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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." - Gary Endelman & Cyrus D. Mehta, Apr. 8, 2012.