By Gary Endelman and Cyrus D. Mehta
In the recent landmark Supreme Court decision of Vartelas v. Holder, No. 10-1211, 565 U.S. ___, U.S. LEXIS 2540 (March 28, 2012), which partially restores the rights of lawful permanent residents (LPR) with pre-1996 convictions, Justice Ginsburg, who wrote the opinion for the majority, made an interesting reference to piepowder courts. For an explanation of the potential significance of Vartelas v. Holder, we refer readers to our previous blog entitled Fleuti Lives! Restoration of A Constitutional Decision.
Piepowder, or dusty feet courts, as Justice Ginsburg’s decision explains in footnote 12, were temporary mercantile courts quickly set up to hear commercial disputes at trade fairs in Medieval Europe. These courts were set up to resolve disputes while the merchants’ feet were still dusty.
Justice Ginsburg made this reference to piepowder courts in the immigration context in our modern era, stating that an immigration official at the border would not set up a piepowder court to determine whether an LPR committed an offense identified in INA § 212(a)(2) to determine whether he or she was inadmissible. This is what Justice Ginsburg said: “Ordinarily to determine whether there is clear and convincing evidence that an alien has committed a qualifying crime, the immigration officer at the border would check the alien’s record of conviction. He would not call into session a piepowder court to entertain a plea or conduct a trial.”
The Supreme Court’s observation on quaint “dusty feet” courts, although charming, is also extremely significant. Most lawyers who do not practice immigration law, and of course everyone else, will be surprised to know that a non-citizen, including an LPR, can be found inadmissible under INA § 212(a)(2) for being convicted or who admits having committed certain crimes, such as crimes involving moral turpitude or controlled substance offenses. Thus, a non-citizen, including an LPR, need not have a criminal conviction to be found inadmissible, he or she can be equally snared for having admitted to the commission of a crime. Clearly, with respect to an LPR travelling from abroad, Justice Ginsburg’s observation appears to restrict a CBP officer’s ability at an airport from trying to obtain a confession regarding the commission of a CIMT. A CBP official cannot set up a piepowder court at the airport, like the merchants of a bygone era, to try an LPR who has travelled through many time zones, and who instead of having dusty feet may have bleary eyes, for the purposes of bludgeoning him or her into an admission for having committed a crime.
Admittedly, the observation on piepowder courts was obiter dictum. It was made in the context of whether INA § 101(a)(13)(C), enacted by the Illegal Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which allows the government to charge a long term LPR as an arriving alien for having committed an offense under 212(a)(2), could be applied retroactively. The Supreme Court in Vartelas v. Holder held that the doctrine enunciated in Rosenberg v. Fleuti, 374 U.S. 449 (1963), that an LPR who made a brief, casual and innocent trip abroad should not be charged as an arriving alien, still applies to LPRs with pre- IIRIRA criminal conduct. Noting that there was a presumption against retroactive legislation under Landgraf v. USI film Products, 511 U.S. 244 (1994), the Supreme Court in Vartelas concluded that INA § 101(a)(13)(C)(v) resulted in an impermissible retroactive effect as it created a “new disability” to conduct completed prior to IIRIRA’s enactment in 1996. This new disability was Vartelas’ inability to travel after 1996, which he could freely do so prior to 1996. The Court criticized the Second Circuit in the same case below, which did not find INA §101(a)(13)(C)(v) retroactive since it did not reference a conviction but only the commission of a crime, which if pleaded to prior to 1996 in reliance of more favorable treatment under pre-1996 law, would have been impermissibly retroactive as in INS v. St. Cyr, 533 U.S. 289 (2001). It was at this point that Justice Ginsburg said that “[t]he practical difference (between a conviction and commission of a crime), so far as retroactivity is concerned, escapes our grasp” and then made her observation that an immigration official would in any event need to determine under the clear and convincing standard at the border by checking the record of conviction, rather than convene a piepowder court, to determine whether the alien committed the crime.
