Vartelas v. Holder - Oral Argument - January 18, 2012

Vartelas v. Holder

Media for Vartelas v. Holder

Audio Transcription for Opinion Announcement - March 28, 2012 in Vartelas v. Holder

Audio Transcription for Oral Argument - January 18, 2012 in Vartelas v. Holder

John G. Roberts, Jr.:

We will hear argument next in Case 10-1211, Vartelas v. Holder.

Mr. Bibas.

Stephanos Bibas:

Mr. Chief Justice, and may it please the Court:

As the government concedes, INA subsection 101(a)(13)(C)(v) added by IIRIRA does not expressly mandate retroactivity.

Under Landgraf, applying that new provision would attach new legal consequences to pre-IIRIRA offenses, penalizing both those who travel and those who don't.

Covered lawful permanent residents could not visit their parents abroad without being forced to abandon their children here.

They would be removed from the country or else confined here.

Either way, they would lose an ability they had under pre-IIRIRA law based on pre-IIRIRA offenses.

Thus applying the subsection to them would be impermissibly retroactive.

The settled expectations at issue here are those of round trips by lawful permanent residents, not, as the government would put it, one-way tickets or first-time entrants.

These are people who have structured their lives here.

They have homes, spouses, children, and careers here, and yet have a settled expectation that they will be able to maintain ties to visit aged and ailing parents abroad, to go to funerals and wakes and visit them in the hospital and surgeries.

Our amici, the NACDL brief, and the Asian American--

Ruth Bader Ginsburg:

As far as going forward is concerned, that's -- that's just the way it is, right?

Stephanos Bibas:

--Yes, because Congress has expressly changed the law post-IIRIRA.

The question is for those before IIRIRA, whether those settled expectations are being disrupted.

Ruth Bader Ginsburg:

Could they -- could they -- the -- the person who -- who is here and then the new law is passed, could that person have petitioned for discretionary relief before traveling?

Stephanos Bibas:

Yes, Your Honor, that is a possibility.

That is not the same as the automatic ability to travel, and in fact in this case the discretionary relief was denied.

It depends on a different set of factors from the automatic pre-IIRIRA ability to travel.

But it is a theoretical possibility in some cases.

John G. Roberts, Jr.:

So your expectations argument is that somebody trying to figure out whether to go ahead and rob the bank is going to say, well, if I do and I am caught and I am found guilty, I won't be able to take temporary trips abroad, so I'm not going to rob the bank?

Stephanos Bibas:

No, Your Honor.

First of all, you phrased it specifically as a reliance argument, which is an alternative.

Even the government concedes it is not a prerequisite.

Second, the right time to look at expectations is the moment before the law is enacted: Does one have an expectation at that point that one will be able to continue--

John G. Roberts, Jr.:

You are concerned under Landgraf, I think, with whether or not it disrupts settled expectations, and it just doesn't seem to me that this issue enters into the expectations at all when the pertinent act, which is the commission of the crime, not the pleading guilty, takes place.

Stephanos Bibas:

--No, Your Honor, I believe the practical impact is a new travel disability or penalty, just as in Landgraf.

The discrimination there had been illegal for decades, yet adding a new form of damages to it was impermissibly retroactive.

In Hughes Aircraft, filing false claims with the government had been illegal for years, yet broadening the class of people who could file suit and removing a defense -- no reliance possible at all, but there was a settled expectation that there would be no additional consequences attached to that.