Argument preview: The rights of lawful permanent residents returning to the U.S.
The Supreme Court soon will again turn its gaze to a complex immigration case involving a long-term lawful permanent resident of the United States facing deportation. Just last December, the Court in Judulang v. Holder rejected as arbitrary and capricious the ruling of the Board of Immigration Appeals that a lawful permanent resident convicted of a crime was not eligible for relief from deportation. On January 18, in Vartelas v. Holder the Court will hear oral arguments in a removal case that raises an issue that has confounded the courts, namely, how the immigration laws and the U.S. Constitution apply to lawful permanent residents (i.e., legal immigrants) who leave the United States and then return.
The Immigration and Nationality Act of 1952 (INA) is this nation’s omnibus immigration law. In 1996, Congress, as it has repeatedly over the years, amended the INA and enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), a piece of enforcement-oriented immigration legislation. Through a variety of mechanisms, the Act seeks to facilitate the removal of “criminal aliens.” The operation of IIRIRA has contributed to the record number of removals of non-citizens by the U.S. government in recent years (as well as large numbers of appeals of removal orders).
As a legal matter, under both the INA and the Constitution, the procedure, rights, and available relief historically have turned on whether a non-citizen was seeking entry into the United States or facing removal from the country. Before 1996, the Supreme Court’s precedent was relatively clear. Non-citizens denied entry into the country were subject to “exclusion” proceedings with no, or limited, due process rights. The Supreme Court has held that the U.S. government has “plenary power” over the rules and procedures for admission of non-citizens to the United States. In contrast, non-citizens facing deportation from the United States were placed in “deportation” proceedings, where they possessed a much fuller panoply of due process protections. The differential legal treatment was justified by the fact that non-citizens facing removal ordinarily have deeper family, community, and other ties with the United States than non-citizens seeking admission into the country.
In 1996, Congress collapsed exclusion and deportation proceedings into one “removal hearing.” However, that change in the law did not alter the differential constitutional protections available under relevant Supreme Court precedent depending on whether the non-citizens were seeking entry into or, alternatively, facing removal from the United States.
The courts, including the Supreme Court, when addressing the case of a noncitizen who fails to fit neatly into the established legal categories, such as when a lawful permanent resident who has lived in the United States for many years — and thus has significant community ties – travels outside the country and seeks to return. Given the ties that these lawful permanent residents generally have to the community, courts frequently have been reluctant to impose on them the stricter rules applicable to initial entrants.
In Rosenberg v. Fleuti (1963) a lawful permanent resident from Switzerland visited Mexico for a few hours and, upon his return, was charged with being excludable because he had committed a “crime involving moral turpitude” before he left the country; the U.S. government later claimed that he was also excludable because he was homosexual. To avoid a harsh result, as well as to avoid deciding difficult constitutional questions, the Supreme Court interpreted the immigration statute to mean that Fleuti’s “innocent, casual, and brief” departure from the United States was not “meaningfully interruptive” of his lawful permanent residence and thus he was not seeking “entry” (and thus admission) into the country. Under the Court’s reasoning, Fleuti therefore could not be denied admission on the exclusion grounds applicable to initial entrants.
The Case of Panagis Vartelas
In 1979, Panagis Vartelas, a native of Greece, came to the United States on a student visa to attend Queens College. After marrying a U.S. citizen in 1985, he became a lawful permanent resident in 1989. Vartelas and his wife, who later divorced, had two U.S. citizen children. He owned an auto body shop in Queens, New York. After his arrest on charges that he had assisted his business partner in preparing counterfeit traveler’s checks – conduct for which he did not receive any economic benefit, he pleaded guilty in 1994 to conspiring to make or possess a counterfeit security in violation of federal law and was sentenced to imprisonment for four months.
In 1996, Congress added Section 101(a)(13)(C)(v) to the INA. That statute provides that a lawful permanent resident who returns from a trip out of the United States “shall not be regarded as seeking an admission” unless he “has committed an offense identified in” Section 212(a)(2) of the INA, which includes crimes involving moral turpitude. The change in the law helped lawful permanent residents without criminal convictions who traveled abroad because it did not treat them as seeking admission (and thus like initial entrants subject to the inadmissibility grounds). The amendment was no help to Vartelas, however. Because counterfeiting is a crime of moral turpitude, a ground for inadmissibility, Vartelas was inadmissible under Section 101(a)(13)(C)(v) of the INA.
