Whether 8 U.S.C. § 1101(a)(13)(c)(v), as amended in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act, applies to a lawful permanent resident whose commission of a crime prior to the amendment creates grounds for inadmissibility.
Petitioner Panagis Vartelas, a Greek citizen and lawful permanent resident of the United States, pleaded guilty to counterfeiting and was convicted in 1994. In 2003, following a brief trip to Greece, Vartelas received notice to appear for removal proceedings. The immigration judge ordered Vartelas’s deportation, after deeming Vartelas inadmissible under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Vartelas argues that application of this 1996 Act to his 1994 crime violates the presumption against retroactivity and the reasonable expectations he had when entering his guilty plea. Respondent Attorney General Eric Holder argues that Vartelas’s case does not have a retroactive effect because it penalizes acts conducted after the statute’s enactment: Vartelas’s decision to leave and re-enter the United States. This case affects lawful permanent residents who were convicted of crimes prior to the Act’s enactment. The Supreme Court’s decision could restrict their ability to travel internationally, which in turn could damage their ability to maintain family ties or fulfill religious obligations.
Questions as Framed for the Court by the Parties
Prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), 110 Stat. 3009 (1996), April 1, 1997, 8 U.S.C. § 1101 (a)(13), provided: The term "entry" means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary.
In Rosenberg v. Fleuti, 374 U.S. 449 (1963), this Court held that a lawful permanent resident ("LPR") who made an "innocent, casual, and brief" trip across an international border did not "intend" a "departure" within the meaning of 8 U.S.C. § 1101(a)(13).
However, effective April 1, 1997, 8 U.S.C. § 1101(a)(13)(C)(v) repealed 8 U.S.C. § 1101(a)(13). The amended 8 U.S.C. § 1101(a)(13)(C)(v) provides: (C) An alien lawfully admitted for permanent residence in the shall not be regarded as seeking an admission into the United States for the purpose of the immigration laws unless the alien, (v) has committed an offense identified in section 212(a)(2), unless since offense the alien has been granted relief under section 212(h) or 240A(a). (Emphasis added)
Two other Circuit Courts of Appeals have held that the amended 8 U.S.C. § 1101(a)(13)(C)(v) cannot be retroactively applied to an alien who pled guilty to a crime involving moral turpitude prior to the effective date of IIRIRA.
The question presented is:
Should 8 U.S.C. § 1101(a)(13)(C)(v), which removes LPR of his right, under Rosenberg v. Fleuti, 374 U.S. 449 (1963), to make "innocent, casual, and brief" trips abroad without fear that he will be denied reentry, be applied retroactively to a guilty plea taken prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), 110 Stat. 3009 (1996)?
In 1994, Petitioner Panagis Vartelas, a lawful permanent resident (“LPR”) of the United States, was convicted of conspiring to make or possess a counterfeit security, following entry of his guilty plea. See Vartelas v. Holder, 620 F.3d 108, 110 (2d Cir. 2010). In 2003, Vartelas traveled to his native country of Greece. See id. at 111. Upon return, an immigration officer questioned Vartelas regarding the 1994 conviction. See id.Shortly thereafter, Vartelas received notice to appear for removal proceedings on the basis of being an inadmissible alien who re-entered the country after conviction for a crime of moral turpitude. See id.Vartelas appeared before an immigration judge from 2003 to 2005, and ultimately conceded deportability under 8 U.S.C. § 1101(a)(13)(c)(v), but requested relief under § 212(c) of the Immigration and Nationality Act. See id.; 8 U.S.C. § 1882 (1994). This section provides that certain LPRs convicted after entering a guilty plea can seek relief from deportation, if their pleas were made before the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) took effect in 1997. See Vartelas, 620 F.3d at 111.
The immigration judge (“IJ”), however, denied this request and ordered removal, stating that Vartelas frequently visited Greece for prolonged periods of time, and that Vartelas could not show sufficient hardship to himself or his family. See Vartelas, 620 F.3d at 111. Vartelas appealed this decision to the Board of Immigration Appeals (“BIA”) on the grounds that his imprisonment for the crime of moral turpitude was only four months, where under 8 U.S.C. § 1182(a)(2)(A)(ii)(II) removability requires prison terms to exceed six months. See id. at 111–12. In the alternative, Vartelas argued that if he were removable, then with such a short prison sentence he should have received § 212(c) relief from deportation.See id. at 112. However, the BIA affirmed the IJ’s decision, noting that Vartelas had already conceded his removability, and that, consequently, his non-removable offense argument would not be considered. See id.
