# Record and brief — Vartelas v. Holder > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0691%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 2012 - **Citation:** 566 U.S. 257 ## Text A : ‘ ines No. 10-1211 Title: Docketed: Lower Ct: Case Nos.: aig, %, wy = SUPREME COURT OF THE UNITED STATES Panagis Vartelas, Petitioner V 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 1 2011 Nov 1 2011 Nov 14 2011 Nov 15 2011 Nov 18 2011 Nov 22 2011 Nov 22 2011 Nov 22 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. 1012711 > > — PANAGIS VARTELAS, Petitionei —_—Vv.— Eric H. HOLDER, JR., Respondeni — 2 — ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF OF THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION AS AMICUS CURIAE IN SUPPORT OF PETITIONER DEBORAH S. SMITH IRA J. KURZBAN LAW OFFICE OF Counsel of Record DEBORAH 5S. SMITH KURZBAN, KURZBAN, WEINGER 7 West Sixth Avenue, Suite 4M TETZELI & PRATT P.A. Helena, Montana 59601 2650 S.W. 27th Avenue, (406) 457-5345 2nd Floor deb@debsmithlaw.com Miami, Florida 33133 (305) 444-0060 ira@kkwtlaw.com Attorneys for Amicus Curiae American Immigration Lawyers Association Library of Coogi Law Library TABLE OF CONTENTS TABLE OF CITED AUTHORITIES. ..................... iii STATEMENT OF INTERES T................2.-cc0000e00e0000- 1 SUMMARY OF ARGUMENT. ..............0cc0cccecceeeseeeee 2 TT ehesiceteciatadiniatsichttarnceearineniatiatapinananncctinaiiaion 3 I. LAWFUL PERMANENT RESIDENTS LIVED UNDER THE SETTLED EXPECTATION THAT THEY WOULD NOT BE TREATED AS NEWCOMERS UPON RETURN FROM BRIEF TRAVEL ABROAD. ...0000 0.00... cece cece ccee eee 3 Il. RETROACTIVE APPLICATION OF ANY REPEAL OF FLEUTI SUBJECTS LPRS TO HARSH NEW LEGAL CONSEQUENCES. A. Prior to 1997, a longtime LPR who pled guilty to a single crime involving moral turpitude was not thereby rendered RENEE ee Er arn 6 B. Prior to 1997, an LPR who pled guilty to a single possession of a small amount of marijuana was not thereby rendered els wikesnentnniciititicevininanincnicinsiasnntnieeeniiiia 8 C. Prior to 1997, no criminal! conviction subjected an LPR to the caprices of the no-bond detention system. ....................6. 10 ii Ill. RETROACTIVE APPLICATION OF ANY REPEAL OF FLEUTI BURDENS THE RIGHT TO TRAVEL ABROAD, A RIGHT OF FUNDAMENTAL IMPORTANCE TO LPRG. ............2....000000e002000 16 A. Without international travel, LPRs cannot fulfill faith-based obligations abroad, such as attending funerals. .....17 B. Without the ability to take short trips abroad, LPRs cannot maintain essential family ties or respond to family I. sauiieninitinninnitinesintiantinmntednianen 20 IV. PRINCIPLES OF LENITY REQUIRE RESOLVING ANY AMBIGUITY IN FAVOR COEF RA FRGEEe MEED Bell WM: cncsscceenerecosenseeccscsnecsenstos 23 Sr itnitsinntnsiinidcisencnsibasinnsinnniiioscisansatdmatinnnabinia 24 APPENDIX: DESCRIPTIONS OF — Se Ce tentenitsstennintishiacteiswininnnistnsinnits la TABLE OF CITED AUTHORITIES CASES Arias-Agramonte v. Comm'r of I.N.S., 2000 WL po ys Fe Ree ae ee ee: eee 19 Fong Haw Tan v. Phelan, 333 U.S. 6 (1948) ............ 23 L.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987)....... 23 LN.S. v. St. Cyr, 533 U.S. 289 (2001) .........c.ccceeeseees 11 ant w. Deskina: SET UB. LG CRG y vc csceiecscccisecccsececs 17 Landon v. Plasencia, 459 U.S. 21 (1982).................... 5 Mojica v. Reno, 970 F. Supp. 130 (1997) .................. 12 Nat71 Cable & Telecomms. Ass’n v. Brand X Internet Beare, BE TB. Br Ce vktvaniscnevccscsstecescisisecesenes 23 Ng Fung Ho v. White, 259 U.S. 276 (1922)................. 3 North Carolina v. Alford, 400 U.S. 25 (1970)........... 12 Rosenberg v. Fleuti, 374 U.S. 449 (1963)................ 2,4 Tasios v. Reno, 204 F.3d 544 (4th Cir. 2000)............ 11 Velasquez v. Reno, 37 F. Supp. 2d 663 Ie. WII aici cennteninicvendcisien ones seeseiundanbaieasnanepes 22 Zaiawadia v. Ashcroft, 371 F.3d 292 I i I ost sacicdincrssaasnathuintadeddnsmiaunectenenionen 7, 4a STATUTES Ee © Be kes svakcsn sn teccsichsctecccssoncseess 21 Os i I icnistin pack consis pareepssadbemscnencbnedbincioseens 20 es. BB isa vise ccciccccciconssniacdsnnotvaveans 6 RE. PRD iaecdinnic cecvesscncsdsiceccscsctccoeias 6 irs ee ED bse cc scditsnniesstivenvacsameunndes 9 BE iis RIG sks iincrnsrncressaseonvncuensassiecaspesnconeniiovenesess 12 iv ee te I eh Siictdatoncvax tc onnnicadeanedugebaatnensmiceunandaia’ 12 BD URBEA.. B Bae PD ov vviescessctecsencscnsssvcvsensavsnes 6 es eID siictsbecicetinconscnds tented uccdainemntesees 8 Iiegal Immigration Reform and _ Immigrant Responsibility Act of 1996, Pub. L. 104-208 Stat. IN Slss-dasschsse tics ceamictsnssion ae Sedan sone densdcesepbaeatingumanna 1 OTHER AUTHORITIES Alex Stepick, God Is Apparently Not Dead, in IMMIGRANT FAITHS: TRANSFORMING RELIGIOUS LIFE IN AMERICA (Karen I. Leonard, Alex Stepick, Manual A. Vasquez & Jennifer Holdaway eds., STII cantsankscuechcentaraaaieniennasin henadeuenantaiusaanandidaaeiocias 18 Anthony Lewis, When It Is Unjust, N.Y. TIMES, Dec, A ce i a dae dnameamnsnibananiiann aes 13 DANIEL HUANG, ASIAN PAC. AM. LEGAL CTR. OF S. CALIFORNIA, A DEVASTATING WAIT: FAMILY UNITY AND THE IMMIGRATION BACKLOGS (2008) ..............- 21 DEP’T OF STATE, ANNUAL REPORT OF IMMIGRANT VISA APPLICANTS IN THE FAMILY-SPONSORED AND EMPLOYMENT-BASED PREFERENCES REGISTERED AT THE NATIONAL VISA CENTER AS OF NOVEMBER 1, | SRR. COREE Fae RPL ee MOD CL Ie Rr oe cheee ER Sa ere 21 FED. BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS FOR THE UNITED STATES, 2009 (2010) .......9 HUMAN RIGHTS WATCH, A COSTLY MOVE (2011)....... 14 Keith Hunsucker, Senior Instructor, Fed. Law Enforcement ‘Training Ctr., Criminal Without Conviction—Prosecuting the Unconvicted Arriving Criminal Alien Under Section 212(a)(2)(A) of the Immigration and Nationality Act, 2 Q. REv. (2d ed. EEE iii aki enesl oah-dhcssesmnidahebarscoiacceia neesesaemaconcasenth 6 Vv Manuel Orozco, Jransnationalism and Development: Trends and Opportunities in Latin America, in REMITTANCES: DEVELOPMENT IMPACT AND FUTURE PROSPECTS (Samuel Munzele Maimbo & Dilip CII, SII... cio eataleneidesnspeonnindelelanpecpwinenin 22 Mirta Ojito, Immigrant Fights Off His Deportation, es es hc A, PIR sshsbdeccniccesctedncensundercnsosecn 13 Nancy Morawetz, Rethinking Drug Inadmissibility, . 50 WM. & MARY L. REV. (2008). .................sesceeesseees 9 NATL IMMIGRANT JUSTICE CTR., ISOLATED IN DETENTION: LIMITED ACCESS TO LEGAL COUNSEL IN IMMIGRATION DETENTION FACILITIES JEOPARDIZES A I Re Oe Ce COR oven evccencnsicccecucsccnansubvesens 14 Nicole Brodeur, Caught in the Wheels of Justice, SRATTER TIMERS, EAP. 14, BOD... 8 C.F_R. § 1003.19(h)(2)@)(B) (barring immigration judge jurisdiction over arriving alien detention decisions). 26 8 U.S.C. § 1182(d)(5)(A). 27 In the pre-IIRIRA era, relief under § 212(c) was broadly available. .N.S. v. St. Cyr, 533 U.S. 289, 289 (2001). This Court has recognized that many LPRs facing plea decisions relied on the opportunity to obtain a waiver when they took pleas. Jd. at 325; see also Tasios v. Reno, 204 F.3d 544, 551-52 (4th Cir. 2000) (“[A]n alien might ... plead guilty to a criminal charge, banking on a lighter sentence that would preserve the availabil- ity of a § 212(c) waiver... . [so] the legal effect of pleading guilty was mitigated by the realistic possibility of obtaining a waiver.”). 28 See, e.g., Zalawadia, 371 F.3d at 294 (LPR subjected to no-bond detention upon return from brief travel abroad). 12 tion proceedings.?9 Since no-bond detention did not enter the plea calculus for an LPR (as long as he did not plan to leave the United States for more than brief trips), many LPRs agreed to pleas that required little or no jail time.*° It was not that such LPRs failed to read the fine print; there was no fine print. They simply did not face the risk of no-bond deten- tion—whether criminal or civil—for their pleas. The story of Jesus Collado demonstrates the devastating consequences of no-bond detention on longtime LPRs returning from brief travel abroad. Even those who eventually obtain relief may suffer from the attendant consequences of no-bond deten- tion: physical and emotional hardship, loss of em- ployment, separation from family, and the costs as- sociated with retaining counsel. Jesus Collado came to New York in 1972 at age seventeen and soon became an LPR. In the Washington Heights neighborhood of Manhat- *9 See 8 U.S.C. § 1226(a). ITRIRA introduced mandatory, no-bond detention for certain noncitizens facing removal whose release from incarceration for their deportable offenses occurred after October 8, 1998. See 8 U.S.C. § 1226(c). 30 The desire to avoid any risk of jail time often plays an overriding role in a plea decision. Although innocent, a defen- dant may plead guilty to avoid the threat of jail time. See Mo- jica v. Reno, 970 F. Supp. 130, 175 (E.D.N-Y. 1997), aff'd in part, dismissed in part sub nom. Henderson v. I.N.S., 157 F.3d 106 (2d Cir. 1998); North Carolina v. Alford, 400 U.S. 25, 33 (1970) (holding that guilty plea is not inconsistent with claim of innocence because “reasons other than the fact that he is guilty may induce a defendant to so plead”). See also infra Part 11.C (discussing plea taken by Emma Mendez de Hay); infra Part II1.A (discussing plea taken by Jerry Arias). 13 tan, he married, raised a family, and ran a successful restaurant. In 1997, Mr. Collado took a brief trip to visit his family in the Do- minican Republic. Upon his return, immigra- tion officials at J.F.K. Airport treated him as an arriving alien and charged him as inadmis- sible based on a twenty-four-year-old misde- meanor conviction.*! He was immediately placed in detention, where he remained for seven months. As an arriving alien, he was not eligible for review of his confinement by an immigration judge. While in prison, Mr. Col- lado nearly lost his restaurant and was unable to support his family. Upon his release, he found himself in disastrous economic straits, owing thousands of dollars in late fees to ven- dors, back rent to his landlord, and medical bills. Even though an immigration judge even- tually dismissed the case against him, the six- teen-month removal proceedings took an im- mense toll on Mr. Collado and his family.*? No-bond detention represents an extreme dep- rivation of liberty that was unforeseeable for LPRs faced with pre-ILRIRA plea decisions. It is common practice for federal immigration officials to transfer 31 In Re: Collado-Munoz, 21 1. & N. Dec. 1061 (B.1.A. 1998). As a teenager, Mr. Collado was involved in a consensua}] sexual relationship with his then girlfriend, who was four years his junior; because his girlfriend was a minor, the relationship con- stituted a crime. Id. 32 Id.; see also Mirta Ojito, Immigrant Fights Off His De- portation, N.Y. TIMES, Sept. 4, 1998, at B3; Anthony Lewis, When It Is Unjust, N.Y. TIMES, Dec, 26, 1997, at A39. 14 detained immigrants to distant detention centers around the country.33 This practice impedes detain- ees’ access to lawyers and greatly limits their ability to defend themselves.*4 These are not the only risks that accompany detention. Women in these facilities are often denied access to privacy from guards and adequate health resources.*> Sexual abuse is also a serious problem. A recent report uncovered 185 official complaints of sexual abuse made against Immigration and Cus- toms Enforcement since 2007.%& Even when these egregious events do not come to pass, detention separates LPRs from their family and friends for long periods. While detained, LPRs are unable to support and care for their dependents. The case of Emma Mendez de Hay demonstrates the 33 See HUMAN RIGHTS WATCH, A COSTLY MOVE (2011), available at http://www.hrw.org/sites/default/files/reports/us0611webweover. pdf. 34 See NAT’L IMMIGRANT JUSTICE CTR., ISOLATED IN DETEN. TION: LIMITED ACCESS TO LEGAL COUNSEL IN IMMIG®ATION DE- TENTION FACILITIES JEOPARDIZES A FAIR Day IN COURT (2010), avatlable at http://www.immigrant)ustice.org/sites/immigrantjustice.org/file s/Detention%20lsolation%20Report%20FULL%20REPORT %202010%2009%2023_0.pdf. 35 See HUMAN RIGHTS WATCH, DETAINED AND DISMISSED: WOMEN’S STRUGGLES TO OBTAIN HEALTH CARE IN UNITED STATES IMMIGRATION DETENTION (2009), available at www.hrw.org/sites/defaulvfiles/reports/wrd0309web_1.pdf. 36 See SEXUAL ABUSE IN IMMIGRATION DETENTION, http://www.aclu.org/sexual-abuse-immigration-detention (last visited Nov. 21, 2011). 15 array of consequences that immigration detention can have on longtime LPRs. Emma Mendez de Hay came to the United States from Mexico more than thirty years ago and quickly became an LPR. Her mother and all but one of her siblings are U.S. citizens or lawful permanent residents. As a_ single mother she raised four U.S. citizen children. She also grew a successful restaurant busi- ness, paid taxes, and volunteered as an inter- preter for a local hospital. In 1999, she took a brief trip to Italy to meet her fiancé’s family. Upon return from this trip, she was treated as an arriving alien and charged as inadmissible based upon a decades-old conviction.*”7 She was detained and transferred to a detention facility in Louisiana. As an arriving alien, she was denied an opportunity for a bond hearing and forced to face removal proceedings hundreds of miles from her family in Washington State. While she was in detention, her eleven-year- old son, a child with special needs, became sui- cidal; her twenty-year-old daughter was forced to drop out of college and work two jobs to support the family. Ms. Mendez de Hay even- tually obtained a 212(c) waiver, but only after 37 In 1992, Ms. Mendez de Hay translated an ambiguous conversation between her cousin and an undercover police offi- cer. She was charged with using a telephone to facilitate the distribution of cocaine and pied guilty to avoid jail time. She went on to help prosecutors convict several drug traffickers, including her own cousin. Susan Gilmore, Mother Won't Be De- ported After All, SEATTLE TIMES, Aug. 7, 2002. 16 she and her family had endured the hardships of detention—the very consequence that she sought to avoid with her plea.*® Ill RETROACTIVE APPLICATION OF ANY RE F_ FLEUTI S_ THE RIGHT TO TRAVEL ABROAD, A RIGHT OF FUNDAMENTAL IMPORTANCE TO LPRS. The government contends that LPRs can sim- ply avoid the retroactive effects discussed in the pre- ceding sections by “refrain[ing] from depart[ing] . . . the United States (or from returning to the United States).”