Record and brief — Vartelas v. Holder

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SUPREME COURT

OF THE UNITED STATES

Panagis Vartelas, Petitioner

Eric H. Holder, Jr., Attorney General

April 6, 2011

United States Court of Appeals for the Second Circuit

(09-0649-ag)

Decision Date: September 9, 2010

Rehearing Denied: January 4, 2011

Questions

Presented

~~~Date~~~ ~~~~~~~Proceedings and Orders

Apr 4 2011

Apr 26 2011

Jun 1 2011

Jun 30 2011

Aug 5 2011

Aug 17 2011

Aug 19 2011

Sep 27 2011

Oct 21 2011

Oct 28 2011

Nov 1 2011

Nov 14 2011

Nov 15 2011

Nov 18 2011

Nov 22 2011

Petition for a writ of certiorari filed. (Response due May 6, 2011)

Order extending time to file response to petition to and including June 6, 2011.

Order further extending time to file response to petition to and including July 6, 2011

Order further extending time to file response to petition to and including August 5, 2011

Brief of respondent Eric H. Holder, Jr., Attorney General in opposition filed.

DISTRIBUTED for Conference of September 26, 2011.

Reply of petitioner Panagis Vartelas filed. (Distributed)

Petition GRANTED.

Motion to dispense with printing the joint appendix filed by petitioner Panagis Vartelas.

Motion to dispense with printing the joint appendix filed by petitioner GRANTED.

The time to file the joint appendix and petitioner's brief on the merits is extended to and

including November 15, 2011.

The time to file respondent's brief on the merits is extended to and including December

16, 2011.

Consent to the filing of amicus curiae briefs in support of either party or neither party

received from counsel for the petitioner.

SET FOR ARGUMENT ON Wednesday, January 18, 2012.

Brief of petitioner Panagis Vartelas filed.

CIRCULATED.

Brief amici curiae of National Association of Criminal Defense Lawyers, et al. filed

(Distributed)

Brief amicus curiae of The National Immigrant Justice Center filed. (Distributed)

Brief amici curiae of Asian American Justice Center, et al. filed. (Distributed)

Brief amicus curiae of The American Immigration Lawyers Association filed. (Distributed)

Dec 52011 Record received from U.S.C.A. for 2nd Circuit. (1 box)

Dec 16 2011 Brief of respondent Eric H. Holder, Jr., Attorney General filed. (Distributed)

Dec 30 2011 Reply of petitioner Panagis Vartelas filed. (Distributed)

Jan 182012 Argued. For petitioner: Stephanos Bibas, Philadelphia, Pa. For respondent: Eric D

Miller, Assistant to the Solicitor General, Department of Justice, Washington, D. C.

Mar 28 2012 Judgment REVERSED and case REMANDED. Ginsburg, J., delivered the opinion of the

Court, in which Roberts, C. J., and Kennedy, Breyer, Sotomayor, and Kagan, JJ., joined.

Scalia, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined.

Apr 30 2012 JUDGMENT ISSUED.

May 22012 Record returned to U.S.C.A. for Second Circuit.

PETITION

FOR

WRIT OF

CERTIORARI

Sucreme Court, U.S.

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in ayer OE Of THE CLERK

Supreme Court of the Anited States

PANAGIS VARTELAS,

Petitioner,

ERIC H. HOLDER, JR.,

United States Attorney General,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITION FOR A WRIT OF CERTIORARI

PANAGIS VARTELAS (Pro Se)

73 Courtland Avenue

Stamford, CT 06902

(516) 244-3997

achow@nawlaw.com

Library cf Compress

avy’ Libre y

QUESTION PRESENTED

Prior to the effective date of the Illegal Immi-

gration Reform and Immigrant. Responsibility Act

(“IIRIRA”), 110 Stat. 3009 (1996), April 1, 1997, 8

U.S.C. § 1101(a)(13), provided:

The term “entry” means any coming of an

alien into the United States, from a foreign

port or place or from an outlying possession,

whether voluntarily or otherwise, except that

an alien having a lawful permanent resi-

dence in the United States shall not be re-

garded as making an entry into the United

States for the purposes of the immigration

laws if the alien proves to the satisfaction of

the Attorney General that his departure to a

foreign port or place or to an outlying posses-

sion was not intended or reasonably to be

expected by him or his presence in a foreign

port or place or in an outlying possession was

not voluntary.

In Rosenberg v. Fleuti, 374 U.S. 449 (1963), this

Court held that a lawful permanent resident (“LPR”)

who made an “innocent, casual, and brief” trip across

an international border did not “intend” a “departure”

within the meaning of 8 U.S.C. § 1101(a)(13).

However, effective April 1, 1997, 8 U.S.C.

§ 1101(aX13\CyXv) repealed 8 U.S.C. § 1101(a)(13).

The amended 8 U.S.C. § 1101(a)(13)(C)(v) provides:

nent residence in the United States shall not

QUESTION PRESENTED — Continued

be regarded as seeking an admission into

the United States for the purpose of the

immigration laws unless the alien, (v) has

committed an offense identified in section

212(a)(2), unless since offense the alien has

been granted relief under section 212(h) or

240A(a). (Emphasis added)

Two other Circuit Courts of Appeals have held

that the amended 8 U.S.C. § 1101(aX(13)(C)\(v) cannot

be retroactively applied to an alien who pled guilty to

a crime involving moral turpitude prior to the effec-

tive date of ITRIRA.

The question presented is:

Should 8 U.S.C. § 1101(a)(13)C)\(v), which re-

moves LPR of his right, under Rosenberg v. Fleuti,

374 U.S. 449 (1963), to make “innocent, casual, and

brief” trips abroad without fear that he will be denied

reentry, be applied retroactively to a guilty plea taken

prior to the effective date of the Illegal Immigration

Reform and Immigrant Responsibility Act (“IIRIRA”),

110 Stat. 3009 (1996)?

TABLE OF CONTENTS

Page

Fy 8 4 ny 4) ne i

IE AE NEE BREED cc cocecccccccnscesccsocnccscesece Vv

ES 1

een ak Ceeehendeneeneoeussoosees 1

STATUTORY PROVISION INVOLVED.............. 1

i Io ccccccesnegsenssacssenecsuccescess 3

REASONS FOR GRANTING THE PETITION..... 5

A. The Petition Should Be Granted Because

the Second Circuit Panel Decision Creates

a Split With Two Sister Circuits ................. 6

B. The Petition Should Be Granted Because

the Second Circuit Panel Fundamentally

Misinterpreted the Relevant Statutory Lan-

C. The Petition Should Be Granted to Correct

the Second Circuit Panel’s Misapplication of

Landgraf to 8 U.S.C. § 1101l(a13KC\y)....... 13

EE 16

APPENDIX

United States Court of Appeals for the Second

Circuit Opinion, dated September 9, 2010 ..... App. 1

The Board of Immigration Appeals Decision

Se ET SI, SIE cocicsscovceecescscuvessscceccese App. 29

United States Court of Appeals for the Second

Circuit Order, dated January 4, 2011 ........... App. 33

TABLE OF AUTHORITIES

Page

CASES

Bailey v. U.S., 516 U.S. 137 (1998) ..............-.seccccseoeee 11

Camins v. Gonzales, 500 F.3d 872 (9th Cir.

RR ROR a RT aE SO Se RS OS passim

Henderson v. Mayor of New York, 92 U.S. 259

PT a haurnaiindaicociacasnis sniaamcntamantovntscteeke ae aeeaeaaae 5

INS uv. St. Cyr, $33 U.S. ZEB (2001) .....022ccccccccccessoceees 15

Kaiser Aluminum & Chem. Corp. v. Bonjorno,

ee Ba re Gis iss ode crsaeetecersscsnsaecensciemamnatas 15

Landgraf v. USI Film Prods., 511 U.S. 244

PiU iccssnsotatdanestbiidbesuniatisn Aisne edad 5, 13, 14, 15, 16

Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir.

PE iisisindedadaennecacindedenthbabintemnactnaanteens 6, 7, 11, 12, 16

Pennsylvania Department of Public Welfare v.

Davenport, 495 U.S. 552 (1990)................-.-c.ce-seeees 11

Republic National Bank of Miami v. United

es, TE Ge ee ee i iiacnsctdencincsasiensecinecerincniannuncovnns 9

Rosenberg v. Fleuti, 374 U.S. 449 (1963) ............... 7,13

STATUTES

Title 8 of United States Code

SUC. 6 1IOMANIN 5 occ 2,7, 10,14

SB U.S.C. § LRG RAM ISN iw) 2. nccccc.ccccccsescsceees passim

Ui Se BD iepctvncecatdanscsctasccntaccorecel 6, 8, 9, 10

DUE... BR scree. cone scncccnndsscscsaumatacscts 10

TABLE OF AUTHORITIES — Continued

Page

8 U.S.C. § 1LISBaX2ZNANMINMT) .......ccccccccsccccccceees passim

De Oe i heiiccdddcbccntinitntdinecsnpsendaciacicuseskaakaien 3

REGULATIONS

Code of Federal Regulations

Se a: Oe IE Dh Dencaiehiectiistiiintrndiabsniinss tv atsdenitessbiecubuicenies 12

ADMINISTRATIVE DECISIONS

Matter of Anselmo, 20 I&N Dec. 25 (BIA 1989)........... 4

Matter of E-N-, 7 1&N Dec. 153 (BIA 1956)............... 12

Matter of J-, 2 1&N Dec. 285 (BIA 1945) ......00.0.. 000... 12

Matter of K-, 7 1&N Dec. 594 (BIA 1957).......0000000..... 12

Matter of L-, 2 1&N Dec. 486 (BIA 1946) ................... 12

OPINION BELOW

The opinion of the United States Court of Ap-

peals for the Second Circuit is reported at 620 F.3d

108 (2d Cir. 2010) and is reproduced in the Appendix.

The Board of Immigration Appeals decision,

dated January 23, 2009, denying the motion to reopen

is reproduced in the Appendix.

JURISDICTION

The opinion of the United States Court of Ap-

peals for the Second Circuit denying the petition for

review was filed on September 9, 2010. The Second

Circuit entered an order denying the petitioner’s

motion for panel rehearing and hearing en banc on

January 4, 2011. This Court has jurisdiction under 28

U.S.C. § 1254(1) to review the circuit court’s decision

on a writ of certiorari.

STATUTORY PROVISIONS INVOLVED

8 U.S.C. § 1101(a)(13\(C){v)

nent residence in the United States shall

not be regarded as seeking an admission into

the United States for the purpose of the

immigration laws unless the alien, (v) has

committed an offense identified in section

212(a\(2), unless since offense the alien has

been granted relief under section 212(h) or

240A(a).

The repealed 8 U.S.C. § 1101(a)(13)

The term “entry” means any coming of an

alien into the United States, from a foreign

port or place or from an outlying possession,

whether voluntarily or otherwise, except that

an alien having a lawful permanent resi-

dence in the United States shall not be re-

garded as making an entry into the United

States for the purposes of the immigration

laws if the alien proves to the satisfaction of

the Attorney General that his departure to a

foreign port or place or to an outlying posses-

sion was not intended or reasonably to be

expected by him or his presence in a foreign

port or place or in an outlying possession was

not voluntary.

8 U.S.C. § 1182(a)(2 (AG XD

G) Im general. — Except as provided in

clause (ii), any alien convicted of, or who

admits having committed, or who admits

committing acts constitutes the essential

elements of —

(1) A crime involving moral turpitude

(other than a purely political of-

fense) or an attempt or conspiracy to

commit such a crime, ... is inad-

missible.

STATEMENT OF FACTS

A. Agency Proceedings

To state the facts briefly, the petitioner is a

native and citizen of Greece, born on November l,

1961. The petitioner became a Lawful Permanent

Resident (“LPR”) of the United States on January 5,

1989. Upon returning from Greece to JFK airport in

New York on January 29, 2003, he was found in-

admissible. The petitioner had been out of the U.S.

for merely one week for family business.

On March 27, 2003, the petitioner was issued a

Notice to Appear (“NTA”) before the Immigration

Court in New York. The NTA charged him as in-

admissible under 8 U.S.C. § 1182(aX2)A)G)MD, for

having been convicted of a crime involving moral

turpitude. The petitioner pled guilty to and was

convicted of Conspiracy to Make or Possess a Coun-

terfeit Security in the United States District Court,

Southern District of New York, on December 9, 1994.

He was sentenced to a term of four months in prison

and two years of probation.

The petitioner appeared before an immigra-

tion judge. His first counsel submitted a motion

to terminate but failed to file a brief as requested

by the immigration judge. The petitioner’s second

attorney, instead of pursuing the motion to terminate,

filed an application for a waiver under the former 8

U.S.C. § 1182(c) which was denied by the immigration

judge on June 27, 2006, and Petitioner was ordered

removed to Greece. A timely appeal to the Board of

Immigration Appeals (“BLA”) was dismissed.

The petitioner, through new counsel, subsequently

filed a motion to reopen with the BIA based on inef-

fective assistance of counsel insofar as he failed, inter

alia, to raise the critical issue of the retroactivity of

8 U.S.C. §1101l(aX13XKCXv). The BIA denied the

motion on January 23, 2009. A copy of the decision is

reproduced in the Appendix. On the issue of retro-

activity of 8 U.S.C. § 1101(a)(13)\C)(v), the BIA re-

fused to follow the new counsel’s reliance on Camins

v. Gonzales, 500 F.3d 872 (9th Cir. 2007), because the

instant case arises in the jurisdiction of the Second

Circuit Court of Appeals, not the Ninth Circuit, citing

Matter of Anselmo, 20 I&N Dec. 25, 31-34 (BIA 19839).

B. The Proceedings in the U.S. Court of Ap-

peals for the Second Circuit

A timely Petition for Review was filed with the

U.S. Court of Appeals for the Second Circuit. The

Second Circuit panel heard the oral argument on

January 12, 2010, and an opinion was issued on

September 9, 2010, denying the Petition for Review, a

copy of which is reproduced in the Appendix.

The gravamen of the Second Circuit panel’s

ruling with respect to the issue of retroactivity of 8

U.S.C. § 1101(a)(13)(C\(v) is that the dispositive act to

assess the retroactivity of 8 U.S.C. § 1101(aX13\C\(v)

is the LPR’s decision to commit an offense, rather

than the LPR’s decision to plead guilty to or admit to

the commission of an offense. The Second Circuit

panel rejected the petitioner’s argument that the

application of the new 8 U.S.C. § 1101(a)(13)(C)(v)

would interfere with his settled expectations of a

guilty plea. 620 F.3d at 118. The Second Circuit panel

asserts that “[w]le have consistently rejected the

notion that an alien can reasonably have relied on

provisions of the immigration laws in ‘committing’ his

crimes.” Jd. at 120.

The petitioner timely filed a motion for panel

rehearing and hearing en banc which was denied by

the U.S. Second Circuit Court of Appeals and an

order was entered on January 4, 2011. A copy of the

Order is reproduced in the Appendix.

REASONS FOR GRANTING THE PETITION

The decision of the Second Circuit explicitly cre-

ated a circuit split with two other circuits in a context

— immigration law — where nation-wide uniformity is

particularly important. See Henderson v. Mayor of

New York, 92 U.S. 259, 273 (1876) (“The laws which

govern the right to land passengers in the United

States from other countries ought to be the same

in New York, Boston, New Orleans, and San Fran-

cisco.”). The decision below also conflicts with

the retroactivity analysis established by this Court

in Landgraf v. USI Film Prods., 511 U.S. 244

(1994), which guarantees that an individual’s due

process rights (or, in this case, thousands of LPRs

due process righis) are not infringed by the retroac-

tive application of a newly-enacted law. The Second

Circuit’s decision is fundamentally wrong as a matter

of statutory interpretation.

More importantly, if the Second Circuit panel’s

interpretation of 8 U.S.C. § 1101(a)(13C)(v) stands,

it would run counter to the plain language of 8 U.S.C.

§ 1182(a)(2) and adversely affect thousands of LPRs

who are deemed to have committed but were not

convicted nor admitted to an offense identified in

8 U.S.C. § 1182(a)(2) prior to April 1, 1997, upon re-

turn from innocent, casual and brief trips abroad. For

all of these reasons, the petition should be granted.

A. The Petition Should Be Granted Because

the Second Circuit Panel Decision Creates

a Split With Two Sister Circuits

The Second Circuit panel decision in this case

conflicts with the decisions of two other circuits and

creates a circuit split regarding the relevant facts and

the applicable sections of the immigration act. In-

deed, the Second Circuit panel acknowledged that

“two of our sister circuits have reached a conclusion

contrary to the one we reach today.” 620 F.3d 108 at

120 (citing Camins v. Gonzales, 500 F.3d 872;

Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004)).

However, the Second Circuit panel did not attempt to

harmonize its decision with these cases, which are

identical in the relevant facts and in the question of

law presented, simply rejecting the circuit courts’

reasoning as unpersuasive.

Both Mr. Camins and Mr. Olatunji were found

inadmissible for having been convicted of (not having

committed) a crime involving moral turpitude under

8 U.S.C. § 1182(a)(2)(A)G)(D as the petitioner herein.

The U.S. Court of Appeals for the Ninth Circuit

held that the repealed 8 U.S.C. § 1101(a)(13) may not

be applied retroactively to LPRs who acted in reason-

able reliance on the repealed 8 U.S.C. § 1101(a)(13)

prior to IIRIRA’s effective date. Camins v. Gonzales,

500 F.3d 872, 885 (9th Cir. 2007). The Camins court

followed and joined the Fourth Circuit’s decision in

Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004)."

However, the Second Circuit panel erroneously

refused to follow the Camins and Olatunji courts’ cor-

rect retroactivity analysis based on the conviction of

a crime involving moral turpitude and misconstrued

the significance of 8 U.S.C. § 1101(a)(13)(C)(v)’s ref-

erence to the term “commission” of an offense and

interpreted it without reading it in conjunction with

8 U.S.C. § 1182(a)(2)(A)G)D.

' The Olatunji court went further and found that “reliance,

in any form, is irrelevant to the retroactivity inquiry” and held

that IIRIRA’s change in the Rosenberg v. Fleuti doctrine could

not be retroactively applied to a person who pled guilty prior to

its enactment. 387 F.3d 383, 388-96.

B. The Petition Should Be Granted Because

the Second Circuit Panel Fundamentally

Misinterpreted the Relevant Statutory

Language

The Second Circuit panel egregiously erred by fo-

cusing its retroactivity analysis solely on the term

“committed” without referring to it in conjunction

with the “[as] identified in section 212(a)(2) [8 U.S.C.

§ 1182(a\2)]” provision of 8 U.S.C. § 1101(a)(13XC)(v).

The Secord Circuit panel fundamentally failed to rec-

ognize that 8 U.S.C. § 1101(aX13)(C)(v) only attaches

consequences to convictions or formal admissions of a

crime involving moral turpitude, and not to the mere

commission of an offense identified in 8 U.S.C.

§ 1182(a)(2). If the court below’s interpretation is

permitted to stand, it would lead to an absurd result

as LPRs would be inadmissible to the United States

without being convicted or admitting to a cmme

involving moral turpitude. This is patently illogical

and contrary to the letter and spirit of the statute in

question.

Effective April 1, 1997, 8 U.S.C. § 1101(a)(13KC Xv)

was enacted, which states in relevant part:

residence in the United States shall not be

regarded as seeking an admission into the

United States for the purpose of the immi-

gration laws unless the alien, ... (v) has

committed an offense identified in section

212(aX2) of this title. .. .