In 2008, Vartelas filed a timely motion to reopen with new counsel, alleging ineffective assistance of counsel. See Vartelas, 620 F.3d at 112. Vartelas argued that he based his decision to plead guilty to counterfeiting on the fact that his short imprisonment could not make him removable at the time of his conviction, and that his former attorney had failed to adequately challenge the retroactive application of IIRIRA. See id.The BIA denied Vartela’s motion, finding a lack of deficient performance by Vartelas’s second attorney, and a lack of prejudice resulting from the earlier counsel. See id.In particular, the BIA noted that enforcing IIRIRA here was not retroactive and concluding that his attorney’s decision not to raise the retroactivity argument did not prejudice his case.
Upon appeal, the United States Court of Appeals for the Second Circuit found no ineffective assistance of counsel, stating that Vartelas had failed to demonstrate any prejudice. See Vartelas, 620 F.3d at 115. Furthermore, the court determined that Vartelas’s counterfeiting crime carried a maximum sentence of five years, and thus did not qualify for the § 1182(a)(A)(ii)(II) exception. See id. Finally, the court decided that enforcing the statute did not violate the presumption against retroactivity. See id. at 120. The Second Circuit held that the statute refers to an LPR who has committed rather than one who has been convicted of an offense involving moral turpitude. See id. While immigration laws would affect the decision to plead guilty, an LPR does not rely on immigration laws when deciding to commit an offense. See id.
Under current § 1101(a)(13)(C)(v) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), LPRs who have committed an offense specified in § 1182(a)(2) cannot return from travel abroad without reentry being deemed a request to seek admission to the United States.See8 U.S.C. § 1101(a)(13). Previously - in the case of Rosenberg v. Fleuti, 374 U.S. 449 (1968) - the Supreme Court held that, when making “innocent, casual, and brief” trips abroad, an LPR does not fall within the meaning of § 1101(a)(13). See Rosenberg v. Fleuti, 374 U.S. 449 (1968). However, statements made by the Board of Immigration Appeals (“BIA”) suggest that, as amended, § 1101(a)(13)(C)(v) effectively repealed the Fleuti rule. See Brief for Respondent, Attorney General Eric H. Holder at 4. Therefore, where once LPRs were presumed to be able to make brief trips abroad without jeopardizing residency, the amendment creates a real threat to LPRs (those who have committed an offense within § 1182(a)(2)) that reentry could lead to removal. In this case, the Supreme Court will decide whether an LPR who committed a § 1182(a)(2) offense prior to the IIRIRA amendments falls within § 1101(a)(13)(c)(v).
Petitioner Vartelas argues that enforcing the statute as amended for his pre-IIRIRA crime violates the presumption against retroactivity. See Brief for Petitioner, Panagis Vartelas at 19–20. Toprove Congress’s intention not to enforce IIRIRA retroactively, Vartelas relies on the two-pronged test in Landgraf v. USI Film Products. See id. at 18. Under prong one, for a statute to apply retroactively Congress must clearly state that intention. See id.Vartelas argues that the first prong is easily dismissed: § 1101(a)(13)(C)(v) contains no statement requiring its retroactive application to an LPR who committed an offense prior to IIRIRA’s effective date. See id. at 19. Vartelas notes that Congress has clearly indicated that other provisions of IIRIRA apply retroactively, so the lack of such stated intent with respect to § 1101(a)(13)(C)(v) forecloses any argument that it, too, applies retroactively. See id. at 20.
Respondent Holder concedes, in relation to the first prong of the Landgraf test, that Congress did not expressly provide for retroactive application. SeeBrief for Respondent, Attorney General Eric H. Holder at 11-12. Holder acknowledges that the Supreme Court’s decision in INS v. St. Cyr, which previously considered the retroactivity and the temporal scope of IIRIRA, effectively precludes any contrary argument. See id.
Under prong two of the Landgraf test, where Congress has not explicitly provided for a law’s retroactive enforcement, courts typically find a law impermissibly retroactive if the law would impair a party’s right because of prior conduct. See Brief for Petitioner at 18. Vartelas argues that applying § 1101(a)(13)(C)(v) to LPRs like himself attaches new legal consequences to offenses committed prior to the statute’s enactment. See id.at 21. According to Vartelas, he had a settled expectation that he would be granted reentry into the U.S. after brief trips abroad. See id.Vartelas suggests that, in developing its retroactivity analysis, the Supreme Court has relied on Ex Post Facto jurisprudence. See id. at 22–23. While immigration laws do not technically implicate this clause, Vartelas argues that any law that imposes greater punishment after a crime was committed raises ex post facto concerns. See id. at 24.
