Fernandez-Vargas v. Gonzales, No. 04–1376.

CourtUnited States Supreme Court
Writing for the CourtJustice SOUTER delivered the opinion of the Court.
Citation126 S.Ct. 2422,548 U.S. 30,165 L.Ed.2d 323,74 USLW 4416
Decision Date22 June 2006
Docket NumberNo. 04–1376.
PartiesHumberto FERNANDEZ–VARGAS, Petitioner, v. Alberto R. GONZALES, Attorney General.

548 U.S. 30
126 S.Ct.
2422
165 L.Ed.2d 323
74 USLW 4416

Humberto FERNANDEZ–VARGAS, Petitioner,
v.
Alberto R. GONZALES, Attorney General.

No. 04–1376.

Supreme Court of the United States

Argued March 22, 2006.
Decided June 22, 2006.




Syllabus*

Immigration law has for some time provided that an order for removing an alien present unlawfully may be reinstated if he leaves and unlawfully reenters. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the Immigration and Nationality Act (INA) to enlarge the class of illegal reentrants whose orders may be reinstated and limit the possible relief from a removal order available to them. See § 241(a)(5), 8 U.S.C. § 1231(a)(5). Petitioner Fernandez–Vargas, a Mexican citizen, illegally reentered the United States in 1982, after having been deported. He remained undetected for over 20 years, fathering a son in 1989 and marrying the boy's mother, a United States citizen, in 2001. After he filed an application to adjust his status to that of a lawful permanent resident, the Government began proceedings to reinstate his 1981 deportation order under § 241(a)(5), and deported him. He petitioned the Tenth Circuit to review the reinstatement order, claiming that, because he illegally reentered the country before IIRIRA's effective date, § 241(a)(5) did not bar his application for adjustment of status, and that § 241(a)(5) would be impermissibly retroactive if it did bar his adjustment application. The court held that § 241(a)(5) barred his application and followed Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229, in determining that the new law had no impermissibly retroactive effect in his case.

Held: Section 241(a)(5) applies to those who reentered the United States before IIRIRA's effective date and does not retroactively affect any right of, or impose any burden on, the continuing violator of the INA now before this Court. Pp. 2427–2434.

(a) Statutes are disfavored as retroactive when their application “would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf, supra, at 280, 114 S.Ct. 1483. A statute is not given retroactive effect “unless such construction is required by explicit language or by necessary implication.” United States v. St. Louis, S.F. & T.R. Co., 270 U.S. 1, 3, 46 S.Ct. 182, 70 L.Ed. 435. In determining whether a statute has an impermissibly retroactive effect, the Court first looks to “whether Congress has expressly prescribed the statute's proper reach,” Landgraf, supra, at 280, 114 S.Ct. 1483,

[548 U.S. 31]

and in the absence of express language tries to draw a comparably firm conclusion about the temporal reach specifically intended by applying its “normal rules of construction,” Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481. If that effort fails, the Court asks whether applying the statute to the person objecting would have a retroactive effect in the disfavored sense of “affecting substantive rights, liabilities, or duties [on the basis of] conduct arising before [its] enactment,” Landgraf, supra, at 278, 114 S.Ct. 1483. If the answer is yes, the Court then applies the presumption against retroactivity by construing the statute as inapplicable to the event or act in question. INS v. St. Cyr, 533 U.S. 289, 316, 121 S.Ct. 2271, 150 L.Ed.2d 347. Pp. 2427–2428.

(b) Common principles of statutory interpretation fail to unsettle § 241(a)(5)'s apparent application to any reentrant present in the country, whatever the date of return. The statute does not expressly include in or exclude from § 241(a)(5)'s ambit individuals who illegally entered the country before IIRIRA's effective date. Fernandez–Vargas argues that the fact that the old reinstatement provision applied to aliens who had “unlawfully reentered ... after having previously departed or been deported ..., whether before or after June 27, 1952 [the INA's effective date], on any ground described in ... subsection (e),” § 242(f), while § 241(a)(5) lacks language of temporal reach, shows that Congress no longer meant to cover preenactment reentrants. But the old before-or-after clause, which was sandwiched between references to departure or deportation and grounds for deportation, most naturally referred not to an alien's illegal reentry but to the previous deportation or departure. The better inference is that the clause was removed because, in 1996, application keyed to departures in 1952 or earlier was academic. Applying § 241(a)(5) only to deportations or departures after IIRIRA's effective date would exempt anyone who departed before that date but reentered after it. That would be a strange result, since the statute was revised to expand the scope of the reinstatement authority and invest it with something closer to finality. Fernandez–Vargas errs in suggesting that the new law is bereft of clarity and the Court should apply the presumption against retroactivity as a tool for interpreting the statute at the first Landgraf step. It is not until a statute is shown to have no firm provision about temporal reach but to produce a retroactive effect when straightforwardly applied that the presumption has its work to do. And IIRIRA has other provisions on temporal reach, which blunt Fernandez–Vargas's argument that a negative inference in his favor may be drawn from removal of the before-or-after clause. Pp. 2428–2430.

