The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009-546, effectively precluded foreign travel by lawful permanent residents who had certain convictions. Under IIRIRA, such aliens, on return from a sojourn abroad, however brief, may be permanently removed from the United States. 8 U.S.C.S. §§ 1101(a)(13)(C)(v), 1182(a)(2).
Panagis Vartelas, a native of Greece, became a lawful permanent resident of the United States in 1989. He pleaded guilty to a felony (i.e. conspiring to make a counterfeit security) in 1994, and served a prison sentence of four months for that offense. In 2003, Vartelas traveled to Greece 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. In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) which effectively precluded foreign travel by lawful permanent residents who had a conviction like that of Vartelas. Under IIRIRA, such aliens, on return from a sojourn abroad, however brief, may be permanently removed from the United States. At Vartelas' removal proceedings, his attorneys conceded removability and requested discretionary relief under former § 212(c) of the Immigration and Nationality Act. The Immigration Judge denied the request for relief, and ordered Vartelas removed to Greece. The Board of Immigration Appeals (BIA) affirmed. In 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 did not reach back to deprive him of lawful resident status based on his pre-IIRIRA conviction. The BIA denied the motion. The Second Circuit affirmed. 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.
Does the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) govern Vartelas’ case?
The Supreme Court held that the impact of Vartelas' brief travel abroad on his permanent resident status is determined not by IIRIRA, but by the legal regime in force at the time of his conviction. Guided by the deeply rooted presumption against retroactive legislation, the Supreme Court determined that the IIRIRA's new admission provision, 8 U.S.C.S. § 1101(a)(13)(C)(v), did not apply to the alien's conviction because § 1101(a)(13)(C)(v) attached a new disability (denial of reentry) in respect to past events (his pre-IIRIRA offense, plea, and conviction). The alien's pre-IIRIRA conviction, not present travel, was the wrongful activity Congress targeted in§ 1101(a)(13)(C)(v). The alien engaged in no criminal activity after IIRIRA's passage.