To further support his Landgraf analysis, Vartelas insists that the amendments altered his substantive rights based on prior conduct. See Brief for Petitioner at 28. Specifically, Vartelas argues that the amendments, as interpreted by the BIA, deprive him of the right to make the “innocent, casual, and brief” trips that were previously protected under Fleuti. See id.Vartelas contends that, even though his trip occurred in 2003 - after the IIRIRA’s effective date - it is his pre-IIRIRA conduct that gives the statute its force. See id. at 30. Vartelas insists that, in entering his guilty plea, he assumed continuing rights under the Fleuti doctrine. See id. at 30–31. Vartelas accepts § 1101(a)(13)(C)(v)’s valid deterrence effect. See id. at 34. It puts LPRs who have not yet committed a § 1182(a)(2) crime on notice that such crimes can jeopardize their travel rights. See id. But Vartelas had no notice that these rights would be threatened, and, because deterrence is forward looking, this effect is lost on Vartelas and those like him. See id. Vartelas contends that Holder cannot reasonably argue that § 1101(a)(13)(C)(v) is intended to deter travel (the post-IIRIRA conduct) rather than crimes (the pre-IIRIRA conduct). See id.
Finally, Vartelas argues that the Second Circuit erred in requiring proof of reliance on pre-IIRIRA laws. See Brief for Petitioner at 36. According to Landgraf, reliance is not a prerequisite to finding retroactivity. See id. at 37. A new penalty based on past conduct violates the presumption against retroactivity whether or not Vartelas can demonstrate reliance. See id. at 39. According to Vartelas, the operative question is whether Congress intended the statute to apply retroactively; demonstrating reliance ultimately has no bearing. See id. at 39–40. In the alternative, even though reliance is unnecessary, Vartelas contends that he did rely when deciding to plead guilty. See id. at 40. A person in Vartelas’s position would have been less receptive to pleading guilty if it restricted future travel. See id. at 44. Moreover, Vartelas argues that the Second Circuit erred in focusing on the commission of the crime, rather than the conviction in finding no reliance. See id. at 45–46. As a practical matter, argues Vartelas, it is the conviction, not the commission, of an offense that implicates § 1101(a)(13). See id. at 47. Without conviction, immigration officials would need the LPR to invite § 1101(a)(13)’s application by openly confessing to the elements of a § 1182(a)(2) offense—a very unlikely scenario. See id. Thus, courts should focus on conviction, even though Congress made the statute applicable to the commission of the offense. See id. at 47–48.
Respondent Holder insists that the application of the statute to Vartelas does not have a retroactive effect. SeeBrief for Respondent at 15. Holder argues that the statute only applies to post-enactment conduct. See id. at 17. Moreover, Holder insists that Vartelas’s reliance on the ex post facto jurisprudence is misplaced because deportation is not criminal punishment.See id.Even if the ex post facto clause did apply, Holder argues that Vartelas’s analysis is incorrect. See id. at 19. Holder argues that ,where an element of the crime is committed post-amendment, the ex post facto clause is not implicated. See id.Holder notes that the post-IIRIRA action of venturing abroad is what triggers § 1101(a)(13). See id.Therefore, under such circumstances, the ex post facto clause has no place in the analysis. See id.According to Holder,Congress intended for the new provisions to apply to all relevant entries after IIRIRA’s effective date. See id.Holder contends that the regulation of Vartelas’s attempted entry may involve pre-IIRIRA conduct, but that the regulation only applies to him based on his post-IIRIRA conduct. See id.Holder argues that Vartelas has no cause to complain that he did not know the consequences of leaving the country and seeking readmission because there was no change in law between his departure and return. See id.
Holder also argues that the statute has not prejudiced vested rights. SeeBrief for Respondent at 20. Holder claims that,even though Vartelas must now make the difficult choice between keeping his residence and visiting his parents in Greece, this does not mean that the presumption against retroactivity is implicated. See id. According to Holder, aliens do not have a vested right to return to, or even to remain in, the United States. See id. at 21. Rather, Congress has plenary power to prohibit entry into the country. See id.Thus, Holder argues that removal from the country, even when based on an alien’s past conduct, is not punitive, but is rather an exercise of Congressional authority. See id. at 22. Moreover, Holder insists that Vartelas’s reliance on the Fleuti doctrine goes too far. See id. 24. Specifically, while Holder does not deny the availability of the Fleuti doctrine pre-IIRIRA, he notes that it was unclear what constituted a meaningful interruption in residency under Fleuti. See id.Because Vartelas left the U.S. frequently, and sometimes for periods up to nine months, Holder challenges Vartelas’s interpretation that return is a vested right under Fleuti. See id. at 25.
Finally, Holder claims that Petitioner Vartelas should be required to demonstrate reliance on existing law in order to mount a successful challenge. See Brief for Respondent at 26. The operative legal fact was not Vartelas’s decision to plead guilty, but rather his commission of an offense involving moral turpitude, according to Holder. See id. at 27. Holder claims that the statute does not require conviction, it only requires commission. See id.Indeed, Holder contends that it would only be necessary to show that Vartelas committed the crime, not that there was a conviction. See id.Vartelas cannot establish (to his benefit) that he relied on the state of immigration laws when committing the offense, even if he did rely when pleading guilty. See id.