°9 This suggestion is beyond cavalier. Re- fraining from international travel restricts the ability of LPRs to comply with universally recognized faith- based obligations, such as caring for ill relatives and attending funeral services abroad. Foregoing travel! abroad also means that many LPRs will become permanently separated from their families. This is because current immigration law makes it exceed- ingly difficult to bring over close relatives on a tem- porary or permanent basis. And, as 1s self-evident, 38 See id.; Peggy Anderson, Jmmigrant Faces Deportation Under Tough INS Laws, OREGONIAN, Feb. 14, 2000, at E7; Susan Gilmore, Tough INS Law Leaves Family in Turmoil as Trip to Italy Ends in Jail, SEATTLE TIMES, Feb. 7, 2000; Tamyra Howser, Woman Awaits Deportation Appeal With Fear, Hope: CATCH-22: Reunited With Her Kids, but in Limbo After Tripped Up by Immigration Law, NEWS TRIBUNE, Jan. 1, 2001; Nicole Brodeur, Caught in the Wheels of Justice, SEATTLE TIMES, Mar. 14, 2000. 39 Brief for Respondent in Opposition, Vartelas v. Holder (No. 10-1211), 2011 WL 3467249, at *17. 17 parents of minor children in the United States can hardly “refrain” from returning to them. In sum, a retroactive application of any repeal of Fleuwti se- verely burdens LPRs’ right to international travel.*® A. Without international travel, LPRs cannot fulfill faith-based obligations abroad, such as attending funerals. For many immigrants of faith, the ability to comply with fundamental religious obligations hing- es on the right to travel. The ability to carry out the- se obligations abroad has traditionally been a right afforded green card holders. A retroactive repeal of the Fleuti doctrine strips them of this vaunted, re- hed-upon right. Indeed, where courts have retroac- tively applied a repeal of Fleuti, the results have been nothing short of cruel. LPRs returning from fu- nerals and other sacred family gatherings have been barred from returning to their homes, detained, and placed in removal proceedings. The importance of religion in the lives of U.S. based immigrants is a well-documented phenome- non.*! According to many studies, religion occupies a more central role in the lives of immigrants than na- 40 While all persons living in the United States have a con- stitutionally protected interest in international travel, see Kent v. Dulles, 357 U.S. 116, 125 (1958) (affirming international] travel as fundamental “liberty” protected by Fifth Amendment), that interest is especially salient for LPRs, who typically have close relatives that live abroad. 4) See, e.g., R. Stephen Warner, Religion and New (Post- 1965) Immigrants: Some Principles Drawn from Field Research, AM. STUD. 271 (2000) (describing why religion typically plays a “salient” role in the lives of immigrants). 18 tive-born Americans: Extraordinarily high church attendance rates have been recorded among Haitian, Vietnamese, and Korean immigrants.*? Latino immi- grants are also overwhelmingly religious: Seventy percent of Latinos identify as Catholics, while immi- grants from Latin American countries account for nearly forty percent of U.S.-based Roman Catholics.** Across religions and cultures, family atten- dance at religious rites upon the passing of a loved one is an imperative of faith.44 Familiar examples in the Christian tradition include the funeral mass and wake. In the Jewish tradition, burial of the deceased must occur within twenty-four hours. Relatives are customarily present to place handfuls of earth on top of the casket and then to engage in a week-long proc- ess of grief and mourning, known as sitting shiva.*° According to Islamic tradition, burial is to be carried out as soon as possible. Prior to the burial, the im- mediate family of the deceased is responsible for bathing and shrouding the body.‘ Myriad folk reli- gious practices also impose obligations on family 42 See Alex Stepick, God Is Apparently Not Dead, in IMMI- GRANT FAITHS: TRANSFORMING RELIGIOUS LIFE IN AMERICA 13 (Karen I. Leonard, Alex Stepick, Manual! A. Vasquez & Jennifer Holdaway eds., 2005). 43 See Peggy Levitt, GOD NEEDS NO PASSPORT 14, 205 (2007). +4 Religious obligations are also at stake in the case of weddings, births, baptisms, pilgrimages and other sacred events that invariably occur abroad. 4 See Simcha Fishbane, Jewish Mourning Rites—A Process of Resocialization, ANTHROPOLOGICA 69 (1998). 46 See Solomon Alexander Nigosian, ISLAM: ITS HISTORY, TEACHING, AND PRACTICES 17 (2004). 19 members of the deceased. In Miraflores, a village in the Dominican Republic, relatives of the deceased sit guarding the area where the body lies for nine days. They believe this enables the deceased to remain present in a different form after death, and to be vis- ited, consulted, or petitioned.*? LPRs who sustained pre-IIRIRA convictions could not have expected that their right to carry out these sacred obligations would one day be denied. Where Fleuti’s repeal has been retroactively applied, LPRs who traveled in reliance on this historic nght have been exposed to dramatic, unanticipated legal consequences. The story of Jerry Arias is illustrative. Jerry Arias immigrated to the United States from the Dominican Republic as a teenager in 1967. He soon developed deep ties to New York City, where he raised six U.S. citizen children. In December 1998, Mr. Arias’ father, a U.S. citizen, passed away. According to his wishes, his family sent the body back to the Dominican Republic to be buried. Mr. Arias traveled there for the funeral. When he returned to the Unit- ed States, he was detained at J.F.K Airport and charged as inadmissible based on a single, two-decades-old conviction for which he served no jail time.*® Although a resident of the 47 See Peggy Levitt, Local-Level Global Religion: The Case of U.S.-Dominican Migration, J. FOR THE SCI. STUDY OF RELIG- ION 74 (Mar. 1998). 48 Mr. Arias pled guilty in 1977 to criminal sale of a con- trolled substance in the fifth degree and was sentenced to two years of probation. See Arias-Agramonte v. Comm’r of L.N.S., 2000 WL 1059678 at *1-2 (S.D.N.Y. Aug. 1, 2000). His case il- 20 Bronx, he was transferred to a facility in York, Pennsylvania, far from his family, where he sat in detention for twenty months. As an ar- riving alien, he was not eligible for review of his detention by an immigration judge. The prolonged detention exacted ‘extreme hard- ships on both Mr. Arias, who was nearly sixty years old, and his family.*9 B. Without the ability to take short trips abroad, LPRs cannot '- 8 maintain essential family ties or respond to family emergencies. For many LPRs with pre-1997 convictions, a retroactive repeal of Fleuti threatens them with permanent separation from family abroad. This is due, in part, to the difficulty that today’s LPRs have in bringing even close relatives to the United States on either a temporary or permanent basis. For some categories of relatives, such as parents, there is no direct route to apply for admission based upon a fam- ily relationship. Petitions for parents can only be lustrates how factual innocence and a guilty plea are not mutu- ally exclusive. In fact, the immigration judge found evidence of innocence despite the conviction: “{[Mr. Arias] was in a restau- rant. Somebody asked to change a $50 bill. He changed the bill for something smaller for somebody. And it turns out that the $50 bill was a marked bill that had been part of a drug transac- tion.” Jd. (quoting decision of immigration judge granting 212(c) relief). 49 Td. 50 See 8 U_S.C. § 1151(c). 21 made by U.S. citizens, meaning LPRs must first wait for their petitions for citizenship to be processed.®! Even when family-based visas are available, delays can be enormous. According to the State De- partment, there were 4,552,774 people waiting in the family immigration backlog as of November 2010." As of November 2011, the wait time for spouses and minor children of LPRs was three years for Mexican applicants and two years for applicants from all oth- er countries.** And each year, the wait grows.*4 Compounding these difficulties is the reality that relatives with pending family-based petitions often have difficulty obtaining visitors’ visas.5° Under the- 51 See 8 U.S.C. § 1151(b)(2)(A)(i). 52 U.S. DEP’T OF STATE, ANNUAL REPORT OF IMMIGRANT VISA APPLICANTS IN THE FAMILY-SPONSORED AND EMPLOYMENT- BASED PREFERENCES REGISTERED AT THE NATIONAL VISA CENTER AS OF NOVEMBER 1, 2010 (2011), £=available' at http://travel.state.gov/pdf/WaitingListIltem.pdf. 53 See U.S. DEP’T OF STATE, VISA BULLETIN FOR NOVEMBER (2011). The wait time for unmarried children of U.S. citizens aged twenty-one or older was even longer: eighteen years for relatives in Mexico, fourteen years for those in the Philippines, and seven years for those in all other countries. Jd. 54 See generally, DANIEL HUANG, ASIAN PAC. AM. LEGAL CTR. OF S. CALIFORNIA, A DEVASTATING WAIT: FAMILY UNITY AND THE IMMIGRATION BACKLOGS 3 (2008), available at http://www.advancingequality.org/attachments/files/117/APALC _family_report.pdf. > An important factor used to determine entitlement to a temporary visa is intent “to enter the United States for a period of specifically limited duration.” An immigrant who desires a family visa, but in the interim seeks a temporary visitation, must be classified according to his or her “principal” purpose. U.S. DEP’T OF STATE, FOREIGN AFFAIRS MANUAL (“FAM”) § 41.31, N1, 6.1 (Notes) (Oct. 10, 2011). 22 se conditions, LPRs must make trips abroad to main- tain even basic family ties. As a result, periodic trav- el to their countries of origin is the norm for many groups of LPRs.* Even LPRs who do not travel regularly are eventually forced to make trips abroad for family emergencies. When a repeal of Flewti is retroactively applied, LPRs who travel to attend to these emergen- cies risk the security of their green cards and their lives in the United States. Jose Velasquez, a native of Panama, was admitted to the United States as an LPR in 1960. Along with his U.S. citizen wife, he raised three children, all of whom are U.S. cit- izens. His mother, older brother and sister are also citizens. For years, he operated the Ve- lasquez Deli in Philadelphia and owned a home in the suburbs. In 1998, Mr. Velasquez traveled to Panama to visit his mother, who was scheduled to have hip-replacement sur- gery. Upon his return, he was treated as an arriving alien at Newark Airport and charged as inadmissible based upon a conviction from nineteen years prior, for which he served no jail time.5? He was placed in detention, and be- 56 See, e.g., Manuel Orozco, 7ransnationalism and Devel- opment: Trends and Opportunities in Latin America, in REMIT. TANCES: DEVELOPMENT IMPACT AND FUTURE PROSPECTS 307, 313 (Samuel Munzele Maimbo & Dilip Ratha eds., 2005) (finding that over one-third of all immigrants travel to their home coun- tries at least once per year). 57 See Velasquez v. Reno, 37 F. Supp. 2d 663, 665 (D.N.J. 1999). In 1980, Mr. Velasquez was at a party where “he was approached by a friend and asked if he could sell cocaine: [and] 23 cause he was labeled as an arriving alien, was without access to a bond hearing.®® IV. PRINCIPLES OF LENITY REQUIRE RES G GUITY _IN FAVOR OF LONGTIME LPRS. If this Court finds that ambiguity exists as to whether 8 U.S.C. § 1101(a)(13)(C)(v) apphes retroac- tively, the immigration rule of lenity requires that such ambiguity be resolved in favor of Petitioner.®® As this Court has held, “since the stakes are consid- erable for the individual {alen], we will not assume that Congress meant to trench on his freedom be- yond that which is required by the narrowest of sev- eral possible meanings of the words used.”6° While replied that he did not sell cocaine, but that another man at the party might do so.” Jd. He never anticipated receiving nor re- ceived any compensation for any transaction that might there- after have taken place. Jd. Velasquez pled guilty to conspiracy to sell and the sale or delivery of a controlled substance and was sentenced to five years’ probation and a $5,000 fine. Jd. 58 Id. 59 See Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (con- struing statutory ambiguity in favor of noncitizen); I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (same). This Court has specifically identified the rule of lenity as a traditional tool of statutory construction that renders a statute unambiguous and forecloses deference to any contrary agency interpretation. See Nat1 Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 984-85 (2005) (lower court erred in not deferring to agency interpretation because “the court invoked no other rule of construction (such as the rule of lenity) requiring it to conclude that the statute was unambiguous to reach its judg- ment”). 60 Fong Haw Tan, 333 U.S. at 10. 