VARTELAS v. HOLDER
Panagis Vartelas became a Lawful Permanent Resident of the United States on January 5, 1989. On December 9, 1994, Vartelas pled guilty to conspiracy to make or possess a counterfeit security. In January of 2003, Vartelas took a one-week trip to Greece. Upon his return from Greece to the JFK airport in New York on January 29, 2003, an immigration officer questioned Vartelas about his 1994 conviction. On March 27, 2003, immigration officials served Vartelas a notice to appear for removal proceedings on the ground that he sought entry into the United States after being convicted of a crime of moral turpitude and could be deported.
Vartelas appeared before an immigration judge. He submitted a motion to terminate, before filing an application for waiver. The immigration judge denied the application for waiver on June 27, 2006, and ordered the Vartelas removed to Greece. Vartelas made a timely appeal to the Board of Immigration Appeals, which the board dismissed.
Vartelas, through new counsel, subsequently filed a motion to reopen with the Board of Immigration Appeals. The motion to reopen claimed that Vartelas’ prior counsel was ineffective having failed to raise the issue of whether 8 U.S.C. § 1101(a)(13)(C)(v) could be applied retroactively. 8 U.S.C. § 1101(a)(13)(C)(v) overturned prior law which prevented Lawful Permanent Residents from being denied re-entry into the United States after brief casual trips abroad. The Board of Immigration Appeals denied the motion to reopen, and Vartelas filed a petition to review with the U.S. Court of Appeals for the Second Circuit. The Second Circuit denied the petition for review rejecting the argument that the new statute would interfere with the settled expectations of a guilty plea. Vartelas appealed the Second Circuit’s decision.
Can 8 U.S.C. § 1101(a)(13)(C)(v) be applied retroactively to a Lawful Permanent Resident who pleads guilty to a crime of moral turpitude prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act?
Legal provision: Illegal Immigration Reform and Immigrant Responsibility Act of 1996
No. Justice Ruth Bader Ginsburg--writing for a 6-3 majority--reversed the lower court, holding that a determination of Vartelas’ ability to travel abroad falls under the laws in effect at the time of his conviction. The Court applied the principle against retroactivity. Under this principle, courts will refrain from applying a law retroactively unless Congress expressly provides for it. The Court held that applying the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) imposed a new disability on Vartelas by effectively banning travel abroad. Vartelas also likely relied on the laws at the time, which would allow him brief international trips, when he decided to plead guilty.
Justice Antonin Scalia dissented, stating that the applicable activity for deciding retroactivity is not Vartelas’ conviction, but the act of leaving and then attempting to return to the United States. Vertelas’ trip to Greece and return to the U.S. took place after the IIRIRA took effect, so he is subject to the law. Justice Clarence Thomas and Justice Samuel A. Alito joined in the dissent.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
PANAGIS VARTELAS, PETITIONER v. ERIC H. HOLDER, Jr., ATTORNEY GENERAL
on writ of certiorari to the united states court of appeals for the second circuit
[March 28, 2012]
Justice Ginsburg delivered the opinion of the Court.
Panagis Vartelas, a native of Greece, became a lawful permanent resident of the United States in 1989. He pleaded guilty to a felony (conspiring to make a counterfeit security) in 1994, and served a prison sentence of four months for that offense. Vartelas traveled to Greece in 2003 to visit his parents. On his return to the United States a week later, he was treated as an inadmissible alien and placed in removal proceedings. Under the law governing at the time of Vartelas’ plea, an alien in his situation could travel abroad for brief periods without jeopardizing his resident alien status. See 8 U. S. C. §1101(a)(13) (1988 ed.), as construed in Rosenberg v. Fleuti, 374 U. S. 449 (1963) .
In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110Stat. 3009–546. That Act effectively precluded foreign travel by lawful permanent residents who had a conviction like Vartelas’. Under IIRIRA, such aliens, on return from a sojourn abroad, however brief, may be permanently removed from the United States. See 8 U. S. C. §1101(a)(13)(C)(v); §1182(a)(2).
This case presents a question of retroactivity not addressed by Congress: As to a lawful permanent resident convicted of a crime before the effective date of IIRIRA, which regime governs, the one in force at the time of the conviction, or IIRIRA? If the former, Vartelas’ brief trip abroad would not disturb his lawful permanent resident status. If the latter, he may be denied reentry. We conclude that the relevant provision of IIRIRA, §1101(a)(13)(C)(v), attached a new disability (denial of reentry) in respect to past events (Vartelas’ pre-IIRIRA offense, plea, and conviction). Guided by the deeply rooted presumption against retroactive legislation, we hold that §1101(a)(13)(C)(v) does not apply to Vartelas’ conviction. The impact of Vartelas’ brief travel abroad on his permanent resident status is therefore determined not by IIRIRA, but by the legal regime in force at the time of his conviction.I A
Before IIRIRA’s passage, United States immigration law established “two types of proceedings in which aliens can be denied the hospitality of the United States: deportation hearings and exclusion hearings.” Landon v. Plasencia, 459 U. S. 21, 25 (1982) . Exclusion hearings were held for certain aliens seeking entry to the United States, and deportation hearings were held for certain aliens who had already entered this country. See ibid.
Under this regime, “entry” into the United States was defined as “any coming of an alien into the United States, from a foreign port or place.” 8 U. S. C. §1101(a)(13) (1988 ed.). The statute, however, provided an exception for lawful permanent residents; aliens lawfully residing here were not regarded as making an “entry” if their “departure to a foreign port or place . . . was not intended or reasonably to be expected by [them] or [their] presence in a foreign port or place . . . was not voluntary.” Ibid. Interpreting this cryptic provision, we held in Fleuti, 374 U. S., at 461–462, that Congress did not intend to exclude aliens long resident in the United States upon their return from “innocent, casual, and brief excursion[s] . . . outside this country’s borders.” Instead, the Court determined, Congress meant to rank a once-permanent resident as a new entrant only when the foreign excursion “meaningfully interrupt[ed] . . . the alien’s [U. S.] residence.” Id., at 462. Absent such “disrupti[on]” of the alien’s residency, the alien would not be “subject . . . to the consequences of an ‘entry’ into the country on his return.” Ibid. 1
In IIRIRA, Congress abolished the distinction between exclusion and deportation procedures and created a uniform proceeding known as “removal.” See 8 U. S. C. §§1229, 1229a; Judulang v. Holder, 565 U. S. ___, ___ (2011) (slip op., at 1–2). Congress made “admission” the key word, and defined admission to mean “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” §1101(a)(13)(A). This alteration, the Board of Immigration Appeals (BIA) determined, superseded Fleuti. See In re Collado-Munoz, 21 I. & N. Dec. 1061, 1065–1066 (1998) (en banc). 2 Thus, lawful permanent residents returning post-IIRIRA, like Vartelas, may be required to “ ‘see[k] an admission’ into the United States, without regard to whether the alien’s departure from the United States might previously have been ranked as ‘brief, casual, and innocent’ under the Fleuti doctrine.” Id., at 1066.
An alien seeking “admission” to the United States is subject to various requirements, see, e.g., §1181(a), and cannot gain entry if she is deemed “inadmissible” on any of the numerous grounds set out in the immigration statutes, see §1182. Under IIRIRA, lawful permanent residents are regarded as seeking admission into the United States if they fall into any of six enumerated categories. §1101(a)(13)(C). Relevant here, the fifth of these categories covers aliens who “ha[ve] committed an offense identified in section 1182(a)(2) of this title.” §1101(a)(13)(C)(v). Offenses in this category include “a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime.” §1182(a)(2)(A)(i).
In sum, before IIRIRA, lawful permanent residents who had committed a crime of moral turpitude could, under the Fleuti doctrine, return from brief trips abroad without applying for admission to the United States. Under IIRIRA, such residents are subject to admission procedures, and, potentially, to removal from the United States on grounds of inadmissibility. 3B
Panagis Vartelas, born and raised in Greece, has resided in the United States for over 30 years. Originally admitted on a student visa issued in 1979, Vartelas became a lawful permanent resident in 1989. He currently lives in the New York area and works as a sales manager for a roofing company.