(c) This facial reading is confirmed by two features of IIRIRA. First, the provision's text shows that it applies here not because

[548 U.S. 32]

Fernandez–Vargas reentered at any particular time, but because he chose to remain after the new statute became effective. While the law looks back to “an alien [who] has reentered ... illegally,” 8 U.S.C. § 1231(a)(5), the provision does not penalize an alien for the reentry; it establishes a process to remove him under a “prior order any time after the reentry,” ibid. Thus, it is the conduct of remaining in the country after entry that is the predicate action; the law applies to stop an indefinitely continuing violation that the alien could end at any time by voluntarily leaving. It is therefore the alien's choice to continue his illegal presence, after illegal reentry and after the new law's effective date, that subjects him to the new and less generous regime, not a past act that he is helpless to undo. INS v. St. Cyr, supra, distinguished. Second, IIRIRA's effective date provision shows that Fernandez–Vargas had ample warning of the coming change in the law, but chose to remain until the old regime expired and § 241(a)(5) took its place. He had an opportunity to avoid the new law's application by leaving the country and ending his violation during the six months between IIRIRA's enactment and effective date. For that matter, he could have married his son's mother and applied for adjustment of status during the period, in which case he would at least have had a claim that proven reliance on the law should be honored by applying the presumption against retroactivity. Instead, he augmented his 15 years of unlawful presence by remaining in the country into the future subject to the new law. And the presumption against retroactivity does not amount to a presumption of legal stasis for the benefit of continuous lawbreakers. Pp. 2431–2433.

394 F.3d 881, affirmed.

SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, GINSBURG, BREYER, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 2434.


Todd Lundell Mayer, Brown, Rowe & Maw LLP, New York, NY, J. Christopher Keen, Keen Law Offices, LLC, Provo, UT, David M. Gossett, Counsel of Record, Andrew Tauber, Mayer, Brown, Rowe & Maw LLP, Washington, DC, for petitioner.

Paul D. Clement, Solicitor General, Counsel of Record, Peter D. Keisler, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Sri Srinivasan, Assistant to the Solicitor General, Donald E. Keener, Alison Marie Igoe, Attorneys Department of Justice, Washington, D.C., for respondent.


Justice SOUTER delivered the opinion of the Court.

[548 U.S. 33]

For some time, the law has provided that an order for removing an alien present unlawfully may be reinstated if he leaves and unlawfully enters again. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. 104–208, div. C, 110 Stat. 3009–546, enlarged the class of illegal reentrants whose orders may be reinstated and limited the possible relief from a removal order available to them. See Immigration and Nationality Act (INA), § 241(a)(5), 66 Stat. 204, as added by IIRIRA § 305(a)(3), 110 Stat. 3009–599, 8 U.S.C. § 1231(a)(5). The questions here are whether the new version of the reinstatement provision is correctly read to apply to individuals who reentered the United States before IIRIRA's effective date, and whether such a reading may be rejected as impermissibly retroactive. We hold the statute applies to those who entered before IIRIRA and does not retroactively affect any right of, or impose any burden on, the continuing violator of the INA now before us.

I

In 1950, Congress provided that deportation orders issued against some aliens who later reentered the United States illegally could be reinstated. 1 Internal Security Act of 1950, § 23(d), 64 Stat. 1012, 8 U.S.C. § 156(d) (1946 ed., Supp. V).2 Only specific illegal reentrants were subject to the provision,

[548 U.S. 34]

those deported as “anarchists” or “subversives,” for example, see § 23(c), 64 Stat. 1012, while the rest got the benefit of the ordinary deportation rules. Congress retained a reinstatement provision two years later when it revised the immigration laws through the INA, § 242(f), 66 Stat. 212, as codified in this subsection:

“Should the Attorney General find that any alien has unlawfully reentered the...

To continue reading

Request your trial
6 practice notes
  • Bah v. Barr, Civil No. 1:19-cv-641
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • September 6, 2019
    ...1059 (9th Cir. 2008) ; Bejjani v. INS , 271 F.3d 670, 689 (6th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales , 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). District courts have reached the same result. See Singh v. Sessions , 2018 WL 2118433, at *2 (N.D. Ala......
  • Farah v. U.S. Attorney Gen., 19-12462
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 8, 2021
    ...v. Immigr. & Naturalization Serv. , 271 F.3d 670, 689 (6th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales , 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). And our holding does not violate the prior-panel-precedent rule. In Akinwale , we affirmed the dismissal o......
  • Farah v. U.S. Attorney Gen., 19-12462
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 8, 2021
    ...Bejjani v. Immigr. &Naturalization Serv., 271 F.3d 670, 689 (6th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). And our holding does not violate the prior-panelprecedent rule. In Akinwale, we affirmed the dismissal of a criminal alien's habeas pe......
  • Hechavarria v. Sessions, Docket No. 16-1380
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 16, 2018
    ...in § 1226(a)"); Bejjani v. INS , 271 F.3d 670, 689 (6th Cir. 2001), (abrogated in part on other grounds by Fernandez–Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006) ) (holding that Section 1231's "removal period" does "not begin until the date of the Court's final or......
  • Request a trial to view additional results
6 cases
  • Bah v. Barr, Civil No. 1:19-cv-641
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • September 6, 2019
    ...1059 (9th Cir. 2008) ; Bejjani v. INS , 271 F.3d 670, 689 (6th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales , 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). District courts have reached the same result. See Singh v. Sessions , 2018 WL 2118433, at *2 (N.D. Ala......
  • Farah v. U.S. Attorney Gen., 19-12462
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 8, 2021
    ...v. Immigr. & Naturalization Serv. , 271 F.3d 670, 689 (6th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales , 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). And our holding does not violate the prior-panel-precedent rule. In Akinwale , we affirmed the dismissal o......
  • Hechavarria v. Sessions, Docket No. 16-1380
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 16, 2018
    ...in § 1226(a)"); Bejjani v. INS , 271 F.3d 670, 689 (6th Cir. 2001), (abrogated in part on other grounds by Fernandez–Vargas v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006) ) (holding that Section 1231's "removal period" does "not begin until the date of the Court's final or......
  • Farah v. U.S. Attorney Gen., 19-12462
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • September 8, 2021
    ...Bejjani v. Immigr. &Naturalization Serv., 271 F.3d 670, 689 (6th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). And our holding does not violate the prior-panelprecedent rule. In Akinwale, we affirmed the dismissal of a criminal alien's habeas pe......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT