Supreme Court's tough line on deportees

Thursday's ruling, expelling a man deported two decades ago, could penalize thousands of illegal immigrants.

By , Staff writer of The Christian Science Monitor

In a case with implications for tens of thousands of illegal immigrants and their families, the US Supreme Court ruled Thursday that a strict immigration measure requiring prior deportees to be automatically expelled from the country applies to any illegal immigrant who reentered the US, regardless of when.

The ruling comes in the case of Humberto Fernandez-Vargas, a Mexican truck driver who was deported from the US several times in the 1970s and 1980s. In 1982, he returned and spent the next 19 years living and working illegally in Utah. He started a trucking company, raised a son, and got married.

But when he applied to become a permanent resident, immigration officials had him detained under a 1996 law that requires anyone previously deported from the US be immediately expelled.

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Lawyers for Mr. Fernandez-Vargas argued that the 1996 law should not apply retroactively to their client since he illegally reentered the US in 1982 – prior to passage of the 1996 measure.

The Supreme Court rejected that view. In an 8-to-1 decision, the high court said the law applies to anyone who illegally reenters the US after being deported.

"It applies to Fernandez-Vargas today not because he reentered in 1982 or at any other particular time, but because he chose to remain after the new statute became effective," writes Justice David Souter for the majority.

Justice Souter adds that Fernandez-Vargas had ample warning of the coming change in immigration law but chose to remain in the US after the new law's harsher penalties took effect.

Under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, anyone who sneaks back into the US after being deported is barred from applying to become a legal resident. The law says the old deportation order must be immediately reinstated and carried out, again.

In his lone dissent, Justice John Paul Stevens says the law does not apply to those who entered the US prior to its passage – and creates an improper retroactive effect upon illegal immigrants.

"Petitioner legitimately complains that the government has changed the rules midgame," Justice Stevens writes.

"Only the court's unfortunately formalistic search for a single past act that [petitioner] is helpless to undo, allows it to conclude that the provision at issue has no retroactive effect," Stevens writes.

The ruling will make it easier for immigration officials to enforce the law. But such enforcement will also jeopardize extensive family, work, and community ties forged by large numbers of illegal immigrants who have led productive lives in the US for decades.

Estimates are that almost 12 million illegal immigrants live in the US. It is unclear how many of those returned to the US after being deported. The decision arises in a case called Fernandez-Vargas v. Gonzales. In October 1981, Fernandez-Vargas was last deported and illegally reentered the US three months later in January 1982.

A truck driver, he established his own trucking business in Utah. He met Rita Fernandez and in 1989 the couple had a son. They married in 2001. Because she is a US citizen, Fernandez-Vargas applied to adjust his immigrant status and become a legal resident. Instead of getting a green card, Fernandez-Vargas was arrested and held for a year in detention before being deported to Mexico.

Lawyers appealed to the 10th US Circuit Court of Appeals on grounds that the 1996 law the government said required his deportation could not be applied retroactively. They said their client reentered the US in 1982 – 15 years before the law was passed. Fernandez-Vargas should not suffer the effects of a law that was not on the books at the time he violated US immigration laws, they said.

The 10th Circuit disagreed and upheld his removal.

In affirming the 10th Circuit, the Supreme Court said the law is not aimed at penalizing an illegal immigrant for illegal reentry after being deported. Instead, the law establishes a process to remove the that individual at any time after that reentry.

"It is the conduct of remaining in the country after entry that is the predicate action; the statute applies to stop an indefinite continuing violation that the alien himself could end at any time by voluntarily leaving," Souter writes. "It is therefore the alien's choice to continue his illegal presence, after illegal reentry and after the effective date of the new law, that subjects him to the new and less generous legal regime."

Fernandez-Vargas had a six-month grace period between passage of the 1996 law and the date it took effect, Souter says. "In that stretch of six months, Fernandez-Vargas could have ended his illegal presence and potential exposure to the coming law by crossing back into Mexico," he writes.

"For that matter, he could have married the mother of his son and applied for adjustment of status during that period," he says. Instead, he remained in the US illegally and thus became subject to the harsher penalties of the 1996 law.

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