It is also significant that Justice Ginsburg in her observation on piepowder courts affirmed that the burden has always been on the government to establish that an LPR is not entitled to that status, and this burden established in Woodby v. INS, 385 U.S. 276 (1966), is that the government must prove by “clear, unequivocal and convincing” evidence that the LPR should be deported. This burden applies to all LPRs regardless of whether they have pre-1996 or post-1996 criminal convictions. Thus, under a Woodby analysis too, since the government bears a heavy burden of proof, it would be turning the tables on the LPR if the government tried to extract a confession regarding the commission of a crime and thus be able to escape from the heavy burden it bears under the “clear, unequivocal and convincing” standard. This can potentially happen with an LPR who may have had the charges dismissed or reduced, but a nasty CBP official still wants to know the real story via a hypothetical piepowder court at the airport. Indeed, the Board of Immigration Appeals held many years ago in Matter of Guevara, 20 I&N Dec.238 (1990) that an alien’s silence alone does not provide sufficient evidence under the Woodby standard, in the absence of other evidence, to establish deportability. The following extract from Matter of Guevara is worth noting:
The legal concept of a “burden of proof” requires that the party upon whom the burden rests carry such burden by presenting evidence. If the only evidence necessary to satisfy this burden were the silence of the other party, then for all practical purposes, the burden would actually fall upon the silent party from the outset. Under this standard, every deportation proceeding would begin with an adverse inference which the respondent be required to rebut. We cannot rewrite the Act to reflect such a shift in the burden of proof. [citing Woodby v. INS, supra; other citations omitted]
Of course, an LPR can still voluntarily admit to the commission of a crime if he or she chooses to, but such an admission needs to meet rigid criteria. The BIA has set forth the following requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957).
Justice Ginsburg’s piepowder observation in Vartelas v. Holder, together with Matter of K and Matter of Guerra, provide more arsenal to an LPR who is charged as an arriving alien based on the commission rather than the conviction of a crime under INA § 212(a)(2). Beyond this, the disinclination to sanction ad hoc investigation through a “dusty feet” court conducted without legal sanction or moral restraint reflects a commendable preference for the stability of the written record as the framework for informed decision.
The conceptual framework that governs any discussion of retroactivity is the traditional two-step formula announced in Landgraf v. USI Film Products, supra. Since Congress did not expressly instruct on how far back IIRIRA could go, we move to the second prong announced by the High Court at page 277 of Landgraf, namely whether giving retrospective effect to INA 101(a)(13)(C)(v) will contradict basic notions of proper notice and upset “settled expectations” on which the actor “reasonably relied.” When in doubt, retroactivity is disfavored. The Supreme Court got it right. “Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly.” Landgraf, 511 US at 265.
Justice Ginsburg’s admonition reflects a profound appreciation of the due process rights that returning LPR’s have traditionally enjoyed. While Woodby may not have been a constitutional decision, the warning against piepowder courts can only be understood in a constitutional context. Remember the returning LPR seaman in Kwong Hai Chew v Colding, 349 US 590(1953) that authorities sought to exclude without a hearing; the Supreme Court reminded us that he deserved full constitutional rights to a fair hearing with all the due process protection that would have been his had he never left. Remember what Rosenberg v Fleuti, 374 US 449, 460(1963) taught us: “A resident alien who leaves this country is to be regarded as retaining certain basic rights.” Remember the ringing injunction of Shaughnessy v. US ex rel Mezei, 345 US 206, 213(1953): “A lawful resident alien may not captiously be deprived of his constitutional rights to procedural due process.” In essence, behind Justice Ginsburg’s distaste for piepowder courts when applied to returning resident aliens, regardless of when their conviction or admission took place, is nothing less than the right “to stay in this land of freedom.” Landon v. Plasencia, 459 US 21, 36 (1982) quoting Bridges v. Wixon, 306 US 135, 154 (1945).
The refusal to sanction IIRIRA retroactivityin Vartelas v. Holder provides the kind of predictabilitythat LPRs need and deserve before they leave the USA and seek to return. This, after all, is why retroactivity is disfavored .This is precisely why a piepowder court is not allowed; an LPR should know what this status means, what his or her rights are and should be able to leave the US with the confidence that an uneventful return is not only possible but entirely to be expected. In this sense, the refusal to embrace IIRIRA retroactivity and the caution against a piepowder court spring from the same place and say the same thing- predictability is at the very essence of a lawful society. After all, to borrow Einstein’s happy phrase, God does not play dice with the universe.
This post originally appeared on The Insightful Immigration Blog.
By Gary Endelman and Cyrus D. Mehta
There was a time when a lawful permanent resident (LPR) or green card holder had more rights than today.
Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), if an LPR with a criminal conviction travelled abroad, he or she was not found inadmissible, or excludable as it was then known, if the trip was brief, casual and innocent.
