Immigration travel ban isn’t retroactive, says U.S. Supreme Court

Listen to this article

By Pat Murphy
Dolan Media Newswires

An immigration statute limiting a legal permanent resident’s right of reentry does not apply retroactively to a felony conviction before the effective date of the law, the U.S. Supreme Court has ruled 6-3.

The decision reverses a ruling from the 2nd Circuit.

The defendant is a native of Greece and became a lawful permanent resident of the U.S. in 1989. He pleaded guilty to a felony in 1994.

In 2003, the defendant traveled to Greece to visit his parents. Upon his return to the U.S., the government treated him as an inadmissible alien and placed him in removal proceedings pursuant to a provision enacted in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).  The statute effectively precludes foreign travel by lawful permanent residents who have a felony conviction.

The defendant argued that he was subject to federal immigration law in effect at the time of his felony conviction. (See “Does immigration travel ban apply retroactively?,” Lawyers USA, Jan. 19, 2012.) In 1994, aliens in his situation could travel abroad for brief periods.

The Court agreed that the IIRIRA did not apply retroactively to bar the defendant’s reentry.

“In sum, [the defendant’s] brief trip abroad post-IIRIRA involved no criminal infraction. IIRIRA disabled him from leaving the United States and returning as a lawful permanent resident. That new disability rested not on any continuing criminal activity, but on a single crime committed years before IIRIRA’s enactment. The antiretroactivity principle instructs against application of the new proscription to render [the defendant] a first-time arrival at the country’s gateway,” the Court said.

Justice Ruth Bader Ginsburg wrote the majority opinion. Justice Antonin Scalia wrote a dissent, joined by Justices Clarence Thomas and Samuel Alito Jr.

U.S. Supreme Court. Vartelas v. Holder, No. 10-1211.