More on Today’s Opinion in Fernandez-Vargas v. Gonzales

By Kevin Russell
on Jun 22, 2006 at 6:37 pm

Akin Gump summer associate Shannen Naegel has this summary of today’s opinion in Fernandez-Vargas:

What happens when you combine the thorny issue of immigration, statutory interpretation analysis, and another pointed dissent by Justice Stevens? Without baking at 350 degrees, you get today’s decision in Fernandez-Vargas v. Gonzales. In an 8-1 decision authored by Justice Souter, the Supreme Court held that the revocation of the right to appeal an order of removal (formally called deportation) found in a 1996 immigration law does apply to an illegal immigrant who reentered the U.S. before the 1996 law became effective.

In 1981, Humberto Fernandez-Vargas was deported and illegally reentered the U.S. the following year. He married a U.S. citizen, with whom he already had a child, in 2001 and subsequently applied to adjust his immigration status. This application tipped off immigration authorities to his illegal status. During an interview on his application in 2003, Fernandez-Vargas was arrested and his previous order of removal was reinstated. He was deported back to Mexico in 2004 after ten months in detention.

Prior to the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, Fernandez-Vargas would have been eligible to apply for adjustment of status notwithstanding his previous deportation order. However, under Section 241(a)(5) of the Immigration and Nationality Act, as amended by the IIRIRA, the prior order of removal may be reinstated, the alien is not eligible for any relief that he or she would otherwise be eligible for under an order of removal, and upon the finding that the individual illegally reentered the U.S. after being deported, the alien may be deported again any time after reentry.

Fernandez-Vargas sought review of the removal in the Tenth Circuit, which unanimously held that he was not eligible for adjustment of status because of the bar for relief in Section 241(a)(5). In an opinion authored by Judge McConnell, the court, through the use of the two-step retroactivity framework established by the Supreme Court in Landgraf v. USI Film Products, found that Section 241(a)(5)’s application is not limited to aliens who have reentered the U.S. illegally after IIRIRA’s effective date. With this ruling the Tenth Circuit joined the majority of circuits in siding with the government on this issue. Conversely, the Sixth and Ninth Circuits had held that the Section 241(a)(5) bar does not apply to aliens who reentered the U.S. before the IIRIRA effective date. Fernandez-Vargas sought certiorari, and the government acquiesced; the Supreme Court granted cert. to resolve the circuit conflict. Oral arguments in this case were held on March 22, 2006, and featured Justice Scalia sarcastically musing on the touching nature of Congress’s supposed intent to “keep faith” with illegal immigrants and Sri Srinivasan, counsel for the government, admitting that “in some sense” deportation is worse than a $50 retroactive reentry fee.

Today the Court held, under a Landgraf analysis, that Section 241(a)(5) does apply to illegal immigrants who were deported and then reentered the U.S. illegally before the 1997 effective date of the IIRIRA, and that Section 241(a)(5) “has no retroactive effect when applied to aliens like Fernandez-Vargas.” It should be noted that though the government prevailed under this ruling, the majority rejected the government’s argument that Landgraf analysis was unnecessary. Justice Souter began by noting the Landgraf standard that “statutes are disfavored as retroactive” when their application impairs the rights of a party, increases a party’s liability for past conduct, or imposes new duties on complete transactions.

Following the two-part Landgraf analysis, the majority first considers whether Congress “expressly prescribed the statute’s proper reach.” Justice Souter notes that Congress did not deal expressly with illegal immigrants who reentered prior to the Act’s April 1, 1997 effective date and goes on to reject Fernandez-Vargas’s argument that Congress’s elimination of the before-or-after clause that appeared in the original 1950 immigration legislation meant that Congress did not intend for the IIRIRA to cover preenactment reentrants. In rejecting that argument, the majority explains that old before-or-after clause “most naturally referred not to the illegal entry but to the alien’s previous deportation or departure.” The majority points out that had the Court agreed with Fernandez-Vargas about the implication of Congress’s abandonment of that phrase, “it would exempt from the new reinstatement provision’s coverage anyone who departed before IIRIRA’s effective date but reentered after it,” even though the purpose behind the IIRIRA’s provision was to expand the authority to reinstate removal orders. Further on this point, Justice Souter highlights other provisions of the IIRIRA that “blunt” Fernandez-Vargas’s argument that the removal of the before-or-after clause establishes that Section 241(a)(5) applies only to reentries after the Act’s effective date. The majority concludes that the principles of statutory interpretation do not contradict the apparent application of Section 241(a)(5) to pre-effective date reentries.

