Where Congress has passed a law that bars individuals from adjusting their immigration status if they have been deported and then illegally reentered the country, should the law apply retroactively to an individual who illegally reentered the country before that law was passed?
Humberto Fernandez-Vargas is a Mexican citizen who has been deported from and illegally reentered the United States numerous times. In January of 1982, Fernandez-Vargas illegally reentered the United States, where he remained, living and working in Utah, until his most recent deportation in 2004. During those twenty years, Fernandez-Vargas began a relationship and had a child with an American woman whom he married in 2001. After marrying, Mr. and Mrs. Fernandez-Vargas applied to adjust his immigrant status so Fernandez-Vargas could legally remain in the United States. However, in 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which revised an earlier provision of the Immigration and Nationality Act and, consequently, might have eliminated Fernandez-Vargas’ ability to adjust his status. The Supreme Court must decide whether the revised law should apply to and eliminate relief for Fernandez-Vargas, who illegally reentered the country prior to the legislation’s enactment.
Questions as Framed for the Court by the Parties
Over the last thirty years, Hernando Fernandez-Vargas, a native and citizen of Mexico, has illegally entered and been deported from the United States several times. Brief for the Petitioner at 5, Fernandez-Vargas v. Gonzalez, U.S. (No. 04–1376). Last deported in October 1981, Fernandez-Vargas illegally reentered the United States in January 1982, and has lived here ever since. Fernandez-Vargas v. Ashcroft, 394 F.3d 881, 883 (10th Cir. 2005). Fernandez-Vargas has spent the majority of the past twenty years residing in Utah, where he worked as a truck driver and owned his own trucking business. Brief for the Petitioner at 5. Although it is not clear from the record, Fernandez-Vargas entered into a relationship with an American citizen, Rita Fernandez, with whom he had a son in 1989. Id. On March 30, 2001, Mr. and Mrs. Fernandez were married, and, shortly thereafter they took steps to adjust Fernandez-Vargas’ immigrant status. Id. Mrs. Fernandez filed an immediate-relative visa petition on his behalf, while Fernandez-Vargas filed a petition for adjustment of status under 8 U.S.C. § 1255(i). Id.
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Fernandez-Vargas v. Ashcroft, 394 F.3d at 882, n.3. Among the many changes wrought by IIRIRA was the replacement of Immigration and Nationality Act (INA) § 242(f) with 8 U.S.C. § 1231(a)(5) (hereinafter referred to as INA § 241(a)(5)). Id. at 882. Although both sections were “reinstatement statutes”—allowing the government to reinstate previous removal orders against aliens who have illegally reentered the United States—INA § 241(a)(5) expanded on the earlier provision to prohibit those aliens from applying for certain forms of “relief” from the removal order. INA § 241(a)(5); see also Fernandez-Vargas v. Ashcroft 394 F.3d at 883.
In November 2003, when Fernandez-Vargas reported to the Bureau of Citizenship and Immigration Services as a part of his visa application, he was arrested and informed that, under INA § 241(a)(5), the 1981 removal order against him had been reinstated. Brief for the Petitioner at 6. He was detained for nearly a year before being removed to Juarez, Mexico in September of 2004. Id. Fernandez-Vargas appealed to the Tenth Circuit for review of the U.S. Immigration and Customs Enforcement (ICE) Office’s reinstatement of the removal order. Id. at 7. He argued that the prior order could not be reinstated while his adjustment application was pending. Fernandez-Vargas v. Ashcroft 394 F.3d at 883.
The Tenth Circuit held that INA § 241(a)(5) barred Fernandez-Vargas’ application to adjust his status and that retroactive application of the statute to him was not unconstitutional. Id. at 884.
In a petition seeking favorable relief from the Supreme Court, Humberto Fernandez-Vargas argues that the increased restrictions in INA § 241(a)(5) should not apply retroactively to the acts he committed prior to IIRIRA’s enactment. Brief for the Petitioner at 36. In doing so, Fernandez-Vargas invokes the Court’s longstanding presumption against retroactive legislation. In Landgraf v. USI Film Products, the Court established a two-step test that embodies this presumption against retroactivity. 511 U.S. at 265. The first step of the Landgraf test requires that Congress must express its intent to give legislation retroactive effect in language “so clear that it could sustain only one interpretation.” Lindh v. Murphy, 521 U.S. 320, 328 (1997). If the Court does not find the requisite congressional intent, the second step of the Landgraf test considers whether retroactive application of the statute would attach “new legal consequences to events completed before its enactment.” Landgraf, 511 U.S. at 270. This is an admittedly difficult standard to apply. In Landgraf,the Court quoted Justice Story’s formulation that a statute has retroactive effect when it “takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.” Id. at 269 (quoting Society for Propagation of the Gospel v. Wheeler, 22 F.Cas.756, 767 (1814)). Ultimately, the Landgraf Court advised “considerations of fair notice, reasonable reliance, and settled expectations offer guidance,” Id. at 270. In this case, the Court must determine whether the language of INA § 241(a)(5) reveals congressional intent to retroactively deny certain forms of relief to aliens who illegally reentered the United States before the statute was enacted. Absent clear signs of congressional intent, the Court must determine whether the application of INA § 241(a)(5) to Mr. Fernandez-Vargas’ case is impermissibly retroactive and ultimately inequitable.
