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Monday, July 22, 2024 | Back issues
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Justices Curb Strict Law on Alien’s Travel Abroad

(CN) - The Supreme Court on Wednesday refused to retroactively apply a federal law that allows the government to remove lawful permanent residents with certain criminal convictions if they leave the United States.

Panagis Vartelas pleaded guilty to a conspiracy charge in 1994, five years after he became a lawful permanent resident of the United States.

Under immigration law at the time, aliens like Vartelas could travel abroad for brief periods without jeopardizing their legal status.

But that possibility change in 1996 with passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Section 1101(a)(13)(C)(v) of the law denied re-entry to lawful permanent residents who had a conviction like that of Vartelas and traveled abroad, even briefly.

Though Vartelas had traveled to his homeland of Greece to visit his aging parents regularly in the intervening years, he never had a problem re-entering the United States. After one such trip in 2003, however, U.S. immigration authorities treated him as an inadmissible alien upon his return and placed him in removal proceedings.

An immigration judge ordered Vartelas removed to Greece, and the Board of Immigration Appeals affirmed, as did the 2nd Circuit.

But the 4th and 9th Circuits have not extended the IIRIRA provision to aliens like Vartelas who were convicted prior to the law's enactment.

The Supreme Court reversed Wednesday.

"Guided by the deeply rooted presumption against retroactive legislation, we hold that §1101(a)(13)(C)(v) does not apply to Vartelas' conviction," Justice Ruth Bader Ginsburg wrote for the majority. "The impact of Vartelas' brief travel abroad on his per­manent resident status is therefore determined not by IIRIRA, but by the legal regime in force at the time of his conviction."

The court's conservative justices said the time of travel is the important date to consider.

The operative provision of this text - the provision that specifies the act that it prohibits or prescribes - says that lawful perma­nent residents convicted of offenses similar to Vartelas's must seek formal 'admission' before they return to the United States from abroad," according to the dissent, authored by Justice Antonin Scalia and joined by Justices Clarence Thomas and Samuel Alito. "Since Vartelas returned to the United States after the statute's effective date, the appli­cation of that text to his reentry does not give the statute a retroactive effect."

"Section 1101(a)(13)(C)(v) thus has no retroactive effect on Vartelas because the reference point here - Vartelas's readmission to the United States after a trip abroad - occurred years after the statute's effective date," Scalia added. "Although Vartelas cannot change the fact of his prior conviction, he could have avoided entirely the consequences o f§1101(a)(13)(C)(v) by simply remaining in the United States or, having left, remaining in Greece. That §1101(a)(13)(C)(v) had no effect on Vartelas until he per­formed a post-enactment activity is a clear indication that the statute's application is purely prospective."

The dissent accuses the majority of using "circular logic" and ignoring "inconvenient facts" to arrive at the desired decision.

"In disregard of a federal statute, convicted crimi­nal Vartelas repeatedly traveled to and from Greece without ever seeking formal admission at this country's borders," Scalia wrote. "When he was finally unlucky enough to be ap­prehended, and sought discretionary relief from removal, ... the immigration judge denying his application found that Vartelas had made frequent trips to Greece and had remained there for long periods of time, that he was 'a serious tax evader,' that he had offered testimony that was 'close to incredible,' and that he had not shown hard­ship to himself or his estranged wife and children should he be removed. In decrying the 'harsh penalty' imposed by this statute on Vartelas, the court ignores those inconvenient facts."

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