Vartelas v. Holder

Decision Date28 March 2012
Docket NumberNo. 10–1211.,10–1211.
Citation566 U.S. 257,182 L.Ed.2d 473,132 S.Ct. 1479
Parties Panagis VARTELAS, Petitioner, v. Eric H. HOLDER, Jr., Attorney General.
CourtU.S. Supreme Court

Stephanos Bibas for Petitioner.

Eric D. Miller, San Francisco, CA, for Respondent.

Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Tony West, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Eric D. Miller, Assistant to the Solicitor General, Donald E. Keener, John W. Blakeley, Attorneys, Department of Justice, Washington, D.C., for Respondent.

Stephanos Bibas, Counsel of Record, James A. Feldman, Nancy Bregstein Gordon, Amy Wax, University of Pennsylvania, Law School, Philadelphia, PA, Andrew K. Chow, Neil A. Weinrib & Associates, New York, NY, Stephen B. Kinnaird, Rishi N. Sharma, Matthew T. Crossman, Michael R. Miller, Paul Hastings LLP, Washington, DC, for Petitioner.

Justice GINSBURG delivered the opinion of the Court.

Panagis Vartelas, a native of Greece, became a lawful permanent resident of the United States in 1989. He pleaded guilty to a felony (conspiring to make a counterfeit security) in 1994, and served a prison sentence of four months for that offense. Vartelas traveled to Greece in 2003 to visit his parents. On his return to the United States a week later, he was treated as an inadmissible alien and placed in removal proceedings. Under the law governing at the time of Vartelas' plea, an alien in his situation could travel abroad for brief periods without jeopardizing his resident alien status. See 8 U.S.C. § 1101(a)(13) (1988 ed.), as construed in Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963).

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009–546. That Act effectively precluded foreign travel by lawful permanent residents who had a conviction like Vartelas'. Under IIRIRA, such aliens, on return from a sojourn abroad, however brief, may be permanently removed from the United States. See 8 U.S.C. § 1101(a)(13)(C)(v) ; § 1182(a)(2).

This case presents a question of retroactivity not addressed by Congress: As to a lawful permanent resident convicted of a crime before the effective date of IIRIRA, which regime governs, the one in force at the time of the conviction, or IIRIRA? If the former, Vartelas' brief trip abroad would not disturb his lawful permanent resident status. If the latter, he may be denied reentry. We conclude that the relevant provision of IIRIRA, § 1101(a)(13)(C)(v), attached a new disability (denial of reentry) in respect to past events (Vartelas' pre-IIRIRA offense, plea, and conviction). Guided by the deeply rooted presumption against retroactive legislation, we hold that § 1101(a)(13)(C)(v) does not apply to Vartelas' conviction. 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.


Before IIRIRA's passage, United States immigration law established "two types of proceedings in which aliens can be denied the hospitality of the United States: deportation hearings and exclusion hearings." Landon v. Plasencia, 459 U.S. 21, 25, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). Exclusion hearings were held for certain aliens seeking entry to the United States, and deportation hearings were held for certain aliens who had already entered this country. See ibid.

Under this regime, "entry" into the United States was defined as "any coming of an alien into the United States, from a foreign port or place." 8 U.S.C. § 1101(a)(13) (1988 ed.). The statute, however, provided an exception for lawful permanent residents; aliens lawfully residing here were not regarded as making an "entry" if their "departure to a foreign port or place ... was not intended or reasonably to be expected by [them] or [their] presence in a foreign port or place ... was not voluntary." Ibid. Interpreting this cryptic provision, we held in Fleuti, 374 U.S., at 461–462, 83 S.Ct. 1804, that Congress did not intend to exclude aliens long resident in the United States upon their return from "innocent, casual, and brief excursion [s] ... outside this country's borders." Instead, the Court determined, Congress meant to rank a once-permanent resident as a new entrant only when the foreign excursion "meaningfully interrupt[ed] ... the alien's [U.S.] residence." Id., at 462, 83 S.Ct. 1804. Absent such "disrupti[on]" of the alien's residency, the alien would not be "subject ... to the consequences of an ‘entry’ into the country on his return." Ibid.1

In IIRIRA, Congress abolished the distinction between exclusion and deportation procedures and created a uniform proceeding known as "removal." See 8 U.S.C. §§ 1229, 1229a ; Judulang v. Holder, 565 U.S. ––––, ––––, 132 S.Ct. 476, 479–480, 181 L.Ed.2d 449 (2011). Congress made "admission" the key word, and defined admission to mean "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." § 1101(a)(13)(A). This alteration, the Board of Immigration Appeals (BIA) determined, superseded Fleuti . See In re Collado–Munoz, 21 I. & N. Dec. 1061, 1065–1066 (1998) (en banc).2 Thus, lawful permanent residents returning post-IIRIRA, like Vartelas, may be required to " ‘see[k] an admission’ into the United States, without regard to whether the alien's departure from the United States might previously have been ranked as ‘brief, casual, and innocent’ under the Fleuti doctrine." Id., at 1066.

