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Immigration — IIRIRA permanent resident status

By: WISCONSIN LAW JOURNAL STAFF//March 29, 2012//

Immigration — IIRIRA permanent resident status

By: WISCONSIN LAW JOURNAL STAFF//March 29, 2012//

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U.S. Supreme Court

Civil

Immigration — IIRIRA  permanent resident status

The impact of an alien’s brief travel abroad on his permanent resident status is determined not by IIRIRA, but by the legal regime in force at the time of his conviction.  The Court finds disingenuous the Government’s argument that no retroactive effect is involved in this case because the relevant event is the alien’s post-IIRIRA return to the United States. Vartelas’ return occasioned his treatment as a new entrant, but the reason for his “new disability” was his pre-IIRIRA conviction. That past misconduct is the wrongful activity targeted by §1101(a)(13)(C)(v). Pp. 11–13.  (c) In determining that the change IIRIRA wrought had no retroactive effect, the Second Circuit homed in on the words “committed an offense” in §1101(a)(13)(C)(v). It reasoned that reliance on the prior law is essential to application of the antiretroactivity principle, and that Vartelas did not commit his crime in reliance on immigration laws. This reasoning is doubly flawed. A party is not required to show reliance on the prior law in structuring his conduct. See, e.g., Landgraf, 511 U. S., at 282, n. 35. In any event, Vartelas likely relied on then-existing immigration law, and this likelihood strengthens the case for reading a newly enacted law prospectively. St. Cyr is illustrative. There, a lawful permanent resident pleaded guilty to a criminal charge that made him deportable. Under the immigration law in effect when he was convicted, he would have been eligible to apply for a waiver of deportation. But his removal proceeding was commenced after IIRIRA withdrew that dispensation. Disallowance of discretionary waivers attached a new disability to past conduct, 533 U. S., at 321. Aliens like St. Cyr “almost certainly relied upon th[e] likelihood [of receiving discretionary relief] in deciding [to plead guilty, thereby] forgo[ing] their right to a trial,” id., at 325. Because applying the IIRIRA withdrawal to St. Cyr would have an “obvious and severe retroactive effect,” ibid., and Congress made no such intention plain, ibid., n. 55, the prior law governed St. Cyr’s case. Vartelas’ case is at least as clear as St. Cyr’s for declining to apply a new law retroactively. St. Cyr could seek only the Attorney General’s discretionary dispensation, while Vartelas, under Fleuti, was free, without seeking an official’s permission, to make short trips to see and assist his parents in Greece. The Second Circuit compounded its initial misperception of the antiretroactivity principle by holding otherwise. Fleuti continues to govern Vartelas’ short-term travel.

620 F. 3d 108, reversed and remanded.

10-1211 Vartelas v. Holder

Ginsburg, J.; Scalia, J., dissenting.

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