However, section 212(a)(2) of the Immigration

and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(2), in

turn, states in relevant part that an “alien is in-

admissible if he or she has been convicted of, or

admits having committed, or admits committing acts

which constitute the essential elements of — a crime

involving moral turpitude (other than a purely politi-

cal offense) or an attempt or conspiracy to commit

such a crime... .” (Emphasis added).

The Second Circuit panel flagrantly misinterpreted

the term “committed” in 8 U.S.C. § 1101(a)(13)(C)(v)

without discerning its meaning in conjunction with

8 U.S.C. § 1182(a)(2) which sets forth the criteria

for inadmissibility based on criminal and related

grounds. The relevant statutory provision involved in

this petition relates to a crime involving moral turpi-

tude which is governed by 8 U.S.C. § 1182(a)(2)A)(GiD)

which unambiguously renders an alien inadmissible

upon conviction of or admission to committing acts of

a crime involving moral turpitude.

This Court has long ruled that whether “a par-

ticular application is retroactive will depen{d] upon

what one considers to be the determinative event

by which retroactivity or prospectivity is to be calcu-

lated.” Republic National Bank of Miami v. United

States, 506 U.S. 80, 100 (1992). The determinative

event of this petition is the petitioner’s conviction of a

crime involving moral turpitude which rendered him

inadmissible.

For that reason the Second Circuit panel miscon-

strued the meaning of 8 U.S.C. § 1101(aX(13)(C)(v)’s

reference to the “commission” of an offense by failing

to consider its interaction with other provisions of the

INA. The Second Circuit panel grossly misconstrued

that “Section 101(a)(13C)(v) governs the entry

status of a LPR who has ‘committed’ a [crime of moral

turpitude]... .” 620 F.3d at 120. It should be noted

that 8 U.S.C. § 1101(aX(13) is a definitional section

defining the terms “admission” and “admitted” used

in numerous places throughout the INA. Subsections

(B) and (C) represent provisos about when and

whether certain classes of aliens should be exempt

from application of other provisions of the Act that

use the terms “admission” or “admitted,” as subsec-

tion (C) says, “for purposes of the immigration laws.”

By the explicit terms of 8 U.S.C. § 1182(aX2)AXi),

an LPR is not and cannot be found inadmissible upon

merely commission of a crime involving moral turpi-

tude — an LPR is only inadmissible if he has admitted

or been convicted of a crime involving moral turpi-

tude. This section of the statute provides that an LPR

may only be deemed to be seeking an admission if he

has “committed” an offense “identified in” § 1182(a)(2)

— this entire section of the statute only comes into

play if the LPR is actually inadmissible for a convic-

tion of or admission of a crime involving moral turpi-

tude. The very language relied on by the Second

Circuit panel is rendered statutory surplusage if

“identified in” is interpreted as disjunctive from the

ground for admissibility under 8 U.S.C. § 1182(a)(2).

In reviewing statutes a legislature is presumed not to

use any superfluous language, Bailey v. U.S., 516

U.S. 137, 145 (1995). See also Pennsylvania Depart-

ment of Public Welfare v. Davenport, 495 U.S. 552,

562 (1990), where the Court held that “loJur cases

express a deep reluctance to interpret a statutory

provision so as to render superfluous other provisions

in the same enactment.”

Here, it is the petitioner’s conviction based on his

guilty plea is the determinative event that triggered

the issue of inadmissibility. The Second Circuit panel

erred when it held that “section [i.e. § 1101(aX13\C)(v)}

does not hinge on either a LPR’s conviction or his

decision to plead guilty.” 620 F.3d at 119. In fact, it

does hinge on the plea and conviction because in the

absence of a conviction or admission of a crime involv-

ing moral turpitude, 8 U.S.C. § 1101(a)(13\C)(v)

simply does not apply.

Because the structure of the statute is so un-

ambiguous the Second Circuit panel blatantly erred

when it faulted the Olatunji and Camins courts for

failing to address the significance of the term “com-

mitted.” 620 F.3d at 121. The Camins and Olatunji

courts did not address the commission because only a

conviction or admission of a crime involving moral

turpitude makes 8 U.S.C. § 1101(aX13\C)(v) relevant

to the LPR’s right to be readmitted to the United

States. The Camins and Olatunji courts properly

focused on the guilty pleas (convictions) because it

was those subsequent events that made 8 U.S.C.

§ 1101(aX13\C\v) relevant.

In addition, aside from being convicted, the com-

mission of a crime involving moral turpitude has no

legal consequence unless it is admitted by an alien.

The Second Circuit panel fatally failed to recognize

that the mere commission of a crime is insufficient to

sustain a charge of inadmissibility under 8 U.S.C.

§ 1182(a\(2MAXi)T) as hereinabove discussed. The

commission of an identified offense must be admitted

by an alien. The admission must comply with the long

standing BIA case law governing charges of inadmis-

sibility. The BIA has held that, for an alien to be

charged with inadmissibility due to admitting the

essential elements of a crime involving moral turpi-

tude the following must occur: (1) the admitted con-

duct must constitute the essential elements of the

crime; (2) the applicant must have been provided with

the definition and the elements of the offense prior to

his admission; and (3) the admission must be volun-

tary. Matter of K-, 7 I&N Dec. 594, 598 (BIA 1957). See

also Matter of J-, 2 I&N Dec. 285 (BIA 1945), Matter of

L-, 2 l1&N Dec. 486 (BIA 1946), Matter of E-N-, 7 I&N

Dec. 153 (1956). See also 22 C.F.R. § 40.21(aX1). The

record of proceedings herein, however, is devoid of

any reference to admission of a crime involving moral

turpitude.

These are the precise statutory reasons that the

petitioner herein as well as the petitioners in Camins

and Olatunj were charged for having been convicted

of and not for having committed a crime of moral

turpitude under 8 U.S.C. § 1182(a)(2)A)ixD.

C. The Petition Should Be Granted to Correct

the Second Circuit Panel’s Misapplication

of Landgraf to 8 U.S.C. § 1101(a)(13)(C)(v).

Because the LPR was, thus, not an alien seeking

“entry” to the United States upon his return, he was

not subject to a ground of inadmissibility. The Second

Circuit panel has held that amendments to 8 U.S.C.

§ 1101(aX(13\C){v), post-dating the petitioner’s plea,

effectively eliminated the Fleuti doctrine.

However, it has long been held that the retro-

active application of statutes is disfavored in the

absence of clear and contrary Congressional intent.

As elementary considerations of fairness dictate that

individuals should have an opportunity to know what

the law is and to conform their conduct accordingly,

settled expectations should not be lightly disrupted.

See Landgraf v. USI Film Prods., 511 U.S. 244, 265.

This Court in Landgraf articulated a two-step

test for determining whether a federal statute applies

retroactively. First, “absent clear congressional intent

favoring” retroactive application, the court must

move to the second step of the Landgraf test. The

first step is not an issue. Under the second step, this

Court determines whether “the new provision attach-

es new legal consequences to events completed before

its enactment” such that it interferes with “familiar

considerations of fair notice, reasonable reliance, and

settled expectations.” Jd. at 270.

In determining whether the attachment of new

legal consequences to past actions conflicts with

“familiar considerations of fair notice, reasonable

reliance, and settled expectations,” Landgraf, 511

U.S. at 270, the petitioner must demonstrate that the

new law was impermissibly applied to his case retro-

actively and, in fact, he detrimentally relied on the

prior law at the time of the guilty plea. The petitioner

in the instant case has definitely met this burden

insofar as the repealed 8 U.S.C. §1101(a)(13), as

interpreted by this Court allowed the petitioner to

take innocent, casual, and brief trips outside the

United States without subjecting himself to a charge

of inadmissibility.

The Second Circuit panel insisted on focusing

on the term “committed an offense” and errone-

ously held that retroactive application of 8 U.S.C.

§ 1101(a)(13)(CXv) was proper under Landgraf and

novod that it “would border on the absurd to suggest

that Vartelas committed his counterfeiting crime in

reliance on the immigration laws.” 620 F.3d at 120.

Therefore, the Second Circuit panel fundamen-

tally erred in refusing to recognize that the amended

8 U.S.C. § 1101(a\13) does in fact attach a new legal

consequence to the petitioner’s guilty plea based on

his conviction which renders him inadmissible upon

return from travel outside the United States, no

matter how innocent, casual, and brief the trip. The

petitioner reasonably and detrimentally relied on the

existing law at the time he pled guilty to the offense.

And, as this Court has recognized, “the legal effect of

conduct should ordinarily be assessed under the law

that existed when the conduct took place.” See

Landgraf, 511 U.S. at 265 (quoting Kaiser Aluminum

& Chem. Corp. v. Bonjorno, 494 U.S. 827, 855 (1990)

(Scalia, J., concurring)).

Further, this Court states “[a] statute has an

impermissible retroactive effect when it ‘takes away

or impairs vested rights acquired under existing laws,

or creates a new obligation, imposes a new duty, or

attaches a new disability, in respect to transactions or

consideration already past.” INS v. St. Cyr, 533 U.S.

289, 321 (2001) (internal citation omitted).

Consequently, the Second Circuit panel’s decision

runs afoul of the second step of the Landgraf test and

the reasoning of St. Cyr which particularly warrant

review by this Court insofar as the constitutional

presumption against retroactive legislation is “deeply

rooted in our nation’s jurisprudence and embodies a

legal doctrine centuries older than our Republic.”

Landgraf, 511 U.S. at 265.

In sum, the Court should adopt the holding

by the Camins court which agreed with the Fourth

Circuit, that limitation on the ability to travel outside

the United States is one of the “immigration con-

sequences” of which LPR defendants considering

whether to enter into a plea agreement would be

acutely aware, and that “aliens who accepted a plea

agreement prior to IIRIRA could reasonably have

relied on their continuing ability to take brief trips

abroad.” Olatunji, 387 F.3d at 397. The common,

functional judgment will conclude that 8 U.S.C.

§ 1101(a)(13XC\Xv) would have an _ impermissible

retroactive effect if applied to the petitioner’s pre-

IITRIRA guilty plea for the reasons stated herein.

The question of appropriate application of Land-

graf retroactivity analysis is raised by two pending

certiorari petitions Johnson v. Holder filed on Decem-

ber 1, 2010 and Judulang v. Holder filed on Novem-

ber 24, 2010, further confirming the nationwide

importance of the issue presented in this petition.

CONCLUSION

For the foregoing reasons, the Court should grant

the instant petition for a writ of certiorari and re-

verse the decision of the Second Circuit Court of

Appeals.

Respectfully submitted,

PANAGIS VARTELAS, Pro Se

73 Courtland Avenue

Stamford, CT 06902

(516) 244-3997

achow@nawlaw.com

App. l

620 F.3d 108

United States Court of Appeals,

Second Circuit.

Panagis VARTELAS, Petitioner,

Eric H. HOLDER, Jr., U.S. Attorney General,

Respondent.

Docket No. 09-0649-ag.

Argued: Jan. 12, 2010.

Decided: Sept. 9, 2010.

Andrew K. Chow, New York, New York (Neil A.

Weinrib & Associates, New York, New York, on the

brief), for Petitioner.

Keith I. McManus, Senior Litigation Counsel, Wash-

ington, D.C. (Tony West, Assistant Attorney General,

Terri J. Scadron, Assistant Director, Anthony W.

Norwood, Senior Litigation Counsel, Office of Immi-

gration Litigation, U.S. Department of Justice, Civil

Division, Washington, D.C., on the brief), for Re-

spondent.

Before: KEARSE, CABRANES, and LIVINGSTON,

Circuit Judges.

KEARSE, Circuit Judge:

Petitioner Panagis Vartelas, an alien who is a

lawful permanent resident of the United States and

who traveled abroad after being convicted of a crime

involving moral turpitude, seeks review of a decision

of the Board of Immigration Appeals (“BIA” or the

“Board”) denying his motion to reopen a removal

App. 2

proceeding brought against him pursuant to

§ 212(a)2)A)G)C) of the Lmmigration and Nationality

Act (“INA” or the “Act”), 8 U.S.C. § 1182(a)(2)(A)(i)),

as a returning alien seeking “admission” to the United

States within the meaning of INA § 101(a)(13),

8 U.S.C. §1101(a)(13), as amended by § 301(a)(13)

of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Pub L. No.

104-208, Div. C., 110 Stat. 3009-546 (1996). Vartelas

moved to reopen on the ground that his attorneys had

rendered ineffective assistance by failing to move

before the Immigration Judge (“IJ”) for termination of

the removal proceeding on the grounds (a) that the

offense of which he was convicted was within the

scope of 8 U.S.C. § 1182(a)(2KA)Gi ID and thus was

not a removable offense, and (b) that the ITRIRA

amendment should not be applied retroactively to

treat him as seeking “admission.” In his petition for

review, Vartelas contends principally that the BIA

applied an erroneous legal standard to his ineffective

assistance claim and erred in concluding that he was

not prejudiced by his attorneys’ failure to move for

termination of the removal proceeding on the above

grounds. Finding no merit in his contentions, we deny

the petition for review.

I. BACKGROUND

Vartelas, a citizen of Greece, has been a lawful

permanent resident (“LPR”) of the United States

since 1989. In 1994, he was convicted, upon his plea

of guilty, of having conspired in 1992 to make or

App. 3

possess a counterfeit security in violation of 18 U.S.C.

§ 371, see id. § 513(a). That offense carried a maxi-

mum term of imprisonment of five years. The range

of imprisonment recommended by the Sentencing

Guidelines (“Guidelines”) was 4-10 months; the prison

term imposed on Vartelas was four months.

The INA provides generally that “Lajny alien who

at the time of entry” would be ineligible for admission

into the United States under “the law existing at such

time” by reason of, inter alia, having committed a

non-petty offense involving moral turpitude “is de-

portable.” 8 U.S.C. § 1227(a)(1)(A) (2006) (“Any alien

who at the time of entry ... was within one or more

of the classes of aliens inadmissible by the law exist-

ing at such time is deportable.”), transferred from id.

§ 1251(a)(1)(A) (1994) (“Any alien who at the time of

entry ... was within one or more of the classes of

aliens excludable by the law existing at such time is

deportable.”); see id. § 1182(a)(2)(A) (classes ineligible

for admission include aliens who have been convicted

of, or who admit having committed, non-political,

non-petty crimes involving moral turpitude, or con-

spiracy to commit such crimes); see also 18 U.S.C.

§ 1(3) (1982 & Supp. IV 1987) (repealed 1987) (term-

ing a misdemeanor for which an individual could not

be imprisoned for more than six months or fined more

than $5,000, or both, “a petty offense”). Crimes involv-

ing moral turpitude include counterfeiting offenses.

See, e.g., United States ex rel. Volpe v. Smith, Director

of Immigration, 289 U.S. 422, 423, 53 S.Ct. 665, 77

L.Ed. 1298 (1933).

App. 4

On January 29, 2005, Vartelas returned to the

United States from a trip to Greece and claimed the

right to return as an LPR. iije was questioned by an

immigration officer about his 1994 conviction, and in

March 2003 he was served with a notice to appear for

removal proceedings on the ground that he was

inadmissible as an alien who sought entry into the

United States after being convicted of, or having

admitted committing, a crime of moral turpitude.

A. The Proceedings Before the IJ and the

Appeal to the BIA

In 2003, 2004, and early 2005, Vartelas appeared

before an IJ at a number of preliminary hearings at

which various possible defenses to the charge of

removability were discussed. At a hearing on June 15,

2005, however, Vartelas’s then-attorney informed the

IJ that Vartelas was conceding that he was removable

as charged, but that he would request relief from

removal under former § 212(c) of the INA, 8 U.S.C.

§ 1182(c) (1994) (repealed 1997). Although that sec-

tion, which granted the Attorney General discretion

to waive certain grounds of deportability for a subset

of LPRs, had been repealed by IIRIRA, it remained

available to LPRs whose convictions were based on

guilty pleas entered before [IRIRA’s effective date of

April 1, 1997, see INS v. St. Cyr, 533 U.S. 289, 121

S.Ct. 2271, 150 L.Ed.2d 347 (2001) (“St. Cyr II”),

aff’g 229 F3d 406 (2d Cir.2000) (“St. Cyr 1”).

After Vartelas’s first attorney thereafter neglected

his responsibilities, Vartelas changed attorneys and

App. 5

continued the strategy of conceding his removability

and requesting a § 212(c) discretionary waiver of

removal.

In an Oral Decision delivered on June 27, 2006,

the IJ denied Vartelas’s application for relief under

§ 212(c). She noted, inter alia, that Vartelas had made

frequent trips to Greece and remained there for long

periods of time: had not paid his United States in-

come taxes; had not shown hardship to himself, his

estranged wife, or his United States citizen children

who resided in Chicago with their mother; and had

not shown that he supported the children. The IJ

concluded that the equities did not warrant discre-

tionary relief, and she ordered Vartelas removed from

the United States to Greecé.

Vartelas appealed the IJ’s decision to the BIA,

arguing (1) that although he had committed a crime

involving moral turpitude, he had been sentenced to a

prison term of less than six months and that under

8 U.S.C. § 1182(a)(2)(A)()CID his crime was thus not

a removable offense; and (2) that, if removable, he

should have been granted relief under § 212(c). In an

opinion dated May 1, 2008, the Board affirmed the

order of removal. It refused to consider Vartelas’s

contention that his conspiracy crime was not a re-

movable offense, because Vartelas had conceded

removability before the IJ. The Board rejected

Vartelas’s contention that he should have been granted

§ 212(c) relief, adopting and affirming the decision of

the IJ. The Board noted that Vartelas had not taken

advantage of the opportunity afforded him by the IJ

App. 6

to clarify the facts relevant to his tax problems, and it

stated that the positive equities of Vartelas’s family

ties and long residence in the United States were

offset by his frequent sojourns in’ Greece and his

voluntarily maintaining his United States residence

in New York, a great distance from his children.

B. The Motion To Reopen the Proceeding

In July 2008, represented by new counsel, Var-

telas filed a timely motion before the BIA to reopen,

citing In re Lozada, 19 I. & N. Dec. 637 (B.1.A.1988)

(setting standard for motions to reopen based on

claims of ineffective assistance of counsel), and alleg-

_ ing that the series of attorneys who represented him

in the proceedings before the IJ had failed to provide

him with effective assistance. In addition to arguing

that his first attorney had been ill-prepared and had

missed certain hearings, Vartelas argued principally

that he had been severely prejudiced by both attor-

neys’ failure to pursue his defenses to removability.

Adverting to the defense the Board had refused to

consider on his appeal, and citing a predecessor of

§ 1182(a2KA)GiI\ID, Vartelas pointed out that “the

sentence actually imposed did not exceed a term of

imprisonment in excess of six months” and stated

that he “was not relying on 212(c) relief when he

entered his plea of guilty; he was relying on the fact

that the sentence imposed made his crime a non-

removable crime at the time of conviction.” (Vartelas

Motion To Reopen and Remand at 12-13.) In addi-

tion, Vartelas argued that ITRIRA had changed the

App. 7

meaning of “entry” in § 101(a)(13) with respect to

LPRs and that his prior attorneys had provided in-

eiiective assistance by not challenging removability

on the ground that the ITRIRA change should not be

applied to him retroactively.

In an opinion dated January 23, 2009 (“BLA 2009

Decision”) (reported, without pagination, at 2009 WL

331200), the BIA denied Vartelas’s motion to reopen.

