Supreme Court rules against retroactive application of immigration travel law

[JURIST] The US Supreme Court [official website] ruled 6-3 [opinion, PDF] Wednesday in Vartelas v. Holder [JURIST report] that the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) [text], a law designed to deny re-entry to immigrants who have committed certain crimes, cannot be applied retroactively to lawful immigrants if the date of his/her conviction occurred before the IIRIRA passed. The IIRIRA made it legal to deny a permanent resident reentry if he has committed a crime of "moral turpitude" in the past. The court held that under the "entry" standard of Rosenberg v. Fleuti [opinion text], which was previously the primary standard for immigration re-entry, that a permanent legal resident can make "innocent, casual, and brief" trips abroad without being denied re-entry if the law did not exist when they were convicted of the crime. Justice Ruth Bader Ginsburg wrote for the majority:

Vartelas presents a firm case for application of the antiretroactivity principle. Neither his sentence, nor the immigration law in effect when he was convicted and sentenced, blocked him from occasional visits to his parents in Greece. Current [the IIRIRA], if applied to him, would thus attach "a new disability" to conduct over and done well before the provision's enactment. Beyond genuine doubt, we note, the restraint [the IIRIRA] places on lawful permanent residents like Vartelas ranks as a "new disability." Once able to journey abroad to fulfill religious obligations, attend funerals and weddings of family members, tend to vital financial interests, or respond to family emergencies, permanent residents situated as Vartelas is now face potential banishment. We have several times recognized the severity of that sanction.
Justice Antonin Scalia led the dissent, which argued that the court should have deferred to not applying a statute retroactively only under rare circumstances: "In determining whether a statute applies retroactively, we should concern ourselves with the statute's actual operation on regulated parties, not with retroactivity as an abstract concept or as a substitute for fairness concerns."

Panagis Vartelas, a lawful resident in the US for 24 years, pleaded guilty to a crime before the law was ratified and then left the US briefly and was denied reentry. JURIST Guest Columnists Ira Kurzban and Christopher Rickerd of Kurzban Kurzban Weinger Tetzeli & Pratt P.A. argued that the Supreme Court should not retroactively apply certain immigration laws when deciding Vartelas in Retroactive Application of Immigration Law is Impermissible [JURIST comment]. They agreed with the majority that retroactive application was inappropriate because such a ruling would impose a new disability on the settled expectation of free travel by lawfully permanent residents.

 

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