24 deportation is always a harsh measure, the “stakes” are particularly high for LPRs who have spent dec- ades building their lives in the United States. CONCLUSION Amici are firsthand witnesses to the injustice of reclassifying longtime LPRs as arriving aliens. Retroactive repeal of Fleuti will subject LPRs with pre-ITRIRA pleas to harsh new legal consequences upon their return from brief travel abroad, including no-bond detention and potential removal. Amici seek a ruling that would ensure that these valued mem- bers of our communities remain secure in their sta- tus as LPRs, and in their right to take brief trips abroad. For these reasons, the decision of the Court of Appeals should be reversed. November 22, 2011 Respectfully submitted, NANCY MORAWETZ Counsel of Record WASHINGTON SQUARE LEGAL SERVICES, INC. 245 Sullivan Street, 5th Floor New York, NY 10012 (212) 998-6430 la APPENDIX DESCRIPTIONS OF AMICI CURIAE The Asian American Justice Center (“AAJC”), a member of the Asian American Center for Advancing Justice, is a national non-profit, non-partisan organi- zation working to advance the human and civil rights of Asian Americans and build and promote a fair and equitable society for all. Founded in 1991 and based in Washington, D.C., AAJC engages in litigation, public policy, advocacy, and community education and outreach on a range of issues, including immi- gration and immigrants’ rights. AAJC joins this brief because a retroactive re-categorization of longtime LPRs as “arriving aliens” upon their return from short trips abroad has devastating impacts on Asian American immigrants, often longtime lawful perma- nent residents, who face the real-world consequences of being permanently separated from their families. The National Council of La Raza (*“NCLR’”’), the largest national Hispanic civil rights and advocacy organization in the United States, works to improve opportunities for Hispanic Americans. Through its network of nearly 300 affiliated community-based organizations (“CBOs”), NCLR reaches millions of Hispanics each year in forty-one states, Puerto Rico, and the District of Columbia. NCLR works through two primary, complementary approaches: (1) capac- ity-building assistance to support and strengthen Hispanic CBOs, especially those that serve low- income and disadvantaged Latinos; and (2) applied research, policy analysis, and advocacy to encourage adoption of programs and policies that equitably 2a serve Hispanics. NCLR beleves that LPRs returning from short trips abroad that are not “meaningfully disruptive” of their LPR status should not be retroac- tively reclassified as arriving aliens because of the devastating consequences they and their families could face. LatinoJustice PRLDEF, which was founded in New York City in 1972, has advocated for and de- fended the constitutional rights and the equal protec- tion of all Latinos under the law. Our continuing mission is to protect the civil rights of all Latinos and to promote justice for the pan-Latino community es- pecially across the Eastern United States. During its thirty-nine-year history, LatinoJustice has litigated numerous cases on behalf of the Latino community against multiple forms of discrimination. LatinoJus- tice PRLDEF joins this brief because retroactively classifying longtime LPRs as “arriving aliens” upon their return to the United States from brief travel abroad results in unforeseen legal consequences with devastating impacts upon longtime Latino LPRs and their families. The Drug Policy Alliance (“DPA”) is a national nonprofit organization that promotes policy alterna- tives to the drug war that are grounded in science, compassion, health, and human rights. DPA works to end drug policies predicated on arresting, convict- ing, incarcerating, disenfranchising and otherwise harming millions of non-violent people. DPA has an interest in this case because it advocates for policies aimed at eliminating or reducing the lifetime conse- quences, including immigration penalties, which re- sult from minor drug law violations. 3a United Sikhs is a UN-affiliated nongovernmental organization whose mission is to protect disadvan- taged communities through international civil and human rights advocacy, humanitarian aid, and health and education initiatives. We are deeply con- cerned by the impact of retroactively re-categorizing LPRs as arriving aliens, specifically in the context of how it would impact their religious freedoms. For many immigrant faith communities, the restrictions on their freedom of movement to travel outside the United States to attend funerals, weddings, births, baptisms, and pilgrimages would be severely im- pinged and would effectively cut them off from their religious duty and obligations. South Asian Americans Leading Together (“SAALT”) is a national non-profit organization whose mission is to elevate the voices and perspec- tives of South Asian individuals and organizations to build a more just and inclusive society in the United States. As an organization that advocates on behalf of a community that is predominantly foreign-born with a significant number of lawful permanent resi- dents, SAALT joins this brief to ensure that any Fleuti repeal not be retroactively applied. Such an interpretation would disrupt the lives of individuals who have long established their lives here, and is counter to basic notions of fairness. Founded in 1977, Asian Law Alliance (“ALA”) is the only legal services organization providing legal services to the Asian and Pacific Islander residents of Santa Clara County, California. ALA is dedicated to providing multilingual legal assistance to immi- grants and refugees to promote dignity and self- 4a reliance. In the last thirty-four years, ALA has pro- vided a wide range of immigration legal services to the community. The Sikh American Legal Defense and Educa- tion Fund (“SALDEF’”) is a national civil rights and educational organization. Its mission is to pro- tect the civil rights of Sikh Americans and foster a safe environment in the United States for future generations of Sikh Americans. SALDEF seeks to empower Sikh Americans through legal assistance, educational outreach, legislative advocacy, and me- dia relations. SALDEF is participating in this amicus brief as there are many immigrants in the Sikh American community and the outcome of this case has the potential to directly affect their lives. The mission of the Asian Law Caucus is to pro- mote, advance, and represent the legal and civil rights of Asian and Pacific Islander communities. Recognizing that social, economic, political and racial inequalities continue to exist in the United States, the Asian Law Caucus is committed to the pursuit of equality and justice for all sectors of our society, with a specific focus directed toward addressing the needs of low-income, immigrant and underserved Asian Pa- cific Islanders. As the oldest Asian American legal rights organization devoted to protecting the civil rights of all racial and ethnic minorities, we have a strong interest in protecting the integrity of the core constitutional principle of equal protection of the law for all communities of color. We provide direct repre- sentation to immigrants facing detention and depor- tation in the Bay Area. 5a The Asian Pacific American Legal Center (“APALC”) of Southern California, a member of the Asian American Center for Advancing Justice, was founded in 1983 and is the nation’s largest non- profit public interest law firm devoted to the Asian American and Pacific Islander community. APALC provides direct legal services and uses impact litiga- tion, public advocacy, and community education to obtain, safeguard, and improve the civil rights of this community. APALC serves 15,000 individuals and organizations each year through direct services, out- reach, training, and technical assistance. APALC ad- vocates for the full and equal integration of immi- grant communities in a variety of contexts and fo- cuses particularly on the needs of Asian American and Pacific Islander immigrants. The Northern Manhattan Coalition for Lnmi- grant Rights (“NMCIR”) was founded in 1982 as a community response to the influx of immigrants set- tling in Northern Manhattan and the Bronx. Every year, NMCIR helps thousands of immigrant families stay together by providing free and affordable per- sonalized support around a vast array of family- based immigration petitions. NMCIR also helps the immigrant community build visibility and political power via voter registration, civic education, and supporting its member-driven advocacy campaigns around deportation issues. NMCIR joins this brief because reclassifying longtime LPRs as arriving al- liens upon return from brief travel abroad will have a devastating effect on our constituents, many of whom require travel to maintain essential family ties. CURIAE Supreme Cour US RECORD FILED AND NOV 22 201 sei No. 10-1211 OFFICE OF THE CLERK | IN THE SUPREME COURY OF THE UNITED STATES PANAGIS VARTELAS, PETITIONER, Uv. ERIC HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT. On Writ Of Certiorari to the United States Court of Appeals for the Second Circuit BRIEF FOR ASIAN AMERICAN JUSTICE CENTER, NATIONAL COUNCIL OF LA RAZA, LATINOJUSTICE - PRLDEF, DRUG POLICY ALLIANCE, UNITED SIKHS, SOUTH ASIAN AMERICANS LEADING TOGETHER, ASIAN LAW ALLIANCE, SIKH AMERICAN LEGAL DEFENSE AND EDUCATION FUND, ASIAN LAW CAUCUS, ASIAN PACIFIC AMERICAN LEGAL CENTER OF SOUTHERN CALIFORNIA, NORTHERN MANHATTAN COALITION FOR IMMIGRANT RIGHTS AS AMICI CURIAE IN SUPPORT OF PETITIONER NANCY MORAWETZ Counsel of Record WASHINGTON SQUARE LEGAL SERVICES, INC. 245 Sullivan Street, 5th Floor New York, NY 10012 (212) 998-6430 nancy.morawetz@nyu.edu Counsel for Amici Curiae a Library of Congicss Law Library QUESTION PRESENTED Is 8 U.S.C. § 1101(a)(13)(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 retroactive as applied to lawful permanent residents who pleaded guilty before the effective date of the Illegal Immigration Reform and _ Immigrant Responsibility Act (IIRIRA)? TABLE OF CONTENTS Page CUTER AIO WIE FIO onc cca ccccccccsccccccccvecececccesncecce i UR I I iS iv INTEREST OF THE AMICUS CURIAE................... 1 INTRODUCTION AND SUMMARY OF PE RR SA Mae ES Se a a Si 2 Fg FER AE TRF SEUSS "ae nies aR Rare ences WAN Pipe 5 I. ABROGATION OF THE FLEUTI DOCTRINE WOULD BE RETROACTIVE IF APPLIED TO LPRS CONVICTED OF AN EXCLUDABLE OFFENSE BEFORE ITRIRA’S EFFECTIVE DATE. ...................0.000005 6 A. A Statute Applies Retroactively if it Attaches New Legal Consequences to Past Conduct or Regulates Past SEI sects ertncetiaictnee tee SS 6 B. If Applied to LPRs Already Convicted of an Excludable Offense, Abrogation of the Fleuti Doctrine Would Attach New Legal Consequences to Past RPI, Sircnentcirctiactdie cieeemiedsmmasaaansterscnnaicuts. 10 C. The Relevant Activity Regulated by IIRIRA’s Abrogation of the Fleut/ Doctrine is an LPR’s Conviction for an Excludable Offense. ...........00.....0cccce-ceeceeeces 12 Il. THE SECOND CIRCUIT'S REQUIREMENT OF INDIVIDUAL RELIANCE CANNOT BE RECONCILED WITH LANDGRAF AND ITS PITT + sihvcaidiaginpineusdiocussvonhanpecnianieginbiensdeneict 16 ll TABLE OF CONTENTS (continued) Page A. A Statute’s Retroactivity Does Not Require a Showing of Individualized MUD, rcic e 19 B. The Second Circuit’s Approach Would Impermissibly Tie the Meaning of a Statute to Individual Intent and Produce a Statute with No Unitary REE SA RR AR Shia sh eo A ae 21 Og TREE EN Me ditto CPM HA» 25 iv TABLE OF AUTHORITIES Page(s) CASES Carranza-De Salinas v. Gonzales, gee Ff) Ul SC, eee 18, 24 Chew Heong v. United States, ee ee Ns sstcirdwcs 13, 14, 15 Clark v. Martinez, Ee We i ciniccouiieaunisasniacndinichemuasietnvcadeleccen 22 Doe v. Miller, SOG FOG TOO (Otis Cir. BODE) .......ccccccccccscccecceccoscs 15 Fong Yue Ting v. United States, i Fo 12 Hughes Aircraft Co. v. United States ex rel. Schumer, et __. . ene ne 19, 20, 21 In re Collado-Munoz, 21 1. & N. Dec. 1061 (BIA 1998) (en banc)............ 3 INS v. St. Cyr, Lk Rf.) Se wee eee 12, 17, 18, 23 Kaiser Aluminum & Chem. Corp. v. Bonjorno, Oe I aii 4 Landgraf v. USI Film Prods., ee I ick ccttsivisinceichdannkanaieateciconias passim Landon v. Plasencia, ae 2 Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004) ............. 20, 21, 22, 24 Padilla v. Kentucky, fo) Se en sae ee a ee 12 TABLE OF AUTHORITIES (continued) Page(s) Ponnapula v. Ashcroft, SIS Fe GI Ge Goat. BD sian s cciccciseseccnsccccees 20, 21 Rankine v. Reno, 319 F.8d 98 (2d Cir. 2003)................. 17, 18, 21, 23 Restrepo v. McElroy, - Pw YT vg. bo Mo: ” | epreenne 18, 23 Rosenberg v. Fleuti, ee ee Ce i ccetnccscnnenenssictnnccecesscucsonien passim Shaughnessy v. United States ex rel. Mezei, Es He EI cendeddensccstcreaiavntintersesniaentegenenicie 2 Society for Propagation of the Gospel v. Wheeler, 22 F. Cas. 756 (No. 13,156) (CC NH 1814)........... 7 STATUTES ee I cuiicuinstiesicdeietnnetocsivcssoimidnncakeciunen passim ee te ace cetictccntenancectnekibaansiensstcedsend passim Oe eee ae eI IID cia cn dcaicensinoecsiseneonpssntetneiotnns 3 ls Oe ee NI cscevckccocesscecssheciccsacscacrunansnanes 2 OTHER AUTHORITIES re NS accede catebece 3 INTEREST OF THE AMICUS CURIAP The National Immigrant Justice Center (NIJC) is a non-profit organization accredited by the Board of Immigration Appeals. since 1980 to _ provide immigration assistance. NIJC_ provides legal education and_ representation to low-income immigrants, asylum seekers, and refugees, including survivors of domestic violence, victims of crimes, detained immigrant adults and children, and victims of human trafficking, as well as immigrant families and other non-citizens facing removal and family separation. In 2009, NIJC provided such legal services to more than 10,000 non-citizens. NIJC also promotes respect for human rights and access to justice for immigrants, refugees, and asylum seekers through policy advocacy, impact litigation, and public education. In lght of the foregoing mission, NIJC has a deep interest in ensuring that the Ulegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) is not applied retroactively in a manner that is inconsistent with Congressional intent and fundamental principles of fairness. 1 No counsel for a party wrote this brief in whole or in part, and no counsel for a party or party made a monetary contribution intended to fund the preparation or submission of this brief. No person or entity other than amicus curiae, its members, or its counsel made a monetary contribution to this briefs preparation or submission. Counsel of record for both petitioner and respondents received timely notice of amicus’s intent to file the brief, and consented to it. bo INTRODUCTION AND SUMMARY OF ARGUMENT Prior to 1997, the Immigration and Nationality Act (“INA”) set out different standards governing “exclusion” and “deportation.” An alien seeking “entry” into the United States could be “excluded” based on a broad set of grounds and with relatively minimal procedures. But an alien who had already “entered” the country could be “deported” only on narrower grounds and with greater procedural] protections. See, e.g. 8 US.C. §§ 1182(a), 1251(a) (1994); Landon v. Plasencia, 459 U.S. 21, 32-34 (1982); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212-15 (1953). In Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963), this Court held that a lawful permanent resident’s “innocent, casual, and brief” trip outside the country was not sufficiently “disruptive of his resident alien status” that a return from such a trip could be considered an “entry” under the INA. Jd. As a result, a lawful permanent resident (“LPR”) who was not deportable while in the United States, but would have been excludable if seeking “entry” into the country, had the right to take “innocent, casual, and brief’ trips abroad without triggering exclusion proceedings upon return. Petitioner was such an alien. That is, he was an LPR with a minor conviction for conspiracy to make or possess a counterfeit security. Pet. App. 2-3. This single conviction did not render Petitioner deportable, 8 U.S.C. §1251(a) (1994), but this conviction was for an excludable offense; i.e., it would have made Petitioner excludable if he were seeking entry, as it was for a “crime involving moral 3 turpitude,” 8 U.S.C. § 1182(a) (1994). Thus, prior to 1997, Petitioner’s conviction did not prevent him from taking brief trips outside the United States. With the passage of ITRIRA in 1997, Congress replaced the term “entry” with the term “admission” as the key to determining many aliens’ legal status. Interpreting this new term, defined in INA § 101(a)(13)(C)(v), 8 U.S.C. § 1101(a)(13)(C)(v), the BIA concluded that “admission” was required for any physical entry into the country by an alien convicted of an excludable offense triggering inadmissibility under 8 U.S.C. § 1182(a)(2), even if the alien’s trip abroad had been “innocent, casual, and brief.” Jn re Collado-Munoz, 21 1. & N. Dec. 1061, 1065-66 (BIA 1998) (en banc). Under the BIA’s interpretation, ITRIRA thus abrogated the Fleuti doctrine for all aliens convicted of an excludable offense.” As a result, now if such aliens take an “innocent, casual, and brief’ trip overseas, they must seek admission upon return. That not only places their legal resident status at risk, but also could result in their detention for a period of months, or even years. See 8 C.F.R. § 1003.19(h)(2)G). And this is so for all aliens, regardless of whether they were convicted of excludable offenses before or after I[RIRA’s effective date. 2 Amicus curiae believes there are strong arguments that Collado-Munoz was wrongly decided. See, e.g., Collado-Munoz, 21 Il. & N. Dec. at 1075 (Rosenberg, Bd. Mem., dissenting) (“{T}he statute is utterly silent as to the continued vitality of the Fleuti doctrine.”). Given the formulation of the Question Presented, however, amicus curiae will assume arguendo that JTRIRA abrogated the Fleuz/ doctrine. 4 This Court has long recognized that federal statutes will not be read to apply retroactively absent a clear expression of congressional intent to the contrary. This presumption is grounded in “feJlementary considerations of fairness,” which dictate that “the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place.” Landgrafv. USI Film Prods., 511 U.S. 244, 265 (1994) (quoting Aa/sser Aluminum & Chem. Corp. v. Bonjyorno, 494 U.S. 827, 855 (1990) (Scalia, J., concurring). In assessing whether a statute operates retroactively, the Court has generally asked “whether the new provision attaches new legal consequences to events completed before its enactment.” Jd. at 270. Several members of the Court have suggested that an alternative formulation better explains the Court’s precedents. Under that approach, a court should determine “the relevant activity that the [new] rule regulates”; “only such relevant activity which occurs after the effective date of the statute is covered.” Jd. at 291 (Scalia J., concurring). ITRIRA’s abrogation of the FJeuti doctrine would be impermissibly retroactive under either of the foregoing standards if applied to LPRs who, like petitioner, were convicted of an excludable offense before the enactment of ITIRIRA. Limiting the ab*'*+y of such LPRs to travel overseas would attach mu, + “new legal consequences to events completed before {(IIRIRA’s} enactment.” Jd. at 270 (majority opinion). Moreover, because subsection 101(a)(13)(C){(v) constitutes an added penalty for certain crimes, “the relevant activity that the [new] rule regulates” is petitioner's conviction for an excludable offense, an “activity which occurs [before] the effective date of i the statute.” Jd at 291 (Scalia J., concurring). Because it is undisputed that subsection 101(a)(13)(C)(v) does not expressly define its own temporal reach, the presumption against retroactivity dictates that subsection 101(a)(13)(C)(v) not be applied in this retroactive manner. The Second Circuit reached a contrary conclusion by erroneously requiring a showing of specific, individualized reliance before finding a statute to have retroactive effect. This approach cannot be reconciled with the decisions of this Court, fundamentally misunderstands the role of reliance interests in applying the presumption against retroactivity, and would produce the untenable result of a single statute meaning as many things as there are people to whom it applies. This Court should accordingly reject the Second Circuit’s approach and instead hold that subsection 101(a)(13)(C)(v) does not apply to LPRs who, like Petitioner, were convicted of an excludable offense prior to the Act. ARGUMENT As this Court explained in Landgraf “the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.” 511 U.S. at 265. The presumption stems from a principle with “timeless and universal appeal”: “the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place.” /d. (quoting Kaiser, 494 U.S. at 855 (Scalia, J., concurring)). Indeed, this “antiretroactivity principle” is reflected in several provisions of the 6 Constitution, including the Ex Post Facto Clause, the Contracts Clause, and the Fifth Amendment’s Due Process Clause. /d. at 266. It is undisputed that IIRIRA’s abrogation of the Fleuti doctrine is not explicitly retroactive. See Pet. App. 20-21 (“[HJere, we note—and the government concedes—that Congress has not expressly prescribed the temporal reach of § 101(a)(13).”). Accordingly, the question in this case is simply whether abrogating the FYJeuti doctrine for LPRs already convicted of an excludable offense before ITRIRA’s effective date would constitute a retroactive change to their legal rights. See Landgraf, 511 U.S. at 280. Such a change would be impermissibly retroactive. The Second Circuit’s contrary holding cannot be reconciled with either of the approaches suggested by this Court’s case law or basic principles of statutory interpretation. I. ABROGATION OF THE FLEUTI DOCTRINE WOULD BE IMPERMISSIBLY RETROACTIVE IF APPLIED TO LPRS CONVICTED OF AN EXCLUDABLE OFFENSE BEFORE IRIRA’S EFFECTIVE DATE. A. AStatute Applies Retroactively if it Attaches New Legal Consequences to Past Conduct or Regulates Past Activity. . Despite the well-established pedigree of the presumption against retroactivity, “deciding when a statute operates ‘retroactively’ is not always a simple or mechanical task.” Jd. at 268. But the majority opinion in Landgraf, as well as a concurring opinion by Justice Scalia, offered several guideposts that courts should consider in assessing the retroactive nature of a legal change. 1. The Landgraf majority. When applying the presumption = against retroactivity, the overarching inquiry is “whether the new provision attaches new legal consequences to events completed before its enactment.” 511 U.S. at 270. The Landgraf majority drew this principle from Justice Story’s classic formulation: “[E]very statute, which 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 considerations already past, must be deemed retrospective .. .” id. at 269 (quoting Soc’y for Propagation of the Gospel v. ‘Wheeler, 22 F. Cas. 756 (No. 13,156) (CC NH 1814)). Moreover, the Court added, “[t]he presumption against statutory retroactivity has consistently been explained by reference to the unfairness of imposing new burdens on persons after the fact.” Jd. at 270. In applying the presumption, “familiar considerations of fair notice, reasonable reliance, and _ settled expectations offer sound guidance.” Jd. Finally, the Court explained, new _ rules “conferring or ousting jurisdiction” over suits arising from prior conduct are often not considered retroactive because “[a]pplication of a new jurisdictional rule usually takes away no substantive right but simply changes the tribunal that is to hear the case.” Jd. at 274 (internal quotation marks 8 omitted). By the same token, “[cjJhanges in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity.” Jd. at 275. Although such rules may sometimes be considered retroactive, they generally do not pose the same retroactivity concerns because they “regulate secondary rather than primary conduct.” /d. Turning to the statute before it, the Landgraf majority easily concluded that the punitive damages remedy added to Title VII by the 1991 Civil Rights Act could not apply to pre-enactment conduct absent a clear statement of congressional intent. /d. at 281. That result was clear, the Court reasoned, because punitive damages “share key characteristics of criminal sanctions.” /d. The Court reached the same conclusion regarding the retroactivity of the new compensatory damages provision added to Title VII. /d. at 282. Because this new compensatory damages remedy “only reache|[d| discriminatory conduct already prohibited by Title VII,” the Court acknowledged, it “d{id] not make unlawful conduct that was lawful when it occurred.” Id. at 281-82. “Nor could anyone seriously contend that the compensatory damages provisions smack of a ‘retributive” purpose. /d. at 282. Nonetheless, the Court concluded that the new compensatory remedy » could not be applied to pre-enactment conduct absent a clear statement, for several reasons. First, compensatory damages are “quintessentially backward looking.” Second, “(t]he introduction of a right to compensatory damages is also the type of legal change that would have an impact on private parties’ planning.” Jd. To be sure, the Court conceded, “concerns of unfair surprise and _ upsetting expectations [would be] attenuated in [many] casef[s] of intentional employment discrimination, which has been unlawful for more than a generation.” /d. at 282 n.35. But, the Court reasoned, “a degree of unfairness is inherent whenever the law imposes additional burdens based on conduct that occurred in the past.” /d. (emphasis added). Finally, even though the compensatory damages remedy could be seen as simply “increasing the amount of damages available under a preestablished cause of action,” such a change would still raise retroactivity concerns because “[t]he extent of a party’s liability, in the civil context as well as the criminal, is an important legal consequence that cannot be ignored.” /d. at 283-84. 2. The Landgraf concurrence. Justice Scalia agreed with the majority’s conclusion regarding the retroactivity of the 1991 Civil Rights Act, but took a different path to rationalize that result and the Court’s retroactivity precedents. He opined that, whether a statute “upset[] vested substantive rights” did not “ha[ve}] anything to do with . . . the presumed temporal application of a statute.” Jd. at 291 (Scalia J., concurring) (internal quotation marks omitted). “The critical issue,” Justice Scalia explained: is not whether the rule affects “vested rights,” or governs substance or procedure, but rather what is the relevant activity that the rule regulates. Absent a clear statement otherwise, 10 only such relevant activity which occurs after the effective date of the statute is covered. Id. On this analysis, both the punitive and compensatory damages provisions were easily classified as retroactive because they were “directed at the regulation of primary conduct, and the occurrence of the primary conduct is the relevant event.” /d. at 294. As explained below, in this case, these guideposts all point to the same conclusion: II[RIRA’s abrogation of the FJeuti doctrine for LPRs convicted of an excludable crime prior to ITRIRA is impermissibly retroactive. B. If Applied to LPRs Already Convicted of an Excludable Offense, Abrogation of the Fleutz Doctrine Would Attach New Legal Consequences to Past Conduct. Under the Landgraf majority’s approach, the new burden imposed by subsection 101(a)(13)(C)(v) would plainly be retroactive if applied to LPRs such as Petitioner. Prior to 1997, LPRs who had convictions making them excludable but not deportable had a legal right to take “innocent, casual, and brief” trips abroad without facing exclusion proceedings on their return. Fleuti, 374 U.S. at 462. If applied to such LPRs, © IIRIRA’s abrogation of the FYeuty doctrine would eliminate that right. Put another way, subsection 101(a)(13)(C)(v) would impose an_ additional restriction—the inability to travel abroad without risking one’s lawful status—on such LPRs as a result of their criminal convictions. This clearly “would impair rights a party possessed when he acted” and 1] “attach[{] new legal consequences” to past acts. Jd. at 270, 280 (majority opinion). And, far from merely ousting jurisdiction or altering procedural rules, such a change destroys a deeply significant substantive right. See id. at 274-75. Moreover, like the Title VII remedies analyzed in Landgraf, the deniai of the right to travel overseas is certainly “the type of legal change that would have an impact on private parties’ planning.” Jd. at 282. And while, “concerns of unfair surprise and upsetting expectations are attenuated” by the fact that the conduct triggering the new burden (commission of an excludable offense) was already unlawful, as the Court explained in Landgraf new burdens attached to already-unlawful conduct still implicate retroactivity concerns since “a degree of unfairness is inherent whenever the law imposes additional burdens based on conduct that occurred in the past.” Id. at 282 n.35 (emphasis added). Indeed, concerns of fair notice and reliance are far stronger in this case than in Landgraf Here, in practice, the burden at issue applies on/y to those LPRs who have already been convicted of an excludable offense. As Petitioner has explained, although subsection 101(a)(13)(C)(v) by its terms punishes the commission of an excludable offense, it applies in practice only to LPRs with convictions for such offenses. Pet. Br. 47. If “f{ejlementary considerations of fairness dictate that individuals should have an opportunity to know what the law is” at the time of potentially illegal conduct, Landgraf S11 U.S. at 265, such principles are even more strongly implicated during a criminal prosecution, when alien defendants “are acutely aware of the 12 immigration consequences of their convictions.” JNS v. St. Cyr, 533 U.S. 289, 322 (2001). Indeed, the argument for applying subsection 101(a)(13)(C)(v) in this case is akin