In 1992, Vartelas opened an auto body shop in Queens, New York. One of his business partners used the shop’s photocopier to make counterfeit travelers’ checks. Vartelas helped his partner perforate the sheets into individual checks, but Vartelas did not sell the checks or receive any money from the venture. In 1994, he pleaded guilty to conspiracy to make or possess counterfeit securities, in violation of 18 U. S. C. §371. He was sentenced to four months’ incarceration, followed by two years’ supervised release.
Vartelas regularly traveled to Greece to visit his aging parents in the years after his 1994 conviction; even after the passage of IIRIRA in 1996, his return to the United States from these visits remained uneventful. In January 2003, however, when Vartelas returned from a week-long trip to Greece, an immigration officer classified him as an alien seeking “admission.” The officer based this classification on Vartelas’ 1994 conviction. See United States ex rel. Volpe v. Smith, 289 U. S. 422, 423 (1933) (counterfeiting ranks as a crime of moral turpitude).
At Vartelas’ removal proceedings, his initial attorney conceded removability, and requested discretionary relief from removal under the former §212(c) of the Immigration and Nationality Act (INA). See 8 U. S. C. §1182(c) (1994 ed.) (repealed 1996). This attorney twice failed to appear for hearings and once failed to submit a requested brief. Vartelas engaged a new attorney, who continued to concede removability and to request discretionary relief. The Immigration Judge denied the request for relief, and ordered Vartelas removed to Greece. The BIA affirmed the Immigration Judge’s decision.
In July 2008, Vartelas filed with the BIA a timely motion to reopen the removal proceedings, alleging that his previous attorneys were ineffective for, among other lapses, conceding his removability. He sought to withdraw the concession of removability on the ground that IIRIRA’s new “admission” provision, codified at §1101(a)(13), did not reach back to deprive him of lawful resident status based on his pre-IIRIRA conviction. The BIA denied the motion, declaring that Vartelas had not been prejudiced by his lawyers’ performance, for no legal authority prevented the application of IIRIRA to Vartelas’ pre-IIRIRA conduct.
The U. S. Court of Appeals for the Second Circuit affirmed the BIA’s decision, agreeing that Vartelas had failed to show he was prejudiced by his attorneys’ allegedly ineffective performance. Rejecting Vartelas’ argument that IIRIRA operated prospectively and therefore did not govern his case, the Second Circuit reasoned that he had not relied on the prior legal regime at the time he committed the disqualifying crime. See 620 F. 3d 108, 118–120 (2010).
In so ruling, the Second Circuit created a split with two other Circuits. The Fourth and Ninth Circuits have held that the new §1101(a)(13) may not be applied to lawful permanent residents who committed crimes listed in §1182 (among them, crimes of moral turpitude) prior to IIRIRA’s enactment. See Olatunji v. Ashcroft, 387 F. 3d 383 (CA4 2004); Camins v. Gonzales, 500 F. 3d 872 (CA9 2007). We granted certiorari, 564 U. S. ___ (2011), to resolve the conflict among the Circuits.II
As earlier explained, see supra, at 2–4, pre-IIRIRA, a resident alien who once committed a crime of moral turpitude could travel abroad for short durations without jeopardizing his status as a lawful permanent resident. Under IIRIRA, on return from foreign travel, such an alien is treated as a new arrival to our shores, and may be removed from the United States. Vartelas does not question Congress’ authority to restrict reentry in this manner. Nor does he contend that Congress could not do so retroactively. Instead, he invokes the principle against retroactive legislation, under which courts read laws as prospective in application unless Congress has unambiguously instructed retroactivity. See Landgraf v. USI Film Products, 511 U. S. 244, 263 (1994) .
The presumption against retroactive legislation, the Court recalled in Landgraf, “embodies a legal doctrine centuries older than our Republic.” Id., at 265. Several provisions of the Constitution, the Court noted, embrace the doctrine, among them, the Ex Post Facto Clause, the Contract Clause, and the Fifth Amendment’s Due Process Clause. Id., at 266. Numerous decisions of this Court repeat the classic formulation Justice Story penned for determining when retrospective application of a law would collide with the doctrine. It would do so, Story stated, when such application would “tak[e] away or impai[r] vested rights acquired under existing laws, or creat[e] a new obligation, impos[e] a new duty, or attac[h] a new disability, in respect to transactions or considerations already past.” Society for Propagation of Gospel v. Wheeler, 22 F. Cas. 756, 767 (No. 13,156) (CC NH 1814). See, e.g., INS v. St. Cyr, 533 U. S. 289, 321 (2001) (invoking Story’s formulation); Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 947 (1997) ; Landgraf, 511 U. S., at 283. 4
Vartelas urges that applying IIRIRA to him, rather than the law that existed at the time of his conviction, would attach a “new disability,” effectively a ban on travel outside the United States, “in respect to [events] . . . already past,” i.e., his offense, guilty plea, conviction, and punishment, all occurring prior to the passage of IIRIRA. In evaluating Vartelas’ argument, we note first a matter not disputed by the Government: Congress did not expressly prescribe the temporal reach of the IIRIRA provision in question, 8 U. S. C. §1101(a)(13). See Landgraf, 511 U. S., at 280 (Court asks first “whether Congress has expressly prescribed [new §1101(a)(13)’s] proper reach”); Brief for Respondent 11 (Court’s holding in INS v. St. Cyr, 533 U. S., at 317–320, “compels the conclusion that Congress has not ‘expressly prescribed the statute’s proper reach’ ” (quoting Landgraf, 511 U. S., at 280)). 5 Several other provisions of IIRIRA, in contrast to §1101(a)(13), expressly direct retroactive application, e.g., 8 U. S. C. §1101(a)(43) (IIRIRA’s amendment of the “aggravated felony” definition applies expressly to “conviction[s] . . . entered before, on, or after” the statute’s enactment date (internal quotation marks omitted)). See St. Cyr, 533 U. S., at 319–320, and n. 43 (setting out further examples). Accordingly, we proceed to the dispositive question whether, as Vartelas maintains, application of IIRIRA’s travel restraint to him “would have retroactive effect” Congress did not authorize. See Landgraf, 511 U. S., at 280.
Vartelas presents a firm case for application of the antiretroactivity principle. Neither his sentence, nor the immigration law in effect when he was convicted and sentenced, blocked him from occasional visits to his parents in Greece. Current §1101(a)(13)(C)(v), if applied to him, would thus attach “a new disability” to conduct over and done well before the provision’s enactment.
Beyond genuine doubt, we note, the restraint §1101(a)(13)(C)(v) places on lawful permanent residents like Vartelas ranks as a “new disability.” Once able to journey abroad to fulfill religious obligations, attend funerals and weddings of family members, tend to vital financial interests, or respond to family emergencies, permanent residents situated as Vartelas is now face potential banishment. We have several times recognized the severity of that sanction. See, e.g., Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (slip op., at 8–9, 16).
It is no answer to say, as the Government suggests, that Vartelas could have avoided any adverse consequences if he simply stayed at home in the United States, his residence for 24 years prior to his 2003 visit to his parents in Greece. See Brief in Opposition 13 (Vartelas “could have avoided the application of the statute . . . [by] refrain[ing] from departing from the United States (or from returning to the United States).”); post, at 3. Loss of the ability to travel abroad is itself a harsh penalty, 6 made all the more devastating if it means enduring separation from close family members living abroad. See Brief for Asian American Justice Center et al. as Amici Curiae 16–23 (describing illustrative cases). We have rejected arguments for retroactivity in similar cases, and in cases in which the loss at stake was less momentous.
In Chew Heong v. United States, 112 U. S. 536 (1884) , a pathmarking decision, the Court confronted the “Chinese Restriction Act,” which barred Chinese laborers from reentering the United States without a certificate issued on their departure. The Court held the reentry bar inapplicable to aliens who had left the country prior to the Act’s passage and tried to return afterward without a certificate. The Act’s text, the Court observed, was not “so clear and positive as to leave no room to doubt [retroactive application] was the intention of the legislature.” Id., at 559.
