In a 6-3 decision, the U.S. Supreme Court held that the admission
requirement imposed on LPRs in 1996 does not apply retroactively. Vartelas v. Holder, 566 U.S. –, slip op.
(2012). Justice Ginsburg wrote the majority decision for herself and Justices
Roberts, Kennedy, Breyer, Sotomayor, and Kagan. Justice Scalia wrote a
dissenting opinion that was joined by Thomas and Alito.
This case involved an LPR who was convicted through a guilty
plea in 1994 of conspiracy to make or possess counterfeit securities, 18 U.S.C. § 371. At the time, this conviction posed no exclusion or deportation problems
for Vartelas. In 1996, however, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) that, if applied to Vartelas, would
result in his removability.
Before 1996 the Fleuti
doctrine allowed an LPR to return from “innocent, casual, and brief excursions”
abroad. Rosenberg v. Fleuti, 374 U.S.
449, 462 (1963). IIRIRA ended this practice. Instead, noncitizens, including
LPRs, returning to the USA post-IIRIRA “are subject to admission procedures, and,
potentially, to removal from the United States on grounds of inadmissibility.” Vartelas, 566 U.S. –, slip op. at 4.
These amendments mean that an LPR who committed an offense rendered removable
by INA § 212(a)(2) (including a crime involving moral turpitude, a controlled
substances offense, and multiple criminal convictions, among others) is deemed
to be seeking admission upon return to the USA and thus subject to
inadmissibility. INA § 101(a)(13)(C)(V).
The question confronting the Court in Vartelas was whether INA § 101(a)(13)(C)(V) applies to all LPRs or
only those whose criminal offense that subjects them to § 212(a)(2) occurred
after IIRIRA was enacted. The Court took the more narrow route, holding that §
101(a)(13)(C)(V) applies only to offenses that occurred after IIRIRA’s
enactment. Vartelas, 566 U.S. –, slip
op. at 2. Vartelas’ case, therefore, “is determined not by IIRIRA, but by the
legal regime in force at the time of his conviction.” Vartelas, 566 U.S. –, slip op. at 2. In other words, Vartelas is
subject to the more lenient Fleuti
The majority’s conclusion turned largely on the presumption
against retroactive application of laws that create a new obligation, impose a
new duty, or attach a new disability to events that occurred in the past. Vartelas, 566 U.S. –, slip op. at 7
(discussing Society for Propagation of
Gospel v. Wheeler, 22 F. Cas. 756, 767 (C.C. N.H. 1814) (a federal circuit
court abolished in 1912)). The IIRIRA-imposed inability to leave the USA and
return is a “restraint” that “ranks as a ‘new disability’,” the Court
concluded. Vartelas, 566 U.S. –, slip
op. at 9.
Importantly, this is a disability imposed not by some wrong that
Vartelas committed after IIRIRA’s enactment. Rather, this “new disability” is
triggered by a wrong Vartelas committed well before IIRIRA was enacted and “was
‘helpless to undo’ after enactment. Vartelas,
566 U.S. –, slip op. at 12. As the Court explained in a different passage, “The
essential inquiry…is ‘whether the new provision attaches new legal consequences
to events completed before its enactment.’ That is just what occurred here.” Vartelas, 566 U.S. –, slip op. at 15
(quoting Landgraf v. USI Film Products,
511 U.S. 244, 269-70 (1994)).
While Congress has the authority to apply such laws retroactively,
it must unambiguously express its intent to do so. Vartelas, 566 U.S. –, slip op. at 7 (discussing Landgraf, 511 U.S. at 263). Unlike other
IIRIRA provisions (such as the aggravated felony amendments), which “expressly
direct retroactive application,” Congress expressed no such intent regarding
the new LPR admission requirement. Vartelas,
566 U.S. –, slip op. at 8.
Many thousands of LPRs leave the USA every year without giving a
moment’s notice to the immigration consequences of a decades-old conviction.
The federal government’s recent push to prioritize removal of “criminal aliens”
has resulted in many longtime LPRs returning to the USA after a vacation or
business trip abroad only to be placed in removal proceedings under INA §
101(a)(13)(C)(V). Vartelas terminates
that power with regard to pre-IIRIRA convictions.