« The Daily Memo - 6/22/06 | Main | Dixon v. United States »

Supreme Court Decision Update - Fernandez-Vargas v. Gonzoales

supreme3.jpgIn Fernandez-Vargas v. Gonzales (PDF of the opinion), the Supremes look at a provision of a 1996 immigration law, to figure out whether current illegal aliens who were deported before 1997 and have since illegally reentered can be deported by having their prior deportation reinstated. In other words, the issue is about what time frame the statute applies to (because it clearly covers folks who were deported after 1997 and then illegally reentered). The Supremes say it applies to everyone.

QuizLaw Analysis: In light of the increased political discourse on the issue of illegal immigration, this is an interesting case. By giving the relevant provision of the 1996 law broad coverage, those opposed to broader immigration rights will laud this as a success. Meanwhile, others will say this goes against President Bush’s recent comments that we need to be more inclusive and helpful towards the good folks and hard workers who simply want to become citizens (that’s certainly the gist of the dissenting view). The truth is probably somewhere in between, since the law of this case only applies to folks who have already been deported at least once. But to those folks, it seems that a door for attempted legal residence has definitely been shut, for better or for worse.

In the ’70s, Humberto Fernandez-Vargas illegally entered the U.S. from Mexico. He tried again several more times, and got deported again. However, after illegally entering in 1982, as Justice Souter puts it, “his luck changed, and for over 20 years he remained undetected in Utah.” He set up a trucking business and later had a son. In 2001, he married the boy’s mother, a U.S. citizen, and his wife then applied to get him a relative-visa. Based on that, he filed to have his legal status adjusted so that he could become a lawful and permanent resident. At this time, the Feds started a legal proceeding to reinstate his 1981 deportation under a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The relevant provision, section 241(a)(5), amended the earlier Immigration and Nationality Act, enlarging the definition of those people who, upon illegally reentering the U.S., could be kicked out by having their prior deportation order reinstated. The government got Fernandez-Vargas’ deportation order reinstated, but he appealed to the Tenth Circuit Court of Appeals. Fernandez-Vargas argued that the IIRIRA should not apply to him because he illegally reentered the U.S. before it’s effective date. Thus, applying it to his situation would amount to improperly applying the statute retroactively. The Tenth Circuit didn’t buy this argument and ruled that his application for residence was barred by section 241(a)(5) of the IIRIRA and that this was not an impermissible retroactive application of the statute. However, other Courts of Appeal have ruled that section 241(a)(5) doesn’t apply to folks who illegally reentered before the IIRIRA’s effective date, so the Supremes agreed to hear this case in order to put an end to the circuit split.

In a majority opinion written by Justice Souter and joined by everyone but Justice Stevens, the Supremes side with the Tenth Circuit, holding that section 241(a)(5) does apply to folks who reentered before April 1, 1997 (the Act’s effective date), and that in the current case, at least, this doesn’t have an improper retroactive effect. Souter recognizes the fact that under the current status of our laws and jurisprudence, it is generally disfavored to apply a statute retroactively (to facts and situations occurring before the law’s effective date) if doing so would impair that person’s rights (rights which they had at the time they acted), if it would raise their liability for past acts beyond what it would have been at the time, or if it would impose some new duty to past conduct. As such, the current “rule of general application” is that a statute is only treated as having a retroactive effect if the language of the statue explicitly says it should be applied retroactively, or unless retroactivity is a necessary implication of the law. In deciding when a statute has an improper retroactive effect, the courts therefore look, first, at whether Congress expressly said anything one way or the other. If not, the courts will apply normal rules of statutory construction to figure the problem out. And if that doesn’t work, well, then the courts look at whether applying the statute retroactively in a given case would have one of the above described effects (i.e., impair rights, raise liabilities, or impose new duties). If so, the presumption against retroactivity kicks in and the statute will not be applied to the person or event in quesiton.