This was as a result of a landmark decision of the Supreme Court, Rosenberg v. Fleuti, 374 U.S. 449 (1963). Fleuti, an LPR and Swiss national, was found excludable after he returned from a visit to Mexico of only about a couple of hours under the then exclusion ground of being an alien “afflicted with psychopathic personality” based on his homosexuality. This was only an excludable and not a deportable ground. If Flueti had not departed the US, he would not have been in the predicament he was in after his brief trip to Mexico. The Supreme Court interpreted a then statutory provision involving involuntary departures not resulting in an entry into the US, INA §101(a)(13), to hold that Congress did not intend to exclude long term residents upon their return from a trip abroad that was “innocent, causal and brief.”Thus, under the Fleuti doctrine, such an LPR was not thought to have left the US so as to trigger excludability.
In 1996, IIRIRA changed this by amending § 101(a)(13), which now provides:
(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien —
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having departed the United States,
(iv) has departed from the United States while under legal process seeking removal of
the alien from the United States, including removal proceedings under this Act and
(v) has committed an offense identified in section 212(a)(2), unless since such offense
the alien has been granted relief under section 212(h) or 240A(a), or
(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.
The Board of Immigration Appeals in Matter of Collado-Munoz, 21 I&N Dec. 1061 (BIA 1998), interpreted this amendment as eliminating the Fleuti doctrine. Thus, post 1996, an LPR who was convicted of a crime involving moral turpitude (CIMT) and who travelled abroad would be seeking admission in the US under new § 101(a)(13)(C)(v) and could be put on the same footing as any alien seeking admission who may not have the same long term ties to the US as the LPR. Such an LPR would be found inadmissible of that CIMT even if that crime did not trigger removability had he or she not left the US. The BIA eliminated the Flueti doctrine despite a long line of Supreme Court cases holding that returning LPRs were entitled to the same due process rights as they would if they were placed in deportation proceedings. For instance, in Kwong Hai Chew v. Colding, 344 U.S. 590 (1953), involving a seaman LPR whose entry was deemed prejudicial to the public interest and who was detained at Ellis Island as an excludable alien, the Supreme Court held that we must first consider what would have been his constitutional rights had he not undertaken his voyage to foreign ports but remained continuously in the US. Even in Landon v. Plasencia, 459 U.S. 21 (1982), where the LPR’s trip abroad involved a smuggling operation and was not considered so innocent, the Supreme Court held that she could seek the Fleuti exception even in exclusion proceedings as well as enjoy all the due process rights as an LPR. Landon recognized the LPR’s long terms ties with the country noting that her right to “stay and live and work in this land of freedom” was at stake along with her right to rejoin her family. It seemed that the BIA in Matter of Collado-Munoz, an administrative agency, was limited by its inability to rule upon the constitutionality of the laws it administered despite the robust dissent of Board Member Rosenberg who stated that “[w]e are, however, authorized and encouraged to construe these laws so as not to violate constitutional principles.” Circuit courts deferred to the BIA interpretation while “recognizing that there are meritorious arguments on both sides of the issue.” See Tineo v. Ashcroft, 350 F.3d 382 (3d Cir. 2003).
As a result after IIRIRA, LPRs with prior convictions who travelled abroad briefly for holidays, weddings or to visit sick relatives were found inadmissible upon their return, and were also detained under the mandatory detention provision pursuant to § 236(c) if the conviction was a CIMT. This was true even if the conviction occurred prior to 1996 when Fleuti existed. In January 2003, Vartelas, an LPR, returned from a week- long trip to Greece, and immigration officials at the airport determined he was an alien seeking admission pursuant to § 101(a)(13)(c)(v) as he was convicted in 1994 for conspiring to make counterfeit security, which was characterized as a CIMT. Vartelas challenged his designation as an arriving alien seeking admission all the way to the Supreme Court, and in Vartelas v. Holder, No. 10-1211, 565 U.S. ___, U.S. LEXIS 2540 (March 28, 2012), the Supreme Court recently held that the Fleuti doctrine still applies to LPRs with pre-IIRIRA convictions who travel abroad. Noting that there was a presumption against retroactive legislation under Langraf v. USI film Products, 511 U.S. 244 (1994), the Supreme Court concluded that INA § 101(a)(13)(C)(v) resulted in an impermissible retroactive effect as it created a “new disability” to conduct completed prior to IIRIRA’s enactment in 1996. This new disability was Vartelas’ inability to travel after 1996, which he could freely do so prior to 1996. The Vartelas court noted, “Once able to journey abroad to fulfill religious obligations, attend funerals and weddings of family members, tend to vital financial interests, or respond to family emergencies, permanent residents situated as Vartelas now face potential banishment. We refer you the excellent practice advisory of the Legal Action Center of the American Immigration Council on how to represent clients with pre-1996 convictions who have been positively impacted by Vartelas v. Holder.