In Landgraf, the question was whether an amendment to Title VII’s ban on employment discrimination authorizing compensatory and punitive damages applied to pre-enactment conduct. The Court held it did not. No doubt the complaint against the employer charged discrimination that violated the Act at the time it occurred. But compensatory and punitive damages were not then available remedies. The later provision for such damages, the Court determined, operated prospectively only, and did not apply to employers whose discriminatory conduct occurred prior to the amendment. See 511 U. S., at 280–286. And in Hughes Aircraft, the Court held that a provision removing an affirmative defense to qui tam suits did not apply to pre-enactment fraud. As in Landgraf, the provision attached “a new disability” to past wrongful conduct and therefore could not apply retrospectively unless Congress clearly manifested such an intention. Hughes Aircraft, 520 U. S., at 946–950.
Most recently, in St. Cyr, the Court took up the case of an alien who had entered a plea to a deportable offense. At the time of the plea, the alien was eligible for discretionary relief from deportation. IIRIRA, enacted after entry of the plea, removed that eligibility. The Court held that the IIRIRA provision in point could not be applied to the alien, for it attached a “new disability” to the guilty plea and Congress had not instructed such a result. 533 U. S., at 321–323.III
The Government, echoed in part by the dissent, argues that no retroactive effect is involved in this case, for the Legislature has not attached any disability to past conduct. Rather, it has made the relevant event the alien’s post-IIRIRA act of returning to the United States. See Brief for Respondent 19–20; post, at 3. We find this argument disingenuous. Vartelas’ return to the United States occasioned his treatment as a new entrant, but the reason for the “new disability” imposed on him was not his lawful foreign travel. It was, indeed, his conviction, pre-IIRIRA, of an offense qualifying as one of moral turpitude. That past misconduct, in other words, not present travel, is the wrongful activity Congress targeted in §1101(a)(13)(C)(v).
The Government observes that lower courts have upheld Racketeer Influenced and Corrupt Organizations Act prosecutions that encompassed pre-enactment conduct. See Brief for Respondent 18 (citing United States v. Brown, 555 F. 2d 407, 416–417 (CA5 1977), and United States v. Campanale, 518 F. 2d 352, 364–365 (CA9 1975) (per curiam)). But those prosecutions depended on criminal activity, i.e., an act of racketeering occuring after the provision’s effective date. Section 1101(a)(13)(C)(v), in contrast, does not require any showing of criminal conduct postdating IIRIRA’s enactment.
Fernandez-Vargas v. Gonzales, 548 U. S. 30 (2006) , featured by the Government and the dissent, Brief for Respondent 17, 36–37; post, at 3, is similarly inapposite. That case involved 8 U. S. C. §1231(a)(5), an IIRIRA addition, which provides that an alien who reenters the United States after having been removed can be removed again under the same removal order. We held that the provision could be applied to an alien who reentered illegally before IIRIRA’s enactment. Explaining the Court’s decision, we said: “[T]he conduct of remaining in the country . . . is the predicate action; the statute applies to stop an indefinitely continuing violation . . . . It is therefore the alien’s choice to continue his illegal presence . . . after the effective date of the new la[w] that subjects him to the new . . . legal regime, not a past act that he is helpless to undo.” 548 U. S., at 44 (emphasis added). Vartelas, we have several times stressed, engaged in no criminal activity after IIRIRA’s passage. He simply took a brief trip to Greece, anticipating a return without incident as in past visits to his parents. No “indefinitely continuing” crime occurred; instead, Vartelas was apprehended because of a pre-IIRIRA crime he was “helpless to undo.” Ibid.
The Government further refers to lower court decisions in cases involving 18 U. S. C. §922(g), which prohibits the possession of firearms by convicted felons. Brief for Respondent 18–19 (citing United States v. Pfeifer, 371 F. 3d 430, 436 (CA8 2004), and United States v. Hemmings, 258 F. 3d 587, 594 (CA7 2001)). “[L]ongstanding prohibitions on the possession of firearms by felons,” District of Columbia v. Heller, 554 U. S. 570, 626 (2008) , however, target a present danger, i.e., the danger posed by felons who bear arms. See, e.g., Pfeifer, 371 F. 3d, at 436 (hazardous conduct that statute targets “occurred after enactment of the statute”); Omnibus Crime Control and Safe Streets Act of 1968, §1201, 82Stat. 236 (noting hazards involved when felons possess firearms). 7
Nor do recidivism sentencing enhancements support the Government’s position. Enhanced punishment imposed for the later offense “ ‘is not to be viewed as . . . [an] additional penalty for the earlier crimes,’ but instead, as a ‘stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one.’ ” Witte v. United States, 515 U. S. 389, 400 (1995) (quoting Gryger v. Burke, 334 U. S. 728, 732 (1948) ). In Vartelas’ case, however, there is no “aggravated . . . repetitive” offense. There is, in contrast, no post-IIRIRA criminal offense at all. Vartelas’ travel abroad and return are “innocent” acts, see Fleuti, 374 U. S., at 462, burdened only because of his pre-IIRIRA offense.
In sum, Vartelas’ brief trip abroad post-IIRIRA involved no criminal infraction. IIRIRA disabled him from leaving the United States and returning as a lawful permanent resident. That new disability rested not on any continuing criminal activity, but on a single crime committed years before IIRIRA’s enactment. The antiretroactivity principle instructs against application of the new proscription to render Vartelas a first-time arrival at the country’s gateway.IV
The Second Circuit homed in on the words “committed an offense” in §1101(a)(13)(C)(v) in determining that the change IIRIRA wrought had no retroactive effect. 620 F. 3d, at 119–121. It matters not that Vartelas may have relied on the prospect of continuing visits to Greece in deciding to plead guilty, the court reasoned. “[I]t would border on the absurd,” the court observed, “to suggest that Vartelas committed his counterfeiting crime in reliance on the immigration laws.” Id., at 120. This reasoning is doubly flawed.
As the Government acknowledges, “th[is] Court has not required a party challenging the application of a statute to show [he relied on prior law] in structuring his conduct.” Brief for Respondent 25–26. In Landgraf, for example, the issue was the retroactivity of compensatory and punitive damages as remedies for employment discrimination. “[C]oncerns of . . . upsetting expectations are attenuated in the case of intentional employment discrimination,” the Court noted, for such discrimination “has been unlawful for more than a generation.” 511 U. S., at 282, n. 35. But “[e]ven when the conduct in question is morally reprehensible or illegal,” the Court added, “a degree of unfairness is inherent whenever the law imposes additional burdens based on conduct that occurred in the past.” Id., at 283, n. 35. And in Hughes Aircraft, the Court found that Congress’ 1986 removal of a defense to a qui tam action did not apply to pre-1986 conduct in light of the presumption against retroactivity. 520 U. S., at 941–942. 8 As in Landgraf, the relevant conduct (submitting a false claim) had been unlawful for decades. See 520 U. S., at 947.
The operative presumption, after all, is that Congress intends its laws to govern prospectively only. See supra, at 7. “It is a strange ‘presumption,’ ” the Third Circuit commented, “that arises only on . . . a showing [of] actual reliance.” Ponnapula v. Ashcroft, 373 F. 3d 480, 491 (2004). The essential inquiry, as stated in Landgraf, 511 U. S., at 269–270, is “whether the new provision attaches new legal consequences to events completed before its enactment.” That is just what occurred here.
In any event, Vartelas likely relied on then-existing immigration law. While the presumption against retroactive application of statutes does not require a showing of detrimental reliance, see Olatunji, 387 F. 3d, at 389–395, reasonable reliance has been noted among the “familiar considerations” animating the presumption, see Landgraf, 511 U. S., at 270 (presumption reflects “familiar considerations of fair notice, reasonable reliance, and settled expectations”). Although not a necessary predicate for invoking the antiretroactivity principle, the likelihood of reliance on prior law strengthens the case for reading a newly enacted law prospectively. See Olatunji, 387 F. 3d, at 393 (discussing St. Cyr).
St. Cyr is illustrative. That case involved a lawful permanent resident who pleaded guilty to a criminal charge that made him deportable. Under the immigration law in effect when he was convicted, he would have been eligible to apply for a waiver of deportation. But his removal proceeding was commenced after Congress, in IIRIRA, withdrew that dispensation. Disallowance of discretionary waivers, the Court recognized, “attache[d] a new disability, in respect to transactions or considerations already past.” 533 U. S., at 321 (internal quotation marks omitted). Aliens like St. Cyr, the Court observed, “almost certainly relied upon th[e] likelihood [of receiving discretionary relief] in deciding [to plead guilty, thereby] forgo[ing] their right to a trial.” Id., at 325. 9 Hence, applying the IIRIRA withdrawal to St. Cyr would have an “obvious and severe retroactive effect.” Ibid. Because Congress made no such intention plain, ibid., n. 55, we held that the prior law, permitting relief from deportation, governed St. Cyr’s case.