to arguing in JLandgraf that companies who had a/ready paid judgments or settlements for Title VII violations before the 1991 amendments could be_ subjected to additiona/ compensatory damages after them. Such an imposition is plainly retroactive. Finally, although deportation or exclusion “is not, in a strict sense, a criminal) sanction,” the Court has “long recognized that deportation is a particularly severe ‘penalty,” and is “intimately related to the criminal process.” Padilla v. Kentucky, 130 S. Ct. 1473, 1481 (2010) (quoting Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893)). Thus, like the punitive damages remedy in Landgraf—which this Court considered to be clearly retroactive—the new burden imposed on Petitioner by IIRIRA “share[s] key characteristics of criminal sanctions.” Landgraf 511 U.S. at 281. Because IIRJRA’s abrogation of the FJeuti doctrine would impose a major new burden on Petitioner based on his prior conviction, would do so in a manner that generally causes unfair surprise. and would “share[e] key characteristics of criminal sanctions,” such a change must be considered retroactive. C. The Relevant Activity Regulated by ITRIRA’s Abrogation of the Fleuti Doctrine is an LPR’s Conviction for an Excludable Offense. Application of the standard set forth in Justice Sealia’s concurrence only drives home the foregoing 13 conclusion. Subsection 101(a)(13)(C)(v) is triggered by an alien’s conviction for an excludable offense. Accordingly, such an offense is the most obvious conduct regulated by the statute. That is, by revoking the right to travel abroad without risking lawful status, IRIRA imposes an additional penalty for the commission of excludable offenses by LPRs. No alternative activity or event is plausibly targeted by subsection 101(a)(13)(C)(v). An LPR’s brief travel abroad could hardly be the target of the provision; it is simply implausible to suggest that Congress abrogated Fleuti to keep LPRs_ with excludable offenses in the United States. To whatever degree the law may regard LPRs with excludable offenses as undesirable, that undesirability stems from their underlying criminal! convictions, not from the fact that they have taken an “innocent, casual, and brief” trip outside the country. Fleuti, 374 U.S. at 462. Nor can it reasonably be thought that subsection 101(a)(13)(C)(v) regulates solely the return of an LPR after a brief trip abroad. If an LPR’s return were the only relevant event, subsection 101(a)(13)(C)(v) would apply even to LPRs who left for a brief trip before IIRIRA and attempted to return after. But that would be impossible to reconcile with Chew Heong v. United States, 112 U.S. 536 (1884). There, the Court refused to apply the “Chinese Restriction Act,” which barred Chinese laborers from reentering the United States without a certificate issued on their departure, to aliens who had left the country before the Act’s passage and tried to return without a certificate after. Jd. at 538-39. The Court reasoned that, at the time such aliens left the country, they 14 had a legal right to return without such a certificate. Id. at 559. To apply the new requirement to them would cause “rights previously vested [to be] injuriously affected,” a result the Court would not reach “unless compelled to do so by language so clear and positive as to leave no room to doubt that such was the intention of the legislature.” /d. Read through the lens of Justice Scalia’s Landgraf concurrence, Chew Heong reflects a recognition that Congress was, in fact, regulating more than Chinese laborers’ initial entry. It was in fact placing a new restriction on aliens already in the country: a requirement that they obtain a certificate in order to leave and return. Here too, 101(a)(13)(C)(v) plainly does not restrict LPRs entry gua entry. Rather, on its face, the provision regulates only those LPRs who have committed an excludable offense. Indeed, even the Second Circuit conceded that “in framing § 101(a) (13)(C)(v) . . . Congress intended the focus to be on the alien’s commission of the crime.” Pet. App. 25. Other portions of ITIRIRA provide telling contrast: Under 8 U.S.C. § 1101(a)(13)(C)Gii) and (vi), for example, LPRs returning from brief trips abroad are treated as applicants for admission if they ergaged in illegal activity during their trip or attempt to reenter illegally. Such provisions plainly target conduct related to the LPR’s travel. Here, on the other hand, there is no plausible reason why Congress would have been concerned with brief trips overseas by LPRs such as Petitioner. Chew Heong likewise exposes the flaw in the Government’s argument that Petitioner’s post- IIRIRA travel is the “determinative event for retroactivity analysis” and that Petitioner “could 15 have avoided the application of the statute. .. . [by] refrain{ing] from departing from the United States (or from returning to the United States).” BIO 12-13. The statute at issue in Chew Heong regulated a transaction that included some _ pre-enactment conduct (obtaining a certificate upon departure) and some post-enactment conduct (return to the United States). 112 U.S. at 538-39. Accordingly, the Chinese laborers in that case could have avoided application of the statute by “refrain[ing] from . . . returning to the United States.” BIO 13. But this post-enactment Hobson’s choice did not stop the Court from concluding that application of the Chinese Restriction Act would have been retroactive. /d. at 559. As the result in Chew Heong thus illustrates, the critical question in assessing the retroactivity of a statute must be whether the primary activity being regulated occurs prior to the statute’s enactment. Take, for example, a statute banning individuals convicted of sex offenses involving minors from residing within 2,000 feet of a school or child care facility. See, e.g. Doe v. Miller, 405 F.3d 700, 704 (8th Cir. 2005). Such a statute would not be impermissibly retroactive as applied to a sex offender convicted prior to the law’s passage, because “[t]he primary purpose of the law. is not to alter the offender’s incentive structure by demonstrating the negative consequences that will flow from committing a sex offense.” Jd. at 720. Rather, such a statute operates mainly prospectively “to reduce the likelihood of reoffense by limiting the offender’s temptation and reducing the opportunity to commit a new crime.” /d. In contrast, the post-enactment conduct at issue in this case (travel) is not the 16 primary target of subsection 101(a)(13)(C)(v). The pre-enactment criminal offense is. Because “the relevant activity that [subsection 101(a)(13)(C)(v)] regulates” is the commission of an excludable offense “only such relevant activity which occurs after the effective date of the statute is covered.” Landgraf, 511 U.S. at 291 (Scalia J., concurring). Il. THE SECOND CIRCUITS REQUIREMENT OF INDIVIDUAL RELIANCE CANNOT BE RECONCILED WITH LANDGRAF AND ITS PROGENY. The Second Circuit followed none of these guideposts, but instead blazed its own trail. In so doing, the court did not quarrel] with the notion that subsection 101(a)(13)(C)(v) imposed a new burden on Petitioner based on his pre-IIRIRA offense. Nor did the court dispute that Petitioner’s offense was the relevant conduct regulated by subsection 101(a)(13)(C)(v). Rather, the Second Circuit grounded its decision on the assertion that Petitioner could not have relied on pre-IIRIRA law at the time he committed his offense. Specifically, the Second Circuit reasoned that, because subsection 101(a)(13)(C)(v) is worded to refer to “the alien’s commission of the crime,” it would not consider the particularly weighty reliance interests at stake when an alien enters a plea bargain resulting in conviction. Pet. App. 25 (emphasis added). Instead, the court focused solely on the reliance interests implicated when Petitioner decided to commit his excludable offense: “it would border on the absurd to suggest that Vartelas committed his counterfeiting crime in reliance on the immigration 17 laws.” Pet. App. 27. Because Petitioner had not actually and specifically relied on the availability of the Fleuti doctrine in committing his offense, the court concluded, applying subsection 101(a)(13)(C)(v), while perhaps’ retroactive, would not’ be “impermissibly” retroactive, regardless of whether he in fact was convicted through a plea bargain. Pet. App. 28. That decision is consistent with a line of Second Circuit cases holding that the presumption against retroactivity will apply only where an = alien demonstrates actual, subjective, and _ individual reliance on the prior state of the law. For example, in Rankine v. Reno, 319 F.3d 93 (2d Cir. 2003), the court considered the retroactivity of IIRIRA’s repeal of INA § 212(c), which had allowed certain aliens to receive of waiver of deportation. In St. Cyr., this Court held that applying the repeal of § 212(c) to aliens who had previously pleaded guilty to a deportable offense would be retroactive because it “clearly ‘attaches a new disability, in respect to transactions or considerations already past.” 533 U.S. at 321 (quoting Landgraf, 511 U.S. at 269). The Second Circuit distinguished this holding, however, because the aliens in Aankine had been convicted at trial and had not demonstrated individual reliance on the availability of § 212(c) relief: First, none of these petitioners detrimentally changed his position in reliance on continued eligibility for § 212(c) relief. Unhke aliens who entered pleas, the petitioners made no decision to abandon any rights and admit guilt.. .. 18 Second, the petitioners have pointed to no conduct on their part that reflects an intention to preserve their eligibility for relief under § 212(c) by going to trial..... Under these circumstances, it is difficult to conclude, as we must to find impermissible retroactivity, that the petitioners chose to go to trial in reliance on the availability of § 212(c) relief. Rankine, 319 F.3d at 99-100 (emphasis added). In sum, the Court reasoned, “aliens who chose to go to trial are in a different position with respect to IIRIRA than aliens like St. Cyr who chose to plead guilty.” Id. at 99; see also Restrepo v. McElroy, 369 F. 3d 627 (2d Cir. 2004) (suggesting that individual reliance could be shown where petitioner alleged that he had foregone an opportunity to file for relief under § 212(c) in subjective reliance on the ability to file later); Carranza-De Salinas v. Gonzales, 477 F.3d 200, 205 (5th Cir. 2007) (following Aankine and holding that “an applicant who alleges continued eligibility for § 212(c) relief [must] demonstrate actual, subjective reliance on the pre-IIRIRA state of the law to be eligible for relief from its retroactive application.”) (emphasis added). But this approach is irreconcilable with this Court’s precedents, which do not require any showing of actual reliance by affected parties, let alone the sort of individualized reliance demanded by the Second Circuit. This approach, moreover, ignores that the presumption against retroactivity is a tool of | statutory. interpretation, which must produce a statute with a single meaning. The Court should expressly reject the Second Circuit’s approach and clarify that “reliance” is simply a _ background 19 principle animating the presumption § against retroactivity and is not a specific and individualized requirement of the doctrine. A. A Statute’s Retroactivity Does Not Require a Showing of Individualized Reliance. This Court has repeatedly applied the presumption against retroactivity to bar the application of a statute without discussing individual reliance, and where the burdened party could not plausibly have relied on the prior state of the law. In Landgraf itself, for example, the Court conducted no individualized analysis of whether the employer, USI Film Products, actually relied on the absence of the punitive and compensatory damages added to Title VII by the newly-enacted law. See Landgraf, 511 U.S. at 280-93. Indeed, the Court effectively conceded that it was unlikely any employer could have relied on the absence of such damages, given that employment discrimination was _ already unlawful. Jd. at 282 n.35 (“[C]oncerns of unfair surprise and upsetting expectations [would be} attenuated in [many] casefs] of intentional employment discrimination, which has been unlawful for more than a generation.”). Nonetheless, the Court held that the principles animating the presumption against retroactivity were implicated because “a degree of unfairness is inherent whenever the law imposes additional burdens based on conduct that occurred in the past.” Jd. (emphasis added). Likewise, in Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939 (1997), the Court considered the temporal scope of a 1986 amendment to the False Claims Act (“FCA”), which eliminated a defense to gui tam actions based on information 20 already in the Government’s possession. The Court held that the elimination of this defense did not apply to pre-1986 conduct in lght of the presumption against retroactivity. Jd. at 941-42. As in Landgraf however, the relevant conduct (submitting a false claim) had been unlawful for decades. /d. at 947. In fact, the elimination of the defense did not really change a party’s potential hability at a//, because the Government could bring the action with that information, and “the monetary liability faced by an FCA defendant is the same whether the action is brought by the Government or by a gui tam relator.” Id. at 948. In such circumstances, it is difficult to see how any business could have detrimentally relied on the fact that inculpatory information was already in the Government’s possession. Yet, again, the Court barred application of the new law on retroactivity grounds and did not even discuss reliance. As the Third Circuit has summarized matters:, “it is unlikely that in JLandgraf any employer demonstrably relied on the absence of a punitive damages remedy for Title VII violations, or that in Hughes Aircraft any government’ contractor purposely arranged its billing practices ex ante to take advantage of a specific defense under the False Claims Act.” Ponnapula v. Ashcroft, 373 F.3d 480, 493 (3d Cir. 2004); see also Olatunyi v. Ashcroft, 387 F.3d 383, 392 (4th Cir. 2004) (Luttig, J.) (noting that Hughes Aircraft applied the presumption against retroactivity “without even a single word of discussion as to whether Hughes Aircraft—or, for that matter, similarly situated government contractors—had relied on the eliminated defense to its detriment”) (emphasis omitted). Indeed, “the Supreme Court has never required actua) reliance in 21 any case in the Landgraf\ine.” Ponnapula, 373 F.3d at 489. These cases make clear that Landgraf's reference to “fair notice, reasonable reliance, and settled expectations,” 511 U.S. at 270, can only be understood as describing the animating principles behind the presumption against retroactivity. This reference in no way defined the doctrine’s outer limits. And it certainly did not require an individualized showing of reliance. As the Court made perfectly clear in Hughes Aircratt, “{t)o the extent respondent contends that on/y statutes with one of these effects are subject to our presumption against retroactivity, he simply misreads our opinion in Landgraf.....