We think differently. Although the Supreme Court passed up the opportunity to rule on the viability of Flueti for post 1996 conviction; in footnote 2 while acknowledging that the BIA read INA §101(a)(13)(C) to overrule Flueti the Court noted, “Vartelas does not challenge the ruling in Collado-Munoz. We therefore assume, but do not decide, that IIRIRA’s amendments to §101(a)(13)(A) abrogated Fleuti.” This is significant since the Supreme Court explicitly did not affirmatively decide that Flueti had been repealed for LPRs who had convictions after the enactment of IIRIRA. Practitioners with have LPR clients who have been charged as arriving aliens after a brief trip abroad should continue to advocate for the viability of the Flueti doctrine on behalf of their clients in removal proceedings.
There are compelling arguments for doing so, and we commend readers to the brilliant amicus brief that Ira Kurzban and Debbie Smith wrote for the American Immigration Lawyers (AILA) Association in Vartelas v. Holder providing suggestions on how to convincingly make them. The key argument is that that the §101(a)(13)(C) categories never abrogated Flueti; rather they codified some of the characteristics of Flueti by suggesting, for example, that an LPR would not be seeking admission if the trip overseas was brief (§101(a)(13)(C)(ii)) and that it was innocent (§101(a)(13)(C)(iii)). Moreover, § 101(a)(13)(C) employs “shall not …unless” language, which suggests that the provisions within are only necessary conditions to trigger inadmissibility, but not necessary and sufficient conditions to trigger inadmissibility.
Moreover, the burden has always been on the government to establish that an LPR is not entitled to that status, and this burden established in Woodby v. INS, 385 U.S. 276 (1966), is that the government must prove by “clear, unequivocal and convincing evidence that the LPR should not be deported. Subsequent to Woodby, in Landon v. Plasencia, supra, the Supreme Court held that a returning resident be accorded due process in exclusion proceedings and that the Woodby standard be applied equally to an LPR in exclusion proceedings. With the introduction of the § 101(a)(13)(C) provisions rendering a returning LPR inadmissible, the CBP’s Admissibility Review Office and more than one government lawyer argued that the heavy burden of proof that the government had under Woodby had shifted to the LPR. Indeed, INA §240(c)(2) places the burden on the applicant for admission to prove “clearly and beyond doubt” that he or she is not inadmissible. Fortunately, a recent decision of the BIA in Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) shatters this assumption once and for all. The BIA by affirming the Woodby standard in Rivens held, “Given this historical practice and the absence of any evidence that Congress intended a different allocation of standard of proof to apply in removal cases arising under current section 101(a)(13)(C) of the Act, we hold that the respondent – whose lawful permanent resident status is uncontested – cannot be found removable under the section 212(a) grounds of inadmissibility unless the DHS first proves by clear and convincing evidence [footnote omitted] that he is to be regarded as an applicant for admission in this case by having “committed an offense indentified in section 212(a)(2).” It is surprising that Justice Ginsburg did not mention Rivens although footnote No. 1 in that decision reveals that the BIA was keenly attuned to what the Supreme Court might do with the Vartelas case.
Thus, the survival of Woodby, notwithstanding the enactment of §101(a)(13)(C), carries with it the survival of Fleuti. Even though the Vartelas Court did not have to decide if Fleuti still lived, it reminds us that, despite the failure of the BIA to realize it in Collado-Munoz, Fleuti is at heart a constitutional decision. Vartelas belongs in this same line of cases because it too emphasizes the special protection that the Constitution offers to returning LPRs. The portion of Vartelas that could serve as a springboard for such an argument in a future case is part of footnote 7of the slip opinion:
“The act of flying to Greece, in contrast, does not render a lawful permanent resident like Vartelas hazardous. Nor is it plausible that Congress’ solution to the problem of dangerous lawful permanent residents would be to pass a law that would deter such persons from ever leaving the United States.”