As to retroactivity, one might think Vartelas’ case even easier than St. Cyr’s. St. Cyr could seek the Attorney General’s discretionary dispensation. Vartelas, under Fleuti, was free, without seeking an official’s permission, to make trips of short duration to see and assist his parents in Greece. 10 The Second Circuit thought otherwise, compounding its initial misperception (treating reliance as essential to application of the antiretroactivity principle). The deportation provision involved in St. Cyr, 8 U. S. C. §1229b(a)(3), referred to the alien’s “convict[ion]” of a crime, while the statutory words sub judice in Vartelas’ case were “committed an offense.” §1101(a)(13)(C)(v); see supra, at 12–13. 11 The practical difference, so far as retroactivity is concerned, escapes from our grasp. Ordinarily, to determine whether there is clear and convincing evidence that an alien has committed a qualifying crime, the immigration officer at the border would check the alien’s records for a conviction. He would not call into session a piepowder court 12 to entertain a plea or conduct a trial.
Satisfied that Vartelas’ case is at least as clear as St. Cyr’s for declining to apply a new law retroactively, we hold that Fleuti continues to govern Vartelas’ short-term travel.* * *
For the reasons stated, the judgment of the Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
1 The dissent appears driven, in no small measure, by its dim view of the Court’s opinion in Fleuti. See post, at 6 (“same instinct” operative in Fleuti and this case).
2 The BIA determined that the Fleuti doctrine no longer held sway because it was rooted in the “no longer existent definition of ‘entry’ in [the INA].” 21 I. & N. Dec., at 1065. The Board also noted that “Congress . . . amended the law to expressly preserve some, but not all, of the Fleuti doctrine” when it provided that a lawful permanent resident absent from the United States for less than 180 days would not be regarded as seeking an admission except in certain enumerated circumstances, among them, prior commission of a crime of moral turpitude. See ibid. (citing 8 U. S. C. §1101(a)(13)(C)(ii)). Vartelas does not challenge the ruling in Collado-Munoz. We therefore assume, but do not decide, that IIRIRA’s amendments to §1101(a)(13)(A) abrogated Fleuti.
3 Although IIRIRA created a uniform removal procedure for both excludable and deportable aliens, the list of criminal offenses that subject aliens to exclusion remains separate from the list of offenses that render an alien deportable. These lists are “sometimes overlapping and sometimes divergent.” Judulang v. Holder, 565 U. S. ___, ___ (2011) (slip op., at 2). Pertinent here, although a single crime involving moral turpitude may render an alien inadmissible, it would not render her deportable. See 8 U. S. C. §1182(a)(2) (listing excludable crimes); §1227(a)(2) (listing deportable crimes).
4 The dissent asserts that Justice Story’s opinion “bear[s] no relation to the presumption against retroactivity.” Post, at 6. That is a bold statement in view of this Court’s many references to Justice Story’s formulation in cases involving the presumption that statutes operate only prospectively in the absence of a clear congressional statement to the contrary.
5 In St. Cyr, 533 U. S., at 317–320, we rejected the Government’s contention that Congress directed retroactive application of IIRIRA in its entirety.
6 See Kent v. Dulles, 357 U. S. 116, 126 (1958) (“Freedom of movement across frontiers . . . may be as close to the heart of the individual as the choice of what he eats, or wears, or reads.”); Aptheker v. Secretary of State, 378 U. S. 500 –520 (1964) (Douglas, J., concurring) (right to travel, “at home and abroad, is important for . . . business[,] . . . cul-tural, political, and social activities—for all the commingling which gre-garious man enjoys”).
7 The dissent, see post, at 6, notes two statutes of the same genre: laws prohibiting persons convicted of a sex crime against a victim under 16 years of age from working in jobs involving frequent contact with minors, and laws prohibiting a person “who has been adjudicated as a mental defective or who has been committed to a mental insti-tution” from possessing guns, 18 U. S. C. §922(g)(4). The dissent is correct that these statutes do not operate retroactively. Rather, they address dangers that arise postenactment: sex offenders with a history of child molestation working in close proximity to children, and men-tally unstable persons purchasing guns. The act of flying to Greece, in contrast, does not render a lawful permanent resident like Vartelas hazardous. Nor is it plausible that Congress’ solution to the problem of dangerous lawful permanent residents would be to pass a law that would deter such persons from ever leaving the United States. As for student loans, it is unlikely that the provision noted by the dissent, 20 U. S. C. §1091(r), would raise retroactivity questions in the first place. The statute has a prospective thrust. It concerns “[s]uspension of eligibility” when a student receiving a college loan commits a drug crime. The suspension runs “from the date of th[e] conviction” for specified periods, e.g., two years for a second offense of possession. Moreover, eligibility may be restored before the period of ineligibility ends if the student establishes, under prescribed criteria, his rehabilitation.
8 The deleted defense permitted qui tam defendants to escape liability if the information on which a private plaintiff (relator) relied was already in the Government’s possession. Detrimental reliance was hardly apparent, for the Government, both before and after the statu-tory change, could bring suit with that information, and “the monetary liability faced by [a False Claims Act] defendant is the same whether the action is brought by the Government or by a qui tam relator.” 520 U. S., at 948.
9 “There can be little doubt,” the Court noted in St. Cyr, “that, asa general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions.” 533 U. S., at 322. Indeed, “[p]reserving [their] right to remain in the United States may be more important to [them] than any potential jail sentence.” Ibid. (internal quotation marks omitted). See Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (slip op., at 9–11) (holding that counsel has a duty under the Sixth Amendment to inform a noncitizen defendant that his plea would make him eligible for deportation).
10 Armed with knowledge that a guilty plea would preclude travel abroad, aliens like Vartelas might endeavor to negotiate a plea to a nonexcludable offense—in Vartelas’ case, e.g., possession of counterfeit securities—or exercise a right to trial.
11 After the words “committed an offense,” §1101(a)(13)(C)(v)’s next words are “identified in section 1182(a)(2).” That section refers to “any alien convicted of, or who admits having committed,” inter alia, “a crime involving moral turpitude.” §1182(a)(2)(A)(i)(I) (emphasis added). The entire §1101(a)(13)(C)(v) phrase “committed an offense identified in section 1182(a)(2),” on straightforward reading, appears to advert to a lawful permanent resident who has been convicted of an offense under §1182(a)(2) (or admits to one).
12 Piepowder (“dusty feet”) courts were temporary mercantile courts held at trade fairs in Medieval Europe; local merchants and guild members would assemble to hear commercial disputes. These courts provided fast and informal resolution of trade conflicts, settling cases “while the merchants’ feet were still dusty.” Callahan, Medieval Church Norms and Fiduciary Duties in Partnership, 26 Cardozo L. Rev. 215, 235, and n. 99 (2004) (internal quotation marks omitted) (quoting H. Berman, Law and Revolution: The Formation of the Western Legal Tradition 347 (1983)).
SUPREME COURT OF THE UNITED STATES
PANAGIS VARTELAS, PETITIONER v. ERIC H. HOLDER, Jr., ATTORNEY GENERAL
on writ of certiorari to the united states court of appeals for the second circuit
[March 28, 2012]
Justice Scalia, with whom Justice Thomas and Justice Alito join, dissenting.
As part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress required that lawful permanent residents who have committed certain crimes seek formal “admission” when they return to the United States from abroad. 8 U. S. C. §1101(a)(13)(C)(v). This case presents a straightforward question of statutory interpretation: Does that statute apply to lawful permanent residents who, like Vartelas, committed one of the specified offenses before 1996, but traveled abroad after 1996? Under the proper approach to determining a statute’s temporal application, the answer is yes.I
The text of §1101(a)(13)(C)(v) does not contain a clear statement answering the question presented here. So the Court is correct that this case is governed by our longstanding interpretive principle that, in the absence of a contrary indication, a statute will not be construed to have retroactive application. See, e.g., Landgraf v. USI Film Products, 511 U. S. 244, 280 (1994) . The operative provision of this text—the provision that specifies the act that it prohibits or prescribes—says that lawful permanent residents convicted of offenses similar to Vartelas’s must seek formal “admission” before they return to the United States from abroad. Since Vartelas returned to the United States after the statute’s effective date, the application of that text to his reentry does not give the statute a retroactive effect.
