Tomorrow’s Argument in Fernandez-Vargas v. Gonzales

By Amy Howe
on Mar 21, 2006 at 9:19 pm

Note: This post was authored by Michael Kaufman, a second-year student at Stanford Law School.

Tomorrow, the Court will revisit the murky waters of the retroactive application of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) when it hears arguments in Fernandez-Vargas v. Gonzales. The case presents the question of whether and under what circumstances an alien who reentered the U.S. illegally before the effective date of IIRIRA is barred from applying for relief from removal under Section 241(a)(5) of the Act. Petitioner Fernandez-Vargas was deported in 1981 and reentered the U.S. the next year without inspection. In 2003 he was in the process of applying for adjustment of status when he was arrested and, pursuant to Section 241(a)(5), his previous order of removal was reinstated. Under pre-IIRIRA law, Fernandez-Vargas would have been eligible to apply for adjustment of status notwithstanding his previous order of deportation. But under Section 241(a)(5), as amended by IIRIRA, if an alien is found to have illegally reentered the U.S. “the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this Act, and the alien shall be removed under the prior order any time after the reentry.”

David M. Gossett of Mayer, Brown, Rowe & Maw LLP will argue the case for petitioner. Assistant to the Solicitor General Sri Srinivasan will argue the case on behalf of the United States. The brief for petitioner can be found here, the brief for respondent here, and the brief for amicus American Immigration Law Foundation et al. here.

Fernandez-Vargas is a native and citizen of Mexico. During the 1970s and early 1980s he illegally entered and was deported from the United States on several occasions, most recently in 1981. Shortly thereafter, he reentered the United States without inspection and remained in the U.S. until his removal in 2004. During his time in the U.S., Fernandez-Vargas resided primarily in Utah, worked as a truck driver, established his own trucking business, and had a child with his long-time partner, Rita Fernandez, a U.S. citizen. Fernandez-Vargas and Mrs. Fernandez married in 2001; Mrs. Fernandez subsequently filed an application for an immediate-relative visa on Fernandez-Vargas’s behalf, and he filed an application to adjust status. At an interview regarding his application in 2003, Fernandez-Vargas was arrested by an Immigration and Customs Enforcement (ICE) officer on the ground that his 1981 deportation order was subject to reinstatement, and he was therefore ineligible for adjustment pursuant to Section 241(a)(5). After a year and a half in detention, Fernandez-Vargas was removed to Juarez, Mexico in 2004.

Fernandez-Vargas sought review of ICE’s decision in the U.S. Court of Appeals for the Tenth Circuit. In an opinion by Judge McConnell, the Tenth Circuit held that Fernandez-Vargas was not eligible for adjustment of status under Section 241(a)(5). The court applied the two-step retroactivity framework established by the Supreme Court in Landgraf v. USI Film Products in 1994, asking (1) whether Congress has prescribed the temporal reach of Section 241, and if not, (2) whether application of Section 241(a)(5) to Fernandez-Vargas would have an impermissible retroactive effect. The court sided with the majority of circuits in finding that Section 241(a)(5) is not limited to aliens who have reentered the U.S. after IIRIRA’s effective date. It reasoned that under the first step of Landgraf analysis, “Congress’s failure to expressly state that the reinstatement statute applied to aliens who re-entered the country prior to its effective date, does not mean Congress therefore unambiguously intended for the statute not to apply to these aliens.” Proceeding to the second stage of Landgraf analysis, the court held that Section 241(a)(5) did not have an impermissible retroactive effect because Fernandez-Vargas did not have a protectable expectation of being able to adjust status. It distinguished the decisions of other courts of appeals that had held Section 241 to be impermissibly retroactive on the ground that Fernandez-Vargas had both become eligible (by marrying a U.S. citizen) and applied for adjustment after IIRIRA went into effect, and that it “would be a step too far to hold that simply by re-entering the country, Fernandez created a settled expectation that if he did marry a U.S. citizen, he might then be able to adjust his status and defend against removal.”

While Section 241(a)(5) does not explicitly specify its temporal reach, Fernandez-Vargas points to several reasons to construe it prospectively: first, the statute’s predecessor explicitly provided that it applied to aliens who had reentered the U.S. before and after its effective date; second, an early Senate version of Section 241(a)(5) contained explicit retroactive language that was eliminated in conference; third, other provisions in IIRIRA explicitly provide for retroactive application; fourth, Congress is presumed to know the legal background against which it legislates, in this case, that the presumption against retroactive application would lead courts to interpret Section 241(a)(5) prospectively; and finally, the harsh consequences of deportation require the “longstanding principle” that any ambiguity in a removal statute should be construed in favor of the alien. In sum, Fernandez-Vargas maintains, the statutory analysis sufficiently establishes Congress’s intent that Section 241(a)(5) apply only to aliens who reentered after IIRIRA’s effective date. Fernandez-Vargas asks the Court to correct the holding of the Tenth Circuit’s (and several other Courts of Appeals) turning the presumption against retroactivity “on its head” by requiring unambiguous language to apply Section 241(a)(5) prospectively.

Should the Court find that Congress has not prescribed Section 241(a)(5)’s temporal reach, Fernandez-Vargas argues, Section 241(a)(5) cannot be applied to him because, under the second step of Landgraf analysis, it would increase liability for past conduct and have an impermissible retroactive effect. Section 241(a)(5) eliminated several avenues of relief – including suspension of deportation, adjustment of status and voluntary departure – for which Fernandez-Vargas would have been eligible under pre-IIRIRA law. The availability of such relief, petitioner contends, would reasonably influence the decision of aliens like Fernandez-Vargas who illegally immigrate to the United States and establish a business and family. Moreover, application of Section 241(a)(5) to Fernandez-Vargas would be inequitable and ironic given that the aliens found deportable on the basis of aggravated felonies committed in the U.S. are eligible for discretionary relief (under the Court’s 2001 decision in St. Cyr) that would be denied to aliens whose only crime was entering the U.S.

The government’s basic position is that the case presents no retroactivity problem at all – Section 241(a)(5) is concerned with the facilitation of removal, not illegal reentry, and is therefore inherently forward-looking. The government notes that Section 241(a)(5) was passed as part of a section of IIRIRA dealing with the process of removal; the criminal and civil penalties for reentry, by contrast, concern the primary conduct of reentry, and accordingly, were enacted in a separate section of IIRIRA. Additionally, Congress explicitly exempted certain categories of aliens (under the LIFE amendments and NACARA) from the operation of Section 241(a)(5); if Section 241(a)(5) were intended to apply only prospectively, the government argues, there would be no need for these exemptions.

The government strongly contests the petitioner’s characterization of IIRIRA’s legislative history, arguing that the retroactivity language in Section 241(a)(5)’s predecessor and an early Senate version of IIRIRA in fact pertained to the initial date of deportation, not reentry. Should the Court reach the second step of Landgraf analysis, the government asserts that application of Section 241(a)(5) to Fernandez-Vargas is not impermissibly retroactive because an “alien who illegally reentered the country could have no legitimate expectation of being permitted to remain.” Because the retroactivity analysis looks only to the “completed act” of reentry, Fernandez-Vargas cannot rely on events that transpired after his illegal reentry (his long period of residence and marriage) to establish his reliance on discretionary relief.

Several immigrants’ rights groups have filed an amicus brief supporting the petitioner. The amicus brief largely rehashes the arguments made by the petitioner, emphasizing the multiple avenues of relief from removal that become unavailable to aliens under Section 241(a)(5).