Friday, April 6, 2012
Immigration Article of the Day: Detrimental Reliance on Detrimental Reliance: The Courts’ Conflicting Standards for the Retroactive Application of New Immigration Laws to Past Acts by Anjum Gupta
"Detrimental Reliance on Detrimental Reliance: The Courts’ Conflicting Standards for the Retroactive Application of New Immigration Laws to Past Acts", ANJUM GUPTA, Rutgers, The State University of New Jersey - School of Law-Newark.
ABSTRACT: A decade ago, the United States Supreme Court held that a newly enacted law that attaches adverse immigration consequences to certain criminal convictions could not be retroactively applied in the case of an immigrant who was convicted of the offense pursuant to a guilty plea before enactment of the new law. Since then, the courts of appeals that have addressed the same issue in the context of an immigrant who was convicted at trial, rather than after a guilty plea, have done so with remarkable divergence. Some courts have held that, unlike immigrants who pled guilty, immigrants who went to trial cannot show that they detrimentally relied on the old law; accordingly, the new law may be applied retroactively. Other courts have rejected the detrimental reliance requirement. In this article, I argue that detrimental reliance, while properly viewed as a factor in retroactivity analysis, must not be viewed as a requirement for challenging the retroactive application of a new law to past acts.
BLOGGER'S NOTE: This article is particularly timely given the Supreme Court's decision last week on the retroactive application of a provision of the 1996 immigration reforems in Vartelas v. Holder.