The Board evaluated Vartelas’s ineffective-assistance

claim under the standard that had recently been

announced by the Attorney General in Jn re Compean,

Bangaly & J-E-C-, 24 1. & N. Dec. 710 (A.G. Jan. 7,

2009) (“Compean I”) (overruling Lozada in part),

vacated by In re Compean, Bangaly & J-E-C-, 25 LI.

& N. Dec. 1 (A.G. June 3, 2009) (““Compean II”).

Describing the then-controlling Compean I, the Board

noted that

[tlo prevail on a deficient performance of

counsel claim, the respondent must establish

that his lawyer’s failings were egregious and

that his case was prejudiced by counsel’s per-

formance. To establish prejudice, the re-

spondent must show that but for the lawyer’s

failing [s], he likely would have succeeded on

the merits of his underlying claim to remain

in the United States.

BIA 2009 Decision at 1. The Board concluded that

Vartelas did not meet this standard. It found no

deficiency in the performance of. Vartelas’s second

attorney; and: it found that even if there were derelic-

tions on the part of his first attorney, Vartelas

App. 8

failed to show that [the attorney’s] perfor-

mance prejudiced his case. The Immigration

Judge gave the respondent additional time

to obtain new counsel. [Vartelas] has failed

to establish that he is not inadmissible

as charged. [Vartelas}] is not eligible for

the “petty offense” exception under section

212(aX2AMiDTT) of the Act, 8 U.S.C.

§ 1182(aX(2)A)GI)\ID, because the maximum

penalty for the crime of which he was

convicted is five years imprisonment. ...

BLA 2009 Decision at 2. The Board also rejected the

contention that the I[TRIRA-amended version of INA

§ 101(a)(13) was impermissibly retroactive as applied

to Vartelas, noting that Vartelas cited only Camins v.

Gonzales, 500 F.3d 872 (9th Cir.2007). It stated that

his reliance on that case was “misplaced because the

instant case arises in the jurisdiction of the United

States Court of Appeals for the Second Circuit, not

the Ninth Circuit,” and “the Board historically follows

a court’s precedent in cases arising in th[e] circuit” in

which the proceeding is conducted. BIA 2009 Decision

at 2. The Board concluded that Vartelas’s attorneys’

failure to raise the retroactivity argument thus did

not prejudice him.

Il. DISCUSSION

On this petition for review, Vartelas argues

principally that the BIA, in considering his motion to

reopen the removal proceeding, should have applied

App. 9

the Lozada standard to his ineffective-assistance-

of-counsel claim and should have found that standard

satisfied. He contends that the BIA, in conclud-

ing that he failed to satisfy the prejudice prong

of his claim, erred in not concluding that his offense

of conviction was a nonremovable offense under

§ 1182(aX2A)GiXID, see Part II.B. below; and in

applying the IIRIRA-amended § 101(a)(13), rather

than applying the “Fleuti doctrine,” see Rosenberg v.

Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000

(1963) (“Fleuti”), to conclude that in returning to the

United States he was not seeking “entry,” see Part

II.C. below.

In reviewing the BIA’s denial of a motion to

reopen, we apply an abuse-of-discretion standard.

See, e.g., Debeatham v. Holder, 602 F.3d 481, 484

(2d Cir.2010); Wang v. BIA, 437 F.3d 270, 273 (2d

Cir.2006). For the reasons that follow, we see no

abuse of discretion here.

A. The Prejudice Prong of a Claim of Ineffec-

tive Assistance in Removal Proceedings

In 1988, the BIA in Lozada established a frame-

work within which it would consider a motion to

reopen a removal proceeding based on a claim of

ineffective assistance of counsel. See generally 19 1. &

N. Dec. at 637. With regard to the substance of such a

claim, the Board stated as follows:

Any right a respondent in deportation pro-

ceedings may have to counsel is grounded in

App. 10

the fifth amendment guarantee of due pro-

cess. .. . Ineffective assistance of counsel in a

deportation proceeding is a denial of due pro-

cess only if the proceeding was so fundamen-

tally unfair that the alien was prevented

from reasonably presenting his case... . One

must show, moreover, that he was prejudiced

by his representative’s performance.

Id. at 638 (emphasis added).

In applying Lozada principles in the context of

an alien’s claim that his attorney failed to make

certain arguments, the BIA has articulated a variety

of standards as to what the alien must show to estab-

lish that counsel’s performance caused him prejudice.

For example, in In Re Fernandez, No. A41 590 875,

2006 WL 3088698 (B.I.A. Sept. 21, 2006) (unpaginated),

the Board stated that “prejudice” “means that it is

likely that an alien would have prevailed at the hear-

ing or on appeal had the negligent representation not

occurred.” (Emphasis added.) In In Re Munroe, No.

A34 111 687, 2007 WL 275812 (B.A. Jan. 18, 2007)

(unpaginated), the Board described a standard con-

siderably less stringent than likely-to-have-prevailed,

stating that “evidence of prejudice” is

evidence reflecting a reasonable possibility

that the outcome of his removal hearing

would have been different had counsel not

declined to apply for relief on his behalf or

conceded the charge of removability.

(Emphasis added.) And in applying Lozada in In

Re Chambers, No. A18 133 311, 2007 WL 2588591

App. 11

(B.LA. Aug. 8, 2007) (unpaginated), the Board referred

to yet another standard, stating that “[p]rejudice is

shown where counsel’s actions [are] so inadequate

that there is a reasonable probability that, but for

counsel’s ineffectiveness, the outcome of the proceed-

ings would have been different,” while also stating

that Chambers had failed to show prejudice because

he “failed to demonstrate what actions his former

attorney should have taken that would have war-

ranted a different result.” (Emphases added.)

In Compean I, the then-Attorney General vacated

Lozada in part, renouncing its assumption of a con-

stitutional foundation for the right to counsel in

removal proceedings, and established a clear and

stringent standard for BIA analysis of motions to

reopen based on claims of ineffective assistance of

counsel. The Compean I Attorney Genera! opined that

“the Constitution does not confer a constitutional

right to effective assistance of counsel in removal

proceedings.” 24 I. & N. Dec. at 714; but see, e.g.,

Debeatham v. Holder, 602 F.3d at 485 (such claims

are grounded in the right to due process). The Attor-

ney General noted, however, that the alien has a

statutory privilege to retain counsel, see Compean I,

241. & N. Dec. at 726, and concluded that the Board

has discretion to reopen proceedings “[i]n extraordi-

nary cases, where a lawyer’s deficient performance

likely changed the outcome of an alien’s removal

proceedings,” id. at 714 (emphasis added). He stated,

“I conclude that to establish prejudice arising from a

lawyer’s deficient performance sufficient to permit

App. 12

reopening, an alien must show that but for the defi-

cient performance, it is more likely than not that the

alien would have been entitled to the ultimate relief

he was seeking.” Jd. at 733-34 (emphasis added); see

also id. at 734 (finding “the ‘more likely than not’

standard ... more appropriate than {the] ‘reasonable

probability’ standard” and “more demanding”).

In Compean II. a new Attorney General “vacate[d]

Compean [I] in its entirety,” 25 I. & N. Dec. at 3, and

called for rulemaking to evaluate the Lozada frame-

work and to determine what modifications should be

proposed, see id. at 2. With Compean I vacated, the

Lozada standard was expressly restored. See, e.g., id.

at 3 (“To ensure that there is an established frame-

work in place pending the issuance of a final rule, the

Board and Immigration Judges should apply the pre-

Compean standards to all pending and future motions

to reopen based upon ineffective assistance of coun-

sel, regardless of when such motions were filed.”).

Compean I was announced after Vartelas filed his

motion to reopen but before the Board ruled on the

motion; Compean II vacated Compean I, but not until

after the Board had ruled on his motion. Thus, the

Compean I standard was the prevailing standard at

the time of the Board’s decision. Vartelas contends

that the Board’s application of the “stringent re-

quirement” set in Compean J, rather than the stan-

dard set by Lozada, denied him due process. (Vartelas

brief on appeal at 12.)

App. 13

We conclude, however, that in this case we need

not determine which of the standards of prejudice

applies to an ineffective-assistance-of-counsel claim

in removal proceedings. Whatever the provenance of

the right, an ineffective-assistance claim cannot be

established without some showing of prejudice; and

for the reasons stated in the sections that follow,

Vartelas has failed to show prejudice under any

standard.

B. The Petty Offense Exception

Vartelas contends that his crime involving moral

turpitude was a nonremovable offense under

§ 1182(a)(2A)GiI)UT) because he was sentenced to a

prison term of less than six months. We reject this

contention because it disregards one of the criteria

stated in that section.

Section 212(a)(2) of the INA, 8 U.S.C. § 1182(a)(2),

defines classes of aliens who are excludable on

“(cjriminal and related grounds.” In 1992 and 1994,

when Vartelas committed and pleaded guilty to, re-

spectively, the crime of conspiracy to make or possess

a counterfeit security, subsection (a)(2)(A) provided,

in pertinent part, as follows:

(i) In general

Except as provided in clause (ii), any

alien convicted of, or who admits having

committed, or who admits committing acts

which constitute the essential elements of —

App. 14

(I) a crime involving moral tur-

pitude (other than a purely political

offense) or an attempt or conspiracy to

commit such a crime,

b * +

is excludable.

(ii) Exception

Clause (i)(I) shall not apply to an alien

who committed only one crime if —

* + *

(II) the maximum penalty possible

for the crime of which the alien was con-

victed (or which the alien admits having

committed or of which the acts that the

alien admits having committed consti-

tuted the essential elements) did not ex-

ceed imprisonment for one year and, if

the alien was convicted of such crime,

the alien was not sentenced to a term of

imprisonment in excess of 6 months (re-

gardless of the extent to which the sen-

tence was ultimately executed).

8 U.S.C. § 1182(aX2A) (1988 & Supp. HI 1992)

(emphases added); see 8 U.S.C. § 1182(a)(2KA) (2006)

(substituting “inadmissible” for “excludable”).- By its

terms, therefore, § 1182(a)(2A)(ii)(II) is not applica-

ble unless, inter alia, both the prison term actually

imposed was not more than six months and “the

maximum” prison term “possible for the crime”

(emphasis added) was not more than one year.

App. 15

The section of the Criminal Code under which

Vartelas was convicted authorizes, inter alia, “impris-

on{ment of] not more than five years,” 18 U.S.C.

§ 371. Thus, following his plea of guilty, Vartelas

could have been sentenced to five years’ imprison-

ment. His reliance on the fact that the range of

imprisonment recommended by the Guidelines for his

offense was 4-10 months (see Vartelas brief on appeal

at 19) is misplaced. The plain meaning of “maximum

penalty possible” (emphases added) is the highest

penalty that the applicable statute allows. The “max-

imum ... possible” does not refer to a Guidelines-

recommended range of imprisonment that is less than

what a court could lawfully impose. Accord Mejia-

Rodriguez v. Holder, 558 F.3d 46, 48 (1st Cir.2009)

(“‘maximum penalty possible’ is determined in refer-

ence to the relevant statutory range of imprisonment

and not the federal Sentencing Guidelines range”);

Mendez-Mendez v. Mukasey, 525 F.3d 828, 833 (9th

Cir.2008) (“The plain language of the statute indi-

cates that the phrase, ‘the maximum penalty possible,’

refers to the statutory maximum, not the maximum

sentence under the sentencing guidelines.”).

As the crime of which Vartelas was convicted

carried a statutory maximum prison term of five

years, that crime was not one for which he could not

lawfully be imprisoned for more than one year, and it

thus did not qualify as a petty offense within the

scope of § 1182(a)(2)(A)Gi)ID. Accordingly Vartelas

was not prejudiced by his attorneys’ failure to argue

that he was nonremovable under that section.

App. 16

C. The Retroactivity Argument

As indicated in Part I above, § 1227(a)(1)(A)

provides that an alien who is inadmissible under the

laws in effect at the time of his entry into the United

States is deportable. Prior to the enactment of

ITRIRA, the INA defined “entry” to

mean [] any coming of an alien into the

United States, from a foreign port or place or

from an outlying possession, whether volun-

tarily or otherwise, except that an alien hav-

ing a lawful permanent residence in the

United States shall not be regarded as mak-

ing an entry into the United States for the

purposes of the immigration laws if the alien

proves to the satisfaction of the Attorney

General that his departure to a foreign port

or place or to an outlying possession was not

intended or reasonably to be expected by him

or his presence in a foreign port or place or in

an outlying possession was not voluntary.

8 U.S.C. § 1101(a)(13) (1994) (emphases added).

In 1963, the Supreme Court in Fileuti interpreted

this provision as it applied to an LPR who had been

served with a notice of deportation under INA § 212(a)

after returning to the United States following a visit

of “about a couple hours” to Mexico, 374 U.S. at 450,

83 S.Ct. 1804 (internal quotation marks omitted). The

Court noted that “Congress unquestionably has the

power to exclude all classes of undesirable aliens from

this country,” id. at 461, 83 S.Ct. 1804, but concluded

that Congress had not meant its definition of “entry”

App. 17

to encompass a resident alien’s return from a brief,

innocent, casual foreign excursion that was not in-

tended to disrupt his resident alien status, see id. at

462, 83 S.Ct. 1804. The Court concluded that such a

trip “therefore may not subject [the LPR] to the

consequences of an ‘entry’ into the country on his

return.” Id.

Effective April 1, 1997, the INA was amended by

ITRIRA to, inter alia, delete the above definition of

“entry” from the statute; and § 101(a)(13) was divided

into subsections, the most pertinent of which provide

as follows:

(A) The terms “admission” and “admit-

ted” mean, with respect to an alien, the law-

ful entry of the alien into the United States

after inspection and authorization by an im-

migration officer.

* sit %

manent residence in the United States shall

not be regarded as seeking an admission into

the United States for purposes of the immi-

gration laws unless the alien —

* *K *

(v) has committed an offense iden-

tified in section 1182(a)(2) of this

tie...

8 U.S.C. §§ 1101(a)(13)(A) and (C)(v) (2006) (empha-

ses added). The word “entry” is not defined; and the

App. 18

new § 101(a)(13) omits reference to any effect that an

LPR may have “intended” his foreign sojourn to have.

The statute itself is silent as to the intended

effect of these amendments on the Fleuti doctrine,

and this Court has not previously addressed this

question. The BIA, however, has interpreted ITRIRA’s

amendment of § 101(a)(13) as superseding the Fleuti

doctrine. In In re Collado-Munoz, 21 I. & N. Dec.

1061 (B.1.A.1998), noting that “the central basis for

the Supreme Court’s reasoning in” Fleuti was the

then-existing § 101(a)(13)’s definition of “entry” and

its reference to “intended” consequences, and that

“the amended section 101(a)(13)(C) of the Act no

longer defines the term ‘entry’ and no longer contains

the term ‘intended,’” 21 i. & N. Dec. at 1065, the BIA

concluded that “the Fleuti doctrine, with its origins in

the no longer existent definition of ‘entry’ in the Act,

does not survive the enactment of the IIRIRA as a

judicial doctrine,” id. The BIA reasoned that under

the plain language of the new § 101(aX13\CXv), which

contains “a congressional directive not contained in

the previous version of that section and not before the

Supreme Court when it decided Fleuti,” 21 l. & N.

Dec. at 1066,

a lawful permanent resident who has com-

mitted an offense identified in _ section

212(a)(2), who has not since such time been

granted relief under [certain other provisions},

who departs the United States and returns,

shall be regarded as seeking an admission

App. 19

into the United States despite his lawful per-

manent resident status,

211. & N. Dec. at 1064 (emphases added), and is to be

so viewed

without regard to whether [his] departure

from the United States might previously

have been regarded as “brief, casual, and in-

nocent” under the Fleuti doctrine,

id. at 1066.

As we have noted in dealing with a different

ITRIRA amendment,

lin general, when Congress has delegated

authority to an agency to administer a stat-

ute, and “the statute is silent or ambiguous

with respect to [a] specific issue,” we must

accord substantial deference to a reasonable

interpretation given by the agency and can-

not “simply impose [our] own construction on

the statute.” Chevron, U.S.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 843,

104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The

BIA, through powers delegated by the Attor-

ney General, enforces and interprets the INA

and thus has the authority to fill statutory

gaps with reasonable interpretations.

Martinez v. INS, 523 F.3d 365, 372 (2d Cir.2008)

(“Martinez”) (other internal quotation marks omitted),

cert. denied, __ U.S. ___, 129 S.Ct. 1314, 173 L.Ed.2d

584 (2009). In the present case, given IIRIRA’s dele-

tion of the pre-1997 definition of “entry,” its emphasis

App. 20

on “admission,” and its specification of the conditions

under which an LPR is or is not to be regarded as

seeking “admission,” we conclude that the BIA in

Collado-Munoz reasonably interpreted IRIRA as

superseding the Fleuti doctrine. Accord De Vega v.

Gonzales, 503 F.3d 45, 48 (1st Cir.2007); Camins v.

Gonzales, 500 F.3d at 880; Malagon de Fuentes v.

Gonzales, 462 F.3d 498, 501-02 (5th Cir.2006); Tineo

v. Ashcroft, 350 F.3d 382, 395-96 (3d Cir.2003).

Vartelas argues, however, that because his plea

of guilty preceded IIRIRA, the IIRIRA amendment to

§ 101(aX13) was impermissibly retroactive as applied

to him. We consider the issue of retroactivity de novo,

without giving deference to the opinion of the BIA, as

the question of whether an IIRIRA amendment

“would have an improper retroactive effect in [a]

particular case ... does not concern the sort of statu-

tory gap that Congress has designated the BIA to fill,

nor a matter in which the BIA has particular exper-

tise.” Martinez, 523 F.3d at 372-73. In conducting the

retroactivity analysis, we use the familiar two-step

inquiry announced in Landgraf v. USI Film Products,

511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).

In the first Landgraf step, we “must ascertain,

using the ordinary tools of statutory construction,

‘whether Congress has expressly prescribed the

statute’s proper reach.’” Martinez, 523 F.3d at 370

(quoting Landgraf, 511 U.S. at 280, 114 S.Ct. 1483).

If Congress has expressly prescribed the relevant

provision’s temporal reach, we need look no farther.

Here, we note — and the government concedes — that

App. 21

Congress has not expressly prescribed the temporal

reach of § 101(a\(13). Accordingly, we move to the

second Landgraf step, in which we ask whether

application of the new section would have a “genuinely

‘retroactive’ effect,” 511 U.S. at 277, 114 S.Ct. 1483,

that is, “whether the new provision attaches new legal

consequences to events completed before its enact-

ment” and inappropriately, i.e., contrary to “familiar

considerations of fair notice,” upsets “settled expecta-

tions” that were based on “reasonable reliance,” id. at

270, 114 S.Ct. 1483. In making this determination,

we bear in mind that a “‘statute [is not impermissibly

retroactive] merely because it is applied in a case

arising from conduct antedating the statute’s enact-

ment, or upsets expectations based in prior law,’”

Martinez, 523 F.3d at 370 (quoting Landgraf, 511

U.S. at 269, 114 S.Ct. 1483) (brackets in Martinez),

for “{ilf every time a man relied on existing law in

arranging his affairs, he were made secure against

any change in legal rules, the whole body of our law

would be ossified forever,” Landgraf, 511 U.S. at 269

n. 24, 114 S.Ct. 1483 (internal quotation marks

omitted).

