Immigration

• Author: International Law Group
• Pages: 111-113

Page 111

For a substantial period of time, U. S. Immigration law has provided that the Immigration & Naturalization Service (INS) may revive an order for removing an alien present unlawfully if he leaves the U. S. and unlawfully reenters. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the Immigration and Nationality Act (INA) to expand the class of illegal re-entrants whose orders may be reinstated and to restrict the range of relief available from a removal order.

In 1982, Humberto Fernandez-Vargas (Petitioner), a Mexican citizen, unlawfully came back into the United States after having been deported. Undiscovered for over two decades spent in Utah, Petitioner fathered a son in 1989 and, two years later, married the boy's mother, a U. S. citizen. He also started a trucking business. After Petitioner applied to change his status to that of a lawful permanent resident, the Government had his 1981 deportation order reinstated under ß 241(a)(5).

Petitioner then asked the Tenth Circuit to review the reinstatement order. To that Court, he argued, fi rst, that ß 241(a)(5) did not preclude his application for adjustment of status because he had unlawfully reentered the country before IIRIRA's effective date. Moreover, he urged that ß 241(a)(5) would be unacceptably retroactive if construed to bar his adjustment application.

The Court of Appeals, however, ruled that ß 241(a)(5) did defeat his application and relied on Landgraf v. USI Film Products, 511 U.S. 244 (1994) in deciding that IIRIRA had no impermissibly retroactive effect in his case.

The U.S. Supreme Court granted certiorari to resolve a split among the Circuits over whether to apply ß 241(a)(5) to an alien who reentered illegally before IIRIRA's effective date. On June 22, 2006, the Court affirms in an 8 to 1 split. It holds (1) that ß 241(a)(5) does apply to those who reentered the U. S. before IIRIRA's effective date and (2) that this reading does not retroactively impair any right of, or place any onus on, the Petitioner, the continuing INA transgressor before the Court.

The Majority opinion then outlines the Court's general approach to retroactivity of statutes. "Statutes are disfavored as retroactive when theirPage 112 application 'would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.' Landgraf, supra, at 280. The modern law...