In determining whether a statute applies retroactively, we should concern ourselves with the statute’s actual operation on regulated parties, not with retroactivity as an abstract concept or as a substitute for fairness concerns. It is impossible to decide whether a statute’s application is retrospective or prospective without first identifying a reference point—a moment in time to which the statute’s effective date is either subsequent or antecedent. (Otherwise, the obvious question—retroactive in reference to what?—remains unanswered.) In my view, the identity of that reference point turns on the activity a statute is intended to regulate. For any given regulated party, the reference point (or “retroactivity event”) is the moment at which the party does what the statute forbids or fails to do what it requires. See Martin v. Hadix, 527 U. S. 343 –363 (1999) (Scalia, J., concurring in part and concurring in judgment); Landgraf, supra, at 291 (Scalia, J., concurring in judgments). With an identified reference point, the retroactivity analysis is simple. If a person has engaged in the primary regulated activity before the statute’s effective date, then the statute’s application would be retroactive. But if a person engages in the primary regulated activity after the statute’s effective date, then the statute’s application is prospective only. In the latter case, the interpretive presumption against retroactivity does not bar the statute’s application.
Under that commonsense approach, this is a relatively easy case. Although the class of aliens affected by §1101(a)(13)(C)(v) is defined with respect to past crimes, the regulated activity is reentry into the United States. By its terms, the statute is all about controlling admission at the border. It specifies six criteria to identify lawful permanent residents who are subject to formal “admission” procedures, most of which relate to the circumstances of departure, the trip itself, or reentry. The titles of the statutory sections containing §1101(a)(13)(C)(v) confirm its focus on admission, rather than crime: The provision is located within Title III of IIRIRA (“Inspection, Apprehension, Detention, Adjudication, and Removal of Inadmissible and Deportable Aliens”), under Subtitle A (“Revision of Procedures for Removal of Aliens”), and §301 (“Treating Persons Present in the United States Without Authorization as Not Admitted”). 110Stat. 3009–575. And the specific subsection of IIRIRA at issue (§301(a), entitled “ ‘Admission’ Defined”) is an amendment to the definition of “entry” in the general “Definitions” section of the Immigration and Nationality Act (INA). See ante, at 2–3. The original provision told border officials how to regulate admission—not how to punish crime—and the amendment does as well.
Section 1101(a)(13)(C)(v) thus has no retroactive effect on Vartelas because the reference point here—Vartelas’s readmission to the United States after a trip abroad—occurred years after the statute’s effective date. Although Vartelas cannot change the fact of his prior conviction, he could have avoided entirely the consequences of §1101(a)(13)(C)(v) by simply remaining in the United States or, having left, remaining in Greece. That §1101(a)(13)(C)(v) had no effect on Vartelas until he performed a post-enactment activity is a clear indication that the statute’s application is purely prospective. See Fernandez-Vargas v. Gonzales, 548 U. S. 30 , n. 11, 46 (2006) (no retroactive effect where the statute in question did “not operate on a completed preenactment act” and instead turned on “a failure to take timely action that would have avoided application of the new law altogether”).II
The Court avoids this conclusion by insisting that “[p]ast misconduct, . . . not present travel, is the wrongful activity Congress targeted” in §1101(a)(13)(C)(v). Ante, at 11. That assertion does not, however, have any basis in the statute’s text or structure, and the Court does not pretend otherwise. Instead, the Court simply asserts that Vartelas’s “lawful foreign travel” surely could not be the “reason for the ‘new disability’ imposed on him.” Ibid. (emphasis added). But the reason for a prohibition has nothing to do with whether the prohibition is being applied to a past rather than a future act. It may be relevant to other legal inquiries—for example, to whether a legislative act violates one of the Ex Post Facto Clauses in Article I, see, e.g., Smith v. Doe, 538 U. S. 84, 92 (2003) , or one of the Due Process Clauses in the Fifth and Fourteenth Amendments, see, e.g., Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 487 (1955) , or the Takings Clause in the Fifth Amendment, see, e.g., Kelo v. New London, 545 U. S. 469 –483 (2005), or the Obligation of Contracts Clause in Article I, see, e.g., United States Trust Co. of N. Y. v. New Jersey, 431 U. S. 1, 29 (1977) . But it has no direct bearing upon whether the statute is retroactive.*
The Court’s failure to differentiate between the statutory-interpretation question (whether giving certain effect to a provision would make it retroactive and hence presumptively unintended) and the validity question (whether giving certain effect to a provision is unlawful) is on full display in its attempts to distinguish §1101(a)(13)(C)(v) from similar statutes. Take, for example, the Court’s discussion of the Racketeer Influenced and Corrupt Organizations Act (RICO). That Act, which targets “patterns of racketeering,” expressly defines those “patterns” to include some pre-enactment conduct. See 18 U. S. C. §1961(5). Courts interpreting RICO therefore need not consider the presumption against retroactivity; instead, the cases cited by the majority consider whether RICO violates the Ex Post Facto Clause. See United States v. Brown, 555 F. 2d 407, 416–417 (CA5 1977); United States v. Campanale, 518 F. 2d 352, 364–365 (CA9 1975) (per curiam). The Government recognized this distinction and cited RICO to make a point about the Ex Post Facto Clause rather than the presumption against retroactivity, Brief for Respondent 17–18; the Court evidently does not.
The Court’s confident assertion that Congress surely would not have meant this statute to apply to Vartelas, whose foreign travel and subsequent return to the United States were innocent events, ante, at 11, 14, simply begs the question presented in this case. Ignorance, of course, is no excuse (ignorantia legis neminem excusat); and his return was entirely lawful only if the statute before us did not render it unlawful. Since IIRIRA’s effective date in 1996, lawful permanent residents who have committed crimes of moral turpitude are forbidden to leave the United States and return without formally seeking “admission.” See §1101(a)(13)(C)(v). As a result, Vartelas’s numerous trips abroad and “uneventful” reentries into the United States after the passage of IIRIRA, see ante, at 5, were lawful only if §1101(a)(13)(C)(v) does not apply to him—which is, of course, precisely the matter in dispute here.
The Court’s circular reasoning betrays its underlying concern: Because the Court believes that reentry after a brief trip abroad should be lawful, it will decline to apply a statute that clearly provides otherwise for certain criminal aliens. (The same instinct likely produced the Court’s questionable statutory interpretation in Rosenberg v. Fleuti, 374 U. S. 449 (1963) .) The Court’s test for retroactivity—asking whether the statute creates a “new disability” in “respect to past events”—invites this focus on fairness. Understandably so, since it is derived from a Justice Story opinion interpreting a provision of the New Hampshire Constitution that forbade retroactive laws—a provision comparable to the Federal Constitution’s ex post facto prohibition and bearing no relation to the presumption against retroactivity. What is unfair or irrational (and hence should be forbidden) has nothing to do with whether applying a statute to a particular act is prospective (and thus presumptively intended) or retroactive (and thus presumptively unintended). On the latter question, the “new disability in respect to past events” test provides no meaningful guidance.
I can imagine countless laws that, like §1101(a)(13) (C)(v), impose “new disabilities” related to “past events” and yet do not operate retroactively. For example, a statute making persons convicted of drug crimes ineligible for student loans. See, e.g., 20 U. S. C. §1091(r)(1). Or laws prohibiting those convicted of sex crimes from working in certain jobs that involve repeated contact with minors. See, e.g., Cal. Penal Code Ann. §290.95(c) (West Supp. 2012). Or laws prohibiting those previously committed for mental instability from purchasing guns. See, e.g., 18 U. S. C. §922(g)(4). The Court concedes that it would not consider the last two laws inapplicable to pre-enactment convictions or commitments. Ante, at 12, n. 7. The Court does not deny that these statutes impose a “new disability in respect to past events,” but it distinguishes them based on the reason for their enactment: These statutes “address dangers that arise postenactment.” Ante, at 13, n. 7. So much for the new-disability-in-respect-to-past-events test; it has now become a new-disability-not-designed-to-guard-against-future-danger test. But why is guarding against future danger the only reason Congress may wish to regulate future action in light of past events? It obviously is not. So the Court must invent yet another doctrine to address my first example, the law making persons convicted of drug crimes ineligible for student loans. According to the Court, that statute differs from §1101(a)(13)(C)(v) because it “has a prospective thrust.” Ante, at 13, n. 7. I cannot imagine what that means, other than that the statute regulates post-enactment conduct. But, of course, so does §1101(a)(13)(C)(v). Rather than reconciling any of these distinctions with Justice Story’s formulation of retroactivity, the Court leaves to lower courts the unenviable task of identifying new-disabilities-not-designed-to-guard-against-future-danger-and-also-lacking-a-prospective-thrust.