Vartelas contends that the application of the new

§ 101(aX(13)CXv) to him would indeed interfere with

his settled expectations because that section

attach[es] a new legal consequence to Petition-

er’s guilty plea because, based on Petitioner’s

conviction, [it] renders him inadmissib[l]]le

upon return from travel outside the United

States, no matter how innocent, casual, and

App. 22

brief the travel. Petitioner reasonably relied

on the Fleuti doctrine when taking the plea

and his subsequent decision to depart the

U.S. for a brief period of time.

(Vartelas brief on appeal at 16 (emphases added)).

This contention might have greater merit if

§ 101(aX13)(C)\v) depended on an LPR’s decision to

plead guilty. In St. Cyr I, 533 U.S. 289, 121 S.Ct.

2271, 150 L.Ed.2d 347, the Supreme Court addressed

the amendments to the INA adopted in § 440(d) of the

Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) and IIRIRA, which, respectively,

reduced and then eliminated the availability to LPRs

of discretionary relief from deportation under INA

§ 212(c), 8 U.S.C. § 1182(c) (1994) (repealed 1997).

Affirming this Court’s decision in St. Cyr I, 229 F.3d

at 416, 420, the Supreme Court held that those

amendments “impose [d] an impermissible retroactive

effect on aliens who, in reliance on the possibility of

§ 212(c) relief, pleaded guilty to aggravated felonies,”

St. Cyr I, 533 U.S. at 315, 121 S.Ct. 2271 (emphasis

added). The Supreme Court observed that “in the

period between 1989 and 1995 alone, § 212(c) relief

was granted to over 10,000 aliens,” 533 U.S. at 296,

121 S.Ct. 2271, constituting “a substantial percent-

age” of all LPR “applications for § 212(c) relief,” 533

U.S. at 296, 121 S.Ct. 2271; see id. at 296 n. 5, 121

S.Ct. 2271 (noting “statistics indicating that 51.5% of

the applications for which a final decision was

reached between 1989 and 1995 were granted”). The

St. Cyr IT Court noted that

App. 23

[gliven the frequency with which § 212(c)

relief was granted in the years leading up to

AEDPA and IIRIRA, preserving the possi-

bility of such relief would have been one of

the principal benefits sought by defendants

deciding whether to accept a plea offer or

instead to proceed to trial.

Id. at 323, 121 S.Ct. 2271 (footnote omitted) (emphasis

added). Elementary notions of fairness thus required

the conclusion that the AEDPA/ITRIRA amendments

eliminating the availability of § 212(c) relief would be

impermissibly retroactive if applied to LPRs who,

prior to the effective dates of those statutes, relied on

the availability of such relief in deciding to plead

guilty:

Plea agreements involve a quid pro quo be-

tween a criminal defendant and the govern-

ment.... In exchange for some perceived

benefit, defendants waive several of their

constitutional rights (including the right to a

trial) and grant the government numerous

tangible benefits, such as promptly imposed

punishment without the expenditure of pros-

ecutorial resources.... There can be little

doubt that, as a general matter, alien defend-

ants considering whether to enter into a plea

agreement are acutely aware of the immigra-

tion consequences of their convictions.

St. Cyr IIT, 533 U.S. at 321-22, 121 S.Ct. 2271 (inter-

nal quotation marks and footnote omitted) (emphasis

added).

App. 24

[After] prosecutors have received the benefit of

these plea agreements, agreements that were

likely facilitated by the aliens’ belief in their

continued eligibility for § 212(c) relief, it

would surely be contrary to “familiar consid-

erations of fair notice, reasorméhle reliance,

and settled expectations,” ... to hold that

IIRIRA’s subsequent restrictions deprive

them of any possibility of such relief.

Id. at 323-24, 121 S.Ct. 2271 (quoting Landgraf, 511

U.S. at 270, 114 S.Ct. 1483) (emphases ours).

In St. Cyr I, we noted that it was “the conviction,

not the underlying criminal act, that trigger[ed] the

disqualification from § 212(c) relief,” 229 F.3d at 418

(internal quotation marks omitted); and in Rankine v.

Reno, 319 F.3d 93, 100 (2d Cir.), cert. denied, 540 U.S.

910, 124 S.Ct. 287, 157 L.Ed.2d 199 (2003), we noted

that the retroactivity concerns with respect to § 212(c)

relief are triggered by an LPR’s decision to plead

guilty, rather than by a conviction after a trial.

Although Vartelas argues that § 101(a)(13\(C)(v) is

impermissibly retroactive because he pleaded guilty

in reliance on the Fleuti doctrine, that section, unlike

§ 212(c), dees not hinge on either an LPR’s conviction

or his decision to plead guilty; rather, it turns on

whether the LPR “has committed an offense iden-

tified in section 1182(a)(2)” (emphasis added). In

defining the terms used in the INA, Congress has

fashioned some subsections in reference to an alien’s

conviction, and others in reference to the offense’s

commission. For example, compare 8 U.S.C. § 1101(f(8)

App. 25

(stating that no person is to be “regarded as ... a

person of good moral character” during any period in

which he “has been convicted ” of an aggravated

felony (emphasis added)), with id. § 1101(a)(13)(C)(v)

(prescribing the admission status of an LPR who

“has committed an offense” involving moral turpitude

(emphasis added)). When Congress “uses certain

language in one part of the statute and different

language in another, the court assumes different

meanings were intended.” Sosa v. Alvarez-Machain,

542 U.S. 692, 711 n. 9, 124 S.Ct. 2739, 159 L.Ed.2d

718 (2004) (internal quotation marks omitted). Here,

we infer that in framing § 101(a)(13)(C\Xv) to refer to

an LPR who “has committed an offense,” Congress

intended the focus to be on the alien’s commission of

the crime; and that is the event on which we focus in

order to determine whether the new section unfairly

unsettles any reasonable expectations.

We have consistently rejected the notion that an ~

alien can reasonably have relied on provisions of the

immigration laws in “committ{ing]” his crimes. In

St. Cyr I, we rejected the petitioner’s argument — and

the district court’s ruling — that the AEDPA/IIRIRA

elimination of § 212(c) discretionary relief “should not

be applied retrospectively to bar [an LPR’s] eligibility

for § 212(c) relief because .. . his criminal conduct . ...

occurred prior to the statutes’ enactment,” St. Cyr J,

29 F.3d at 409 (emphasis added). The district court

had “reasoned that Congress did not intend AEDPA

§ 440(d) to be applied retroactively to such pre-

enactment events because it would unfairly attach new

App. 26

legal consequences to pre-AEDPA criminal conduct.”

Id. (emphasis added). We refused to endorse the

proposition that “barring eligibility for discretionary

relief on the basis of pre-enactment criminal conduct

— as opposed to a plea going to the guilt of a deporta-

ble crime — constitutes an impermissible retroactive

application of a statute,” id. at 418 (emphasis added).

Rather, we viewed it as

border[ing] on the absurd to argue that these

aliens might have decided not to commit

(their] crimes, or might have resisted convic-

tion more vigorously, had they known that if

they were not only imprisoned but also,

when their prison term ended, ordered de-

ported, they could not ask for a discretionary

waiver of deportation.

Id. (internal quotation marks omitted). See, e.g.,

Domond v. INS, 244 F.3d 81, 86 (2d Cir.2001) (same).

We made a similar observation in Martinez, 523

F.3d 365, which concerned the former § 212(c)’s

requirement that, to be eligible for discretionary

relief from deportation, the alien must, inter alia,

have been domiciled in the United States for seven

consecutive years; the Martinez petitioner, who com-

mitted his crime in 1995, made a retroactivity chal-

lenge to ITRIRA § 240A(d)\(1\B), codified at 8 U.S.C.

§ 1229b(d\(1)(B), which provides that the continuity

of an LPR’s residence in the United States is halted

by his commission of a crime involving moral turpi-

tude or narcotics trafficking. We rejected the notion

that an alien in committing a crime could reasonably

App. 27

have relied on the prospect that there would be no

change in the immigration laws, noting that “it makes

no sense at all to ask whether an alien .. . acted with

an intention to preserve [his or her] eligibility for

relief under § 212(c)” in “committing” his offense.

523 F.3d at 376 (internal quotation marks omitted).

In the present case, given that § 101(a)(13)(C)(v)

governs the entry status of an LPR who has “commit-

ted” a crime involving moral turpitude, we likewise

conclude that the application of that section with

respect to Vartelas’s January 2003 foreign trip — an

event begun and completed long after the effective

date of IIRIRA — is not impermissibly retroactive, for

here too it would border on the absurd to suggest that

Vartelas committed his counterfeiting crime in reli-

ance on the immigration laws.

Vartelas points out that two of our Sister Circuits

have reached a conclusion contrary to the one we

reach today, see Camins v. Gonzales, 500 F.3d 872;

Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir.2004). We

do not find these cases persuasive. The Camins Court

reasoned that § 101(a)(13)(C)(v) unfairly imposes a

new burden on an LPR who pleaded guilty to a crime

involving moral turpitude by “effectively prohibit{ing]

him from making any overseas travel.” 500 F.3d at

883 (emphasis omitted). The burden, however, is not

on the LPR’s right to travel abroad but rather on the

absoluteness of his right to enter the United States

again — a matter that is squarely within the province

of Congress to regulate. Moreover, in both Camins

and Olatunji, the Courts analyzed retroactivity in

relation to the alien’s plea of guilty; neither opinion

App. 28

addressed § 101(a)(13\C)(v)’s focus on the LPR’s

“commilssion]” of the crime, or on the lack of ration-

ality in any claim that the LPR reasonably relied on

the immigration laws in deciding to break the crimi-

nal laws. Indeed, the Olatunji Court held that reli-

ance plays no role whatever in the retroactivity

analysis, see 387 F.3d at 389-91, a proposition that is

contrary to the reasoning of this Court in St. Cyr J,

see 229 F.3d at 419, and to that of the Supreme Court

in St. Cyr IT, see, e.g., 533 U.S. at 325, 121 S.Ct. 2271

(“the elimination of any possibility of § 212(c) relief by

ITRIRA has an obvious and severe retroactive effect”

“[bjecause respondent, and other aliens like him,

almost certainly relied upon th{[e] likelihood [of such

relief] in deciding whether to forgo their right to a

trial” (emphasis added)).

In-sum, we conclude that § 101l(aX(13\C\v),

introduced by IIRIRA, has superseded the Fleuti

doctrine and that the application of that section to an

LPR who, after the effective date of IIRIRA, makes a

trip abroad and seeks to reenter the United States is

not impermissibly retroactive. Thus, Vartelas has not

shown that he was prejudiced by his attorneys’ failure

to argue retroactivity.

CONCLUSION

We have considered all of Vartelas’s contentions

in his petition for review and have found them to be

without merit. The petition for review is denied.

App. 29

U.S. Department of Justice Decision of the Board of

Executive Office for Immigration Appeals

Immigration Review

Falls Church, Virginia 22041

File: A022 670 589 — Date: JAN 23 2009

New York, NY

Inre: PANAGIS VARTELAS

IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT:

Nicole Hartnett, Esquire

ON BEHALF OF DHS: Ricardo Vega

Assistant Chief Counsel

APPLICATION: Reopening

This case was last before us on May 1, 2008,

when we affirmed the Immigration Judge’s June 27,

2006, decision denying the respondent’s application

for a waiver of inadmissibility pursuant to former

section 212(c) of the Immigration and Nationality Act,

8 U.S.C. § 1182(c).

On July 30, 2008, the respondent, a native and

citizen of Greece, filed a timely motion to reopen

these proceedings based on a claim of ineffective

assistance of counsel. The respondent presents claims

against two former attorneys. He alleges that Mr.

Sarikas, who represented him before the Immigration

Judge from October 28, 2003, until March 10, 2006,

failed to submit a brief in support of the motion to

App. 30

terminate, failed to challenge the charge of in-

admissibility alleged in the Notice to Appear, and

failed to properly prepare the respondent’s 212(c)

waiver application. See Respondent’s Motion at 9-15,

Attachment B. The respondent alleges that Mr.

Massel failed to withdraw the respondent’s pleading

entered by and through Mr. Sarikas.

Subsequent to the filing of this motion the Attor-

ney General issued Matter of Compean, Bangaly &

J-E-C-, 24 I&N Dec. 710 (A.G. 2009) (overruling in

part Matter of Lozada, 19 I&N Dec. 637 (BIA 1988),

and Matter of Assaad, 23 I&N Dec. 553 (BIA 2003)), a

decision which significantly changes our approach for

addressing such claims. This type of claim, now

referred to as a “deficient performance of counsel”

claim, may be asserted by a respondent where his

prior attorney’s deficient performance likely changed

the outcome of the removal proceeding. To prevail on

a deficient performance of counsel claim, the re-

spondent must establish that his lawyer’s failings

were egregious and that his case was prejudiced by

counsel’s performance. To establish prejudice, the

respondent must show that but for the lawyer’s

failing, he likely would have succeeded on the merits

of his underlying claim to remain in the United

States. If discretionary relief was involved, as in this

case, the respondent must also present the evidence

he believes would have led to a favorable exercise of

discretion.

We will address the respondent’s claim against

each attorney in turn. First, we consider whether

App. 31

Mr. Sarikas’s performance was deficient and, if so,

whether his deficiencies prejudiced the respondent’s

case. At the respondent’s June 15, 2005, removal

proceeding, Mr. Sarikas was expected to make legal

arguments regarding the motion to terminate filed on

December 23, 2004 (Tr. at 14). However, instead of

arguing that proceedings be terminated, Mr. Sarikas

conceded the respondent’s removability and indicated

that he would apply for a 212(c) waiver (Tr. at 16-17).

At the respondent’s March 10, 2006, removal hearing,

the Immigration Judge acknowledged that Mr.

Sarikas had been derelict in his duty to the respon-

dent and continued the proceedings so that the re-

spondent could obtain new counsel (Tr. at 21-22, 25).

Even if Mr. Sarikas was derelict in his duty, the

respondent has failed to show that his performance

prejudiced his case. The Immigration Judge gave the

respondent additional time to obtain new counsel.

The respondent has failed to establish that he is

not inadmissible as charged. The respondent is not

eligible for the “petty offense” exception under

section 212(aX2MA)Gi)II) of the Act, 8 U.S.C.

§ 1182(a)(2)(A)GIXID, because the maximum penalty

for the crime of which he was convicted is five years

imprisonment (Exh. 4.C at 7). The respondent’s

reliance on Camins v. Gonzales, 500 F.3d 872 (9th Cir.

2007) (holding that the new version of section

101(aXi3) of the Act could not be applied retroac-

tively to aliens like the respondent who pled guilty to

crimes before its enactment), is misplaced because

the instant case arises in the jurisdiction of the

App. 32

United States Court of Appeals for the Second Cir-

cuit, not the Ninth Circuit. See Matter of Anselmo, 20

I&N Dec. 25, 31-32 (BIA 1989) (the Board historically

follows a court’s precedent in cases arising in that

circuit). Additionally, Camins was decided two years

after the respondent conceded his inadmissibility

before the Immigration Judge.

Next, we consider the respondent's allegations

against Mr. Massel. For the reasons stated above, we

find no error on Mr. Massel’s part for failing to with-

draw the respondent’s pleading. We also reject the

respondent’s allegation that Mr. Massel failed to

properly advise the respondent regarding his duty to

file annual tax returns. See Respondent’s Motion,

Attachments B and C. Mr. Massel challenges the

respondent’s allegations of misconduct. See Respon-

dent’s Motion, Attachment C. He explains that he

advised the respondent to file the taxes and that the

respondent did not ask when he would be require to

pay the taxes. Finally, the respondent, who is seeking

discretionary relief, has not presented the evidence he

believes would have led to a favorable exercise of

discretion.

Based on the foregoing, the respondent’s motion

to reopen is denied.

ORDER: The motion to reopen is denied.

/s/ (Iilegible]

FOR THE BOARD

App. 33

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500

Pearl Street, in the City of New York, on the 4th day

of January, two thousand eleven,

Panagis Vartelas, ORDER

Petitioner, Docket Number:

. 09-0649-ag

Eric H. Holder, Jr., (Filed Jan. 4, 2011)

U.S. Attorney General,

Respondent.

Petitioner Panagis Vartelas filed a petition for

panel rehearing, or, in the alternative, for rehearing

en banc. The panel that determined the appeal has

considered the request for panel rehearing, and the

active members of the Court have considered the

request for rehearing en banc.

IT IS HEREBY ORDERED that the petition is

denied.

For the Court:

Catherine O’Hagan Wolfe, Clerk

[SEAL]

/s/ Catherine O’Hagan Wolfe

OPPOSITION

BRIEF

No. 10-1211

In the Supreme Court of the Gnited States

PANAGIS VARTELAS, PETITIONER

Vv.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

TONY WEST

Assistant Attorney General

DONALD E. KEENER

JOHN W. BLAKELEY

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

In 1996, Congress amended 8 U.S.C. 1101(a)(13) to

specify that those aliens seeking “admission” to the

United States include lawful permanent resident aliens

who are returning to the United States from travel

abroad and who “ha[ve] committed an offense identified

in [8 U.S.C.] 1182(a)(2).”. 8 U.S.C. 1101(a)(13)(C)(v).

The question presented is as follows:

Whether the definition of “admission” in 8 U.S.C.

1101(a)(13)(C), as amended in 1996, is applicable to a

lawful permanent resident alien who committed an of-

fense identified in 8 U.S.C. 1182(a)(2) (and was convicted

of that offense upon a guilty plea) before 1996 and then,

in 2003, departed from and returned to the United

States.

(1)

TABLE OF CONTENTS

Page

OPE DUO ov cic a ese aseccenn poecceutiseeevaas aaa 1

silent cevecedeecvecscneredéusnessaeiie ne 1

I onc oe vices vcccesasvcevsuceseessesenen 1

PORTE one cccccsccccsccectexeceseensnseene 8

CRO nko ccccccecuvevencscndasduceueneneenl 16

TABLE OF AUTHORITIES

Cases:

Camins v. Gonzales, 500 F.3d 872 (9th Cir.

| QOUD cvccvicevcacseesccatisuns ee eee 5, 8, 9, 14

ollado-Munoz, In re, 21 I. & N. Dee. 1061

CBA. SHED . oo vecwncuvdéehceesccucescuuneee 4

andez-Vargas v. Gonzales, 548 U.S. 30 (2006) .... 9,13

itland v. INS, 551 F.2d 495 (2d Cir.), cert. denied,

GE UE. GE GRST sc bidicccccccsccutsss +331 14

INS v. St. Cyr, 583 U.S. 289 (2001) .............2005- 7,9

Jurado-Gutierrez v. Greene, 190 F.3d 1135 (10th Cir.

1999), cert. denied, 529 U.S. 1041 (2000) ............ 10

LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998),

cert. denied, 528 U.S. 1153 (2000) .................. 10

Landgrafv. USI Film Prods., 511 U.S. 244 (1994) .... 6, 13

Myers v. Holder, 409 Fed. Appx. 69 (9th Cir. 2010),

petition for cert. pending, No. 10-1178 (filed Mar.

BO BRED) «oc ccccvbccedenenackeuceueeiee sae 9

Nadal-Ginard v. Holder, 558 F.3d 61 (1st Cir. 2009) .... 16

Odoku v. INS, 276 Fed. Appx. 21 (2d Cir. 2008) ........ 12

Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir.