With this analysis in hand, Souter then turns to section 241(a)(5) of the IIRIRA and decides that none of this means that this section can’t apply to an illegal reentrent currently in the country, regardless of when they reentered. Congress didn’t include any express provission about whether this applies to folks who illegally reentered prior to its effective date. There was an argument that Congress implicitly decided it shouldn’t apply retroactively, but Souter doesn’t buy this because he believes that argument is based on an improper interpretation of the prior Immigration and Nationality Act. Plus, if the IIRIRA were limited in application to only those deported after April 1, 1997, it would mean that someone who was deported prior to that date and who then illegally reentered after the date would be exempt. And this doesn’t make any sense in light of the fact that the IIRIRA was specifically intended to expand the scope of who it applied to. Fernandez-Vargas says that this raises an issue about the IIRIRA being vague and ambiguous which means the presumption against retroactive statutes should kick in. Souter says that’s wrong because “it puts the cart before the horse” - that is, this presumption is only considered after the Court looks at whether the statute even has a retroactive effect. It’s also wrong because it ignores other provisions of the Act which do address its “temporal reach.” While those other provisions may not go to intent one way or the other with regard to section 241(a)(5), they do support the Court’s position with regard to its interpretation of the changes Congress made going from the Immigration and Nationality Act to this current Act.

In any event, Souter says that the usual methods of statutory interpretation simply don’t alter the finding that section 241(a)(5) applies to any reentrant currently in the U.S., regardless of when they came back in. This is confirmed, Souter says, by two specific features of the IIRIRA. First, under the Act’s language, it applies simply to anyone presently in the country and that means it applies to Fernandez-Vargas because he choose to stay in the U.S. after the law’s enactment. The provision isn’t punishing someone for a prior illegal reentry, its simply allowing a presently illegal alien to be removed via the use of a prior deportation. So it’s the present conduct of currently being in the country which predicates everything. The second feature confirming application of the IIRIRA is that its effective date means that Fernandez-Vargas had plenty of warning that hte law was going to change, yet chose to remain in the U.S. anyway. There was six month’s between its enactment and when it became effective, and Fernandez-Vargas could have left at any point during those six months, Souter argues, ending his immegration violation. Alternatively, he could’ve married his now-wife then, and applied for an adjustment of his status at that time, which at least would’ve given him a claim that he relied on the prior law and that this reliance should kick in the presumption against retroactivity. Souter recognizes that this amounted to difficult decisions for Fernandez-Vargas, possibly requireing him to leave his wife and established trucking business, “[b]ut the branch of retroactivity law that concerns us here is meant to avoid new burdens imposed on completed acts, not all difficult choices occasioned by new law.”

Meanwhile, Justice Stevens filed a dissenting opinion disagreeing with the majority’s conclusions (i) the IIRIRA applies to folks who illegally entered before 1997 and (ii) that the Court’s interpretation of the Act doesn’t give it a retroactive effect. The majority decided that there was no significant import to Congress leaving out a date provision from the IIRIRA which appeared in 1952’s Immigration and Nationality Act, but Stevens believes this should be interpreted as Congress showing its intent not to have the Act apply to prior reentries (otherwise, it would have included a provision similar to what was in the 1952 Act). Also, Stevens thinks the IIRIRA is being applied with a retroactive effect because it does touch on prior conduct. To be eligible for relief from deportation, Fernandez-Vargas had to remain in the U.S. for at least seven years and to have strong ties to the nation (for example, via business and family ties). So when he reentered in 1982, it was in his best interest to stay continuously, and work on building his business and establishing a family (so that if the government ever sought to re-deport him, he could raise the defense of being eligible for relief). However, once the IIRIRA became effective, Stevens says it changed the rules “midgame,” because all of these actions suddenly became irrelevant and Fernandez-Vargas could be kicked out based on his prior deportation. Coupled with the fact that the majority is applying the Act to his 1982 reentry, Stevens says this “has an undeniably harsh retroactive effect” and the presumption should kick in, requiring a holding that the provision doesn’t apply to Fernandez-Vargas.