[{O]ur opinion in Landgraf like that of Justice Story, merely described that any such effect constituted a sufficient, rather than a necessary, condition for invoking the presumption against retroactivity.” 520 U.S. at 947; see also Olatunji, 387 F.3d at 394 (“[T]he Supreme Court has variously articulated the requirements to show retroactivity, has never insisted upon a reliance requirement, and has consistently concluded that Justice Story’s formulation is sufficient for invoking the presumption against retroactivity.”) (emphasis in original). The Second Circuit’s requirement that reliance on prior law “must [be proved] to find impermissible retroactivity,” Rankine, 319 F.3d at 100, is thus flatly inconsistent with the foregoing decisions. B. The Second Circuit's Approach Would Impermissibly Tie the Meaning of a Statute to Individual Intent and Produce a Statute with No Unitary Meaning. 22 The Second Circuit’s approach to retroactivity is also inconsistent with the basic premise that the presumption against retroactivity is a tool of statutory interpretation. Simply put, the temporal relationship between a statute and regulated conduct does not change based on the state of mind of a particular regulated party. See Olatunyji, 387 F.3d at 394 (“Whether the particular petitioner did or did not subjectively rely upon the prior statute or scheme has nothing whatever to do with Congress’ intent—the very basis for the presumption against statutory retroactivity.”). Thus, there is no basis to presume, as the Second Circuit has, that Congress intended a single statute to apply retroactively to some aliens, who have relied on prior law, but not to other aliens, who also engaged in relevant conduct at the same time, but without reliance. To the contrary, there is every reason to believe otherwise. For such a result would violate the well- established rule that a single statute cannot mean different things to different people. “To give the[]} same words [in a statute] a different meaning for each category [or individual] would be to invent a statute rather than interpret one.” Clark yy. Martinez, 543 U.S. 371, 378 (2005); see also id. (a statute may be interpreted in one of two ways “(ijt cannot, however, be interpreted to do both at the same time”); 7d. at 386 (applying a different statutory interpretation to different classes of people “would render every statute a chameleon” by “establish{ing] . . . the dangerous principle that judges can give the same statutory text different meanings in different cases’). 23 But this is precisely the approach taken by the Second Circuit. Under Rankine, two aliens convicted on the same day for the same crime would be subject to different statutory rules. For the alien convicted at trial, IIRIRA would not operate retroactively and would have eliminated § 212(c) relief. But for the alien convicted by guilty plea, IIRIRA would operate retroactively and would not have eliminated § 212(c) relief. On the Second Circuit’s view, “aliens who chose to go to trial are in a different position with respect to ITRIRA than aliens like St. Cyr who chose to plead guilty.” Rankine, 319 F.3d at 99. Likewise, in Mestrepo. the Second Circuit suggested that although an alien convicted at trial had not relied on the availability of § 212(c) when deciding to go to trial, he might have relied on the later availability of such relief by choosing not to file an earlier preemptive petition for § 212(c) relief. 369 F.3d at 632. The Court therefore held that, “on remand, the district court [would] have to make further inquiries in order to determine whether Petitioner may himself claim the benefit of his argument.” Jd. at 633. Thus, in Restrepo, the retroactive reach of ITRIRA turned on the subjective intent of an individual alien. Such results are not consistent with an attempt to determine the temporal scope of a single statute. Instead, they appear to assume that the new statute apples, but then invent an atextual “reliance defense” to that application. As the Fifth Circuit has stated in applying the Second Circuit’s test, “an applicant who alleges continued eligibility for § 212(c) relief [must] demonstrate actual, subjective reliance on the pre-IITRIRA state of the law to be eligible for 24 rehef from its retroactive application.” Carranza-De Salinas, 477 F.3d at 205 (emphasis added). But as Judge Luttig explained, the Court’s case law: asks only whether a statute in fact has retroactive effect. .. . Whether the particular petitioner did or did not subjectively rely upon the prior statute or scheme has nothing whatever to do with Congress’ intent—the very basis for the presumption against statutory retroactivity ....[{Wjhere Congress has apparently given no thought to the question of retroactivity whatever, there is no basis for inferring that Congress’ intent was any more nuanced than that statutes should not be held to apply retroactively. Olatunji, 387 F.3d at 394. “Anything more, in the face of complete congressional silence, is nothing but judicial legislation.” Jd. x**¥* Under the multi-factor approach set out- in Landgraf, actual reliance by some or all of the affected individuals or businesses would support a non-retroactive interpretation, but is by no means necessary. Moreover, even if some form of reliance were required to find a statute non-retroactive, it could not be a showing of individualized reliance. Rather, the most that could be reconciled with Landgraf and Hughes Aircraft is a requirement that the legal rule in question be the sort of rule on which an informed observer would rely; that is, the sort of rule that is objectively material. The Fleut7 doctrine is precisely such a rule, as the ability to travel abroad without risking one’s legal status is a deeply significant right for most aliens. 25 CONCLUSION For the foregoing reasons, and those stated by Petitioner, the judgment of the Second Circuit should be reversed. Respectfully submitted, CHARLES ROTH NATIONAL IMMIGRANT JUSTICE CENTER 208 South LaSalle Street Chicago, IL 60604 November 22, 2011 BRIAN J. MURRAY Counsel of Record JONES DAY 77 West Wacker Dr. Chicago, IL 60601 (312) 782-3939 bjmurray@jonesday.com WARREN D. POSTMAN JONES Day 51 Louisiana Avenue N.W. Washington, D.C. 20001 Counsel for Amicus Curiae CURIAE RECORD Supreme Coun. US. AND BRIEFS NOV 22 20! No. 10-1211 OFFICE OF THE CLERK IN THE Supreme Court of the United States PANAGIS VARTELAS, Petitioner, Vv. ERIC H. HOLDER, JR., Attorney General Respondent. On Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit BRIEF FOR NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, NATIONAL LEGAL AID & DEFENDER ASSOCIATION, IMMIGRANT DEFENSE PROJECT, IMMIGRANT LEGAL RESOURCE CENTER, AND NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD AS AMICI CURIAE IN SUPPORT OF PETITIONER JIM WALDEN DAVID DEBOLD AKIVA SHAPIRO Counsel of Record CHRISTOPHER MULLER MOLLY CLAFLIN GIBSON, DUNN & GIBSON, DUNN & CRUTCHER LLP CRUTCHER LLP 1050 Connecticut Avenue, N.W. 200 Park Avenue Washington, D.C. 20036 New York, NY 10166 (202) 955-8500 ddebold@gibsondunn.com Counsel for Amici Curiae Library cf Congress Law Library 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 retroactive as applied to lawful permanent residents who pleaded guilty before the effective date of the Illegal Immigration Reform and Immigrant Respons- ibility Act (ITRIRA)? QUESTION PRESENTED TABLE OF CONTENTS TABLE OF AUTHORITIES INTEREST OF AMICI CURIAE TABLE OF CONTENTS INTRODUCTION AND SUMMARY OF ARGUMENT ARGUMENT I. IT. RETROACTIVITY IS DETERMINED IN BOTH THE CRIMINAL AND CIVIL CONTEXTS By INQUIRING WHETHER CONGRESS INTENDED FOR NEW LEGAL CONSEQUENCES TO ATTACH TO PRIMARY CONDUCT PREDATING THE RELEVANT STATUTE, AND DOES NOT DEPEND ON PROOF THAT AN INDIVIDUAL LITIGANT RELIED ON a scutienaaues THE AVAILABILITY OF REENTRY FOLLOWING A BRIEF, CASUAL, AND INNOCENT TRIP ABROAD WAS A WELL- KNOWN AND VERY IMPORTANT RIGHT ON WHICH IT WAS REASONABLE FOR LAWFUL PERMANENT RESIDENTS TO RELY PRE-ITRIRA WHEN THEY PLEADED GUILTY AND WAIVED IMPORTANT CONSTITUTIONAL RIGHTS .... COROT ee eee ee COCO RHO TE eee eee Coe eee ee eee eer eee eee ee CORRE ER RETR EE TE HO Oe OTe ee PT PP Pe REE OPPO OO COO OTC OOO eee eee eee eee ill Ill. THE RETROACTIVE APPLICATION OF SECTION 1101(a)(13)(C)(v) WOULD BE INCONSISTENT WITH CONSTITUTIONAL PLEA BARGAIN SAFEGUARDS AND WITH THE PRACTICAL FUNCTIONING CF Te I ssiicne dttedocennsconcsccvesscess 26 A. The Retroactive Application Of Section 1101(A)(13)(C)(V) Would Be In Tension With The Constitutional Values Animating This Court’s Plea Bargain I iescarcitsccnsigcesncecsmstinscesitice 27 B. The Retroactive Application Of Section 1101(A)(13)(C)(V) Would Destabilize The Plea Process And Undermine The Finality Of Completed Plea Bargains. ..................... 31 CNET onapicnsskcs ieccinidvipendepiawioncinbolepinssedeséaiuns 33 TABLE OF AUTHORITIES Page(s) Cases Aptheker v. Sec'y of State, Oe aia scccdecerteeespvcsaptententovsvinceusie 16 Blackledge v. Allison, occas ppanapeousianumenenenanan 31 Booker v. Commonwealth, No. 1325-07-2, 2008 WL 926246 is ke CIS GA COIR Geico sce ceict-esensnsencomscanvcionnnce 20 Bousley v. United States, AES TRE RASS SE AST See ee eatery Morea out 32 Boykin v. Alabama, ee een und agltbesiannbebenel 26 Brady v. United States, Se Be i iaciecssensuinsdsersncntesaeesnieins 7, 26, 27 Camins v. Gonzales, 500 F.3d 872 (9th Cir. 2007) ..................2....202 24, 30 Carmell v. Tex., ills SII, «. cnecy caoousnonacecwacinsecsessesemsines 9, 25 Commonwealth v. Stanton, 317 N.E.2d 487 (Mass. App. Ct. 1974).................. 19 Corfield v. Coryell, 6 F. Cas. 546 Gee Us AEP POOD, BID ccccnccoesevnncecssnensesxese 16 Cottle v. State, Fe i Be I CI, BIE wcheinccccncccienscecodessusconnsuses 19 Fernandez-Vargas v. Gonzales, I A I sa iiasleesiticisnsiteinstinaccccekasinistccaonnes passim Florida v. Nixon, I Te a 19 Godinez v. Moran, SN, I oo EL 8 ta Be 27 Harris v. State, 875 S.W.2d 662 (Tenn. 1994) ..............................-- 20 Hughes Aircraft Co. v. United States, SPARE STD E Ws Para See OD 9,14 In re Lethbridge, 111. & N. Dec. 444 (B.1.A. 1965)... 22 In re Pers. Restraint of Stenson, BE PB 0 CUP. BID nccncccccccccscncescescccccscccccccccesee: 20 INS v. St. Cyr, I, Te MD cecscccccnencaccosccnsnssevcswovesances passim Itzcovitz v. Selective Serv. Local Bd., OF re re Ge Ey BIE BD vececncssacoccensecsccnxecsscrceens 18 Kaiser Aluminum & Chemical Corp. v. Bonjorno, es re i civvoncnnncnesncecsctinasionicecnvecnsnoasenceacnns 2 Kamheangpatiyooth v. INS, G07 F.2a 1268 th Cir. 1078)..................cccccccscessses 18 Kent v. Dulles, Se es Pe OR ciaccckcccdcvacisccccninuascecavececechencosccent 16 Lagassee v. State, No. CR-92-407, 1993 Me. Super. LEXIS 236 (Bie. Bap. Ce. Bet. BB, 1GBB)....cccccccccecccccencsccccocesses 19 Landgraf v. USI Film Prod.., EEE I, IE aheecicicrgdatnsninastacendcéctdedcearcce: passim Libretti v. United States, Se ny a ee 28 Lindsey v. Washington, ee ee a chic ccc euacsvaulnle wianesdchesetanswessn 12 MacDonald v. State, pee FR ee ene 19 Machibroda v. United States, NG FE I icdienececncccecssseccovsencusencnarmnacannnned 29 Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999) ......................ccccecceeee 18 Miller v. Florida, ee IT TR inianasirineconncancoscucsenceonvapsacepesmecmecs 8 Olatunyji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004) ...............00.... 11, 24, 30 Padilla v. Kentucky, Bs ie Ce IR icneceonisccctsosecsencacaceonccusess passim People v. Barocio, 264 Cal. Rptr. 573 (Cal. Ct. App. 1989)................ 19 People v. Manning, RR ES ee 19 People v. Reyes, No. 678195, 2006 WL 3891499 og eee 20 Ponnapula v. Ashcroft, BFS PBe GBS OS Cir. BOGE) ..2.2..00000.cececncececcccese..000. 12 Ricketts v. Adamson, I ae eal beck dandebdusera 28 Rooney v. North Dakota, nM IT sone castsnkcavsdesseceetentewbencetcasevudeess 15 Rosenberg v. Fleuti, Be a I ID costsincensneasasdenscauncusecasocanneiios passim Santobello v. New York, EL aOR ma SEE Rhee det 7, 28, 29 Soc'y for Propagation of the Gospel v. Wheeler, ; 22 F. Cas. 756 (No. 13,156) gn csicasiptinemepoens 2, 8, 9,13 State v. Bean, ee ee a ie. SID wcsicsacecconnescnnvennsronscesvecsesons 20 State v. Donald, 10 P.3d 1193 (Ariz. Ct. App. 2000)..............0.....0... 19 State v. Loyd, 190 N.W.2d 123 (Minn. 1971) ......0..... eee 19 vill State v. Paredez, ROL Fe FO CHC. BED wccsscscccccsresceccdcccndunaae 19 State v. Yanez, 782 N.E.2d 146 (Ohio Ct. App. 2002).................... 20 Strickland v. Washington, rte EG | ne ee 19, 20 Sturges v. Carter, REG U.S. BEE CH vnccdcwneeensonacundineceusbeennenaaeeee 8 Union Pac. R.R. Co. v. Laramie Stock Yards Co., ys Bes Hh: Lf}: + ne 11, 30 United States v. Dominguez-Benitez, - £be S| me eerete aor Pekan 32 United States v. Morgan, 466 FBG EOE GAG Cit. BOG qo ccccceoinsiinsectucincsamumenae’ 32 United States v. Orocio, 645 F.3d 630 (3d Cir. 2011).............. sissies ae ee 19 United States v. Smith, 446 FF .2G GSi CTs Cle.. BBE) occ ccececeeccaccmcscomecnanl 32 United States v. Timmreck, Rts & Lt |, NER tasunae rE AI. 32 United States v. Vonn, 9s & fT: |; en 32 Vartelas v. Holder, ee 8 Ty fe % >: See 25 Waley v. Johnston, I . sccnasesennconccasccceses 29 Walker v. Johnston, ec nccbanecoonecencces 29 Warden, Lewisburg Penitentiary v. Marrero, Nee ee en nn ss soseavwcucconeses 15 Weaver v. Graham, I coveccoscsevsecsveces 8 Constitutional Provisions U.S. Const. art. I, § 3, cl. 3 (Ex Post Facto Clause) ............................ 