BOD kvcceuss000n006s566550 000 0e See 8, 14

Rosenberg v. Fleuti, 374 U.S. 449 (1963) ............ 2,15

(IIT)

Cases—Continued: Page

Saravia-Paguada v. Gonzales, 488 F.3d 1122

(9th Cir. 2007), cert. denied, 553 U.S. 1064 (2008) ....10

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) ......... 11

St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000),

OD gw vc ncevevccccccccccces 10

United States ex rel. Volpe v. Smith, 289 U.S. 422

SS ET 2

Statutes:

Illegal Immigration Reform and Immigrant Respon-

sibility Act of 1996, Pub. L. No. 104-208, Div. C,

I I, COED «5 coco csc cceccccsccscees 2

Immigration and Nationality Act, 8 U.S.C. 1101

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In the Supreme Court of the Gnited States

No. 10-1211

PANAGIS VARTELAS, PETITIONER

Vv.

ERIc H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-28)

is reported at 620 F.3d 108. The decision of the Board

of Immigration Appeals (Pet. App. 29-32) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

September 9, 2010. A petition for rehearing was denied

on January 4, 2011 (Pet. App. 33). The petition for a

writ of certiorari was filed on April 4, 2011. This Court’s

jurisdiction is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Immigration and Nationality Act (INA), 8

U.S.C. 1101 et seq., defines several classes of aliens who

are inadmissible to the United States, including certain

criminal aliens. See generally 8 U.S.C. 1182(a)(2) (2006

(1)

& Supp. III 2009). As relevant here, that class includes

“any alien convicted of, or who admits having com-

mitted, or who admits committing acts which constitute

the essential elements of * * * a crime involving moral

turpitude (other than a purely political offense) or an

attempt or conspiracy to commit such acrime.” 8 U.S.C.

1182(a)(2)(A)Gi)(1I). As also relevant here, this Court has

held that counterfeiting offenses are plainly crimes

involving moral turpitude. See United States ex rel.

Volpe v. Smith, 289 U.S. 422, 423 (1933).

Until 1996, the INA defined an “entry” into the

United States as “any coming of an alien into the United

States, from a foreign port or place,” but the definition

specified that a lawful permanent resident alien (LPR)

returning from abroad would “not be regarded as

making an entry into the United States * * * if the

alien prove([d| * * * that his departure to a foreign

port or place * * * was not intended or reasonably to

be expected by him or * * * was not voluntary.”

8 U.S.C. 1101(a)(13) (1994) (repealed 1996).

Construing that definition in Rosenberg v. Fleuti, 374

U.S. 449 (1963), this Court observed that it did “not

think Congress intended to exclude aliens long resident

in this country after lawful entry who have merely

stepped across an international border and returned in

‘about a couple of hours.’” /d. at 461. The Court there-

fore held “that an innocent, casual, and brief excursion

by a resident alien outside this country’s borders may

not have been ‘intended’ as a departure disruptive of his

resident alien status and therefore may not subject him

to the consequences of an ‘entry’ into the country on his

return.” /d. at 462.

In Section 301(a) of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (IIRIRA),

Pub. L. No. 104-208, Div. C, 110 Stat. 3009-575, Con-

gress replaced the earlier definition of “entry” and spec-

ified the circumstances under which an LPR returning

to the United States from abroad could be treated as

seeking “admission,” and therefore subject to limitations

on admissibility contained in 8 U.S.C. 1182. The new

definition of “admission” provides in relevant part as

follows:

(13)(A) The terms “admission” and “admitted”

mean, with respect to an alien, the lawful entry of the

alien into the United States after inspection and au-

thorization by an immigration officer.

* * * + +

idence in the United States shall not be regarded as

seeking an admission into the United States for pur-

poses of the immigration laws unless the alien—

(i) has abandoned or relinquished that status,

(ii) has been absent from the United States for

a continuous period in excess of 180 days,

(iii) has engaged in illegal activity after having

departed the United States,

(iv) has departed from the United States while

under legal process seeking removal! of the alien

from the United States, including removal pro-

ceedings under this chapter and extradition pro-

ceedings,

(v) has committed an offense identified in sec-

tion 1182(a)(2) of this title, unless since such of-

fense the alien has been granted relief under sec-

tion 1182(h) or 1229b(a) of this title, or

(vi) is attempting to enter at a time or place

other than as designated by immigration officers

or has not been admitted to the United States

after inspection and authorization by an immigra-

tion officer.

8 U.S.C. 1101(a)(13).

In 1998, the Board of Immigration Appeals (Board)

determined that IIRIRA’s definition of “admission” had

“expressly preserve[d] some, but not all, of the Fleutz

doctrine,” and that a returning LPR described in Sec-

tion 1101(a)(13)(C)(i)-(vi) “shali be regarded as ‘seeking

an admission’ into the United States, without regard to

whether the alien’s departure from the United States

might previously have been regarded as ‘brief, casual,

and innocent’ under the Fleuti doctrine.” Jn re Collado-

Munoz, 21 1. & N. Dec. 1061, 1065-1066 (1998) (en banc).

2. a. Petitioner, a native and citizen of Greece, was

admitted to the United States as an LPR in 1989. Pet.

App. 2. In 1992, he participated in a scheme to manu-

facture and sell $50,000 in counterfeit traveler’s checks.

Administrative Record (A.R.) 288, 303. In December

1994, he was convicted upon a guilty plea of conspiracy

to make or possess counterfeit securities in violation of

18 U.S.C. 371 and was sentenced to a four-month term

of imprisonment. Pet. App. 2-3.

In 2003, petitioner left the United States to visit

Greece. Upon his return, he sought entry into the Uni-

ted States as a returning LPR. Pet. App. 4; A.R. 360.

In March 2003, he was placed in removal proceedings

based on the charge that he was an arriving alien who

was inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(1) on

account of his 1994 conviction for a crime involving mor-

al turpitude. Pet. App. 4.

b. Before an immigration judge, petitioner conceded

that he was removable but sought a waiver under former

Section 212(c) of the INA, 8 U.S.C. 1182(c) (1994) (re-

pealed 1996). Pet. App. 4. Following a hearing, the im-

migration judge denied petitioner’s application, finding

that the equities did not warrant discretionary relief

from removal, because, among other things, petitioner

had made long and frequent trips to Greece where he

had extensive family and business ties, and he “ap-

pear[ed] to be not merely remiss in his tax obligations

[to the United States], but a serious tax evader.” A.R.

111; see also Pet. App. 5. The immigration judge or-

dered petitioner removed to Greece. Pet. App. 5.

ec. On appeal, the Board, in May 2008, “adopt/[ed]

and affirm[ed] the decision of the Immigration Judge.”

A.R. 51; see Pet. App. 5-6.

3. In July 2008, petitioner filed a motion with the

Board to reopen the proceeding, alleging that he had

received ineffective assistance of counsel. Pet. App. 6.

He argued, in part, that he had been prejudiced by his

previous attorneys’ failure to challenge his removability

on the ground that the statutory definition of “admis-

sion,” as amended by IIRIRA in 1996, should not be ap-

plicable to him because “[h]e pled guilty to a crime of

moral turpitude at a time when he would not be consid-

ered an alien seeking entry upon returning to the United

States.” A.R. 26; Pet. App. 6-7. In support of that argu-

ment, petitioner cited Camins v. Gonzales, 500 F.3d 872

(9th Cir. 2007), which held, under principles of non-ret-

roactivity, that IIRIRA’s partial repeal of the Fleuti

doctrine was not applicable to LPRs who acted in rea-

sonable reliance on the old law before IIRIRA’s 1997

effective date. A.R. 26; Pet. App. 8.

The Board denied petitioner’s motion to reopen. Pet.

App. 29-32. In relevant part, the Board found that peti-

tioner had failed to show that his prior counsel’s perfor-

mance had prejudiced his case, and that petitioner’s reli-

ance on the Ninth Circuit’s decision in Camins was mis-

placed because it did not govern petitioner’s proceeding

(which was within the Second Circuit) and had been de-

cided two years after petitioner had conceced his inad-

missibility. Jd. at 31-32.

4. Petitioner sought judicial review of the Board’s

decision, and the Second Circuit denied his petition for

review. Pet. App. 1-28. The court concluded that, for

purposes of his claim of ineffective assistance of counsel,

petitioner had “failed to show prejudice under any stan-

dard.” /d. at 18. The court of appeals first rejected peti-

tioner’s contention that his counterfeiting offense did

not render him removable (a contention petitioner does

not repeat in this Court). Jd. at 138-15. The court of ap-

peals then considered and rejected petitioner’s argu-

ment about the applicability of the definition of “admis-

sion” in 8 U.S.C. 1101(a)(13)(C). Pet. App. 16-28.

The court of appeals concluded that the Board had

“reasonably interpreted IIRIRA as superseding the

Fleuti doctrine.” Pet. App. 20. In considering whether

that amendment “was impermissibly retroactive as ap-

plied to [petitioner],” the court applied the two-step in-

quiry prescribed by Landgraf v. USI Film Products,

511 U.S. 244 (1994). Pet. App. 20. For purposes of the

first step, the court noted that the government conceded

that “Congress has not expressly prescribed the tempo-

ral reach of [the amended version of] § 101(a)(13).” Jd.

at 20-21. With respect to the second step of the Land-

graf analysis, however, the court held that the amended

definition did not have a genuinely retroactive effect on

petitioner, because he could not claim that he reasonably

relied on the former version of the law in deciding to

plead guilty to his counterfeiting offense. Jd. at 21-27.

The court explained that Section 1101(a)(13)(C)(v)—

unlike former Section 212(c), which had been at issue

in INS v. St. Cyr, 5383 U.S. 289 (2001)—“does not hinge

on either an LPR’s conviction or his decision to plead

guilty; rather, it turns on whether the LPR ‘has commit-

ted an offense identified in [SJection 1182(a)(2).’” Pet.

App. 24 (quoting 8 U.S.C. 1101(a)(13)(C)(v)) (emphasis

supplied by court).

Recognizing that some definitions in the INA refer

to an alien’s conviction and some refer to an alien’s

commission of an offense, the court of appeals con-

cluded that “Congress intended the focus [in Section

1101(a)(13)(C)(v)] to be on the alien’s commission of the

crime.” Pet. App. 25. The court further explained that

it had “consistently rejected the notion that an alien can

reasonably have relied on provisions of the immigration

laws in ‘committling]’ his crimes.” /bid. (brackets sup-

plied by court). Accordingly, it held that applying Sec-

tion 1101(a)(13)(C)(v) to petitioner’s “January 2003 for-

eign trip—an event begun and completed long after the

effective date of IIRIRA—is not impermissibly retroac-

tive, for * * * it would border on the absurd to suggest

that [petitioner] committed his counterfeiting crime in

reliance on the immigration laws.” /d. at 27.

The court of appeals noted that petitioner claimed

two other circuits had reached a “contrary” conclusion.

Pet. App. 27. But the court found those decisions “un-

persuasive,” in part because they had both “analyzed

retroactivity in relation to the alien’s plea of guilty” and

had therefore failed to “address[]” the statute’s “focus

on the LPR’s ‘commi[ssion|’ of the crime, or on the lack

of rationality in any claim that the LPR reasonably re-

lied on the immigration laws in deciding to break the

criminal laws.” Jd. at 27-28 (discussing Camins, supra,

and Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004)).

The court of appeals thus held that Section

1101(a)(13)(C)(v) applies “to an LPR who, after the ef-

fective date of IIRIRA, makes a trip abroad and seeks

to reenter the United States,” and that petitioner was,

accordingly, not prejudiced by his attorney’s failure to

contest petitioner’s removability on nonretroactivity

grounds. Pet. App. 28.

ARGUMENT

Petitioner renews his contention (Pet. 5-16) that the

definition of “admission” in 8 U.S.C. 1101(a)(18)(C)(v)

should not be applied to him. Specifically, he contends

(Pet. 14) that “he detrimentally relied on the prior [ver-

sion of the] law at the time of [his] guilty plea,” under

which he would have been allowed “to take innocent,

casual, and brief trips outside the United States without

subjecting himself to a charge of inadmissibility.” Peti-

tioner’s argument lacks merit. Although there is some

disagreement among the circuits, the Second Circuit

correctly noted (Pet. App. 27-28) that the only other cir-

cuits to have addressed the question—the Fourth and

the Ninth Circuits—did not consider the Second Cir-

cuit’s reasoning, which is supported by the text of the

statute. Because that rationale may persuade other cir-

cuits, and perhaps persuade the Fourth and Ninth Cir-

cuits to revise their views, review of the question by this

Court would be premature. Moreover, the issue is of

limited significance, as it involves the applicability of a

statutory repeal and amendment that occurred more

than 15 years ago and has precipitated only a handful of

cases.

1. The court of appeals correctly held that the appli-

cation of 8 U.S.C. 1101(a)(13) does not have retroactive

effect when applied to an LPR who committed an of-

fense before IIRIRA took effect in 1997, and who then

departed from and returned to the United States in

2003. Petitioner contends (Pet. 13-16) that he reason-

ably relied on the pre-IIRIRA Fleuti doctrine in decid-

ing to plead guilty to an offense of conspiring to make or

possess counterfeit securities in violation of federal law.

As an initial matter, petitioner’s claim of reliance is dis-

tinguishable from the one that this Court found persua-

sive in JNS v. St. Cyr, 533 U.S. 289 (2001), in which the

alien pleaded guilty to an aggravated felony under a plea

agreement that provided for a sentence of five years or

less, and thus preserved his eligibility at the time for

discretionary relief under Section 212(c) of the INA.

See id. at 323 (describing circumstances of an alien

whose “sole purpose” in plea negotiations was to “en-

sure” a sentence of less than five years); see also

Fernandez-Vargas v. Gonzales, 548 U.S. 30, 43-44 &

n.10 (2006) (distinguishing alien’s claim of non-retroac-

tivity from the one in St. Cyr because the alien had not

availed himself of pre-IIRIRA provisions or taken action

“that enhanced their significance to him in particular, as

' Asimilar, but materially distinguishable, question is presented by

the pending petition for a writ of certiorari in Myers v. Holder, No.

10-1178 (filed Mar. 24, 2011). In that case, the alien did not plead guilty

to the underlying offense, which caused the Ninth Circuit to distinguish

its earlier decision in Camins v. Gonzales, 500 F.3d 872 (2007). See

Myers v. Holder, 409 Fed. Appx. 69, 70 (2010). Because petitioner foc-

uses on his guilty plea (see Pet. ii), a victory for him in this Court would

not necessarily benefit the petitioner in Myers.

St. Cyr did in making his quid pro quo agreement”). In

this case, petitioner does not suggest that his guilty plea

reflected such a quid pro quo agreement. But peti-

tioner’s focus on his guilty plea is also misdirected for

two additional reasons.

a. First, as the court of appeals explained (Pet. App.

22-25), the prior conduct that triggers the amended defi-

nition of “admission” is not petitioner’s decision to plead

guilty. Instead, the statutory text expressly refers to

whether an LPR “has committed an offense identified in

section 1182(a)(2).” 8 U.S.C. 1101(a)(138)(C)(v) (empha-

sis added). Petitioner does not dispute that he indeed

“committed” such an offense. Nor does he dispute the

court of appeals’ observation that “it would border on

the absurd to suggest” that an alien reasonably relied on

the present status of the immigration laws in committing

acrime. Pet. App. 27. See also, e.g., Saravia-Paguada

v. Gonzales, 488 F.3d 1122, 1133-1135 (9th Cir. 2007),

cert. denied, 553 U.S. 1064 (2008); St. Cyr v. INS, 229

F.3d 406, 418 (2d Cir. 2000), aff’d, 533 U.S. 289 (2001);

Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1150-1151

(10th Cir. 1999), cert. denied, 529 U.S. 1041 (2000);

LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998),

cert. denied, 528 U.S. 1153 (2000).

Petitioner instead argues (Pet. 8-12) that the court of

appeals erred in focusing on the word “committed” in

Section 1101(a)(13)(C)(v) “without discerning its mean-

ing in conjunction with” the provision it cross-refer-

ences, Section 1182(a)(2). Pet. 9. The latter provi-

sion—at least with respect to crimes involving moral

turpitude— makes an alien inadmissible only when the

alien has been “convicted of, or admits having commit-

ted,” such an offense. 8 U.S.C. 1182(a)(2)(A)(i)(1). Peti-

tioner thus asserts (Pet. 8) that the Second Circuit erred

in holding that an LPR is “inadmissible to the United

States without being convicted or admitting to a crime

involving moral turpitude.”’ But the Second Circuit

spoke only to whether an LPR would be deemed to be

seeking admission, not whether he would be found inad-

missible.

Petitioner’s argument depends entirely on his as-

sumption that the definition of “admission” “only comes

into play if the LPR is actually inadmissible.” Pet. 10

(emphasis added). But he provides no basis for that as-

sumption, which is refuted by the text of the statute. As

the court of appeals noted, some definitions in the INA

turn on convictions, while others turn on the commission

of offenses, and Congress’s distinctions between the two

were presumably intentional. Pet. App. 25 (citing Sosa

v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004)).

Moreover, Section 1101(a)(13)(C) merely ensures

that certain LPRs returning to the United States after

traveling abroad will “be regarded as seeking admission

into the United States for purposes of the immigration

laws.” 8 U.S.C. 1101(a)(18)(C). There is no reason to

conclude that Congress intended that the category of

LPRs who would be subject to an inquiry about their

admissibility would be limited to those LPRs who are in

fact inadmissible. To the contrary, the definition of “ad-

mission” plainly requires some LPRs to be examined for

inadmissibility (and thus potentially refused admission)

on the basis of facts that would not in the end suffice to

* Petitioner asserts (Pet. 12) that the record “is devoid of any refer-

ence to [his] admission of a crime involving moral turpitude.” But he

was, of course, convicted of such an offense, which suffices to make him

inadmissible under 8 U.S.C. 1182(a)(2)(A)(i)(D, and his guilty plea in

federal court satisfied the requirements that he identifies (Pet. 12) for

an admission that he committed such an offense.

actually render them inadmissible. For instance,

8 U.S.C. 1101(a)(13)(C)(Gii) applies to an LPR who “has

been absent from the United States for a continuous

period in excess of 180 days,” even though that is not a

ground of inadmissibility. Petitioner thus demonstrably

errs in collapsing the category of those LPRs who may

be subjected to an inquiry into their admissibility with

the category of those LPRs who will actually be found

inadmissible.

Furthermore, in the specific context of criminal

aliens (7.e., the category specifically addressed by Sec-

tion 1101(a)(13)(C)(v)), it is entirely reasonable for Con-

gress to require an LPR who has “committed” an of-

fense to undergo examination even if more might be re-

quired to make that alien inadmissible under Section

1182(a)(2). Thus, in Odoku v. INS, 276 Fed. Appx. 21

(2008), the Second Circuit held that the Board had rea-

sonably read Section 1101(a)(13)(C)(v) to require an

LPR to be “treated as an arriving alien” when he had

already been indicted for a crime involving moral turpi-

tude but was not actually convicted of that offense until

several months after he returned to the United States.

Id. at 24.

b. The second reason petitioner errs in focusing on

his guilty plea is that the determinative event for retro-

activity analysis is not just petitioner’s pre-1996 criminal

conduct, but also conduct that occurred well after the

enactment of the revised definition. In order for an

LPR to be “regarded as seeking an admission into the

United States” under 8 U.S.C. 1101(a)(13)(C), it is nec-

essary not only that he have committed a certain kind of

offense; he must also depart from and return to the

United States.

Here, petitioner’s 2003 departure from and return to

the United States both occurred many years after the

1997 effective date of the new definition of “admission.”

