Fernandez-Vargas v. Gonzales

PETITIONER: Humberto Fernandez-Vargas
RESPONDENT: Alberto R. Gonzales, Attorney General
LOCATION: Board of Immigration Appeals

DOCKET NO.: 04-1376
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 548 US 30 (2006)
GRANTED: Oct 31, 2005
ARGUED: Mar 22, 2006
DECIDED: Jun 22, 2006

David M. Gossett - argued the cause for Petitioner
Sri Srinivasan - argued the cause for Respondent

Facts of the case

Humberto Fernandez-Vargas entered the United States illegally and was deported in 1981. He illegally re-entered in 1982 and lived in the U.S. until 2001, when he married a U.S. citizen and applied to adjust his status to permanent resident. While applying, Fernandez-Vargas was arrested and eventually deported pursuant to Section 241(a)(5) (the "reinstatement statute") of the Immigration and Nationality Act (INA). The reinstatement statute, which became effective in 1997, allows prior deportation orders to be reinstated against aliens who re-enter the country illegally, and denies those aliens any form of relief under the INA. Fernandez-Vargas petitioned the Tenth Circuit Court of Appeals for review, arguing that Section 421(a)(5) was not intended to reinstate deportation orders that were issued prior to its enactment. The Circuit Court denied the petition. It held that Fernandez-Vargas' application for permanent resident status was a form of relief not allowd by the reinstatement statute. It also held that Congress did intend the reinstatement statute to apply to deportation orders, such as Fernandez-Vargas', that were issued before the statute went into effect. Finally, the Tenth Circuit held that this application of the law was not impermissibly retroactive, because Fernandez-Vargas had no "protectable expectation of being able to adjust his status."


(1) Does the reinstatement statute of the Immigration and Nationality Act, which allows a prior deportation order against an illegal alien to be reinstated, apply to aliens who re-entered the U.S. before the statute went into effect? (2) If so, is this application impermissibly retroactive?

Media for Fernandez-Vargas v. Gonzales

Audio Transcription for Oral Argument - March 22, 2006 in Fernandez-Vargas v. Gonzales

Audio Transcription for Opinion Announcement - June 22, 2006 in Fernandez-Vargas v. Gonzales

John G. Roberts, Jr.:

Justice Souter has the opinion in 04-1376, Fernandez-Vargas v. Gonzales.

David H. Souter:

This case comes to us on writ of certiorari to the United States Court of Appeals for the 10th Circuit.

For years now, immigration law has provided that an order for removing an unlawfully present alien may be reinstated if the alien leaves and unlawfully enters again.

The Illegal Immigration Reform and Immigration Responsibility Act of 1996, which everybody calls IIRIRA, enlarged the class of illegal re-entrants whose orders may be reinstated and limited the possible relief from a removal order available to them.

The petitioner, Humberto Fernandez-Vargas, a citizen of Mexico, was deported in 1981, but illegally returned in 1982.

He remained in the country undetected for over 20 years, marrying a United States citizen in 2001.

After his marriage, Fernandez-Vargas filed an application to adjust his status to that of lawful permanent resident, but the Government responded by reinstating his 1981 deportation order under the IIRIRA reinstatement provision, Section 241(a)(5).

Fernandez-Vargas petitioned the 10th Circuit to review the reinstatement order, arguing that because he re-entered the county before IIRIRA?s effective date, he was not, withstanding 241(a)(5), still eligible for adjustment of status and that if the provision did bar his application, it would be impermissibly retroactive.

The Court of Appeals rejected both arguments.

In an opinion filed today with the Clerk of Court, we affirm the judgment of the Court of Appeals.

This Court analyzes a claim that a statute?s operation is impermissibly retroactive by first looking to whether the statute itself clearly discloses its proper temporal reach.

If it does not, we ask whether applying the statute to the person objecting would have a retroactive consequence in the disfavored sense of effecting substantive rights, liabilities or duties on the basis of conduct arising before its enactment.

If the answer is yes, we then apply the presumption against retroactivity by construing the statute as inapplicable to the event or the act in question.

Here, Congress did not complement 241(a)(5) with any clause expressly dealing with individuals who illegally re-entered the country before IIRIRA?s effective date.

But common principles of statutory interpretation fail to unsettle the apparent application of 241(a)(5) to any re-entrant present in the country, whatever the date of return.

Fernandez-Vargas points out that the predecessor of 241(a)(5) had some language that made it clear that the old law was retroactive, but Congress took that language out when it passed the new law.

But we do not think that helps Fernandez-Vargas? argument, both because the old language did not refer to the date of re-entry and because the force of any inference of prospectivity that might be drawn from its removal is weakened by the fact that IIRIRA made other provisions expressly applicable to only post-effective-date re-entries.

We also do not think 241(a)(5) has an impermissibly retroactive effect in this case.

The provision does not penalize an alien for a past act that he is helpless to undo; it is the conduct of remaining in the country after re-entry that is the predicate to application of the statute, conduct that the alien could end by voluntarily leaving.

Thus, it is the alien?s choice to continue his illegal presence that subjects him to the new and less-generous legal regime.

Moreover, Fernandez-Vargas had ample opportunity to avoid the new law?s application to him entirely, for 241(a)(5) did not go into effect until six months after IIRIRA?s enactment.

Fernandez-Vargas had the advantage of a grace period between the unequivocal notice that a tougher removal regime lay ahead and the actual imposition of the less-importune terms of the new law, but he did not take advantage of the statutory warning.

The presumption against retroactivity does not support a claim to continue illegal conduct indefinitely under the terms on which it began, and we therefore do not find any retroactive effect here.

Justice Stevens has filed a dissenting opinion.