Wednesday, March 28, 2012

Supreme Court Rules in Favor of Immigrant in IIRIRA Retroactivity Case

In an opinion by Justice Ginsburg, the Supreme Court ruled in favor of the lawful permanent resident in Vartelas v. Holder.   The majority opinion encapsulates the holding as follows:

This case presents a question of retroactivity not addressed by Congress: As to a lawful permanent resident convicted of a crime before the effective date of [the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)], which regime governs, the one in force at the time of the conviction, or IIRIRA? If the former, Vartelas’ brief trip abroad would not disturb his lawful permanent resident status. If the latter, he may be denied reentry. We conclude that the relevant provision of IIRIRA, §1101(a)(13)(C)(v), attached a new disability (denial of reentry) in respect to past events (Vartelas’ pre-IIRIRA offense, plea, and conviction). Guided by the deeply rooted presumption against retroactive legislation, we hold that §1101(a)(13)(C)(v) does not apply to Vartelas’ conviction. The impact of Vartelas’ brief travel abroad on his permanent resident status is therefore determined not by IIRIRA, but by the legal regime in force at the time of his conviction.  (emphasis added).

Justice Scalia dissented in an opinion joined by Justices Thomas and Alito.

In the coming days, I will be offering my analysis of the Supreme Court's decision in Vartelas v. Holder on SCOTUSblog and will post a link here.  For a recap of the issues in the case, as well as my prediction based on the oral arguments that Vartelas would prevail, click here.

Here are my initial impressions of the Court's decision in Vartelas.  The holding that pre-1996 law applied to a plea bargain and criminal conviction before the 1996 amendments seems consistent with Supreme Court precedent. When Vartelas entered into his plea agreement, the law was such that he could reasonably expect to make a brief trip to visit his parents in Greece. As the Supreme Court ruled, the 1996 amendments to the immigration laws crated a new “disability” attached to Vartelas criminal conviction. The Court declined to apply the change in law retroactively, applying basic retroactivity principles from its decision in Landsgraf v. USI Film Products (1994). The Court also closely followed its approach in INS v. St Cyr (2001), which held that a form of relief from removal that was repealed in 1996 was still available for on criminal convictions entered before 1996. I do not think that the decision will have broad impact, although it may affect a significant number of noncitizens with criminal convictions entered before 1996. At most, the decision allows this group the freedom to visit their native country for a brief period of time. I do not see the Vartelas decision as having any broad impacts in terms of immigration law, statutory interpretation, or administrative law.

So far, the noncitizen has won in two of three immigration cases decided this Term.  In December, the Court in Judulang v. Holder found that the agency decision finding a lawful permanent resident ineligible for relief from removal was "arbitrary and capricious."  In February, the Court found in Kawashima v. Holder that a tax crime was an "aggravated felony" subjecting a lawful permaent iresident to removal. 

There are two (technically three) more immigration cases on the docket for this Term.  In the consolidated cases of Holder v. Sawyers and Holder v. Gutierrez in which the Court has heard oral argument, the Court will address technical statutory questions about calculating time for eligibility for cancellation of removal.  On April 25, the Court will hear oral arguments in the potential blockbuster immigration case of Arizona v. United States.


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