8,9, 12,15 U.S. Const. amend. V I cs ssneouswncncoocerees 8, 30 Statutes and Acts of Congress ee 3.3 8 U.S.C. § 1101(aX(13(C)v) (2000).........0.00000... passim Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 ...... passim Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163 incon occ tisasccwenvesnsarvsensnecesere 2,3 os eonwnnsuueccseeneessece 3 EE 13 Other Authorities ABA Standards for Criminal Justice: Pleas of Guilty (3d ed. 1999) ..................00...24.. 20, 21 Ann Benson, Jonathan Moore & Katherine Brady, Immigration and Washington State Criminal Law (2005)............... 22 Anna Marie Gallagher, Immigration Consequence of Criminal Convictions: A Primer on What Crimes Can Get Your Client into Trouble, in Navigating the Fundamentals of IR EAI Ger cccicctttterscnticesensenseninseiesene 21 Assigned Counsel Manual: Policies and Procedures, ch. IV, Guidelines Governing Representation of Indigents in Criminal Cases (Mass. Comm. for Public Counsel Servs. 2009) ................2....00-- 200-000 21 Black’s Law Dictionary (9th ed. 2009)...............00..... 11 Bureau of Justice Statistics, ’ Felony Sentences in State Courts, 2006 Statistical Tables (Dec. 2009).................ccccceccceeeeee 31 Dan Kesselbrenner & Sandy Lin, Selected Immigration Consequences of Certain Federal Offenses (ot’l Immig. Project of the Nat’! a 4 eee 21, 22 Dan Kesselbrenner et al., Nat'l Immig. Project of the Nat’ Lawyers Guild, Immigration Law and A ol temmisiaiiios 23 Dan Kesselbrenner et al., Nat’ Immig. Project of the Nat’ Lawyers Guild, Immigration Law and SN I ccntiiidisddcindinhninensnncadinaseinemectpacsaseinen 21 David C. Koelsch, Proceed with Caution: Immigration Consequences of Criminal Convictions, Oe Se ees Ce I idictdineteiicsndinasansnnscashnsianeend 20 Fernando A. Nunez, Collateral Consequences of Criminal Convictions to Noncitizens, 41 Md. B.J. 40 (Jul/Aug. 2008)...................0000222... 20 Frank H. Easterbrook, Plea Bargaining as Compromise, ee Te is BI ceicriclictttccitcesevntsecsnnticnireceomies 26 Immig. and Naturalization Servs., U.S. Dep’t of Justice, 1996 Statistical Yearbook of the Immigration and Naturalization Service (Oct. 1997).....................0.. 17 Indigent Defense Task Force Report: Principles and Standards for Counsel in Criminal, Delinquency, Dependency, and Civil Commitment Cases Oe ON ee 20 Ira J. Kurzban, Immigration Law Sourcebook RR REE SARS ST ene ae ae a 23 Jorge L. Baron, A Brief Guide to Representing Non- Citizen Criminal Defendants in NN I an se nnenemmeininseoneniiac 20, 22, 23 Manuel Orozco, Transnationalism and Development: Trends and Opportunities in Latin America, in Remittances: Development Impact and Future Prospects (Samuel Munzele Maimbo & Dilip SEERA ESE Re ne ae 17 Maria Baldini-Potermin, Defending Non-Citizens in Minnesota Courts: A Practical Guide to Immigration Law and Client Cases, ee Bg eer eree 20 Nancy Morawetz, The Invisible Border: Restrictions on Short-Term Travel for Noncitizens, 21 Geo. Immigr. L.J. 201 (2007).......................22.2. 18 Nancy Rytina, U.S. Dep’t of Homeland Sec., Office of Immig. Statistics, Population Estimates: Estimates of the Legal Permanent Resident Population in 2009 Ss I telat cintitelid coe casdiohe carte ectenieeensiad 17 xii Nat'l Immig. Project of the Nat’l] Lawyers Guild, Immigration Law and Defense RAR SESS ER eet Norton Tooby & Joseph Justin Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions Norton Tooby, Criminal Defense of Immigrants NE ME itcsacicckamncntacdsnpiauinasiiniceitducitinse Performance Guidelines for Criminal Defense Representation (Nat’] Legal Aid and Defender Ass’n 1995).................0cc0.0000s Performance Guidelines for Criminal Defense Representation (N.M. Pub. SOI TIS BD occ ccccsccccscsccccsscceseseeseses Restatement (Second) of Contracts ................ Robert C. Divine, Immigration Practice (1994) ............0..00.0002. Roger Waldinger, Pew Hispanic Center, Between Here and There: How Attached Are Latino Immigrants to Their Native County? Sara Elizabeth Dill, 101 Tips for Representing Non-Citizens in Criminal Proceeding (ABA Young Lapwpers Dbvisiem BGT) .......ccccsscccccccsccscesseoes Scott E. Bratton, Nat’ Ass’n of Criminal Def. Lawyers, Representing a Noncitizen in a Criminal Case, The Champion, DUTT TE A iitepnintinittsteminntienniemnninnn The Immigration Consequences of Deferred Adjudication Programs in New York City (Comm. on Criminal Justice Operations, Ass’n of the Bar of the City SE ntcccnecentucinsoncsnindindbddandesiibdiiabmiesaaias Thomas A. Aleinikoff & David A. Martin, Immigration: Process and Policy I Fe rit icticineccsccissatncinniinmenenienvcsenmenin Thomas A. Aleinikoff & David A. Martin, Immigration and Citizenship SE I Cin estircnictensinscnexsectutnterunsnvesiemnuneniovss Thomson Reuters/West, 2 Crim. Prac. Manual (2011).......................... U.S. Dep't of Justice, Bureau of Justice Statistics, Disposition of Criminal Cases Terminated, By Offense, During Oct. 1, 2007-Sept. 30, EE See iecanintnteimntscrmpiestiitiepiniiaaenitmennee INTEREST OF AMICI CURIAE! Amici curiae National Association of Criminal De- fense Lawyers, National Legal Aid & Defender Asso- ciation, Immigrant Defense Project, Immigrant Legal Resource Center, and National Immigration Project of the National Lawyers Guild are leading criminal and immigration defense associations that, among other things, provide training and legal resources to attorneys practicing in the fields or criminal and immigration law. Amici have a fundamental interest in the fair and just administration of the immigra- tion statutes relating to the criminal justice system, in accordance with the dictates of the Constitution, the will of Congress, and the decisions of this Court. Amici have a particular interest, and vast experi- ence, in providing guidance to lawful permanent res- idents in criminal proceedings, including legal advice about the immigration consequences of criminal con- victions, the options to pursue in plea negotiations, and the ultimate decision whether and under what conditions to plead guilty. More detailed information about individual amici is provided in the Appendix. INTRODUCTION AND SUMMARY OF ARGUMENT The “principle that the legal effect of conduct should ordinarily be assessed under the law that ex- 1 This brief was not authored, in whole or in part, by counsel for either party, and no person or entity other than amici and their counsel contributed monetarily to its preparation or sub- mission. The parties have consented to the filing of this brief and copies of their letters of consent have been lodged with the Clerk of the Court. isted when the conduct took place has timeless and universal appeal.” Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 855 (1990) (Scalia, J., concurring). In Landgraf v. USI Film Prod., this Court articulated a two-step process for determining the intended temporal reach of a statute. First, a court looks to whether “Congress has expressly pre- scribed the statute’s proper reach.” 511 U.S. 244, 280 (1994). If Congress has done so, the inquiry ends. If not, the second step is to apply the presump- tion against retroactivity. The law will not be ap- plied to “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions al- ready completed.” Jd.; see also Soc’y for Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (No. 13,156) (C.C.N.H. 1814) (Story, J.) (“[E]very statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, im- poses a new duty, or attaches a new disability in re- spect to transactions or considerations already past, must be deemed retrospective.”). The version of Section 101(a)(13) of the Immigra- tion and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163 (“INA”) in effect until 1997 stated that “an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfac- tion of the Attorney General that his departure ... was not intended.” See 8 U.S.C. § 1101(a)(13) (1994). In Rosenberg v. Fleuti, this Court construed this statute to exempt as “not intended” any “innocent, casual, and brief trips abroad.” 374 U.S. 449, 461-62 (1963). Therefore, the statute permitted those who previously earned lawful permanent resident status to take short trips abroad, for such things as attend- ing to family obligations, even if something new in their background would now make them ineligible under the immigration law for an initial entry to the United States. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”), as interpreted by the gov- ernment, altered this regime. According to the Board of Immigration Appeals’ interpretation of the amendments to INA § 101(a)(13), under ITRIRA (which now defines “admission” as opposed to “en- try”), the ability to return to the United States, even after “innocent, casual, and brief” trips abroad, is now limited to those lawful permanent residents who have not committed offenses identified in INA § 212(a)(2), such as a crime of moral turpitude. See ITRIRA § 301(a) (amending INA §101(a)(13), 8 U.S.C. § 1101(a)(13) (1994)).2 Petitioner in this case is like many lawful per- manent resident immigrants whom amici have rep- resented or counseled in criminal proceedings over the past few decades, immigrants with long-lasting ties to this country that, not surprisingly, they very much wish to preserve. Petitioner entered the Unit- ed States in 1981 on a student visa and became a 2 This Court has not decided whether the I[IRIRA amend- ments repeal, in whole or in part, the right that Fleuti recog- nized in the Immigration and Nationality Act. This brief does not address this question, instead focusing on whether the IIRIRA amendments, as interpreted by the government, may be applied retroactively to abrogate the Fleuti rights of lawful permanent residents who pleaded guilty before IIRIRA. 4 lawful permanent resident of the United States in 1989. When he later was charged with a crime of moral turpitude (conspiracy to make or possess a counterfeit security), he agreed to plead guilty to the charge. Under the law then in effect, petitioner re- tained the right to make brief trips abroad and re- turn to the United States without subjecting himself to the restrictions that apply to those seeking “entry” or “admission” to the country within the meaning of the immigration laws—restrictions that, if applied to petitioner and others like him, would bar their abil- ity to travel and return to this country. Like others whom amici have represented and counseled, petitioner later needed to travel abroad. In January 2003, he spent a week in his native Greece to assist his elderly parents with their family business. Two months after his return home, the government initiated removal proceedings. The gov- ernment, invoking its interpretation of 8 U.S.C. § 1101(a)(13)(C)v) (2000), contended that because of petitioner’s pre-IIRIRA guilty plea, any departure from the country—however brief—triggered the rules governing admissibility when petitioner returned to his home in the United States. Moreover, under the government’s view, the same guilty plea rendered petitioner inadmissible (and therefore removable). This case illustrates three errors in the govern- | ment’s view of the retroactive reach of Sec- tion 1101(aX13)(C)(v). Each justifies reversal. 1. Contrary to the reasoning by the court below, the answer to whether a statute would have a retro- active effect—that is, an effect that the courts will impute to Congress only where there is unmistakable evidence of such a purpose—does not turn on wheth- er the individual bringing the challenge can prove his 3 or her own reliance on the previous law. Rather, the retroactivity analysis is an inquiry into whether Congress intended for new legal consequences to at- tach to a category of conduct that predated the stat- ute. This Court has never attributed to Congress a dual-track intent in which the statute would apply prospectively only to those who can prove they per- sonally relied on the old law, with retrospective ap- plication for everyone else. Nothing about the statute at issue here warrants inventing and apply- ing the government’s proposed rule. Because Sec- tion 1101(aX13XCXv) attaches new legal conse- quences to the commission of certain offenses, as well as to the decision to plead guilty to those offenses, it is retroactive in its application. See infra 8-15. 2. This is not to say that considerations of reli- | ance and fair notice play no role in the Court's retro- activity analysis. Although reliance is not a prerequisite, the fact that many of those affected by the determination are likely to have been aware of the previous law and to have ordered their conduct accordingly, serves as overwhelming confirmation that the statute has a retroactive effect under Land- graf. It would be wrong to assume that lawful perma- nent residents who pleaded guilty pre-IIRIRA to crimes involving moral turpitude piaced no signifi- cance on their continuing ability, post-conviction, to make brief, innocent, and casual trips abroad. See BIO 9-10. Non-citizen defendants “considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their con- victions.” INS v. St. Cyr, 533 U.S. 289, 322 (2001). Bar journals, treatises, and leading criminal and immigration defense organizations—including amii- 6 ci—regularly counsel defense attorneys to consider these consequences in rendering advice to their cli- ents, and to structure plea agreements wherever pos- sible to avoid both deportation and denial of reentry. See infra 15—22. This should come as no surprise. Lawful perma- nent residents travel with great frequency to their native countries to visit ailing family members, to attend major life events such as births and funerals, and to pursue their livelihoods. The ability to return to the United States following a brief trip abroad was a well-known statutory right that, prior to IITRIRA, had “become firmly embedded in the law.” Thomas A. Aleinikoff & David A. Martin, Immigration and Citizenship 462 (2d ed. 1991). If those like petitioner had known that they would be stripped of this ability by subsequent government action, their attorneys could have negotiated for a guilty plea that avoided this consequence, and—barring an _ acceptable agreement—could have advised on whether to put the government to its proof at trial. See infra 23—25. 