On January 29, 2003, Vartelas returned to the United States from a week-long trip to Greece, where he had gone to assist his parents with their business. An immigration inspector questioned him about his 1994 criminal conviction. Vartelas later was served with a notice to appear for removal proceedings on the ground that he was inadmissible as an alien who sought entry into the United States after being convicted of a crime of moral turpitude. Under the applicable law, he would not have been subject to deportation if he had remained in the United States and had not left the country to visit his parents in Greece.
The immigration court ordered Vartelas removed from the United States. The Board of Immigration Appeals (BIA) agreed. The Second Circuit denied the petition for review of the BIA ruling. The court of appeals agreed with the Board that the 1996 amendments had abrogated the Court’s holding in Rosenberg v. Fleuti. The Second Circuit further concluded that application of Section 101(a)(13)(C) (v) to Vartelas’s 2003 trip to Greece was not impermissibly retroactive. In so doing, the court of appeals recognized that its holding was contrary to that of the Fourth and Ninth Circuits.
Identifying the split in the circuits on the question, Vartelas filed a pro se petition for writ of certiorari in the Supreme Court. The U.S. government opposed the petition: in addition to defending the Second Circuit’s application of the statute, it argued that “the issue is of limited significance, as it involves the applicability of a statutory repeal and amendment that occurred more than 15 years ago and has precipitated only a handful of cases.” The Court granted certiorari.
In his brief on the merits, Vartelas argues that the application of the 1996 amendment to his case is unconstitutionally retroactive under the Court’s 1996 decision in Landsgraf v. USI Film Products . Assuming that the 1996 amendments abrogate the Court’s holding in Rosenberg v. Fleuti, he challenges the Second Circuit’s retroactive application of Section 101(a)(13)(C)(v). If the Court concludes that the section does not apply, Vartelas can then argue under Rosenberg v. Fleuti that his trip to Greece was not “meaningfully interruptive” of his presence in the United States, such that he would not be subject to the inadmissibility grounds.
Petitioner contends that, under the test articulated by the Court in Landsgraf, Section 101(a)(13)(C)(v) should not be applied retroactively to lawful permanent residents, like him, who committed offenses before 1996. First, Congress did not clearly state that the statutory provision applies retroactively. Second, if applied to lawful permanent residents who committed offenses before its enactment, Section 101(a)(13)(C)(v) would impose a substantial new penalty upon them for their pre-1996 offenses that would be contrary to their reasonable reliance on the state of the law when they pleaded guilty.
Relying on the language of Section 101(A)(13)(C)(v), the U.S. government contends that it means that a lawful permanent resident who has left the country and returns is an applicant for “admission” if he or she has “committed an offense” that would constitute grounds for inadmissibility. Vartelas’s criminal conviction thus falls within the statute, and he can be denied admission. The Second Circuit correctly held, the government argues, that the 1996 amendment applies to all returning aliens, including those convicted of crimes before 1996.
Moreover, it contends, the Landsgraf test does not apply. First, the statute applies only to non-citizens who engage in conduct – travel outside the United States – after the passage of the new law. The government further emphasizes that non-citizens have no vested right to enter or reenter the United States, and “Congress possesses plenary power to regulate immigration by preventing aliens from entering the United States.” The government bolsters it argument by contending that non-citizens could not have reasonably relied on pre-1996 law in deciding to commit crimes.
Possible implications of Vartelas v. Holder
This case requires the Supreme Court to return to the task of clarifying an incredibly complex immigration statute. As it has in recent removal cases, the Court will likely limit itself to the interpretation and application of the 1996 amendment to the Immigration and Nationality Act, the issue that is squarely before it. Along those lines, the Court earlier this Term in Judulang v. Holder (2011) grappled with a slightly different question but one that arose as a result of the historical distinction in U.S. immigration law between exclusion and deportation proceedings.
The Court’s decision in the case should shed light on the way that the law treats lawful permanent residents returning from trips outside the United States. My best guess, however, is that the Court will not address broad questions of the constitutional rights of lawful permanent residents returning to the United States. In addition, because the parties do not dispute the issue (and as one amicus brief supporting Vartelas suggests), the Court need not address the continuing vitality of Rosenberg v. Fleuti, which through innovative statutory analysis avoided difficult constitutional questions concerning the rights of lawful permanent residents returning to the United States.
The case also highlights more general issues surrounding U.S. immigration law. The immigration laws and the courts continue to grapple with difficult constitutional and statutory issues as the law increasingly moved toward facilitating removal of “criminal aliens.” Time and time again, the legal issues raised by efforts to remove long-term lawful permanent residents, like Panagis Vartelas, have bedeviled the courts.