Vartelas v. Holder

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statements made by the Board of Immigration Appeals (“BIA”) suggest that, as amended, § 1101(a)(13)(C)(v) effectively repealed the Fleuti rule.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.