And anyway, is there any doubt that §1101(a)(13)(C)(v) is intended to guard against the “dangers that arise postenactment” from having aliens in our midst who have shown themselves to have proclivity for crime? Must that be rejected as its purpose simply because Congress has not sought to achieve it by all possible means—by ferreting out such dangerous aliens and going through the expensive and lengthy process of deporting them? At least some of the post-enactment danger can readily be eliminated by forcing lawful permanent residents who have committed certain crimes to undergo formal “admission” procedures at our borders. Indeed, by limiting criminal aliens’ opportunities to travel and then return to the United States, §1101(a)(13)(C)(v) may encourage self-deportation. But all this is irrelevant. The positing of legislative “purpose” is always a slippery enterprise compared to the simple determination of whether a statute regulates a future event—and it is that, rather than the Court’s pronouncement of some forward-looking reason, which governs whether a statute has retroactive effect.
Finally, I cannot avoid observing that even if the Court’s concern about the fairness or rationality of applying §1101(a)(13)(C)(v) to Vartelas were relevant to the statutory interpretation question, that concern is greatly exaggerated. In disregard of a federal statute, convicted criminal Vartelas repeatedly traveled to and from Greece without ever seeking formal admission at this country’s borders. When he was finally unlucky enough to be apprehended, and sought discretionary relief from removal under former §212(c) of the INA, 8 U. S. C. §1182(c) (1994 ed.), the Immigration Judge denying his application found that Vartelas had made frequent trips to Greece and had remained there for long periods of time, that he was “a serious tax evader,” that he had offered testimony that was “close to incredible,” and that he had not shown hardship to himself or his estranged wife and children should he be removed. See 620 F. 3d 108, 111 (CA2 2010); Brief for Respondent 5 (internal quotation marks omitted). In decrying the “harsh penalty” imposed by this statute on Vartelas, the Court ignores those inconvenient facts. Ante, at 9. But never mind. Under any sensible approach to the presumption against retroactivity, these factual subtleties should be irrelevant to the temporal application of §1101(a)(13)(C)(v).* * *
This case raises a plain-vanilla question of statutory interpretation, not broader questions about frustrated expectations or fairness. Our approach to answering that question should be similarly straightforward: We should determine what relevant activity the statute regulates (here, reentry); absent a clear statement otherwise, only such relevant activity which occurs after the statute’s effective date should be covered (here, post-1996 reentries). If, as so construed, the statute is unfair or irrational enough to violate the Constitution, that is another matter entirely, and one not presented here. Our interpretive presumption against retroactivity, however, is just that—a tool to ascertain what the statute means, not a license to rewrite the statute in a way the Court considers more desirable.
I respectfully dissent.
1 * I say no direct bearing because if the prospective application of a statute would raise constitutional doubts because of its effect on pre-enactment conduct, that would be a reason to presume a legislative intent not to apply it unless the conduct in question is post-enactment—that is, to consider it retroactive when the conduct in question is pre-enactment. See Clark v. Martinez, 543 U. S. 371 –381 (2005). That is not an issue here. If the statute had expressly made the new “admission” rule applicable to those aliens with prior convictions, its constitutionality would not be in doubt.
ORAL ARGUMENT OF STEPHANOS BIBAS ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We will hear argument next in Case 10-1211, Vartelas v. Holder.
Mr. Bibas: Mr. Chief Justice, and may it please the Court:
As the government concedes, INA subsection 101(a)(13)(C)(v) added by IIRIRA does not expressly mandate retroactivity.
Under Landgraf, applying that new provision would attach new legal consequences to pre-IIRIRA offenses, penalizing both those who travel and those who don't.
Covered lawful permanent residents could not visit their parents abroad without being forced to abandon their children here.
They would be removed from the country or else confined here.
Either way, they would lose an ability they had under pre-IIRIRA law based on pre-IIRIRA offenses.
Thus applying the subsection to them would be impermissibly retroactive.
The settled expectations at issue here are those of round trips by lawful permanent residents, not, as the government would put it, one-way tickets or first-time entrants.
These are people who have structured their lives here.
They have homes, spouses, children, and careers here, and yet have a settled expectation that they will be able to maintain ties to visit aged and ailing parents abroad, to go to funerals and wakes and visit them in the hospital and surgeries.
Our amici, the NACDL brief, and the Asian American--
Justice Ruth Bader Ginsburg: As far as going forward is concerned, that's -- that's just the way it is, right?
Mr. Bibas: --Yes, because Congress has expressly changed the law post-IIRIRA.
The question is for those before IIRIRA, whether those settled expectations are being disrupted.
Justice Ruth Bader Ginsburg: Could they -- could they -- the -- the person who -- who is here and then the new law is passed, could that person have petitioned for discretionary relief before traveling?
Mr. Bibas: Yes, Your Honor, that is a possibility.
That is not the same as the automatic ability to travel, and in fact in this case the discretionary relief was denied.
It depends on a different set of factors from the automatic pre-IIRIRA ability to travel.
But it is a theoretical possibility in some cases.
Chief Justice John G. Roberts: So your expectations argument is that somebody trying to figure out whether to go ahead and rob the bank is going to say, well, if I do and I am caught and I am found guilty, I won't be able to take temporary trips abroad, so I'm not going to rob the bank?
Mr. Bibas: No, Your Honor.
First of all, you phrased it specifically as a reliance argument, which is an alternative.
Even the government concedes it is not a prerequisite.
Second, the right time to look at expectations is the moment before the law is enacted: Does one have an expectation at that point that one will be able to continue--
Chief Justice John G. Roberts: You are concerned under Landgraf, I think, with whether or not it disrupts settled expectations, and it just doesn't seem to me that this issue enters into the expectations at all when the pertinent act, which is the commission of the crime, not the pleading guilty, takes place.
Mr. Bibas: --No, Your Honor, I believe the practical impact is a new travel disability or penalty, just as in Landgraf.
The discrimination there had been illegal for decades, yet adding a new form of damages to it was impermissibly retroactive.
In Hughes Aircraft, filing false claims with the government had been illegal for years, yet broadening the class of people who could file suit and removing a defense -- no reliance possible at all, but there was a settled expectation that there would be no additional consequences attached to that.
Justice Samuel Alito: What is the difference between someone who commits the crime just before the act is passed and someone who commits the crime just after the act is passed?
The person who commits the crime just after the act is passed had the expectation prior to the passage of the act that if he did certain things he wouldn't -- he wouldn't have this consequence from his conduct.
Mr. Bibas: Congress of course has the power to change things.
But the expectation until an act is passed is that the consequences are fixed in time.
And if Congress decides that the potential unfairness is outweighed by the benefits of making the act retroactive--
Justice Samuel Alito: But the person who commits the crime just after the act is passed had the expectation prior to that time, that had -- if he did certain things in the future he wouldn't suffer certain consequences.
Mr. Bibas: --And yet Congress has -- has affirmatively warned and put everybody on notice that now there is this new consequence; you may be deterred by this new consequence; we may be punishing you by this new consequence, but the consequence has been announced.
Justice Antonin Scalia: Mr. Bibas, I have -- this is almost a question of personal privilege.
You -- you make your whole argument on -- on the basis of Landgraf.
So does the government.
You do not cite, the government cites but does not discuss the relevant portion of a -- of a later case which involved the same question, Republic of Austria v. Altmann.
I concurred separately in Landgraf because I thought that the test that the Court was using, upsetting settled expectations, was indeed the proper test for constitutional provisions forbidding ex post facto laws, which is where the Court derived it from, Justice Story's opinion in a New Hampshire constitutional case.