Thus, petitioner could have avoided the application of

the statute. After IIRIRA became effective in 1997,

petitioner could have refrained from departing from the

United States (or from returning to the United States).

He could also have attempted to avoid the consequences

of the “admission” definition by, in advance of his depar-

ture and return, filing and obtaining approval of his ap-

plication for relief under former Section 212(c). To

paraphrase this Court’s most recent decision addressing

retroactivity in the immigration context: “It is therefore

the alien’s choice” to depart and seek to re-enter the

country “after the effective date of the new law, that

subjects him to the new and less generous legal regime,

not a past act that he is helpless to undo up to the mo-

ment the Government finds him out.” Fernandez-

Vargas, 548 U.S. at 44. Cf. Landgraf v. USI Film

Prods., 511 U.S. 244, 275 (1994) (“Because rules of pro-

cedure regulate secondary rather than primary conduct,

the fact that a new procedural rule was instituted after

the conduct giving rise to the suit does not make applica-

tion of the rule at trial retroactive.”).°

Accordingly, the court of appeals did not err in con-

cluding that an LPR who departed from and returned to

the United States in 2003 can be deemed to have been

seeking admission if he committed a crime involving

moral turpitude before IIRIRA became effective.

* Like the alien in Fernandez-Vargas, see 548 U.S. at 44 n.10, peti-

tioner does not claim that he has a “vested right{}” to the matter at

issue (the ability to depart from and return to the United States on a

brief, casual, and innocent basis, without regard to his admissibility).

2. Petitioner contends (Pet. 6-7) that the decision

below conflicts with the decisions of the Fourth and

Ninth Circuits in Olatunji v. Ashcroft, 387 F.3d 383, 396

(4th Cir. 2004), and Camins v. Gonzales, 500 F.3d 872

(9th Cir. 2007). But Olatwnji was decided before this

Court’s decision in Fernandez-Vargas (which also went

unacknowledged by the Ninth Circuit in Camins.)

Moreover, as the Second Circuit explained (Pet. App. 27-

28), the other two courts simply assumed that the deter-

minative event for retroactivity analysis was an LPR’s

guilty plea. See Olatunji, 387 F.3d at 396 (explaining

that the court’s retroactivity analysis turned on “new

legal consequences” associated with the defendant’s “de-

cision to plead guilty” and the resulting “conviction”);

Camins, 506 F.3d at 882-883 (same). The government in

those cases did not—as it and the Second Circuit did

in this case—press the statutory language focusing on

whether the LPR “committed” an offense. Thus, al-

though the Second Circuit has rejected the analysis of

the other two courts, neither of them has rejected the

Second Circuit’s rationale.

Because the Second Circuit’s reasoning is, as dis-

cussed above, strongly supported by the statutory text,

it could well persuade other circuits. In turn, the

Fourth and Ninth Circuits might also be persuaded to

revisit the issue and adopt that rationale. Accordingly,

review by this Court now would be premature.

3. Even if the question were otherwise worthy of

this Court’s review at this time, this case would be a

poor vehicle because it is by no means clear that peti-

tioner would qualify for relief under the pre-IIRIRA

Fleuti doctrine, under which “the significance of an ab-

sence will depend upon the relevant factors and circum-

stances found in each case.” Heitland v. INS, 551 F.2d

495, 504 (2d Cir.), cert. denied, 434 U.S. 819 (1977).

Here—presumably in part because petitioner raised this

issue for the first time in his motion to reopen proceed-

ings before the Board—there is little evidence in the

record about the circumstances of petitioner’s travels to

Greece. The trip from which he returned on January 29,

2003, was one-week long, but the only evidence in the

record about its purpose is petitioner’s vague assertion

to an INS officer that it was for “[f]amily business.”

A.R. 318. In addition, as the immigration judge noted in

determining that the equities did not support peti-

tioner’s request for relief under former Section 212(c),

aside from that particular trip, petitioner spent signifi-

cant periods of time in Greece, ranging from two to nine

months per year. A.R. 111-112. In Rosenberg v. Fleuti,

374 U.S. 449 (1963), this Court noted that “an alien wish-

ing to retain his classification as a permanent resident

of this country imperils his status by interrupting his

residence too frequently or for an overly long period of

time.” Jd. at 461 (emphasis added). There is thus rea-

son to believe petitioner could be treated as seeking “en-

try” into the United States even under pre-IIRIRA law.*

4. Finally, petitioner asserts in passing (Pet. 6) that

the decision below will “adversely affect thousands of

LPRs who are deemed to have committed but were not

convicted nor admitted to [having committed] an offense

* * * prior to April 1, 1997, upon return from innocent,

casual and brief trips abroad.” But he provides no sup-

port for that assertion, and there appears to be none.

* Petitioner makes no attempt in this Court to explain why he would

qualify for relief under the .leuti doctrine. In the court of appeals, he

simply asserted, without further explanation, that it is “patently clear”

that his “departure from the United States for merely one week was

brief, casual, and innocent.” Pet. C.A. Br. 14.

Indeed, although Section 1101(a)(13)(C)(v) was added in

1996, there appear to be only three reported court of

appeals decisions (Olatunji, Camins, and the decision

below) addressing its applicability under principles of

non-retroactivity.” Accordingly, the issue does not war-

rant this Court’s further review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DONALD B. VERRILLI, JR.

Solicitor General

TONY WEST

Assistant Attorney General

DONALD E. KEENER

JOHN W. BLAKELEY

Attorneys

AUGUST 2011

° The First Circuit’s decision in Nadal-Ginard v. Holder, 558 F.3d

61 (2009), involved the admissibility of an LPR with pre-IIRIRA con-

victions for crimes involving mora! turpitude, but that court did not con-

sider any retroactivity-based challenge to the applicability of Section

1101(a)(13)(C)(v). In most other reported cases discussing that provi-

sion, the alien’s offense was committed after IIRIRA. As aresult, those

cases did not implicate the question presented by the petition here.

No. 10-1211

Bn The

Supreme Court of the Anited States

PANAGIS VARTELAS,

Petitioner,

ERIC H. HOLDER, JR.,

United States Attorney General,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

REPLY TO BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

PANAGIS VARTELAS (Pro Se)

73 Courtland Avenue

Stamford, CT 06902

(516) 244-3997

achow@nawlaw.com

TABLE OF CONTENTS

Page

po RB Ps BS ay 3 5g). Renee re ii

PRELIMINARY STATEMENT .........................-6 1

ISSUES BEFORE THE COURT .....................04.. 1

PE Ge I GU iwscninnccnstcsnssnecesesesevtesesases 2

1. There Was a Quid Pro Quo Agreement as

Ss Se eaciccncdoubecdsvaeatsiptandiennaseceinwhimscvate 2

Il. The Term “Committed” As Used in

§1101(a)(13)(C)(v) Must Be Construed in

the Context of $ 1182(aX2) ........................ 3

lil. The Determinative Event That Triggers

Retroactivity Analysis Is the Petitioner’s

Guilty Plea And Not the Commission of

iid viisnacidbiidcsnasiiainchdaeiiiedahbaniiaiiens 5

IV. The Circuit Split Has To Be Resolved by

this Court and the Solicitor General’s Reli-

ance on Fernandez-Vargas Is Misplaced ..... 6

ee ccc ntiecsidspeanecaannincsentsnnondenndendagnasians 10

TABLE OF AUTHORITIES

Page

CASES:

Baily v. U.S., 516 U.S. 1337 (1995).......ccceccecccesseseeceeee. 3

Camins v. Gonzales, 500 F.3d 872 (9th Cir.

sR SNCS ERAS a REE 8 SR EST 6, 7

Fernandez-Vargas v. Gonzales, 548 U.S. 30

I ciiiesiidhealtheiniinaanibiriieemaaaiigi a acatetakc Sica 6,7, 8,9

INS v. St. Cyr, 533 U.S. 289 (2001) «2... ..-ccecccccseeceee. 2.5

Martin v. Hadix, 527 U.S. 343 (1999)......02...0... oo. 10

Landgraf v. USI Film Prods., 511 U.S. 244

CSREES RN Sek eT ERE ERR RE ERE ee RAE NORE ET 1,7,8

Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir.

Mi iaheincstisissriainisichncsamessiicied alate lates ctctar dae 6

Pennsylvania Department of Public Welfare v.

Davenport, 495 U.S. 552 (1990).................ccececeeeeeeee 3

Republic National Bank of Miami v. United

oe ERR ee eT 5

Rosenberg v. Fleuti, 374 U.S. 449 (1963)......... 1, 2,6,9

STATUTES:

[llegal Immigration Reform and Immigrant

Responsibility Act (“IIRIRA”), Pub. L. No.

104-208, Div. C, § 301(a), 110 Stat. 3009-575

REESE See eee aie SOVIET CRUE ss Mela des 1, 2, 5,6, 8

SUB. § TIGieN ISN we)... .cccccssccccssvacceess 1, 3, 4, 10

eich |) EAMOPEESIERESSER Soertebictre erie meey ned tart 3,4

S U.S.C. § ULGBANBNANENMI)......cccccccceccccossccsccessces 1,2,4

PRELIMINARY STATEMENT

Petitioner, Panagis Vartelas, herewith submits his

Reply to the Brief for the Respondent in Opposition.

ISSUES BEFORE THE COURT

The questions presented for review involve a

direct conflict in the Circuits relating to the retro-

activity of 8 U.S.C. § 1101(aX13)C)v).

1. Whether the Second Circuit erred in miscon-

struing the significance of the term “committed” as

used in 8 U.S.C. § 1101(a13XC)\(v) when the court

below focused its analysis of the retroactivity of 8

U.S.C. § 1101(a\(13C)(v) merely on the commission

of an offense without reading the provision in con-

junction with 8 U.S.C. § 1182(a)(2)A)G)(D) which

requires a conviction or admission to a crime involv-

ing turpitude to trigger inadmissibility to the United

States.

2. Whether the Second Circuit misapplied the

second step test articulated in Landgraf v. USI Film

Prods, 511 U.S. 244 (1994), in analyzing whether 8

U.S.C. § 1101(aX13\C\(v), which effectively repealed

the “innocent, casual, and brief” doctrine espoused in

Rosenberg v. Fleuti, 374 U.S. 449 (1963), can be retro-

actively applied to the petitioner’s guilty plea taken

prior to the enactment and the effective date of the

Illegal Immigration Reform and Immigrant Respon-

sibility Act (“ITRIRA”), Pub. L. No. 104-208, Div. C.

§ 301(a), 110 Stat. 3009-575 (1996).

3. Whether the Second Circuit erred in refusing

to recognize that the amendment denies the petition-

er’s vested right of returning to his lawful permanent

residence and attaches a new legal consequence to the

petitioner’s guilty plea which renders him inadmissi-

ble upon return from a brief travel outside the United

States subsequent to the effective date of ITRIRA.

ARGUMENT IN REPLY

I. There Was a Quid Pro Quo Agreement as

in St. Cyr

Upon returning from Greece to JFK airport in

New York on January 29, 2003 after an absence of one

week, the petitioner was found inadmissible under 8

U.S.C. § 1182(aX(2)(A)G)(D, for having been convicted

of a crime involving moral turpitude in 1994. The

Solicitor General contends that the petitioner’s reli-

ance on the Fleuti doctrine is distinguishable from

INS v. St. Cyr, 533 U.S. 289 (2001) in that there was

no quid pro quo agreement as in St. Cyr. (Opp. 9-10).

On the contrary, as in St. Cyr, the petitioner pled

guilty to a crime involving moral turpitude and waived

his constitutional right to a trial (a quid pro quo

agreement) in reasonable reliance on the pre-IJRIRA

immigration laws, inclusive of the Fleuti doctrine that

would have allowed him to continue to take brief trips

abroad without facing adverse immigration conse-

quences upon his return, notwithstanding his guilty

plea.

ll. The Term “Committed” As Used in

§ 1101(a)(13)(C)(v) Must Be Construed in

the Context of § 1182(a)(2)

The Solicitor General and the Second Circuit’s

statutory interpretation of 8 U.S.C. §-1101(a)(13\(C\v)

is incorrect in the context of proper retroactivity

analysis. The very language relied on by the Second

Circuit would render the statute superfluous if “com-

mitted an offense identified in section 1182(a)(2)” is

interpreted independently from the inquiry of whether

a returning lawful permanent resident (LPR) is

actually admissible.

In reviewing statutes the legislature is presumed

not to use any superfluous language, Baily v. U.S.,

516 U.S. 137, 145 (1995). See also Pennsylvania De-

partment of Public Welfare v. Davenport, 495 U.S. 552,

562 (1990), where this Court held that “[oJur cases ex-

press a deep reluctance to interpret a statutory pro-

vision so as to render superfluous other provisions in

the same enactment.”

There is no question that under 8 U.S.C.

§ 1101(aX13)(C)(v) a returning LPR is deemed to be

seeking admission if he or she has committed an

offense identified in 8 U.S.C. § 1182(a)(2). However,

contrary to the Solicitor General’s assertion, the issue

of whether an LPR is inadmissible under § 1182(a)(2)

is relevant to a determination as to whether an alien

will be deemed under 8 U.S.C. § 1101(a)(13)(CXv) to be

seeking admission since 8 U.S.C. § 1182(a)(2) requires

an actual conviction or formal admission of acts con-

stituting a crime involving moral turpitude.

The explicit terms of 8 U.S.C. § 1182(a)(2) state

in relevant part that an “alien is inadmissible if he or

she has been convicted of, or admits having commit-

ted, or admits committing acts which constitute the

essential elements of — a crime involving moral turpi-

tude (other than a purely political offense) or an

attempt or conspiracy to commit such a crime... .”

As such an LPR is not inadmissible merely upon

commission of a crime of moral turpitude — an LPR is

only inadmissible if he has admitted or been convicted

of a crime of moral turpitude. The admission to a

crime involving moral turpitude must comply with

stringent administrative safeguards set forth by

agency case law. (Pet. 12). This is precisely the statu-

tory and administrative reason why the petitioner

was charged with having been convicted of and not

for having committed a crime of moral turpitude

under § 1182(a)(2)(A)(i)(1).

Therefore, the Second Circuit erred when it held

that “section [i.e. § 1101(a)(13)(C)(v)] does not hinge

on either a returning LPR’s conviction or his deci-

' sion to plead guilty.” 620 F.3d at 119. In fact, in the

absence of a conviction or admission of a crime in-

volving moral turpitude, 8 U.S.C. § 1101(aX(13CXv)

simply does not apply.

lil. The Determinative Event That Triggers

Retroactivity Analysis Is the Petitioner’s

Guilty Plea And Not the Commission of an

Offense

The Solicitor General contends that the deter-

minative event for retroactivity analysis is not the

petitioner’s pre-ITRIRA guilty plea but the petitioner’s

“commission” of an offense and also includes conduct

that occurred well after the enactment of the revised

definition. The Solicitor General also maintains that

the petitioner should have refrained from ever travel-

ing, regardless of the duration or purpose, outside the

United States (Opp. 12). The Solicitor General’s con-

tention is without statutory basis.

This Court has ruled that whether “a particular

application is retroactive will depen{d] upon what one

considers to be the event by which retroactivity or

prospectivity is to be calculated.” Republic National

Bank of Miami v. United States, 506 U.S. 80, 100

(1992).

In the present case, as in St. Cyr, the determina-

tive event is the guilty plea (an event subsequent to

the criminal act) and not the commission of the crime

insofar as the petitioner was not deportable at the

time and would not have been inadmissible under

former pre-IIRIRA law as a result of pleading guilty

to a crime of moral turpitude. When petitioner pled

guilty to a crime of moral turpitude in 1994, he re-

tained the right under the pre-ITRIRA law existing

at such time to make “innocent, casual, and brief”

overseas trips without being subjected to a charge or

finding of inadmissibility upon his return to the

United States.

Therefore, because the determinative event of

the guilty plea occurred before the effective date of

IIRIRA in reliance on the Fleuti doctrine, the subse-

quent event of departure after the effective date is

irrelevant.

IV. The Circuit Split Has To Be Resolved by

this Court and the Solicitor General’s Re-

liance on Fernandez-Vargas Is Misplaced

The Solicitor General contends that the Second

Circuit was correct in refusing to follow the retro-

activity analysis utilized in both Camins v. Gonzales,

500 F.3d 872 (9th Cir. 2007) and Olatunji v. Ashcroft,

387 F.3d 383 (4th Cir. 2004). The Second Circuit chose

to focus its statutory analysis on the “commission of

an offense” rather than the proper retroactivity anal-

ysis based on a pre-IITRIRA guilty plea. Therefore, the

conflicts between the Circuits must be reviewed by

this Court. The Solicitor General incorrectly suggests

that the issue should be revisited by the Fourth and

Ninth Circuits based on the Second Circuit’s reason-

ing. (Opp. 13).

More importantly, the Solicitor General’s reliance

on Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006),

(Opp. 13-14), in his retroactivity analysis is misplaced.

The Solicitor General asserts that Fernandez-Vargas

was decided before Olatunji and went unnoticed by

the Camins court. The Solicitor General failed to

mention that Fernandez-Vargas went unnoticed by

the Second Circuit as well. Also, the petitioner’s brief

trip abroad occurred before Fernandez-Vargas was

decided in 2006.

In Fernandez-Vargas this Court ruled that the re-

instatement statute in that case applied to illegal

aliens who re-entered the United States before the

effective date of the statute, and that the application

to such aliens was not impermissibly retroactive. The

Court held that the purpose of the statute was most

consistent with a broad application, and “common

principles of statutory interpretation fail to unsettle

the apparent application § 241(a)(5) to any re-entrant

present in the country, whatever the date of return.”

Id. at 41, 42. Fernandez-Vargas’s offense was not a

“past act that he is helpless to undo,” id. at 44, but

rather the “continuing violation,” id. at 46, of remain-

ing in the country illegally. This is not the case of the

petitioner herein.

The majority opinion in Fernandez-Vargas af-

firmed the presumption against retroactive statutes,

but found the reinstatement statute permissible un-

der a test set out in Landgraf v. USI Film Products,

511 U.S. 244 (1994).

This Court in Landgraf articulated a two-step

test for determining whether a federal statute applies

retroactively. First, “absent clear congressional intent

favoring” retroactive application, the court must move

to the second step of the Landgraf test. The first step

is not an issue in this case as conceded by the gov-

ernment (Opp. 6).

Under the second step, this Court determined

that statutes are disfavored as retroactive when their

application “would impair rights a party possessed

when he acted, increase a party’s liability for past

conduct, or impose new duties with respect to trans-

actions already completed.” Jd. at 280.

- The Court in Fernandez-Vargas affirmed that

“(t]he modern law thus follows Justice Story’s defini-

tion of a retroactive statute as ‘takling] away or

impair[ing] vested rights acquired under existing

laws, or creat[ing] a new obligation impos[ing] a new

duty, or attach[ing] a new disability, in respect to

transaction or considerations already past.’” Fernan-

dez-Vargas, supra, at 37. (internal citation omitted).

Since the petitioner herein pled guilty to a crime

of moral turpitude in 1994, he retained the vested and

substantive rights under the pre-ITRIRA law existing

at such time for an LPR to make “innocent, casual,

and brief” overseas trips without being exposed to a

charge or finding of inadmissibility upon return to

the United States.’

' The Solicitor General contends that the petitioner does

not claim that he has a “vested right” to the matter at issue.

