Opinion analysis: Court rejects retroactive application of 1996 immigration law amendment
on Apr 2, 2012 at 2:39 pm
In 1979, Panigis Vartelas, a native of Greece, came to the United States on a student visa, became a lawful permanent resident in 1989, and pleaded guilty to a crime for a relatively minor role in a counterfeiting scheme in 1994. Upon returning from a week-long trip to Greece to visit his ill parents in Greece in 2003, the U.S. government sought to deny his admission and remove him from the United States based on the counterfeiting conviction.
The issue before the Court was the application of Immigration & Nationality Act § 101(a)(13)(C)(v), which was added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). IIRIRA reformed the U.S. immigration laws in a number of important ways; among other things, it toughened the provisions governing the admission and removal of noncitizens guilty of criminal offenses. Under the amended definition of “admission” into the United States, a lawful permanent resident returning from a brief trip outside the country who had been convicted of certain criminal offenses was deemed to be seeking admission into the country. The U.S. government relied on the new provision to deny admission to Vartelas based on conviction for a “crime involving moral turpitude.” Vartelas would not have been subject to deportation to Greece if he had not left the United States. And, before 1996, as a lawful permanent resident, he would have been free to take a short trip abroad. The U.S. Court of Appeals for the Second Circuit, agreeing with the Board of Immigration Appeals, had ordered that Vartelas be returned to Greece.
In an opinion by Justice Ginsburg, last Wednesday the Court reversed. The majority summarizes its holding as follows:
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).
In concluding that Vartelas could not be subjected to the new admission rules enacted by Congress in 1996, the Court applied the “presumption against retroactive legislation” and the general retroactivity rules from its 1994 decision in Landsgraf v. USI Film Products. Critical to the Court’s holding was its acceptance of Vartelas’s argument “that applying IIIRA to him, rather than the law that existed at the time of his conviction, would attach a `new disability,’ effectively a ban on travel outside the United States, `in respect to [events] . . . already past,’ . . .” (emphasis added).
The U.S. government, as well as the dissent, argued that the case did not raise an issue of the retroactive application of law because Vartelas’s trip to Greece occurred after the 1996 act was passed and it was this trip — not the pre-1996 criminal conviction — that triggered the removal proceedings. The Court emphatically rejected this argument, stating unequivocally that “[w]e find this argument disingenuous.” The Court instead focused on the fact that the government’s effort to remove Vartelas from the United States was based on his pre-1996 criminal conviction rather than his post-1996 travel.
The Court found that, in pleading guilty to the criminal charge in 1994, Vartelas “likely relied” on the law as it existed at that time, which allowed him the freedom to take brief trips outside the United States. In so doing, the Court closely followed the lead of INS v. St. Cyr (2001), in which the Court held that a noncitizen in accepting a plea agreement “almost certainly relied” upon then-existing discretionary relief available before 1996. The Court further suggested that “Vartelas’ case [might] even [be] easier than St. Cyr’s” because St. Cyr sought discretionary relief existing before 1996, while Vartelas would have been free to take a short trip abroad under pre-1996 law.
In an opinion joined by Justices Thomas and Alito, Justice Scalia dissented. The dissent viewed the activity regulated by the 1996 amendment as reentry into the United States after a trip outside the country. Consequently, the new statutory language “has no retroactive effect on Vartelas because the reference point here – Vartelas’s readmission to the United States after a trip abroad – occurred years after the effective date.” Justice Scalia accused the majority of going beyond the statutory language to achieve a fair result. He stated that “new disabilities” are frequently attached to criminal convictions – for example, laws that render persons convicted of drug crimes ineligible for student loans. Justice Scalia also stated that there could be little doubt that the new language “is intended to guard against the `dangers that arise postenactment’ from having aliens in our midst who have shown themselves to have proclivity for crime . . . .”
Just as I predicted after the oral arguments, the Court found for Vartelas in a narrowly drawn opinion that focused on the issue of the retroactivity of the 1996 amendments to the immigration laws. The Court did not address whether Immigration and Nationality Act § 101(a)(13)(C)(v) overruled its 1963 decision in Rosenberg v. Fleuti, in which it held that an “innocent, casual, and brief” trip from the country did not subject the returning lawful permanent resident to treatment as seeking admission. Nor did the Court address more broadly the constitutional rights of lawful permanent residents.
The holding that pre-1996 law applied to a plea bargain and criminal conviction before the 1996 amendments is consistent with the Court’s efforts to ensure that immigrants are made aware of the potential immigration consequences of a criminal conviction when making plea agreements. For example, in Padilla v. Kentucky (2010), it held that an ineffective assistance of counsel claim could be based on an attorney’s failure to inform a noncitizen of the immigration consequences of a criminal conviction. When Vartelas entered into his plea agreement, the law was such that he could reasonably expect to make a brief trip to Greece. As the Court reasoned, the 1996 amendments to the immigration laws truly did create a “new disability” attached to Vartelas’s criminal conviction, and one that might be expected to be of great significance to a native of a foreign country.
In declining to apply the change in law retroactively, the majority applied basic retroactivity principles from its decision in Landsgraf v. USI Film Products and adhered to its approach in INS v. St. Cyr, which held that a form of relief from removal that was repealed by the 1996 reforms was still available for criminal convictions entered before 1996.
As this analysis suggests, the Court’s decision in Vartelas v. Holder is not likely to have a broad impact. It will ensure that brief foreign trips are possible for lawful permanent residents with criminal convictions entered before 1996. There is little in Vartelas that suggests that it would have much of an impact beyond the case at hand in terms of immigration law, statutory interpretation, or administrative law. Rather, the Court, as it has in other recent immigration cases, has tended to follow the same general approaches pursued in other types of cases.