Arguing that INA § 241(a)(5) should not be given retroactive effect, Fernandez-Vargas first focuses on the plain language of the statute. He argues that the first sign that Congress expressly decided not to give the provision retroactive effect lies in the fact that the earlier reinstatement provision—which INA § 241(a)(5) replaced—contained a clause that expressly gave it retroactive effect. Brief for the Petitioner at 19-20. Perhaps most compellingly, Fernandez-Vargas points to the legislative history of INA § 241(a)(5), which shows that Congress deliberately removed from early drafts language that expressly gave the provision retroactive effect. Id. at 21. Fernandez-Vargas also maintains that Congress is well aware of the traditional presumption against retroactivity; thus, lawmakers would have known to include more specific language if they wanted INA § 241(a)(5) to act retroactively. Id. at 24-25. Interestingly, Fernandez-Vargas’ goes on to argue that there are not only no clear signs of congressional intent to give INA § 241(a)(5) retroactive effect, but also that Congress’ deliberate revisions and deletions of earlier language constitute clear congressional intent to give INA § 241(a)(5) strictly prospective effect. Id. at 21. He supports this position by pointing to INS v. Cardoza-Fonseca, where the Court held that statutes with unclear meanings should be interpreted in favor of an alien, a recognition of the difficult circumstances that aliens must often overcome. Id. at 27 (citing 480 U.S. 421, 449 (1987)).
The Attorney General first argues that considering whether or not INA § 241(a)(5) applies retroactively is unnecessary. Pointing to the provision’s language, the Attorney General states that the “triggering event” in the statute is not the moment when the alien illegally reenters the country, but the moment at which the Attorney General “finds that an alien has reentered the United States illegally.” Certiorari Petition for the Respondent at 9. Thus, when the Attorney General learned of Fernandez-Vargas’ illegal re-entry after he applied to adjust his status in 2001 retroactivity is not a concern. Id. at 10. The Attorney General also argues that silence on the issue of retroactivity is not proof positive that Congress meant to limit INA § 241(a)(5) to prospective, rather than retroactive application. Id. at 11. In fact, the Attorney General does not readily concede that the predecessor to INA § 241(a)(5) even included specific retroactive language, arguing that the “before or after” language in the previous reinstatement statute modified the illegal alien’s deportation or deportation order and not the date of illegal reentry into the United States. Id. at 11-12. Accordingly, the Attorney General maintains that Congress’ decision not to include similar “before or after” language in INA § 241(a)(5) is not conclusive evidence of congressional intent since that language did not clearly indicate retroactive effect under the previous statute. Id. Therefore the Attorney General suggests that because the first step of the Landgraf test shows no congressional intent regarding retroactive or prospective effect of the provision, it is necessary to consider the consequences of retroactive application of the provision in this case. Id. at 14.
In the event that the Court does not agree that Congress’ decisions to remove all language of retroactivity from INA § 241(a)(5) constitute intent to apply the statute prospectively, Fernandez-Vargas maintains that INA § 241(a)(5) would be impermissibly retroactive in this instance because he illegally reentered the United States prior to its adoption. Id. at 16. Additionally, Fernandez-Vargas argues that the predecessor to INA § 241(a)(5), which included the right to seek discretionary relief, should govern the adjustment of his immigration status. Id. In short, he asserts that the application of a law that did not exist when he last reentered the United States has led to the removal of his home in Utah, while foreclosing a more immediate opportunity to gain permanent residence in the United States. Id. at 37.
The Attorney General will also argue that the relief that Fernandez-Vargas claims he is entitled to was discretionary, undercutting the argument that the retroactive application of INA § 241(a)(5) has impaired a substantial right since there was no guarantee that relief would have been granted prior to April 1, 1997. Id. at 16. Lastly, the Attorney General argues that when Fernandez-Vargas illegally reentered the United States, he had no justified expectations with regard to INA § 241(a)(5), that is, he did not intend on taking advantage of discretionary relief under INA § 241(a)(5) and, therefore, cannot honestly claim detrimental reliance. Id. Moreover, he asserts that Fernandez-Vargas did not seek discretionary relief until after INA § 241(a)(5) became law on April 1, 1997, emphasizing that discretionary relief should have been sought pre-April 1, 1997 under the appropriate law. Id. 20-21.