In this case, the Supreme Court will decide whether 8 U.S.C. § 1101(a)(13)(c)(v), as amended in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), applies to a lawful permanent resident (“LPR”) whose commission of a crime prior to the amendment creates grounds for inadmissibility. Section 1101(a)(13) prevents LPRs who have committed an offense specified in § 1182(a)(2) from making “innocent, casual, and brief” trips to foreign countries with the absolute ability to gain reentry—instead § 1101(a)(13)(C)(v) deems re-entry to be seeking admission. See8 U.S.C. § 1101(a)(13)(c)(v). Petitioner Vartelas argues that enforcing the statute as amended for his pre-IIRIRA crime violates the presumption against retroactivity. See Brief for Petitioner, Panagis Vartelas at 19–20. Respondent Attorney General Eric H. Holder asserts that applying the statute to Vartelas’s case is not retroactive because the law’s focus is on post-IIRIRA conduct: Vartelas’s decision to travel abroad and seek re-entry. SeeBrief for Respondent in Opposition, Attorney General Eric H. Holder at 15.
The Asian American Justice Center (“AAJC”) argues that applying IIRIRA to LPRs similarly situated to Vartelas compromises rights that they reasonably believe they possess as longtime U.S. residents. See Brief of Amici Curiae Asian American Justice Center, et al. (“AAJC”) in Support of Petitioner at 4. AAJC contends that a retroactive application of § 1101(a)(13)(c)(v) will only impact those LPRs who have made the United States their home for a minimum of fourteen years, and have thus developed reasonable expectations that they will not be classified as aliens at reentry following brief trips abroad. See id.at 4–5. AAJC asserts that enforcing the statute retroactively will result in harsh legal consequences for some LPRs. See id. at 5. It notes that, before 1997, LPRs who resided in the United States for a long time and were convicted of a single crime involving moral turpitude generally were not removable. See id. at 6. Such individuals could make brief trips to foreign countries without being subject to a strict standard of reentry that could lead to deportation. See id. at 6. Now, however, these individuals could be subject to admissibility proceedings and possible removal upon each re-entry, severely limiting such LPRs’ rights to travel abroad. See id. at 16.
AAJC asserts that LPRs often have a number of family members living abroad, and that travel restrictions create a substantial obstacle to maintaining family ties. See Brief of AAJC at 20. AAJC argues that, because most LPRs cannot bring their close family members to the United States, it is crucial for LPRs to take trips to their native countries. See id. at 20–22. AAJC asserts that in cases like medical emergencies, the need for LPRs to travel abroad becomes even greater. See id. at 22. For some immigrants, AAJC notes, international travel is also necessary to carry out religious obligations, such as specific burial practices. See id. at 18. AAJC maintains that religion is an important part of many LPRs’ lives, and that LPRs who were convicted prior to IIRIRA cannot be expected to know that their convictions could lead to an effective denial of their rights to carry out sacred obligations years later. See id. at 19.
Respondent Holder claims that generalized concerns about the deportation of LPRs returning from brief international trips are unfounded because the statute only has a negative impact on LPRs if they are in fact inadmissible. See Brief for Respondent in Opposition at 11. He notes that § 1101(a)(13)(c)(v) only requires that certain LPRs seeking reentry be viewed as seeking admission into the United States, and that this class includes LPRs who are in fact admissible. See id.Holder argues that this provision merely creates the possibility of removal, but that it will often take more than examination at reentry to be found inadmissible. See id. at 12.
Furthermore, Holder argues that the application of IIRIRA to those convicted of crimes involving moral turpitude before 1997 is not in fact retroactive, and thus that Vartelas’s and his supporting amicus’ s arguments are misplaced. See Brief for Respondent in Opposition at 12. The statute focuses on prospective behavior—it is applied to an act of travel which occurs long after enactment of the statute— and so should not be considered retroactive. See id.He argues that, since LPRs can be expected to know what IIRIRA entails, their decision to travel abroad without first applying for and obtaining § 212(c) relief should be viewed as a conscious choice. See id. at 13.
In this case, the Supreme Court will decide whether an LPR who committed a §1182(a)(2) offense prior to the IIRIRA amendments falls within § 1101(a)(13)(c)(v). Petitioner Panagis Vartelas argues that enforcing the statute as amended for his pre-IIRIRA crime violates the presumption against retroactivity. Respondent Attorney General Eric H. Holder asserts that applying the statute to Vartelas’s case is not retroactive because the law’s focus is on post-IIRIRA conduct: Vartelas’s decision to travel abroad and seek re-entry.
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