(Opp. 13, n.13). The vested right is self-evident as the retroac-

tive statute in question does impair and take away the petition-

er’s right to travel briefly under the existing law. In addition, the

statute is retroactive as the new law attaches a new disability to

(Continued on following page)

Unlike the petitioner who was returning to his

lawful permanent residence in the United States,

Fernandez-Vargas chose to continue his illegal pres-

ence, after illegal re-entry and after the effective date

of the new law, and later sought to adjust his illegal

status. Id. at 42, 43.

In addition, adjustment of status, among other

reliefs, as a putative claim to relief is not a vested

right, a term that describes something more substan-

tial than inchoate expectations and unrealized oppor-

tunities. Jd. at 44, n.10.

Fernandez-Vargas could have sought “[slome

varieties of discretionary relief,” id. at 33, before the

new law came into effect. Instead he chose to contin-

ue his illegal status and challenged the application of

the new law as impermissibly retroactive to him.

The Solicitor General reasons that the petitioner

has not attempted to avoid the consequences of the

“admission” by refraining from departing from the

United States and by filing in advance an application

for relief under former Section 212(c). (Opp. 13). How-

ever, the petitioner herein was not required to take

affirmative steps before his brief trip abroad simply

because under the Fleuti doctrine the petitioner

petitioner’s decision to plead guilty by now rendering him in-

admissible based on his decision to plead guilty to a crime of

moral turpitude. Thus, in reliance on the Fleuti doctrine, the

petitioner should not be deemed to be seeking admission even if

the brief trip occurred after the effective date of the new law.

would not have been deemed to be seeking “entry” or

“admission.”

Therefore, “commonsense, functional judgment,”

Martin v. Hadix, 527 U.S. 343, 357 (1999), dictates

that 8 U.S.C. § 1101{a)(13) has a detrimental retro-

active effect when applied to the petitioner who was

denied his vested rights upon returning to his lawful

and permanent place of abode in the United States

after a brief trip abroad.

CONCLUSION

For the foregoing reasons, the Court should grant

the instant petition for a writ of certiorari to resolve

the split between the Fourth and Ninth Circuits, and

the Second Circuit involving a legal issue of signifi-

cant importance requiring national uniformity.

Respectfully submitted,

PANAGIS VARTELAS (Pro Se)

73 Courtland Avenue

Stamford, CT 06902

AUGUST 2011 (516) 244-3997

PETITIONER'S

BRIEF

RECORD

Ale:

eS No. 10-1211 Wes

Bat: 2

In The

Supreme Court of the United States

PANAGIS VARTELAS,

Petitioner,

ERIC H. HOLDER, JR.,

Attorney General,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

BRIEF OF PETITIONER

STEPHANOS BIBAS ANDREW K. CHow

Counsel of Record NEIL A. WEINRIB

JAMES A. FELDMAN & ASSOCIATES

NANCY BREGSTEIN GORDON 305 Broadway, Suite 1002

AMY WAX New York, NY 10007

UNIVERSITY OF PENNSYLVANIA (212) 964-9282

LAW SCHOOL .

SUPREME CourT CLINIC cee ooo

3400 Chestnut Street :

: , MATTHEW T. CROSSMAN

Philadelphia, PA 19104 S :

(215) 746-2297 MICHAEL R. MILLER

PAUL HASTINGS LLP

875 15th Street N.W.

Counsel for Petitioner Washington, DC 20005

Panagis Vartelas (202) 551-1842

sbibas@law.upenn.edu

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

Library 8+ ~

one

Lary LYoey

QUESTION PRESENTED

Is 8 U.S.C. § 1101(aX13)C)\(v), which has been

interpreted as depriving certain lawful permanent

residents of their right to take brief trips abroad

without being denied reentry, impermissibly retroac-

tive as applied to lawful permanent residents who

pleaded guilty before the effective date of the [legal

Immigration Reform and Immigrant Responsibility

Act (ITRIRA)?

TABLE OF CONTENTS

Page

NE SIN ecinntces dcencycaschesvencadvacssatmnnaiacennes i

I Oe I is osiicainesice sa ccutnncecsuicnensvctniasavesdavcaess ii

ee a OE ici tk tts santnnscndianesinsutarnceberniniies Vv

SN SION since cesiiscupnssmisndasutunsenamiipranakansucacieuts 1

IEE Sic daaiitiinincccisiensicxincisucrcessakenideceterstanncaae 1

Statutory Provisions Involved............................. 1

Introduction and Statement of the Case............. 2

I. Statutory Background ................c0cc.ccccscscee 4

A. The Immigration and Nationality Act

OE ee SI tii taninpncoticictsaniiesdecns ae 4

B. The Illegal Immigration Reform and

Immigrant Responsibility Act of 1996

CIE iinisecisncsunsccenvasucksounduceusmecceshiedesie 6

Il. Facts and Procedural History ................... 8

PPE GE TAG, iss iacccsvcccceceuscseeiccecsesocssves 14

PII sicciicdaretdisadutacdteniscuciniineninaietidlan ne 17

I. IIRIRA Contains No Clear Statement

Mandating Retroactive Application of

BERG BRC RGF IeD vines cccicnccccceccesessersanses 19

Il. If Appked to Offenses Occurring Before

Its Enactment, INA § 101(aX13KC\v)

Would Have a Retroactive Effect .............. 21

A. Applying ITRIRA to Lawful Perma-

nent Residents Like Mr. Vartelas

Would Have a Retroactive Effect ........

III.

1nd

TABLE OF CONTENTS -— Continued

Page

B. Applying IIRIRA to Lawful Perma-

nent Residents Like Mr. Vartelas

Would Change Their Substantive

BIND ciscntuiketebsncedieuieiiiatedsemniwivessseaances

C. The Disability and Penalty Imposed

by IIRIRA Are Based on Pre-IIRIRA

Conduct, Not Post-IIRIRA Travel! .......

IIRIRA Is Impermissibly Retroactive

Regardless of Reliance, But Reliance by

Those Who Pleaded Guilty Under Pre-

IIRIRA Law Establishes an Especially

Obvious and Severe Retroactive Effect.....

A. Reliance on Pre-Existing Law Is Not

Necessary for a New Law to Have a

OE IU diiciésisivn sasdcdunnarcsnedenceses

B. In Any Event, Applying I[RIRA Ret-

roactively Would Upset Lawful Per-

manent Residents’ Reasonable

Reliance on the Fleuti Doctrine in

PE CINE oviinstcicuticioscscounicenantens

1. Lawful Permanent Residents Rea-

sonably Relied upon the Fleuti

Doctrine in Deciding Whether to

I No caak cs cistadacctendamieciaicbididaes

2. The Court of Appeals Erred in

Dismissing Lawful Permanent

Residents’ Reliance Interests .........

TABLE OF CONTENTS — Continued

Page

IV. Any Lingering Ambiguities Should Be

Construed in Favor of the Lawful Per-

I i an re ies icane bueucee 52

NN so a anaaunh clckbonsbes saudwuntpekepebden? 53

jtatutory Appendix:

Former INA §101l(a)X13), 8 #£4U.S.C.

§ 1101(a)(13) (1994), as in effect before 1997.....App. 1

Current INA § 101(a)(13)A), (C), 8 U.S.C.

§ 1101(a)(13)A), (C) (as amended by ILTRIRA

§ 301(a), effective Apr. 1, 1997)...................0000 App. 2

Current INA § 212(a)(2)A)-(D), 8 U.S.C.

RR aiaaca ss thveccpscetthcsdaderchatueanaseokis App. 3

Former INA §212(c), 8 U.S.C. § 1182(c)

(1994), as in effect before 1996 (repealed by

RIB RR apron a See Pe ERR IRs App. 8

TABLE OF AUTHORITIES

Page

CASES

Apprendi v. New Jersey, 530 U.S. 466 (2000)............ 46

Beazell v. Ohio, 269 U.S. 167 (1925) ..........cccccscocssseees 29

Bryan v. United States, 524 U.S. 184 (1998) ............. 44

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ................. 24

Camins v. Gonzales, 500 F.3d 872 (9th Cir.

SNE cncctiouas ces iespinussedscasincedsacaitevapecatsasamessesloucineiesunus 13

Chevron U.S.A. Inc. v. Natural Res. Def. Coun-

BE Ie Ge as Ge Ck dncea<esntsincccubscuccens 12, 49

Chew Heong v. United States, 112 U.S. 536

SD eiidics seca naibcnascbithssietesihneiuaddaeubdbaaneneoctiunadauansions 18, 42

In re Collado-Munoz, 21 I. & N. Dec. 1061 (BIA

I cic tsss svi cicucamrtnne nota nacineaucesids ecleacubiiaeiassalie tad cusaats 7

Collins v. Youngblood, 497 U.S. 37 (1990).....22, 26, 29

Costello v. INS, 376 U.S. 120 (1964) .................... 24, 52

In re E—N-, 71. & N. Dec. 153 (BIA 1956)................ 47

E. Enters. v. Apfel, 524 U.S. 498 (1998)..................... 22

Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th

SNL AEE inches shianis Gendvsuunesamenasdinancsnanabadsroauaacamnetdanihereectia 6

Fernandez-Vargas v. Gonzales, 548 U.S. 30

RO RSERE ASST 2 SA ae NMP 9 ESSER De ie 35, 39

Fong Haw Tam v. Phelan, 333 U.S. 6 (1948).....26, 33, 52

Fong Yue Ting v. United States, 149 U.S. 698

TABLE OF AUTHORITIES — Continued

Page

Hughes Aircraft Co. v. United States ex rel.

Schumer, 520 U.S. 939 (1997) ...............c0000000 passim

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999)............. 49

INS vy. Cardoza-Fonseca, 480 U.S. 421 (1987).....49, 52

INS v. Errico, 365 U.S. 214 (10G6) ......ccccccccocescscccceeses 52

INS v. St. Cyr, 533 U.S. 289 (2001)...............0004 passim

Itzcovitz v. Selective Serv. Local Bd. No. 6, 447

ee ee a ts I OI picainaaiiraccatcconanancstsovasiesignmsscian 28

Jordan v. De George, 341 U.S. 223 (1951) ................. 24

Jubilado v. United States, 819 F.2d 210 (9th

RE Se i anciveciesnicnsnnishsissipvasishsaashotubabtctedsbebarcnbsncis 27

Kaiser Aluminum & Chem. Corp. v. Bonjorno,

ee WE iiiaciiciccbiciieannnivn Gdapsinicanknbichedaonénes 17

Kamheangpatiyooth v. INS, 597 F.2d 1253 (9th

Gs SI roradebordcnkncaeccinntanicen sein orctacactialdubalaganidiguancchndnoiois 28

Kwong Hai Chew vy. Colding, 344 U.S. 590

Pe cee sncciaiusanninsahinannkidasieanmauanbiisiibinmaatdiuadapcukiactons 5

Landgraf v. USI Film Products, 511 U.S. 244

cee canis sertsnacavecmsdbedcianciatces sonieaas eumianavtsoveneias passim

Landon v. Plasencia, 459 U.S. 21 (1982) ............... 5, 26

Lindh v. Murphy, 521 U.S. 320 (1997)................. 19, 28

Lynce v. Mathis, 519 U.S. 433 (1997)................... 24, 32

Martin v. Hadix, 527 U.S. 343 (1999).............000.. 30, 32

Michel v. LNS, 206 F.3d 253 (2d Cir. 2000)..............0 6

Vil

TABLE OF AUTHORITIES — Continued

Page

Miller v. Florida, 482 U.S. 423 (1987) ................. 22, 23

Ng Fung Ho v. White, 259 U.S. 276 (1922)................ 24

Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir.

PTE oscnste nay pitas esnérencemndgtencenpecaisanbnctanetehukpantses een passim

Padilla v. Kentucky, 130 S. Ct. 1473 (2010) ...24, 41, 42, 44

Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir.

SUNEITEE cbasdwanuchiccueacabnsauaniunitelitesssdenssiscdudseeoadmerabaaianmues 40

Quintero-Salazar v. Keisler, 506 F.3d 688 (9th

SE Soa sncheiands sabicdsunseniubinadies sepiokaiwummadacansicnionias 6

In re Rivens, 25 1. & N. Dec. 623 (BIA 2011)..... passim

Rosenberg v. Fleuti, 374 U.S. 449 (1963) ........... passim

Santos-Gonzalez v. Reno, 93 F.Supp. 2d 286

aie Ma ircicussdecciinctig das eebbdsashananeucvcdanssedsedednéunies 6

Shaughnessy v. United States ex rel. Mezei, 345

es i Riciktinlsicathincescaneunadcaadvenshcindenpascdulestaphictons 4

Soc’y for the Propagation of the Gospel v. Wheeler,

22 F. Cas. 756 (Story, Circuit Justice, C.C.D.N.H.

I CN: SN cits scescvrsdicsussssusessmnssvedtaseteeesomus passim

United States v. Heth, 7 U.S. (3 Cranch) 399

SE edinediciecinp ideas inkatiwiarsGaissduiteon shaisiunaasannnansceieediintee tas 18

In re Vartelas, A22 670 589, 2008 WL 2401105

Ne I Wha III ciscccccussaechecenloiinnnlitiactatewensuveasenecacsous 1l

In re Vartelas, A22 670 589, 2009 WL 331200

NG Ty, SED enibnesicocdnsvesnninecckbevbsspnsunvsnevsunss 1,12

Vill

TABLE OF AUTHORITIES — Continued

Page

Vartelas v. Holder, 620 F.3d 108 (2d Cir. 2010)..... passim

Wala v. Mukasey, 511 F.3d 102 (2d Cir. 2007) ............. 6

Weaver v. Graham, 450 U.S. 24 (1981) ............. passim

CONSTITUTIONAL AND STATUTORY PROVISIONS

By Ue, MI Bo Or tr GE, Sisaacora sa datstuctnacbantadssasidendicdints 22

Oe I, a Oe , le | cies vtcieciccadiecverdiscAuudiedine 22

a SN OW gorse in tudeneianedenetimnnaene 22

SEI, SII. UID, TRIE 0 Be ons vvncisictctceswiccecsncivacoccostecss 22

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Pub. L.

No. 104-208, Div. C, 110 Stat. 3009-546............... 1,6

SI Oe NID 551.0455 cadeud ssavanamdabnivaiinn vontancesaus Re

STE MN LON iin hace kil dcsiinaretowcaveanieweeutesteaumveaoas 8, 33

I I os a as lial ahs asian iadalideadiobes 8

NN ERE RE ee ere ee TE Ce aoe 33

Se a ci a i sa te a 20

TE Mao craton sachet slpdnanndiadedannshbesacubedipeniie’ 34

ee REE me ee ay et Rb ay 34

EE ee Se ae et rn OE Re Reo 34

SE PE eee see ele ct ea a 34

I ea a lel Ek 34

I a cs tec crawl 34

EE OF as nia iccsenccuccensnevncntidebeanatupnansquccadadapoocens 34

TABLE OF AUTHORITIES ~— Continued

Page

Immigration and Nationality Act of 1952

(INA), Pub. L. No. 82-414, 66 Stat. 163 (codi-

fied as amended at 8 U.S.C. § 1101 et seq.)............. 4

crees § 203, B UG, FB icsscsvseravcictausie eee 6

INA § 101(a)(13), 8 U.S.C. § 1101(a)(13)..... passim

INA § 101(a)(13)(A),

S UB. § GRBRGR EBA) ccccviescsesccssetssarsecssstin ey

INA § 101(a)(13XC),

INA § 101(a)(13)(C)i),

8 U.S.C. § LIDIA ISN) ....nciceveresesescerseses 33

INA § 101(a)(13)(C ii),

8 U.S.C. § 1101(aX 13K C)id)...........ccecsceeseeees 33

INA § 101(a)(13\(C)Giii),

8 U.S.C. § 1101(aX 13 Cli)... ee 33

INA § 101(a)(13CXiv),

8 U.S.C. § 1101(a( 13) Civ)... ececeeeees 33

INA § 101(a)(13)(C)(v),

8 U.S.C. § 1101(aX13 (Cv) oe, passim

INA § 101(aX(13)C\vi),

8 U.S.C. § 1101Ma 13 (Ci vi) oo. eeeeee eee 33

INA § 101(aX13), 8 U.S.C. § 1101(aX13)

CRB). cccxsinsseucensesencnseessseavapesmiegeinainmanel aan 4

TABLE OF AUTHORITIES — Continued

Page

ee Oe BE, OF BURP E CRO evcccececesesesevccversseesses: 6

INA § 212, 8 U.S.C. § 1182

INA § 212(aX2), 8 U.S.C. § 1182(a)(2) ....2, 48, 49, 50

INA § 212(a)(2(AIGXD,

8 U.S.C. § 1182(aX2MAIGMD .....00000002.. passim

INA § 212(a)(2 AD),

8 U.S.C. § 1182(aX 2A) ..........22..- eee 5, 50

INA § 212(a)(2)(A)(ii),

es Oe BE IUIAED) 6.0000 ccccccccesecssececoes 50

INA § 212(aX(2KA)GIDUID,

8 U.S.C. § 1182(aX2)(A)GIKID..............00...... 44

INA § 212(a)(2\B),

es ED ccscncurescsssnvacccesevesesees 50

INA § 212(a)(2)(C),

ee BS +) a 51

INA § 212(a)(2)(C)(i),

8 U.S.C. § 1182(aWM2)(C)i)........-...eeeeeereeeeee2-- 50

INA § 212(a)(2)C)(Gii),

te iF BEM LIE) cccccoscccsescccovessessece 51

INA § 212(a)(2)(D),

INA § 212(h), 8 U.S.C. § 1182(h)............. ata 20

INA § 212(a), 8 U.S.C. § 1182(a) (1994).......000...... 5

INA § 212(a)(2)A)(i),

8 U.S.C. § 1182(aM2KA)G) (1994)...... ee. 5

TABLE OF AUTHORITIES — Continued

INA § 212(aX(2(A)G)D),

8 U.S.C. § 1182(aX2MA)GMTD (1994)... 22...

INA § 212(c), 8 U.S.C. § 1182(c) (1994)....... passim

INA § 235(b), 8 U.S.C. § 1225(b) (1994) ................. 26

INA § 237(a), 8 U.S.C. § 1227(a)..............ccccccserceesenes

Be es Oe Wits BID cinsnccccverceceerentuctsccdecernnses

INA § 240(a)(2)(A)(i)(1),

8 U.S.C. § 1251(a2MAMIMD (1994) -.02 a.

INA § 240A(a), 8 U.S.C. § 1229b(a) ............ 20, 21

INA § 240A(c)\(6), 8 U.S.C. § 1229b(c)(6)............. 21

INA § 241(a), 8 U.S.C. § 1251(a) (1994) ...... 2.

INA § 241(a)(2)(A)(i),

8 U.S.C. § 1251(aX(2)A)G) (1994)...

INA § 241(a)(2)(A)(ii),

8 U.S.C. § 1251(aX2)A)(ii) (1994)... ee

18 U.S.C. § 371 ....... cited ieesientineaedeeuniuinabainiiciinicnmistosce can

Be es BBG BD ithcassitaavgitininincevetnlabcs tomate

OTHER AUTHORITIES

1 WILLIAM BLACKSTONE, COMMENTARIES ...................-- 17

BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF

CRIMINAL JUSTICE STATISTICS ONLINE, http://

www.albany.edu/sourcebook/tost_5.htm! (last

SE FE Bis EE vcricietembcrscie Oe 47

xii

TABLE OF AUTHORITIES — Continued

Nancy Morawetz, The Invisible Border: Restric-

tions on Short-Term Travel by Noncitizens,

21 Geo. ImmiIcr. L.J. 201 (2007) ...........0.0.....220.

James E. Pfander & Theresa R. Wardon, Re-

claiming the Immigration Constitution of the

Early Republic: Prospectivity, Uniformity, and

Transparency, 96 Va. L. REV. 359 (2010) ..........