But I said in my concurrence that the proper test for -- for the other issue of retroactivity, namely, constitutionality aside, does this statute mean to be applied only in the future or in the past?
And for that I propose -- well, I'll read you what we said in Altmann:
"Our approach" -- which postdates Landgraf.
"Our approach to retroactivity in this case thus parallels that advanced by Justice Scalia in the concurrence in Landgraf. "
Quote, and it's quoting the concurrence:
"The critical issue 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 clear statement otherwise, only such relevant activity which occurs after the effective date of the statute is covered. "
"Most statutes are meant to regulate primary conduct and hence will not be applied in trials involving conduct that occurred before their effective date. "
"But other statutes have a different purpose and therefore a different relative retroactivity event. "
--"relevant retroactivity event".
And that is what we have here.
The -- the event that is sought to be regulated is entry into the United States, and it is clear that this statute applies only to prospective entry into the United States.
It doesn't apply to past entry so that those people who came in, in violation of this statute can be deported.
Now, why shouldn't we apply that rule in this case, as we did in the Republic of Austria case?
Mr. Bibas: No, Your Honor.
As a -- first of all, our reply brief discussed Altmann, and the majority of the Court has viewed that as limited to the foreign sovereign immunity context.
But taking your test--
Justice Antonin Scalia: Why would it be limited just to the foreign sovereign immunities context?
Mr. Bibas: --That -- that's the majority's approach.
But taking your test on its own terms, what you are pointing out is there is a future act--
Justice Antonin Scalia: Why do you say that's the majority's approach?
Mr. Bibas: --I'm sorry.
The majority in Fernandez-Vargas expressly said that Republic of Austria was in a sui generis context and that its holding shouldn't be extended to -- to Fernandez-Vargas.
Justice Antonin Scalia: Its -- its holding.
Mr. Bibas: Yes.
But to take -- to look at your test, you were pointing out that there is a future event which the government, practically its entire theory turns on that.
But even if there is a future event, there is a past event being regulated here, and the activity at issue under your test would be the pre-IIRIRA offense, not just the innocent post-IIRIRA travel.
What we have is future lawful travel, concededly lawful, nothing nefarious needs to be shown of it.
Justice Elena Kagan: Well, Mr. Bibas, how is it different then from a felon in possession statute, where you look at the past offense--
Mr. Bibas: Right.
Justice Elena Kagan: --and then you say, well, this man, because of that past offense, can't buy a gun in the future?
How is it different at all?
Mr. Bibas: Your Honor, there are five pertinent distinctions.
Permit me to unpack.
The first and most important is that the Landgraf test should have a broader scope than the ex post facto context in these criminal cases because Congress can override it expressly.
Since the ex post facto clauses disable both State and Federal legislatures from acting at all, the deprivation of the power must be narrow and careful so State and Federal legislatures can continue to regulate felon in possession or racketeering or the other crimes the government advances.
But Landgraf just tells Congress how to legislate.
It's a background rule.
So it's legitimate to have a presumption against retroactivity sweep more broadly, as Congress is free to override it and, as I will explain, does override it regularly.
Secondly, felon in possession is inherently dangerous conduct.
This is a protective law.
It's not just a punitive or deterrent law.
The third and related point is that felon in possession laws are tailored.
There is a nexus to a danger, a threat to people suffering firearm -- it's narrowly tailored.
Justice Elena Kagan: Well, why isn't the -- the government, Congress, making the exact judgment same judgment here?
If the activity to be regulated is entry and Congress is making a judgment that we do not want dangerous people to enter, and we're using the conviction, the prior conviction, as a marker for who was dangerous, and that's exactly what Congress has done in the felon in possession statute.
Mr. Bibas: --Your Honor, I believe the two are quite different.
Felon in possession is limited to firearms in the hands of proven dangerous people.
Here we have a law that says you can stay in the country indefinitely; we are going to discourage you from going abroad and leaving the country, because we will make it harder for you to come back.
That is not tailored at all to protecting the people inside the United States.
I would also point out that the felon in possession statute, as this Court noted in Heller, is part of a long tradition of forbidding such activity as a crime.
So it's hard to say there are settled expectations being upset by felon in possession laws.
And the final one is, Congress can do that simply by being explicit, and it has done so repeatedly in laws such as IIRIRA.
Elsewhere in IIRIRA, section 321(b) says the aggravated felony definition applies to convictions entered before, on or after the statute's effective date.
It knew how to do it; it did it more than a dozen other times in IIRIRA, as this Court noted in St. Cyr.
It didn't spell it out here.
The point of this--
Justice Sonia Sotomayor: The career criminal enhancements, instead of the felon in possession, and assuming your arguments, what limits can Congress put on anyone with respect to future conduct if it's going to be a burden?
Under your view, it stops people from traveling.
Career criminal statutes put on the distinct disadvantage of a longer sentence.
Mr. Bibas: --Yes, Your Honor, and as we noted in the criminal context, this Court in Witte and Gryger notes, it's a heavier punishment on the new crime because it's aggravated, because it's repeated.
And because Congress has more leeway in the ex post facto context and because recidivism enhancements have a long tradition, it's entirely legitimate.
There's no need to say that that's punishing the past offense because the future offense -- it -- it's permissible to increase it under the Ex Post Facto Clause.
And that's an inquiry that's different from the Landgraf test here, because all Congress has to do is spell out expressly: We want to apply this to convictions entered before, on, or after the statute's effective date, which it did in 321(b), which it didn't do here.
So if we were looking at the function of--
Justice Sonia Sotomayor: Does that argument that you just made go more to whether or not the BIA's conclusion that Congress intended to rescind the Fleuti decision -- but you assume that's what its intent was?
Mr. Bibas: --We've assumed arguendo because that's the premise of the question presented.
Justice Sonia Sotomayor: So if we assume that, if we assume that was Congress's intent, doesn't that start give you the conclusion?
If Congress tended to undo it, doesn't that prove that they intended to effective retroactively?
Mr. Bibas: No, Your Honor, it doesn't.
All the case law, the legislative history, and other discussion was about certain other aspects of entry doctrine that needed to be changed.
The discussion was express about saying: We're changing the definition from entry to admission, because we don't want people who snuck into the country outside of--
Justice Sonia Sotomayor: No, no.
Those go to the basic premise.
Mr. Bibas: --Right.
Justice Sonia Sotomayor: If you assume Congress intended to rescind the prior doctrine, isn't that proof itself that it intended to apply the statute retroactively?
Mr. Bibas: No, Your Honor--
Justice Sonia Sotomayor: To this conduct?
Mr. Bibas: --No, Your Honor.
Congress can intend to rescind -- to abrogate a statute such that it will have no effect going forward.
But as this Court noted in Landgraf, the -- the background default rule that the public and Congress expect is that new laws will apply prospectively.
That has the virtue not only of giving a clear background rule which -- against which Congress legislates, against which it did legislate in IIRIRA, but it also forces Congress to advert to the potential unfairness of retroactivity and decide that the benefits outweigh it.
That's what this Court said in Landgraf.
It makes perfect sense and that clear statement rule serves the function of having them smoke out into the open.
If you think it's beneficial to make this affect convictions in the past, just say so.
But it didn't.
So to go back to our primary point, with the practical impact or effect being a new travel disability, the government's argument seems to boil down to that, because there is one event that must happen after the statute's effective date, therefore there can be no retroactive effect.
Justice Elena Kagan: Well, that event is the event that the government cares about, which is the entry into the country.
It's not as though the -- you know, the government says -- just picks an event at random and -- and makes it the trigger mechanism.
The government has picked the event that it wants to regulate, which is entry.
Mr. Bibas: Yes, Your Honor, but this is an effect test, and under Martin v. Hadix and Landgraf, we have to take a commonsense functional view of what the effects are, the new legal consequences.
Chief Justice John G. Roberts: I would have thought your answer to my colleague would be: No; what they want to regulate is the staying in the country, and they're trying to make that as uncomfortable as possible in order to encourage the individual to leave.
If he can't go to the, you know, the parent's party, the cousin's wedding or whatever, he is just going to leave, and then once he does, he can't come back.
