Posted on January 23, 2012 at 5:33 pm by Kevin Johnson
On January 18, the Supreme Court heard oral arguments in Vartelas v. Holder, a case raising the question whether the U.S. government can, based on a 1996 amendment to the immigration laws, bar a lawful permanent resident from returning to the United States after a short trip to Greece to visit his parents. The central issue in the case is whether the 1996 amendment can be applied retroactively to a pre-1996 criminal conviction. For the argument preview, see here. Here is the transcript of the argument.
Criminal law expert Professor Stephanos Bibas of the University of Pennsylvania Law School’s Supreme Court Clinic argued the case for the petitioner. Professor Bibas was co-counsel on the landmark decision in Padilla v. Kentucky (2010), in which the Court held that an ineffective assistance of counsel claim could be based on an attorney’s failure to inform a noncitizen of the immigration consequences of his criminal conviction. Assistant to the Solicitor General Eric Miller argued the case for the United States.
The arguments focused on the retroactive application of Immigration & Nationality Act § 101(a)(13)(C)(v), which was added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and defines an “admission” into the United States. Under the new sub-section, the U.S. government sought to bar Vartelas from returning to the United States based on his conviction for a “crime involving moral turpitude.” Importantly, Vartelas would not have been subject to deportation if he had not left the United States. Moreover, before 1996, he probably would have prevailed in returning unimpeded from the short trip.
In INS v. St. Cyr (2001), the Supreme Court held that the repeal of a form of relief — known as Section 212(c) relief — from removal by the 1996 immigration reforms could not be applied retroactively to bar a legal immigrant from seeking such relief for which he would have been eligible when he entered the plea. In its analysis, the Court weighed heavily the immigrant’s reliance on the availability of Section 212(c) relief at the time he entered the plea. Much of the questioning of the Justices at the oral argument in this case concerned the application of St. Cyr – for example, Chief Justice Roberts specifically asked Miller how St. Cyr was distinguishable from this case.
Early in the argument, Chief Justice Roberts expressed the opinion that the time to look at reliance on the law was at the time of the commission of the criminal offense. Petitioner’s counsel, however, seemed to persuade the Court that, under the circumstances of this case, the appropriate time to evaluate reliance was at the time of the plea, when the immigrant defendant must weigh all of the ramifications (including the possibility of visiting family and friends in their native country) of a criminal conviction.
Several Justices asked questions about whether, when he entered the plea in 1994, Vartelas would have relied on the then-current state of the law concerning travel outside the United States. The Justices pressed Miller on whether an attorney would have advised Vartelas at the time of the plea that he could leave and return to the United States.
At various times in the argument, the complexities of the statutory provision at issue seemed to befuddle the Justices. Justice Ginsburg questioned Miller about why the statute focused on entry into the United States when Congress’s real concern was with noncitizens with criminal convictions. Justices Ginsburg and Sotomayor emphasized that the 1996 amendment added punishment to an immigrant’s criminal conviction, imposing a new “disability” on the noncitizen, and that the U.S. government sought to impose this penalty retroactively.
Chief Justice Roberts seemed genuinely perplexed by the statutory language, which is a common reaction of many judges to the provisions of the Immigration and Nationality Act. He grappled with why Congress would not admit a noncitizen for a crime but punished a lawful permanent resident convicted of that crime by requiring that he remain in the country. The Chief also asked Miller to offer a policy justification for barring a lawful permanent resident from leaving the country for a few days to attend a family member’s funeral.
It is hazardous to speculate about the outcome of a case based on oral arguments. Nonetheless, here are my conjectures. Justices Scalia and Alito generally seemed unsympathetic to the petitioner’s arguments. As is his custom, Justice Thomas did not ask a question; Justice Kennedy only chimed in briefly and it was hard to read where his leanings were. Justices Ginsburg, Breyer, Sotomayor, and Kagan appeared concerned that Vartelas might well have considered his right to travel under the law in 1996 when he accepted the plea. Finding the statute and its justification somewhat mystifying, Chief Justice Roberts seemed unsympathetic to the U.S. government’s positions. I would say that Vartelas stands a fair chance of prevailing on the retroactivity argument.
In deciding the case, the Court seems unlikely to address any questions broader than the application of the 1996 statutory amendment. Because the issue rarely was mentioned in the arguments, and the parties do not contest the issue, it seems unlikely that the Court will address whether Immigration and Nationality Act § 101(a)(13)(C)(v) overruled Rosenberg v. Fleuti (1963), which held that an “innocent, casual, and brief” trip from the country did not subject the returning lawful permanent resident to treatment as seeking admission. Nor does it appear the Court will address more broadly the constitutional rights of lawful permanent residents. Rather, like Judulang v. Holder decided in December, the Court is likely to decide Vartelas v. Holder on relatively narrow statutory grounds.