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Statutes – Construction – Presumption Against Retroactivity

Panagis Vartelas v. Holder, USSC No. 10-1211, 3/28/12, reversing, 620 F.3d 108 (2nd Cir. 2010)

Vartelas, a lawful permanent resident, pleaded guilty in 1994 to an offense that under then-settled law didn’t hinder his ability to take brief trips abroad. Congress, however, subsequently enacted the Illegal Immigration Reform and Immigrant Responsibility Act (“Act”), which did place his resident status at risk if he ever left the country. He indeed briefly ventured abroad, and was subjected to a removal proceeding upon his return. His attorneys conceded removability, the Immigration Judge ordered his removal, and the Board of Immigration Appeals affirmed. Represented by new counsel, he sought to reopen the proceeding on the ground that the Act didn’t apply retroactively so as to bring his pre-enactment conviction within its compass. More particularly, he argued that his prior attorneys were ineffective for failing to contest removability. (The right to effective assistance at removal proceedings attaches as a function of due process, see 620 F.3d at 113-14.) The lower court held that, because the Act did apply to pre-enactment convictions, Vartelas couldn’t show prejudice; removal stood. The Supreme Court now reverses:

… Vartelas … invokes the principle against retroactive legislation, under which courts read laws as prospective in application unless Congress has unambiguously instructed retroactivity. See Landgraf v. USI Film Products, 511 U. S. 244, 263 (1994) .

The presumption against retroactive legislation, the Court recalled in Landgraf, “embodies a legal doctrine centuries older than our Republic.” Id., at 265. Several provisions of the Constitution, the Court noted, embrace the doctrine, among them, the Ex Post Facto Clause, the Contract Clause, and the Fifth Amendment’s Due Process Clause. Id., at 266. Numerous decisions of this Court repeat the classic formulation Justice Story penned for determining when retrospective application of a law would collide with the doctrine. It would do so, Story stated, when such application would “tak[e] away or impai[r] vested rights acquired under existing laws, or creat[e] a new obligation, impos[e] a new duty, or attac[h] a new disability, in respect to transactions or considerations already past.” Society for Propagation of Gospel v. Wheeler, 22 F. Cas. 756, 767 (No. 13,156) (CC NH 1814). See, e.g., INS v. St. Cyr, 533 U. S. 289, 321 (2001) (invoking Story’s formulation); Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 947 (1997) ; Landgraf, 511 U. S., at 283. 4

… Congress did not expressly prescribe the temporal reach of the IIRIRA provision in question, 8 U. S. C. §1101(a)(13). … Accordingly, we proceed to the dispositive question whether, as Vartelas maintains, application of IIRIRA’s travel restraint to him “would have retroactive effect” Congress did not authorize. See Landgraf, 511 U. S., at 280.

Beyond genuine doubt, we note, the restraint §1101(a)(13)(C)(v) places on lawful permanent residents like Vartelas ranks as a “new disability.” Once able to journey abroad to fulfill religious obligations, attend funerals and weddings of family members, tend to vital financial interests, or respond to family emergencies, permanent residents situated as Vartelas is now face potential banishment. We have several times recognized the severity of that sanction. See, e.g., Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (slip op., at 8–9, 16).

And so on. The Act does not have retroactive effect, and pre-Act law governs the impact of Vartelas’s conviction on his travel restrictions. Any salience for state (not to say, solely SPD) practice? Probably not much, though you can’t ever tell when you might want at least passing familiarity with retroactivity as an aspect of statutory construction. (See, e.g., State v. Christopher Melendrez, 2009AP2070, District 4, 9/2/10, a laudable if losing effort.) And if you’re thinking more adventurously, along the lines of challenging, say, a felon-in-possession charge or conviction where the felony predated § 941.29, you’ll be disappointed to see that the Court compares and contrasts felon-in-possession legislation unfavorably with the removal Act.

Couple of random observations. As indicated in the blockquote, the Court likens removal to “banishment,” the severity of which creates a “new disability.” Some thought might be given to whether the increasingly severe consequences attending sex offender conviction can be said to amount to a form of “internal banishment.” The idea would be that these consequences are “direct” rather than “collateral,” same as deportation for purposes of taking a plea. Completely separate: consider that the Court here reaches the merits in the context of an ineffective-assistance claim, without so much as mention of waiver or other procedural obstacles. Not only that, but does so as a matter of (at most) due process rather than 6th-amendment right to counsel. Why does that matter? Because in the Second Circuit, where this case arose, no prior caselaw had established Vartelas’s right to relief (though caselaw in two other Circuits had). And why does that matter? Because our own appellate courts like to invoke the principle, “Trial counsel is not required to object and argue points of law that are unsettled,” therefore counsel can’t be ineffective for failing to raise an unresolved question. But isn’t that what happened here? That trial counsel failed to object and argue an “unsettled” (at least in that Circuit) principle? Didn’t stop the Court, though, from granting relief.

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