The authors credit David Isaacson for pointing that the second sentence, in particular, suggests a potential willingness to avoid reading 101(a)(13)(C)(v) in the way that Collado-Munoz did, essentially on the ground that such a reading makes no sense because of its logical consequence. One might be able to combine this with the constitutional concerns raised in the AILA amicus brief and get Collado-Munoz overturned (and Fleuti restored) on the basis of a combination of purpose-based ambiguity in the statute and the doctrine of avoidance of constitutional doubts, which trumps Chevron deference, see, e.g., Edward J. DeBartolo Corp. v. Florida Coast Bldg. and Const. Trades Council, 485 U.S. 568, 574-575 (1988). The effect would be analogous to Zadvydas v. Davis, 533 U.S. 678 (2001) where the statute was found ambiguous largely because of concerns relating to its purpose and then interpreted in the manner that would not raise serious constitutional concerns. To the authors, this places Vartelas in a much larger context where the full potential of the ruling may be examined and developed in the future.
The significance of Vartelas is not limited to returning permanent residents with pre-1996 convictions. Rather, when viewed with a wide-angle lens, it may serve as the ruling that restores Fleuti as a constitutional decision. Unlike the assumption of the BIA in Collado-Munoz that Fleuti was decided in what Ira Kurzban and Deborah Smith insightfully term a “constitutional vacuum,” Justice Ginsburg has given back to Fleuti the constitutional provenance that sadly it seemed to have lost.Unlike the Fifth Circuit in De Fuentes v. Gonzalez, 462 F.3d 498,503(5th Cir. 2006) that saw no “constitutional core” in Fleuti or the Third Circuit in Tineo v. Ashcroft, 350 F.3d 382,397 (3d Cir 2003) which boldly though mistakenly proclaimed that Fleuti had no basis in constitutional principle, Vartelas harkens back to an appreciation of lawful permanent residence that IIRIRA made us think for a while had vanished: “Once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.” Landon v. Plascencia, 459 US at 32 ( citing Johnson v. Eisentrager, 339 US 763, 770(1950). If that happy day comes when Fleuti is restored in full, legal scholars may well lookback to Vartelas v Holder as the case that made it all possible. The lasting contribution to the law that the Supreme Court has made through Vartelas v Holder may well be not only, or even primarily, in its forthright rejection of IIRIRA retroactivity, but rather in reclaiming for Fleuti its lasting place in the penumbra of constitutional safeguards that have nurtured and protected the rights of lawful permanent residents. In this sense, Fleuti did not create new rights for permanent residents so much as refine and expand existing constitutional alliances. For this reason, a revival of Fleuti would not be a radical leap into terra incognita but the rightful restoration of a constitutional regime that commands our attention and merits our respect. We do not know what the future will be for Fleuti but, now, thanks to Vartelas, there might be a story to tell.
This post originally appeared on The Insightful Immigration Blog.
By Gary Endelman
It has been a long time since the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) introduced the concept of “admission” now codified at INA Section 101(a)(13)(C) yet arguments have continued to rage as to what it means and who has the burden of proof when it comes to a returning permanent resident. Now, at long last, the Board of Immigration Appeals has brought clarity to this muddled picture, or so it seems. If the United States Supreme Court upsets this transquility, those charged with the responsibility of advising clients may once again find themselves searching for answers.
Before IIRIRA, the INA defined “entry” in these terms: ” any coming of an alien into the United States…except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if…his departure to a foreign port or place…was not intended…” 8 USC Section 1101(a)(13). This is, to put it charitably, not the most artful or easily digestible drafting so it was not clear what Congress meant. Happily, the Supreme Court told us in Rosenberg v. Fleuti, 374 US 449 462 (1963) which held that a lawful permanent resident was not making an entry if his or her departure was “brief, casual and innocent.” Comes along April 1, 1997 and “entry” a la Fleuti is no longer, replaced now by IIRIRA Section 101(a)(13)(C) “admission” pursuant to which an LPR shall not be regarded as seeking admission “unless” he or she met 6 specific criteria, including having been absent for a continuous period in excess of 180 days or having abandoned or relinquished LPR status while away. Not content to stop there, IIRIRA also introduced INA 240(c)(2), 8 USC Section 1229a(c)(2) that requires an applicant for admission to prove by “clear and convincing evidence” that he or she is “lawfully present in the US pursuant to a prior admission.” The burden is on the applicant for admission to demonstrate “clearly and beyond doubt” that he or she is not inadmissible. At the same time, IIRIRA also lowered the burden on the government as the charging party in removal proceedings to establish deportability b y “clear and convincing” evidence replacing the “clear, unequivocal and convincing” evidence test articulated by the Supreme Court in Woodby v. INS, 385 US 276,286 (1966). Following hard on the heels of IIRIRA, which did not explicitly abrogate Fleuti, the Board of Immigration Appeals held in Matter of Collado-Munoz, 21 I&N Dec.1061, 1065(BIA 1997) that “the Fleuti doctrine, with its origins in the no longer existent definition of ‘entry’ in the Act , does not survive the enactment of the IIRIRA as judicial doctrine.” Farewell Fleuti!
