U.S. Supreme Court to decide if travel ban applies retroactively

By Kimberly Atkins

Dolan Media Newswires

BOSTON, MA--The U.S. Supreme Court will soon decide whether a federal immigration law that prevents lawful permanent residents who have been convicted of certain crimes from traveling abroad without being denied reentry applies to convictions that occurred before the law was passed.

The case, Vartelas v. Holder, stems from the 1994 guilty plea by Panagis Martelas for conspiracy to manufacture and sell counterfeit checks.

In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was passed. That law allows immigration officials to deny reentry to lawful permanent residents who have been convicted of certain crimes and leave the country even on a brief trip.

In 2003, Vartelas took a weeklong trip to Greece and was denied reentry based on his conviction.

After an immigration judge ordered him removed to Greece, he appealed to the Board of Immigration Appeals, arguing ineffective assistance of counsel and objecting to the retroactive application of the statute. His appeal was rejected.

The 2nd Circuit held that he was not prejudiced by ineffective assistance of counsel. On the issue of retroactivity, the court found that because Vartelas did not rely on previous immigration law before making his guilty plea, he could not object to the retroactive application of the immigration law.

The U.S. Supreme Court granted certiorari.

Retroactive law?

Stephanos Bibas, a professor at the University of Pennsylvania Law School, argued that applying the provision to convictions predating the law would lead to unduly harsh consequences that Congress never intended.

"Covered lawful permanent residents could not visit their parents abroad without being forced to abandon their children here," Bibas said. "They would be removed from the country or else confined here. Either way, they would lose an ability they had under pre-IIRIRA law based on pre-IIRIRA offenses."

Chief Justice John G. Roberts wondered how those who have been convicted after 1996 are any different.

"So your expectations argument is that somebody trying to figure out whether to go ahead and rob the bank is going to say, well, if I am caught and found guilty, I won't be able to take temporary trips abroad, so I'm not going to rob the bank?" Roberts asked.

"The right time to look at expectations is the moment before the law is enacted," Bibas said.

But Justice Antonin Scalia noted that the conduct being regulated by the law - travel outside of the country - applies prospectively. Just because the applicability may be triggered by past acts doesn't make it retroactive.

"There are often adverse effects upon activities that occurred before the statute was enacted, but we still regard the statute as prospective only and therefore not subject to special rules for people who are affected," Scalia said.

"Here it is directly, expressly tied to a past conduct," Bibas said. "It's a precondition. It's not even a piece of evidence or something one can draw an inference from."

Implicating Padilla

Eric D. Miller, assistant to the solicitor general, argued that the statute is not retroactive.

"The statute sets out a comprehensive scheme for determining when an alien arriving at the border seeking to come into the United States should be regarded as seeking an admission," Miller said. "So that's conduct that takes place in the future."

Roberts wondered if the punishment for being convicted of a crime is being kept out of the country, wasn't the effect of the law keeping residents from traveling at all?

"It seems very odd to say: 'We are going to show you how much we don't want you here; we are not going to let you leave,'" Roberts said.

Miller said the law was meant to restrict border crossing, regardless of the direction.

"The history shows that it's the crossing the border that has always been regarded as a legally significant event," Miller said.

Justice Ruth Bader Ginsburg noted that under the government's approach, even attorneys may be caught off guard.

"We have held that an immigration lawyer is obliged to tell a defendant facing a criminal charge what the legal consequences will be," Ginsburg said, referring to the holding in Padilla v. Kentucky. "And at the time of the plea in this case, the attorney had said, 'Once you've served your time, you will be able to take brief casual trips.'"

"I think the lawyer should have said: 'By pleading guilty, you are making yourself inadmissible to the United States,'" Miller said.

Justice Stephen Breyer noted that wasn't the law at the time of the conviction, so "the answer to the question would have been: 'Yes, you can make trips abroad,' wouldn't it?"

"I think [the lawyer] might also have said, 'Under a current law, you will not be regarded as seeking an admission if you take a brief, casual and innocent trip. But the change in the law [could change that].'"

A decision is expected later this term.

Entire contents copyrighted © 2012 by The Dolan Company.

Published: Thu, Feb 16, 2012

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