Statement of the President on Signing Budget

and Immigration Bill, 1996 WL 555150 (Sept.

a SE isin nsiiehiceSeiiiasiiibiniesdcdaibtaitisheacdaic

Transcript of Oral Argument, Judulang v.

Holder, No. 10-694 (U.S. Oct. 12, 2011)............

U.S. SENTENCING GUIDELINES MANUAL § 3E1.1(a)

Pi visicinenndinanatunbaspaindiasnamiiliamieieusnauisiindoaanedias tess

U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A

AEA Ree Kerth Arete ee MOE ocuudilasieumeeniies

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-

28) is reported at 620 F.3d 108. The decision of the

Board of Immigration Appeals (BIA) (Pet. App. 29-32)

is unreported but available at 2009 WL 331200 (Jan.

23, 2009).

JURISDICTION

The court of appeals entered its judgment on

September 9, 2010 and denied a timely petition for

rehearing and rehearing en banc on January 4, 201.

(Pet. App. 33). The petition for a writ of certiorari was

filed on April 4, 2011 and granted on September 27,

2011. This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Reprinted in an appendix to this brief (App. 1-8)

are the pertinent portions of:

(a) former Immigration and Nationality Act

(INA) § 101(a)(13), 8 U.S.C. § 1101(a)(13) (1994), as in

effect before 1997 (App. 1);

(b) current INA § 101(a)(13)(A), (C), 8 U.S.C.

§ 1101(a)(13)(A), (C), as amended by the Illegal lmn-

migration Reform and Immigrant Responsibility

Act of 1996 (ITRIRA), Pub. L. No. 104-208, Div. C,

§ 301(a), 110 Stat. 3009-575 (enacted Sept. 30, 1996,

effective Apr. 1, 1997) (App. 2-3);

§ 1182(a)(2)(A)-(D) (App. 3-7); and

(d) former INA § 212(c), 8 U.S.C. § 1182({c)

(1994), as in effect before 1996, when it was amended

and later repealed effective April 1, 1997 by ITRIRA,

Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-597

(App. 8).

INTRODUCTION AND

STATEMENT OF THE CASE

In the early 1990s, petitioner played a small role

in a counterfeiting scheme, pleaded guilty, and was

sentenced to four months’ incarceration. Until 1997,

lawful permanent residents had the right to take

brief trips abroad without risk of being denied

reentry upon their return. Thereafter, IIRIRA

changed the law by adding INA § 101(a)(13)(C)(v).

That subsection provides that a lawful permanent

resident who returns from a trip abroad “shall not be

regarded as seeking an admission” unless he “has

committed an offense identified in [INA § 212(a)(2), 8

U.S.C.] section 1182(a)(2).” The BIA has interpreted

that subsection as abridging certain lawful perma-

nent residents’ right to travel abroad and return.

Specifically, lawful permanent residents who have

been convicted of certain types of offenses are now

inadmissible upon their return from brief trips

abroad, regardless of whether they are deportable for

those same offenses if they remain in this country.

Even if this is the proper interpretation of

§ 101(a)(13\C)v), Congress did not provide for that

subsection to apply retroactively to lawful permanent

residents who committed offenses before IIJRIRA’s

effective date. First, this Court requires a clear

statement from Congress that a statutory provision

applies retroactively, and none is present here.

Second, if applied to lawful permanent residents

who committed offenses before its enactment,

§ 101(a)(13)(C)\(v) would retroactively impose a sub-

stantial new disability and penalty upon them for

their pre-IIRIRA offenses. They would have to sur-

render their pre-IIRIRA right to travel abroad, on

pain of being removed from this country upon their

return. Imposing the disability of not being able to

travel abroad, or the penalty of removal upon doing

so, would disrupt their settled expectations.

Applying § 101(a)(13)(CXv) retroactively would

also undermine lawful permanent residents’ reasona-

ble reliance, when deciding to plead guilty, on their

pre-IIRIRA right to travel. Particularly given the

canon of construing lingering ambiguities in favor of

the immigrant, § 101(aX13)C)(v) cannot apply to

conduct that predated ITRIRA.

I. STATUTORY BACKGROUND

A. The Immigration and Nationality Act

of 1952 (INA)

The main statute governing immigration is the

Immigration and Nationality Act of 1952 (INA), Pub.

L. No. 82-414, 66 Stat. 163 (codified as amended at 8

U.S.C. § 1101 et seq.). Until it was amended by

IIRIRA, the key event that determined many persons’

immigration status was an “entry.” See Shaughnessy

v. United States ex rel. Mezei, 345 U.S. 206, 212

(1953) (Mezei). The INA defined entry as “any coming

of an alien into the United States, from a foreign port

or place.” INA § 101(a)\(13), 8 U.S.C. § 1101(a)(13)

(1994). The INA definition also considered intent: it

explicitly excepted from its scope a lawful permanent

resident (colloquially, a “green-card holder”) who

showed that “his departure to a foreign port or place

... Was not intended or reasonably to be expected by

him.” /d.

Thus, not every return from a trip abroad

amounted to an entry. In Rosenberg v. Fleuti, the

‘government sought to deport a lawful permanent

resident on the ground that he was excludable upon

returning from a several-hour visit to Mexico. 374

U.S. 449, 450-51 (1963) (Fleuti). This Court “con-

strue[d] the intent exception to § 101(a)(13) as mean-

ing an intent to depart in a manner which can be

regarded as meaningfully interruptive of the alien’s

permanent residence.” Jd. at 462. A lawful permanent

resident’s “innocent, casual, and brief” trip abroad,

this Court held, “may not have been ‘intended’ 1s a

departure disruptive of his resident alien status and

therefore may not subject him to the consequences of

an ‘entry’ into the country on his return.” /d.

The definition of entry mattered because those

who were denied entry at the border faced exclusion

hearings. In contrast, those who gained entry (or,

under Fleuti, had not made a new entry) could be

removed only through deportation hearings, which

afforded greater due process safeguards. See, e.g.,

Landon vy. Plasencia, 459 U.S. 21, 32-34 (1982)

(Plasencia); Mezei, 345 U.S. at 212; Kwong Hai Chew

v. Colding, 344 U.S. 590, 596-99 (1953). Furthermore,

the grounds for deportation were narrower than the

grounds for exclusion. Compare INA § 24l(a), 8

U.S.C. § 1251(a) (1994), with INA § 212(a), 8 U.S.C.

§ 1182(a) (1994). For instance, an immigrant who had

been convicted of or admitted to committing a “crime

involving moral turpitude” was generally excludable.

INA § 212(aX2KA)G), 8 U.S.C. . § 1182(a)(2)(A)G)

(1994). He was not deportable, however, unless he

had been convicted of at least two such crimes, or one

such crime with a prison sentence of a year or more

within five years of entry. INA § 241(a)(2)(A)(i), (ii), 8

U.S.C. §1251(aX2)A)G), (i) (1994). Thus, until

IIRIRA, a lawful permanent resident who had been

sentenced to and served less than one year in prison

for committing just one crime involving moral turpi-

tude was not deportable. Though he might become

excludable if he sought entry after a long absence, he

could return from brief trips abroad without ever

making an entry. Fleuti, 374 U.S. at 462.

“Crime involving moral turpitude” is a term of

art that the INA uses but nowhere defines. See, e.g.,

INA §§ 101, 212(aX2KAXiXMD, 240(a\2AGXD), 8

U.S.C. §§ 1101, 1182(a2AMiXMD), 1251(ax 2 AID

(1994). That category encompasses many offenses

that are not necessarily serious but require a certain

level of mens rea. It has been interpreted to include a

wide range of offenses, including misdemeanors like

stealing bus transfer passes and jumping subway

turnstiles to avoid paying the fare. Michel v. INS, 206

F.3d 253, 256, 262-65 (2d Cir. 2000) (Sotomayor, J.);

Santos-Gonzalez v. Reno, 93 F. Supp. 2d 286, 288 n.2

(E.D.N.Y. 2000). In contrast, the category has been

interpreted to exclude at least some forms of bur-

glary, statutory rape, and domestic violence. Wala

v. Mukasey, 511 F.3d 102, 109-10 (2d Cir. 2007)

(Sotomayor, J.); Quintero-Salazar v. Keisler, 506 F.3d

688, 691, 694 (9th Cir. 2007); Fernandez-Ruiz vy.

Gonzales, 468 F.3d 1159, 1163-69 (9th Cir. 2006).

B. The Illegal Immigration Reform and

Immigrant Responsibility Act of 1996

(ITRTRA)

In 1996, Congress passed sweeping amendments

to the INA in the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA), Pub.

L. No. 104-208, Div. C, 110 Stat. 3009-546 (codified

as amended at 8 U.S.C. § 1101 et seq.). ITRIRA

substituted “admission” for “entry” as the key event

determining many immigrants’ status. IIRIRA

§ 30l(a) (codified at INA §10](a\(13), 8 U.S.C.

§ 1101(a)(13)). Immigrants ineligible for admission at

a point of entry are now called “inadmissible” (not

“excludable”). INA § 212(a), 8 U.S.C. § 1182(a). Those

who had been admitted but are not allowed to stay

are still called “deportable.” INA § 237(a), 8 U.S.C.

§ 1227(a). Inadmissible and deportable immigrants

are now collectively called “removable” and are sub-

ject to the same procedural mechanism: a removal

proceeding. See INA § 240, 8 U.S.C. § 1229a.

ITRIRA defines “admission” as “the lawful entry

of the alien into the United States after inspection

and avthorization by an immigration officer.” INA

§ 10l(aX13)A), 8 U.S.C. § 1101(a)(13\A). The gov-

ernment “bears the burden of proving by clear and

convincing evidence that a returning lawful perma-

nent resident” should be treated as “seeking an

admission” under INA § 101(a)(13)(C). Jn re Rivens,

25 I. & N. Dec. 623, 625-26 (BIA 2011). In 1998, the

Board of Immigration Appeals (BIA) reviewed

IIRIRA’s new definition of “admission” and deter-

mined that the Fleuti defense “does not survive the

enactment of IIRIRA as a judicial doctrine.” Jn re

Collado-Munoz, 21 I. & N. Dec. 1061, 1065-66 (BIA

1998) (en banc). The BIA reasoned that because the

new definition removed the word “intended,” it elimi-

nated the intent exception on which Fleuti had relied.

Id. at 1065-66. But see id. at 1075 (Rosenberg, Bd.

Mem., dissenting) (“[T)he statute is utterly silent as

to the continued vitality of the Fleuti doctrine.”). This

Court has never passed on whether the Fleuti doc-

trine survives IIRIRA, but petitioner assumes for the

sake of argument that it does not.

In another significant change, IIRIRA repealed

INA § 212(c), which had allowed lawful permanent

residents to seek discretionary relief from exclusion

or deportation. 8 U.S.C. § 1182(c). IMRIRA replaced

§ 212(c) with a narrower discretionary provision,

called “cancellation of removal,” with generally strict-

er eligibility criteria. See IIRIRA § 304 (codified as

amended at INA § 240A, 8 U.S.C. § 1229b). In INS v.

St. Cyr, this Court held that the repeal of § 212(c)

does not operate retroactively against lawful perma-

nent residents who were eligible for § 212(c) relief

when they pleaded guilty. 533 U.S. 289, 326 (2001).

Because IIRIRA made such sweeping changes,

Congress delayed its effective date, providing that

most of its provisions would take effect on April 1,

1997. See IIRIRA § 309(a).

Il. FACTS AND PROCEDURAL HISTORY

1. Petitioner Panagis Vartelas, a native and

citizen of Greece, has resided in the Unitea ‘: tes for

more than three decades. See Administrative Record

(AR) 281. He received a student visa at the end of

1979 and came to the United States to study at

Queens College. See id. at 281, 293. He married a

U.S. citizen in 1985 and became a lawful permanent

resident in 1989. Jd. at 185, 254, 281, 321. In the

early 1990s, Mr. Vartelas and his wife had two chil-

dren, both of whom are U.S. citizens.’ Jd. at 191-92,

240, 254. He remains in close contact with them and

continues to support them financially, working as a

sales manager for a roofing company. /d. at 191-92,

200-01, 241-42, 254. He also helps his elderly parents

with their family-run bed and breakfast in Greece,

which on occasion requires him to travel there. See id.

at 198-99, 324.

2. In 1992, Mr. Vartelas opened an auto body

shop in Queens, New York. AR 186. One of his part-

ners in the shop leased a photocopier to make coun-

terfeit traveler’s checks. Jd. at 186-88, 299-302. When

his partner asked Mr. Vartelas for assistance, Mr.

Vartelas helped him perforate the sheets into indi-

vidual checks. Jd. He neither sold the checks nor

received any money from them. /d. at 188. In 1994, he

pleaded guilty to conspiring to make or possess a

counterfeit security, in violation of 18 U.S.C. § 371.

Id. at 309. The prosecutor agreed that Mr. Vartelas’s

guilty plea allocution would qualify him for a two-

level sentence reduction for acceptance of responsi-

bility. Id. at 288-89; U.S. SENTENCING GUIDELINES

MANUAL § 3E1.1(a) (1994). That two-level reduction

subtracted four months from both the top and the

bottom of the guideline range, reducing it to four

to ten months’ imprisonment. See AR 312; U.S.

' Mr. Vartelas and his first wife have divorced, and he has

remarried another U.S. citizen, though those facts are not in the

record.

SENTENCING GUIDELINES MANUAL ch. 5, pt. A (1994)

(sentencing table). The sentencing judge sentenced

him to four months’ incarceration followed by two

years’ supervised release, a sentence at the bottom of

the range. AR 310-12. His conviction did not make

him deportable. Years later, the immigration judge

found that Mr. Vartelas “was not a major actor in the

crime.” /d. at 123.

3. From January 22 to 29, 2003, Mr. Vartelas

traveled to Greece to assist his parents with their

family business. See AR 317-18. Upon his return, an

immigration officer questioned him about his 1994

conviction. Jd. at 319. Mr. Vartelas explained that he

was unaware that his 1994 conviction would impede

his return to the United States. Jd. at 319.’

4. In March 2003, the government issued a

notice to appear, placing Mr. Vartelas in removal

proceedings. The government claimed that he was

inadmissible under INA § 212(a)(2)(A)(i)(I) upon his

return to this country because he had been convict-

ed of a crime involving moral turpitude in 1994. AR

359-61. Mr. Vartelas appeared before an immigra-

tion judge at a series of hearings, but his initial

attorney failed to appear twice and failed to submit

* Mr. Vartelas had previously made other trips to Greece in

the years following his conviction and the enactment of ITRIRA.

See, e.g., AR 192-93, 222. He had never encountered any difficul-

ties reentering this country and had never been told that he was

seeking an admission or was inadmissible, though these facts

are not in the record.

a requested brief. Jd. at 132-77. At a 2005 hearing,

his attorney indicated that he would chaiienge

IIRIRA’s retroactive application to Mr. Vartelas’s

pre-IIRIRA offense. Jd. at 150-51. But at the next

hearing, he conceded that Mr. Vartelas was remova-

ble on the ground that he was inadmissible when he

returned to the United States. Jd. at 155, 359-61; see

INA § 212(aW2)( AGT), 8 U.S.C. § 1182(al2A)).

His attorney did not question whether Fleuti had

been superseded, whether Mr. Vartelas’s brief

trip qualified for the Fleuti doctrine, or whether

IIRIRA’s definition of “seeking an admission” in

§ 101(a)(13)C)\(v) could apply retroactively based on

the pre-IIRIRA conviction. AR 155. Instead, he re-

quested discretionary relief from removal under

former § 212(c) of the INA. 7d. at 108-09, 156.

In 2006, the immigration judge denied that

request. AR 116. The judge expressed doubt, however,

about whether the attorney was correct to concede

removability: “The crime, while one of moral turpi-

tudel,] may not have been an excludable offense when

he committed it, but he clearly has conceded remova-

bility.” Id. The BIA affirmed, discussing only the

factors relating to discretionary relief under former

§ 212(c). Id. at 51, A22 670 589, 2008 WL 2401105

(BIA May 1, 2008) (unpublished).

5. Represented by new counsel, Mr. Vartelas

filed a timely motion to reopen and remand his case

on the ground that his prior counsel had been ineffec-

tive for, among other reasons, conceding his remova-

bility. AR 13-30. The motion requested permission to

withdraw that concession on the ground that INA

§ 101(a)(13), as amended by IIRIRA, cannot apply

retroactively to his pre-IIRIRA guilty plea. Jd. at 23-

27. .

The BIA denied the motion. It noted that the

immigration judge had found “that [previous counsel |

had been derelict in his duty.” Pet. App. 31. Neverthe-

less, the BIA held that Mr. Vartelas had not proven

prejudice because his argument against applying

§ 101(a)(13) retroactively “[wa]s misplaced.” /d.

The court of appeals denied Mr. Vartelas’s timely

petition for review of the BIA’s decision. Pet. App. 28.

The court first rejected his argument that the coun-

terfeiting conviction was a petty offense that did not

make him removable. Pet. App. 13-15. It then re-

viewed the retroactivity holding de novo, first ex-

plaining that the BIA’s statutory interpretation

deserved no Chevron deference because retroactivity

neither implicates the BIA’s expertise nor involves a

congressional delegation of power to the BIA to fill a

statutory silence. Pet. App. 20.

To determine whether Congress intended amend-

ed INA § 101(a)(13) to apply retroactively, the court

applied the two-step test set forth in Landgraf v. USI

Film Products, 511 U.S. 244 (1994). First, the court

asked whether “Congress has expressly prescribed

the statute’s proper reach.” Jd. at 280. The govern-

ment conceded, and the court agreed, that “Congress

has not expressly prescribed the temporal reach of

§ 101(a)(13).” Pet. App. 20-21.

Because there is no explicit command, the court

went on to decide Landgraf’s second step, namely

whether applying the statute to this case would have

a retroactive effect. The court of appeals held that

§ 101(a)(13) should be applied to Mr. Vartelas be-

cause, in the court’s view, it would not interfere with

his settled expectations. Pet. App. 21-22, 28. St. Cyr,

in holding that the repeal of § 212(c) could apply only

prospectively, had noted that immigrants had often

relied on the possibility of discretionary relief under

former § 212(c) when deciding whether to plead guilty

to charges that would preserve the possibility of such

relief. Id. at 22-24 (citing St. Cyr, 533 U.S. at 315,

321-24). Here, however, § 101(a)(13)(C\(v) refers to a

lawful permanent resident who “has committed an

offense” involving moral turpitude, rather than to one

who has been convicted of such an offense. Jd. at 25.

The court of appeals thus treated Mr. Vartelas’s

decision to plead guilty as immaterial. Reasoning

that lawful permanent residents do not reasonably

rely on the immigration laws in deciding whether to

commit their offenses, the court held that the reliance

interests that had informed this Court’s decision in

St. Cyr were inapplicable. AR 25-27. In so holding,

the court below rejected Fourth and Ninth Circuit

precedents to the contrary. Jd. at 27-28 (declining to

follow Camins v. Gonzales, 500 F.3d 872 (9th Cir.

2007) (W. Fletcher, J.), and Olatunji v. Ashcroft, 387

F.3d 383 (4th Cir. 2004) (Luttig, J.)).

Based on its holding that § 101(a13\(C\v)

applies to lawful permanent residents guilty of

pre-IIRIRA offenses, the court held that Mr. Vartelas

could not prove unde

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