The majority next turns to what really bothers it about Fernandez-Vargas’s claims here: that Fernandez-Vargas remained illegally in the U.S. for nearly 20 years. In rejecting the argument that Section 241(a)(5) has a retroactive effect, the Court points out that Fernandez-Vargas had “ample warning of the coming change in the law,” but yet “chose to remain” in the U.S. The majority distinguishes this underlying conduct from the conduct of the illegal immigrant in INS v. St. Cyr. In that case, as Justice Souter notes, the alien was a legal permanent resident who, under a plea agreement, pleaded guilty to an aggravated felony charge that would justify his deportation in the absence of a waiver from the Attorney General. The majority states that the effect of Section 241(a)(5) in the St. Cyr situation acts to convert a significant risk of deportation with a completed action, the guilty plea, to an absolute certainty of deportation where the individual had no ability to change his actions, and distinguishes Fernandez-Vargas’s situation as he could have chosen to leave the U.S. before the effective date of IIRIRA. The majority finds that “the conduct of remaining in the country after entry is the predicate action” in this case, not the past illegal reentry.

Justice Souter goes on to further reject Fernandez-Vargas’s retroactivity argument by again highlighting that Fernandez-Vargas could have left the U.S. or married the mother of his son during the “grace period” before the IIRIRA came into effect. Though the majority acknowledges that leaving the U.S. would have come at a “high personal price” for Fernandez-Vargas, the Court explains that its retroactivity inquiry rests on the avoidance of “new burdens imposed on completed acts” and not all of the “difficult choices occasioned by new law.”

In his dissent, Justice Stevens begins by noting that he disagrees with the Court’s holdings on both steps of the Landgraf analysis. Unlike the majority, Justice Stevens accords significant weight to Congress’s removal of the before-or-after clause from the new reinstatement provision of the IIRIRA, remarking that “it is reasonable to attribute precisely the same intent to the Congress that enacted the 1996 statute” as the one attributed to the 1952 Congress that placed the before-or-after clause into the 1950 version of the provision. Justice Stevens would, accordingly, agree with Fernandez-Vargas that Section 241(a)(5) should not be construed to apply to the aliens who reentered prior to the IIRIRA effective date.

Justice Stevens spends nearly half of his dissent and one of his footnotes detailing his disagreement with the majority’s ruling that the provision had no retroactive effect. Justice Stevens notes that the petitioner’s “continuing violation” in remaining illegally in the U.S. allowed Fernandez-Vargas to be eligible for relief from deportation for which he would not have otherwise qualified, and because of that eligibility he had a legitimate complaint “that the Government has changed the rules midgame.” Finding the majority’s distinction between Fernandez-Vargas and St. Cyr “formalistic,” Justice Stevens argues that the reentry was not an act Fernandez-Vargas could now “undo.” Justice Stevens’s disagreement with the majority spills over into the footnotes of his dissent, where he is troubled that the Court’s solution for Fernandez-Vargas to avoid the provision, leaving the U.S., is the same as the effect of the provision, his deportation from the U.S. Due to the “harsh consequences” of Section 241(a)(5) and the absence of clear Congressional intent that the provision was intended to apply to aliens like Fernandez-Vargas, Justice Stevens believes the Court should have applied “the presumption against retroactivity” and held that Section 241(a)(5) does not apply to Fernandez-Vargas.