The general concern with retroactive application of novel legislation is that it might create new legal penalties for acts committed prior to the legislation’s enactment. Fernandez-Vargas v. Ashcroft, 394 F.3d at 890. Thus, the Court observes a presumption against retroactive legislation and first asks whether the legislation in question provides clear signs of congressional intent to apply the new law retroactively. See Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994). Yet, because not all retroactive legislation is necessarily improper, if there is no sign of congressional intent, the Court still asks a second question: would retroactive application of the legislation create new legal consequences? See Id. at 269.
As evidenced by the split opinions among the Courts of Appeals on this issue, the two questions of the Landgraf test are not easy to administer. Two Circuits have found clear congressional intent to limit INA § 241(a)(5) to conduct occurring after its enactment; two Circuits have found no clear congressional intent, but found there would be impermissible retroactive consequences to apply the provision retroactively; and four Circuits have found no congressional intent and no impermissible retroactive consequences. Petition for a Writ of Certiorari at 11–12, Fernandez-Vargas v. Gonzalez, U.S. (No. 04–1376). If nothing else, the Court’s decision should resolve this split between the Circuit Courts and provide some clarification of the Landgraf test.
Yet, it is not altogether clear that risk of retroactive effect will be dispositive to the Court’s decision. As the Tenth Circuit points out, under INA § 212(a)(9)(C)(i)(II), an alien who illegally reenters the United States after having been removed is permanently inadmissible and ineligible for adjustment of status. Fernandez-Vargas v. Ashcroft, 394 F.3d at 885. Although an alien can seek waiver of that permanent inadmissibility, he may only do so after spending ten years outside the United States. Id. The Attorney General has made a similar argument, contending that INA § 241(a)(5) applies when the Attorney General learns that an alien has illegally reentered the country. Certiorari Petition for the Respondent at 9, Fernandez-Vargas v. Gonzalez, U.S. (No. 04–1376). If the Court accepts that argument, because the Attorney General learned of Fernandez-Vargas’ illegal re-entry well after INA § 241(a)(5) became law, retroactivity may not be a concern.
If the Court turns to a consideration of the consequences of retroactive effect in this case, they will have to weigh the likely dissolution of Fernandez-Vargas’ family against the government’s considerable interest in streamlining the process for deporting illegal aliens.
In Fernandez-Vargas’ favor is the fact that he has lived and worked in the United States for over twenty years without any criminal arrests. Brief for the Petitioner at 5. He has been in a long-term relationship with an American citizen to whom he has been married for approximately five years and with whom he shares a sixteen-year-old son. Id. Further, he can reasonably argue that he relied on the earlier state of the law; when Fernandez-Vargas entered the United States and commenced his life here, there were procedures available that did not require illegal aliens to leave the country in order to adjust their status. See Brief of amici curiae American Immigration Law Foundation, et al., at 6, Fernandez-Vargas v. Gonzalez, U.S. (No. 04–1376).
On the other hand, should the Court decide in favor of Fernandez-Vargas, their decision could seriously undermine the legitimacy and enforceability of the government’s deportation orders. Moreover, to the extent that the Court considers Fernandez-Vargas’ reliance on the earlier law, the fact remains that his return to the United States in 1982 was an illegal act, and the Court may not be sympathetic to the argument that he illegally reentered the country expecting to someday have the ability to adjust his status.
The Supreme Court faces the difficult task of deciding whether INA § 241(a)(5) has retroactive application to Fernandez-Vargas’ circumstances. Although the Court could resolve this case using basic rules of statutory interpretation, it should not ignore the numerous equitable considerations at work in this case. Fernandez-Vargas is currently married to an American citizen and he has a sixteen-year-old son in Utah. Though the policy goals of streamlining the deportation process of illegal aliens is a strong government interest, it is more difficult to justify this policy goal when someone like Fernandez-Vargas has no avenue to appeal his deportation due to a change in law . Under the predecessor to INA § 241(a)(5), Fernandez-Vargas could have sought discretionary relief that would have acknowledged his significant connections to the United States. Now the question remains whether a pre-April 1, 1997 illegal reentry into the United States is truly governed by INA § 241(a)(5), a statute that makes it more difficult for an alien who has illegally reentered the United States to argue that he or she deserves to remain. Given that the Courts of Appeals have not unanimously resolved this question, Fernandez-Vargas and the Attorney General require a ruling on INA § 241(a)(5)’s retroactivity so that an important aspect of immigration is settled once and for all, allowing illegal aliens and the government to temper their expectations accordingly. Written by: