vartelas for taking an action, namely traveling to Greece, after the new legal disability was imposed by IIRIRA. He made clear that the past conduct relevant for retroactivity analysis is Vartelas's conviction, not his trip abroad. AILA's amicus brief endorsed this line of argument, urging the Court not to apply IIRIRA retroactively to Vartelas's case because a new disability was impermissibly imposed on his settled expectations that he would be able to travel.

As Justice Ginsburg emphasized, drawing on the Court's recent decision in Padilla v. Kentucky, effective counsel in 1994 would have advised Vartelas that despite a conviction he would not be prevented from brief travel abroad: "[T]he client wants to know 'before I enter this plea, what will be the consequence for me?' And the question that's asked is, 'will I be able to visit my mother in Greece?'" Justice Kagan picked up on this point, boiling the case down to its essence in noting

that's what's going to be important to the person, right? It's not 'inadmissible' and all the legal terms. 'Am I going to be able to make short trips to visit my mother?' 'Yes, you are going to be able to make short trips to visit your mother.' And then you wake up the next morning, and Congress has passed a statute, and now you're not able to take short trips to visit your mother. So, something very real has happened to the life of this person.
Justice Kagan also pointed out to the government that in its prior argument this term in Judulang v. Holder, the Solicitor General acknowledged that immigrants relied on Fleuti in considering whether to plead guilty to criminal charges.

Vartelas's position was also aided by Chief Justice Roberts's evident exasperation with the INA's internal logic as advanced by the government, when he questioned "the policy underlying the rule that doesn't allow somebody who has lawful status here to go to his grandmother's funeral." For St. Cyr aficionados, there were grimmer implications to be drawn from Chief Justice Roberts's candor in saying, "I've always had difficulty with St. Cyr and the notion that, say, someone ... is facing ...10 years, and they plead ... guilty to 2 years — that ... the reason they did that is to ... avoid one of these immigration provisions. It seems to me it is to avoid 8 years." As usual, the tea leaves of oral argument are far from a failsafe predictor of the Court's ultimate opinion, but the Vartelas argument provided assurance that the justices will focus on retroactivity without tackling other issues raised by Fleuti and the Constitution's guarantee of due process for returning LPRs, which lurk unpresented in the background.

Ira Kurzban is a partner at Kurzban Kurzban Weinger Tetzeli & Pratt P.A., a Florida-based law firm with offices in Miami and Jacksonville. He has been the chair of the firm's immigration department for over three decades, has received national recognition for his work in the field of immigration and wrote the firm's Immigration Law Sourcebook. He has been named by the National Law Journal as one of the top 20 immigration lawyers in the US, and he helped file an amicus brief on behalf of the American Immigration Lawyers Association in Vartelas v. Holder.

Christopher Rickerd is an associate at Kurzban Kurzban Weinger Tetzeli & Pratt P.A., where he specializes in immigration law.

Suggested citation: Ira Kurzban & Christopher Rickerd, Retroactive Application of Immigration Law is Impermissible, JURIST - Sidebar, Feb. 2, 2012, http://jurist.org/sidebar/2012/02/kurzban-rickerd-iirira-retroactive.php.



This article was prepared for publication by Stephen Krug, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

 

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