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

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 Section 241(a)(5).

Petitioner then asked the Tenth Circuit to review the reinstatement order. To that Court, he argued, first, that Section 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 Section 241(a)(5) would be unacceptably retroactive if construed to bar his adjustment application.

The Court of Appeals, however, ruled that Section 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 Section 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 Section 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 their 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 thus follows Justice Story's definition of a retroactive statute, as 'tak[ing] away or impair[ing] vested rights acquired under existing laws, or creat[ing] a new obligation, impos[ing] a new duty, or attach[ing] a new disability, in respect to transactions or considerations already past,' Society for the Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (No. 13,156) (CCNH 1814).

"Accordingly, it has become 'a rule of general application' that 'a statute shall not be given retroactive effect unless such construction is required by explicit language or by necessary implication.' United States v. St. Louis, S. F. & T. R. Co., 270 U.S. 1, 3 (1926) (opinion for the Court by Brandeis, J.)." [Slip op. 5]

"Needless to say, Congress did not complement the new version of Section 241(a)(5) with any clause expressly dealing with individuals who illegally reentered the country before IIRIRA's April 1, 1997, effective date, either including them within Section 241(a)(5)'s ambit or excluding them from it."

"[Petitioner] argues instead on the basis of the generally available interpretive rule of negative implication, when he draws attention to language governing temporal reach contained in the old reinstatement provision, but missing from the current one. Section 242(f) applied to 'any alien [who] has unlawfully reentered the United States after having previously departed or been deported pursuant to an order of deportation, whether before or after June 27, 1952, on any ground described in ... subsection (e).' 8 U.S.C. Section 1252(f) (1994 ed.)."

"According to [Petitioner], since that before-or-after clause made it clear that the statute applied to aliens who reentered before the enactment date of the earlier version, its elimination in the current iteration shows that Congress no longer meant to cover pre-enactment re-entrants. [Cite]. But the clues are not that simple."

"If, moreover, we indulged any suggestion that omitting the clause showed an intent to apply Section 241(a)(5) only to deportations or departures after IIRIRA's effective date, the result would be a very strange one: it would exempt from the new reinstatement provision's coverage anyone who departed before IIRIRA's effective date but reentered after it."

"The point of the statute's revision, however, was obviously to expand the scope of the reinstatement authority and invest it with something closer to finality, and it would make no sense to infer that Congress meant to except the broad class of persons who had departed before the time of enactment but who might return illegally at some point in the future." [Slip op. 6]

"This facial reading is confirmed by two features of IIRIRA, not previously discussed, that describe the conduct to which Section 241(a)(5) applies, and show that the application suffers from no retroactivity in denying [Petitioner] the opportunity for adjustment of status as the spouse of a citizen of the United States."

"One is in the text of that provision itself, showing that it applies to [Petitioner] today not because he reentered in 1982 or at any other particular time, but because he chose to remain after the new statute became effective. The second is the provision setting IIRIRA's effective date, Section 309(a), 110 Stat. 3009-625, which shows that [Petitioner] had an ample warning of the coming change in the law, but chose to remain until the old regime expired and Section 241(a)(5) took its place." [Slip op. 8]

"That in itself is enough to explain that [Petitioner] has no retroactivity claim based on a new disability consequent to a completed act, but in fact his position is weaker still. For [Petitioner] could not only have chosen to end his continuing violation and his exposure to the less favorable law, he even had an ample warning that the new law could be applied to him and ample opportunity to avoid that very possibility by leaving the country and ending his violation in the period between enactment of Section 241(a)(5) and its effective date. IRRIRA became law on September 30, 1996, but it became effective and enforceable only on 'the first day of the first month beginning more than 180 days after' IIRIRA's enactment, that is, April 1, 1997. Section 309(a), 110 Stat. 3009-625."

"Unlawful alien re-entrants like [Petitioner] thus had the advantage of a grace period between the unequivocal warning that a tougher removal regime lay ahead and actual imposition of the less opportune terms of the new law. In that stretch of six months, Fernandez-Vargas could have ended his illegal presence and potential exposure to the coming law by crossing back into Mexico."

"For that matter, he could have married the mother of his son and applied for adjustment of status during that period, in which case he would at least have had a claim (about which we express no opinion) that proven reliance on the old law should be honored by applying the presumption against retroactivity."

"[Petitioner] did not, however, take advantage of the statutory warning, but augmented his past 15 years of unlawful presence by remaining in the country into the future subject to the new law, whose applicability thus turned, not on the completed act of reentry, but on a failure to take timely action that would have avoided application of the new law altogether."

"To be sure, a choice to avoid the new law before its effective date or to end the continuing violation thereafter would have come at a high personal price, for [Petitioner] would have had to leave a business and a family he had established during his illegal residence. But the branch of retroactivity law that concerns us here is meant to avoid new burdens imposed on completed acts, not all difficult choices occasioned by new law."

"What [Petitioner] complains of is the application of new law to continuously illegal action within his control both before and after the new law took effect. He claims a right to continue illegal conduct indefinitely under the terms on which it began, an entitlement of legal stasis for those whose lawbreaking is continuous. But '[i]f every time a man relied on existing law in arranging his affairs, he were made secure against any change in legal rules, the whole body of our law would be ossified forever.' L. Fuller, The Morality of Law 60 (1964)..." [Slip op. 9].

Citation: Fernandez-Vargas v. Gonzales, 2006 WL 1698970 ( Sup. Ct. June 22).