An alien seeking "admission" to the United States is subject to various requirements, see, e.g., § 1181(a), and cannot gain entry if she is deemed "inadmissible" on any of the numerous grounds set out in the immigration statutes, see § 1182. Under IIRIRA, lawful permanent residents are regarded as seeking admission into the United States if they fall into any of six enumerated categories. § 1101(a)(13)(C). Relevant here, the fifth of these categories covers aliens who "ha[ve] committed an offense identified in section 1182(a)(2) of this title." § 1101(a)(13)(C)(v). Offenses in this category include "a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime." § 1182(a)(2)(A)(i).

In sum, before IIRIRA, lawful permanent residents who had committed a crime of moral turpitude could, under the Fleuti doctrine, return from brief trips abroad without applying for admission to the United States. Under IIRIRA, such residents are subject to admission procedures, and, potentially, to removal from the United States on grounds of inadmissibility.3


Panagis Vartelas, born and raised in Greece, has resided in the United States for over 30 years. Originally admitted on a student visa issued in 1979, Vartelas became a lawful permanent resident in 1989. He currently lives in the New York area and works as a sales manager for a roofing company.

In 1992, Vartelas opened an auto body shop in Queens, New York. One of his business partners used the shop's photocopier to make counterfeit travelers' checks. Vartelas helped his partner perforate the sheets into individual checks, but Vartelas did not sell the checks or receive any money from the venture. In 1994, he pleaded guilty to conspiracy to make or possess counterfeit securities, in violation of 18 U.S.C. § 371. He was sentenced to four months' incarceration, followed by two years' supervised release.

Vartelas regularly traveled to Greece to visit his aging parents in the years after his 1994 conviction; even after the passage of IIRIRA in 1996, his return to the United States from these visits remained uneventful. In January 2003, however, when Vartelas returned from a week-long trip to Greece, an immigration officer classified him as an alien seeking "admission." The officer based this classification on Vartelas' 1994 conviction. See United States ex rel. Volpe v. Smith, 289 U.S. 422, 423, 53 S.Ct. 665, 77 L.Ed. 1298 (1933) (counterfeiting ranks as a crime of moral turpitude).

At Vartelas' removal proceedings, his initial attorney conceded removability, and requested discretionary relief from removal under the former § 212(c) of the Immigration and Nationality Act (INA). See 8 U.S.C. § 1182(c) (1994 ed.) (repealed 1996). This attorney twice failed to appear for hearings and once failed to submit a requested brief. Vartelas engaged a new attorney, who continued to concede removability and to request discretionary relief. The Immigration Judge denied the request for relief, and ordered Vartelas removed to Greece. The BIA affirmed the Immigration Judge's decision.

In July 2008, Vartelas filed with the BIA a timely motion to reopen the removal proceedings, alleging that his previous attorneys were ineffective for, among other lapses, conceding his removability. He sought to withdraw the concession of removability on the ground that IIRIRA's new " admission" provision, codified at § 1101(a)(13), did not reach back to deprive him of lawful resident status based on his pre-IIRIRA conviction. The BIA denied the motion, declaring that Vartelas had not been prejudiced by his lawyers' performance, for no legal authority prevented the application of IIRIRA to Vartelas' pre-IIRIRA conduct.

The U.S. Court of Appeals for the Second Circuit affirmed the BIA's decision, agreeing that Vartelas had failed to show he was prejudiced by his attorneys' allegedly ineffective performance. Rejecting Vartelas' argument that IIRIRA operated prospectively and therefore did not govern his case, the Second Circuit reasoned that he had not relied on the prior legal regime at the time he committed the disqualifying crime. See 620 F.3d 108, 118–120 (2010).

In so ruling, the Second Circuit created a split with two other Circuits. The Fourth and Ninth Circuits have held that the new § 1101(a)(13) may not be applied to lawful permanent residents who committed...

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