Has the burden of proof shifted after IIRIRA fora an LPR who seeks admission to the US? If so, what burden applied? It is true, after all, that Woodby was not a constitutional decision and did not create a separate law on abandonment as opposed to all deportation cases. As my learned colleague Cyrus Mehta and I wrote in “Home Is Where The Card Is: How to Preserve Lawful Permanent Status In A Global Economy,” 13 Bender’s Immigration Bulletin 849,856 notes 37-41 (July 1, 2008), even after IIRIRA, both the BIA and the Circuit Courts continued to place the traditional burden on the government when the applicant has a colorable claim to LPR status.
Enter Matter of Benno Rivens, 25 I&N Dec. 623,625(BIA Oct. 19, 2011) which settles the matter or should unless the Supreme Court unsettles it, but more on that disturbing possibility later. Keep reading! In Benno Rivens, the Board of Immigration Appeals tells us what we all wanted to hear ( unless of course we work for CBP!) : ” As a matter of first impression with respect to the application of section 101(a)(13)(C) of the Act,we find no reason to depart from our longstanding case law holding that DHS bears the burden of proving by clear and convincing evidence that a returning lawful permanent resident is to be regarded as seekind admission.” Interestingly, the Board cites Matter of Huang, 19 I&N Dec. 749, 754(BIA 1988) which, in turn, had cited Woodby even though Congress eleced not to include the phrase ” unequivocal” in IIRIRA INA 240(c)(3)(A). Did this omission mean a lesser standard? The BIA has ” no occasion to determine whether, or to what degree, this has effected a substantive change.” Benno Rivens, 25 I&N Dec. at 626. Now that is frustrating, maybe even a tad annoying. Would not we all like to know ?
So what’s not to like? Isn’t this enough even for a disgruntled yet zealous advocate? Allow me to introduce Vartelas V. Holder, 620 F.3d 108 (2d Cir. 2010), cert. granted Sept. 27, 2011 (No. 10-1211). Here, an LPR had pled guilty in 1994 to the crime of possessing or making counterfeit securities. At that time, IIRIRA had not yet been enacted. How is IIRIRA relevant here? Look at INA 101(a)(13)(C)(v) that renders a returning LPR an applicant for admission if he or she has committed a crime involving moral turpitude that is not a petty offense. Even though the incident in question took place under a different legal regime, the BIA and the 2nd Circuit both ruled that the application of the post-IIRIRA admission standard was not impermissibly retroactive. This was in conflict with the contrary conclusions on this same issue reached by the 9th Circuit in Camins v. Gonzales, 500 F. 3d 872 (9th Cir. 2007) and the 4th Circuit in Olatunji v. Ashcroft , 387 F.3d 383(4th Cir. 2004). Perhaps to resolve this conflict among the different circuits, the Supreme Court has granted certiorari to review this narrow question of whether the current INA 101(a)(13)(C)(v) can be applied retroactively. Doubtless, the conceptual framework that will shape its analysis is the traditional two-step approach articulated in Landgraf v. USI Film Products, 511 US 244( 984). Since Congress did not expressly instruct on how far back IIRIRA can go, we move to the second prong announced by the High Court at page 277 of Landgraf, namely whether giving retrospective effect to INA 101(a0(13)(C)(v) will contradict basic notions of proper notice and upset “settled expectations” on which the actor in question “reasonably relied.” Interestingly, IIRIRA’s temporal effect cannot be circumscribed simply because ”it is applied in a case arising from conduct antedating the statute’s enactment, or upsets expectations based in prior law.” Landgraf, 511 US at 269. When in doubt, retroactivity is not favored. Chang v United States, 327 F.3d 99,920 (9th Cir. 2003). The Supreme Court said it best: ” Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expecations should not be lightly disrupted.” See Landgraf, 511 US at 265.
As that immortal baseball philosopher Leroy Satchell Paige so wisely said: “Don’t look back. Something might be gaining on you.”