3. The fact that the prior conduct here involves guilty pleas heightens the need for special care be- fore imputing to Congress the intent to strip those like petitioner of the ability to travel and then return to their home in this country. As in St. Cyr, petition- er agreed to plead guilty to an offense, forfeiting his Fifth and Sixth Amendment rights to a jury trial where he could confront witnesses and invoke his privilege against self-incrimination; in exchange, he accepted responsibility for the commission of an of- fense that would not prevent him from taking short trips out of the country. The success of the plea bargaining system hinges on the confidence of both parties—prosecutors and defendants—in the benefit of the bargain struck. See generally Brady v. United States, 397 U.S. 742, 753 (1970); see also, e.g., Santobello v. New York, 404 U.S. 257, 262-63 (1971) (government must honor promises made in exchange for the plea). Where the government later upsets the negotiated balance by legislating a change in the bargain’s consequences— as the retroactive application of 8 U.S.C. § 1101(aX13)C)(v) would do—the mutual advantage from pleading guilty is seriously disrupted. That re- sult would raise substantial constitutional questions and erode confidence in the plea system. See infra 26-32. This Court often has expressed concern for such destabilization when it is the defendant who seeks to revisit the terms of a completed plea bar- gain. The result should be no different when the government seeks to impute from Congress’s silence an intent to upset the expectations of the parties to plea agreements, especially in a manner that stretches constitutional limits to the breaking point. 3 This brief—like the decision below—focuses on the second step of the Landgraf analysis: whether the statute has a retro- active effect that the Court will apply only if Congress was clear that it intended as much. Amici agree with petitioner, however, that the Court need not reach step two. It is clear that Con- gress wrote the statute with the understanding that Sec- tion 1101(aX13C)(v) would apply only to those who commit moral turpitude offenses after ITRIRA’s effective date; other- wise, of the universe of lawful permanent residents who have ever obtained discretionary relief from removal, only those who obtained that relief pre-ITRIRA would be subjected to the post- IIRIRA removal proceedings. See Petr’s Br. 20-21 n.3. That result—which would introduce to the law the concept of a “grandchild clause”—is exactly the opposite of what the pre- sumption against retroactivity dictates. ARGUMENT I. RETROACTIVITY Is DETERMINED IN BOTH THE CRIMINAL AND CIVIL CONTEXTS By INQUIRING WHETHER CONGRESS INTENDED FOR NEW LEGAL CONSEQUENCES TO ATTACH TO PRIMARY CONDUCT PREDATING THE RELEVANT STATUTE, AND DOES NOT DEPEND ON PROOF THAT AN INDIVIDUAL LITIGANT RELIED ON PRIOR LAW 1. Under Landgraf and echoing throughout this Court’s retroactivity jurisprudence, the determina- tion whether a law would have retroactive effect turns 0n “whether the new provision attaches new legal consequences to events completed before its en- actment.” Landgraf, 511 U.S. at 270. This formula- tion, rooted in the Due Process and Ex Post Facto Clauses, id. at 266, draws on this Court’s long line of retroactivity cases in both criminal and civil con- texts, e.g., Miller v. Florida, 482 U.S. 423, 430 (1987) (“A law is retrospective if it ‘changes the legal conse- quences of acts completed before its effective date”) (quoting Weaver v. Graham, 450 U.S. 24, 31 (1981)); Sturges v. Carter, 114 U.S. 511, 519 (1885) (statute is impermissibly retroactive 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”) (quoting Soc’y for the Propagation of the Gospel, 22 F. Cas. at 767), and it — has been reaffirmed in every retroactivity decision since Landgraf. See, e.g., St. Cyr, 533 U.S. at 321 (“The inquiry into whether a statute operates retro- actively demands a commonsense, functional judg- ment about whether the new provision attaches new legal consequences to events completed before its en- actment.”) (citation and quotation marks omitted); 9 Hughes Aircraft Co. v. United States, 520 U.S. 939, 947 (1997) (same). Under this Court’s Ex Post Facto jurisprudence, reliance is manifestly not a prerequisite to retroactiv- ity. See Carmell v. Tex., 529 U.S. 513, 533-534 (2000) (“Fenwick could claim no credible reliance in- terest in the two-witness statute ... . [Nevertheless,] there was a profound unfairness in Parliament’s ret- rospectively altering the very rules it had estab- lished... . The Framers, quite clearly, viewed such maneuvers as grossly unfair, and adopted the Ex Post Facto Clause accordingly.”). This Court’s retro- activity analysis in the civil context, which is “bor- rowed directly from [the Court’s] Ex Post Facto Clause jurisprudence,” Landgraf, 511 U.S. at 290 (Scalia. J., concurring), is no different. In Landgraf, for example, this Court held that Section 102(a)(1) of the Civil Rights Act of 1991, which authorized the recovery of compensatory dam- ages for intentional discrimination violating Title VII, was impermissibly retroactive because it would “undoubtedly impose on employers found liable a ‘new disability’ in respect to past events.” 511 U:S. at 283 (quoting Soc’y for the Propagation of the Gos- pel, 22 F. Cas. at 767). Only as additional support for this finding did the Court note that “(t]he intro- duction of a right to compensatory damages is also the type of legal change that would have an impact on private parties’ planning,” thereby invoking the concept of reliance. Jd. at 282. The Court never placed emphasis on the parties’ reliance, nor did it explicitly require reliance in order to hold that the law was impermissibly retroactive. That explains why, when applying Landgraf three years later in Hughes Aircraft Co., this Court 10 was silent on the issue of reliance. 520 U.S. 939 (1997). The Court rested its opinion on the fact that the law in question “changes the substance of the existing cause of action . . . by ‘attaching a new disa- bility, in respect to transactions or considerations already past,” and it did so without addressing whether Hughes Aircraft could show that it relied on the old law. Jd. at 948 (quoting Landgraf, 511 U.S. at 269). This Court’s ruling in St. Cyr followed the same approach to retroactivity in the immigration context. The Court there began its “inquiry into whether a statute operates retroactively” by invoking the Socie- ty for Propagation of the Gospel test, as quoted in Landgraf: “A statute has 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 considerations already past.” S¢. Cyr, 533 U.S. at 321 (quoting Landgraf, 511 U.S. at 269). Only then did the Court add that it is helpful to be “informed and guided by familiar considera- tions of fair notice, reasonable reliance, and settled expectations” in making this determination. Jd. (in- ternal citations omitted) (emphasis added).4 This Court’s most recent discussion of retroactiv- ity in the immigration context likewise confirms 4 See also St Cyr, 533 U.S. at 324 (“And our mere statement that deportation is not punishment for past crimes does not mean that we cannot consider an alien’s reasonable reliance on the continued availability of discretionary relief from deporta- tion when deciding whether the elimination of such relief has a retroactive effect.”) (emphasis added). 1] that, while evidence of reliance can help to show a retroactive effect, such proof is not necessary. In Fernandez-Vargas v. Gonzales, this Court explained that it found a retroactive effect in St. Cyr—the addi- tion of a new burden to the result of pre-enactment guilty pleas—because “converting deportation from a likely possibility to a dead certainty would add such a burden, and application of the new law was accord- ingly barred.” 548 U.S. 30, 43 (2006). It was the added burden—not proof of St. Cyr’s reliance on the absence of that burden at the time of his plea—that gave the new law a retroactive effect. See id. at 37. 2. To place controlling weight on whether a par- ticular litigant can prove he relied on the previous law would be a curious way to divine whether “the manifest intention of the legislature,” Union Pac. R.R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199 (1913), was for the new law to apply to all those whose conduct pre-dated the new law. Such a nu- anced result cannot be squared with the fact that step two of Landgraf is reserved for cases where Congress did not even think to legislate on the ques- tion. See Olatunji v. Ashcroft, 387 F.3d 383, 389-90 (4th Cir. 2004). A reliance requirement as a prerequisite to a de- termination of retroactivity is also inconsistent with the burden-shifting inherent in the presumption against retroactivity. A presumption is a “legal in- ference or assumption that a fact exists” that “shifts the burden of production or persuasion to the oppos- ing party, who can then attempt to overcome the presumption.” Black’s Law Dictionary 1304 (9th ed. 2009). In other words, the government has the bur- den of overcoming the initial inference in favor of prospective-only application before that law will op- 12 erate retroactively. Applying reliance as a prerequi- site in the retroactivity analysis alters this careful allocation of burdens. It arms the government with the presumption that all laws may be applied retro- actively unless litigants can prove that they actually relied on the consequences that attached to the earli- er law. That misguided reading of St. Cyr would squarely contradict this Court’s precedent on retro- activity in civil cases, as well as divorce that juris- prudence from its grounding in the Ex Post Facto Clause. See supra 9; St. Cyr, 533 U.S. at 325 (citing, inter alia, Lindsey v. Washington, 301 U.S. 397 (1937), an Ex Post Facto case); see also Ponnapula v. Ashcroft, 373 F.3d 480, 490 (3d Cir. 2004). Finally, requiring each litigant to make a partic- ularized showing of reliance would lead to onerous and, inevitably, inequitable consequences. Every lit- igant to whom a retroactive law may apply would need to search for case-specific proof that she relied on the old law—proof that often would be years old (as would be true in this case, where the removal no- tice post-dated the guilty plea by a decade). And the government would inevitably raise individualized challenges to each proffered retroactivity claim, as it does in this case, with a burdensome strain on liti- gants and on the dockets of federal courts. Moreover, such individual adjudications based on sparse and mostly indirect evidence are likely to lead to dispar- ate results, thereby increasing the inequities be- tween individuals who are similarly situated. 3. This case highlights three distinct ways in which ITRIRA’s purported repeal of the right recog- nized in Fleuti attaches new legal consequences to acts completed before the new law went into effect, and is therefore retroactive in its application. First, 13 it impairs a vested right to travel abroad for brief, innocent, and causal trips. Second, it imposes a greater penalty upon past conduct. Third, it abolish- es a previously available affirmative defense. a. Applying 8 U.S.C. § 1101(a)(13)(C)\(v) as in- terpreted by the government here would take away a statutory right to brief, innocent, and casual travel abroad—a right that immigrants who pleaded guilty prior to IIRIRA had at the time of their pleas. See, e.g., Soc’y for Propagation of the Gospel, 22 F. Cas. at 767 (“[E]very statute, which takes away or impairs vested rights ...”). That effect is more certain than the one this Court declined to impute to Congress in St. Cyr, where the Court found that “IDRIRA’s elimi- nation of any possibility of § 212(c) relief for people who entered into plea agreements . . . clearly attach- es a new disability in respect to [the guilty pleal].” 533 U.S. at 321 (emphasis added) (internal citations omitted). Even though there was no guarantee that the Attorney General would exercise his discretion in favor of any particular lawful permanent resident, the Court held that the denial of just the chance for ' discretionary relief would be improperly retroactive. Here, the government would interpret Sec- tion 1101(aX13(CXv) to remove a certain pre- existing right to make “innocent, casual, and brief” trips abroad. Because there is no question that the substantive rights of lawful permanent residents would change, the presumption against retroactive application of this law applies. b. Application of the government’s view of 8 U.S.C. § 1101(aX13)(C)v) to those immigrants who pleaded guilty prior to IERIRA would also impermis- sibly increase liability for past conduct. See, e.g., Fernandez-Vargas, 548 U.S. at 37 (“Statutes are dis- 14 favored as retroactive when their application would ... increase a party’s liability for past conduct... .”). Section 1101(a)(13)(C)(v) imposes a greater penalty upon prior adjudicated conduct. In particular, the new law precludes any foreign travel by a lawful permanent resident who intends to retain that status and who pleaded guilty to a designated offense before the change in law. Those who have entered such pleas and leave the country for any length of time whatsoever will be subject to either denial of re- admission or removal from the country. Thus, while deportation is not considered a formal “punishment” for past crimes, St. Cyr, 533 U.S. at 324, its imposi- tion here would be an increased disability for some- one whose punishment already has been imposed. Cf. Padilla v. Kentucky, 130 S. Ct. 1473, 1480 (2010) (“deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes”) (footnote omitted). That also triggers the presumption against retroactivity. c. Finally, application of the government’s view of 8 U.S.C. § 1101(a\(13KC\Kv) to immigrants who pleaded guilty prior to ITRIRA would abolish the af- firmative defense to removal, recognized in Fleuti, of having made only an “innocent, casual, and brief” trip abroad; as a result, these lawful permanent res- idents would be subject to the entry and admission provisions of the INA upon their return. See, e.g., Hughes Aircraft, 520 U.S at 948 (“[the statute] elim- inates a defense ... and therefore . . . ‘attachles [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0691%3A0. Public record. Not legal advice.