Why would -- why would the government care -- it's a question for them, I'm sure.
Why would they care whether somebody that they don't want to be here stays here?
It seems to me the exact opposite.
So I would have thought your argument -- your answer would be, no, what they are trying to regulate is not the coming and going, but simply the staying.
Mr. Bibas: --Yes, Your Honor, you're right that, particularly given the strange way in which its written, it's hard to understand it as something other than a penalty and possibly a deterrent, but certainly a penalty based on past crimes, to make life uncomfortable.
And that does not speak of a protective, forward-looking exclusive function, if that's the test.
But to go back to the earlier point, if that were -- if we were to follow the approach Justice Scalia outlined, that would be the right response.
But we don't even need to get there because the primary test under Landgraf is not the point or function or purpose, but an effects test.
The effect, as the government concedes, is to force him to choose between his parents in Greece and his wife, children, career, and home here.
Justice Antonin Scalia: But there are a lot of -- but there are a lot of statutes which we interpret to be valid and not retroactive which have a substantial effect.
You can pass a statute altering the rules of evidence which have the effect of making someone who committed a prior murder convictable, whereas before he was not convictable.
And we don't just look to the effect and say, well, it has that substantial effect so it's operating retroactively.
We say, no, it's a rule of evidence that applies in the future and that evidence can come in.
That's the big problem with this other approach.
There are often adverse effects upon activities that occurred before the statute was enacted, but we still regard the statute as prospective only and therefore not subject to special rules for people who are affected.
Mr. Bibas: Well, setting aside the difference between the ex post facto context and the civil context, and there is the procedural distinction, which I know Your Honor didn't sign on to, it's also relevant that here it is directly expressly tied to a past conduct.
It's a precondition.
It's not even a piece of evidence or something one can draw an inference from.
It is a precondition for ineligibility under 101(a)(13)(C)(v).
And therefore it looks like the disability that Justice Story said, a disability has to involve future conduct.
But if it's expressly disabling future conduct, that's a penalty on past conduct.
The disability in St. Cyr of not being able to apply for future discretionary relief.
The disability in some other cases of this Court that we found after briefing and alerted opposing counsel to, Cummings v. Missouri and Ex parte Garland in volume 71 of the U.S. Reports.
Even though the law there forbade teaching in the future or holding office or preaching or being a member of the bar, the government's theory would say: Those are post-enactment things; just refrain from teaching; you don't have a vested right to teach.
This Court said: No; we recognize those are expressly targeted to punish the past membership in the Confederacy that triggers that disability.
And so the government's approach would render the Justice Story's disability category a nullity.
Chief Justice John G. Roberts: Does it matter in the examples that you just gave that admission to the United States is purely a matter of legislative grace, while we might conclude that teaching, being a member of the bar, whatever, is not?
Mr. Bibas: I don't believe that that is important.
That only matters for the vested rights argument, and this Court in Cummings said expressly it was dealing with a privilege.
So -- moreover--
Chief Justice John G. Roberts: I'm sorry?
Which privilege was that?
Mr. Bibas: --The privilege of teaching or the privilege of holding office.
So you can't rest on a right privilege--
Chief Justice John G. Roberts: I suppose that might have been regarded as such then, but not under current law.
Mr. Bibas: --Okay.
Well, another answer -- in St. Cyr the government made the same argument, and this Court said: Well, sure, Congress has the plenary power to change the rules any time it wants; just do it expressly.
The question is not whether Congress can, but whether it has in fact changed the rules expressly, to make that express tradeoff that the potential unfairness of retroactivity is worth it.
Now, the final point here, I believe there was some reference earlier to reliance in the offense.
And as the government concedes, reliance is not a prerequisite.
This Court can rule for Petitioner and not even bother with reliance.
But the presence of reliance here is an extra factor that supports -- that shows the retroactivity to be obvious and severe.
So the court of appeal's whole premise that reliance is necessary goes away.
The government concedes the court of appeals implicitly was wrong on that.
As a practical matter, our point is that defendants rely on the known consequences of offenses when they decide to plead guilty.
As this Court recognized in--
Chief Justice John G. Roberts: When they decide to plead guilty.
The operative issue here is when they commit the crime.
Mr. Bibas: --We don't claim that there is a reliance interest in committing the crime, but in the decision to plead guilty as a practical matter the defendants weigh a number of consequences.
And one of those is whether they might have a 4-month discount off their sentencing guidelines, which was the inducement here, and another one is will they ever be able to see their parents again.
Chief Justice John G. Roberts: So this -- so this--
Justice Anthony Kennedy: So you draw the line on -- your position is that only those who have entered a guilty plea are entitled to the presumption against -- non-retroactivity, but not those who have been found guilty?
Mr. Bibas: Your Honor, our primary position is that because reliance isn't necessary all of them benefit from it, because they all have settled expectations.
Justice Elena Kagan: How do you explain St. Cyr if reliance isn't necessary?
St. Cyr is all about reliance.
Mr. Bibas: Yes.
And at the end of this Court's opinion the Court said that the presence of this reliance made the retroactive effect especially obvious and sincere -- especially obvious and severe in St. Cyr.
That did not purport to overrule holdings in Landgraf and Hughes Aircraft where there had been no legally cognizable reliance.
So St. Cyr is an easy case because of the guilty plea because of the reliance.
But Landgraf and Hughes Aircraft didn't involve any reliance and there was still retroactivity because the settled expectations were disrupted because there were new consequences attached to pre-enacted conduct.
So regardless of whether there is reliance, there are settled expectations that are upset by a law whose function or point is to punish and deter misconduct based on past wrongs.
Justice Antonin Scalia: We are trying to figure out what Congress intended, right.
We're not talking about constitutionality.
We are talking about a rule that it's presumed that statutes are only prospective, right?
And your argument is the reasonable expectation of Congress when they passed this was that it would only apply to two people who, what, committed the crime or were convicted after the statute passed?
Just as a matter of statutory interpretation?
Mr. Bibas: --Yes, Your Honor.
Justice Antonin Scalia: Okay.
Mr. Bibas: That is the background default rule against which Congress legislates.
And in laws such as IIRIRA and SORNA and elsewhere, Congress spells out what it wants to apply to pre-enactment offenses to pre-enactment conduct.
That's the defeasible civil retroactivity rule that can reach more broadly than the ex post facto jurisprudence--
Justice Elena Kagan: Well, do you have any case in which a court has deemed its statute retroactive even though it wasn't triggered until the party took some further action?
Is there any case out there either from this Court or from another court where we've said it's retroactive even though it depends upon a future event.
Mr. Bibas: --Yes, Your Honor.
St. Cyr depended on applying for discretionary relief in the future.
He didn't have to.
Cummings depending on trying to teach or preach or hold office.
Ex parte Garland depended on trying to practice law in the future.
Those are all disabilities taking away a future ability based on a past wrong.
That's what the disability category has to mean if it's to remain meaningful.
And the government's approach would gut Justice Story's fourth category.
If there are no further questions, I would like to reserve the balance of my time.
Chief Justice John G. Roberts: --Thank you, Counsel.
ORAL ARGUMENT OF ERIC D. MILLER ON BEHALF OF THE RESPONDENT
Mr. Miller: Mr. Chief Justice, and may it please the Court:
As the discussion so far this morning reveals, the Court's retroactivity analysis takes account of a number of different factors, but the one that is most significant and indeed in this case virtually dispositive is that the application of Section 1101(a)(13) to Petitioner was triggered only because he engaged in voluntary conduct that postdated the enactment of the statute.
Justice Elena Kagan: What do you think the trigger to be?
Because in your brief you kept on talking about the trigger being the trip.
And I would have thought that you would have talked more about the activity being the attempt to enter the country.
Mr. Miller: That's -- I mean they are closely connected together in time and they both -- but they both postdate the enactment of the statute.
But -- well, the thing that is being regulated by section 1101(a)(13) is the entry of aliens into the United States.
The statute sets out a comprehensive scheme for determining when an alien arriving at the border seeking to come into the United States should be regarded as seeking an admission.
So that's conduct that takes place in the future.
Part A of 1101(a)(13) sets out the general definition of admission and then (c) sets out a number of exceptions.
And so taken together they are part of a comprehensive effort to codify Fleuti in some respects and in particular Romanette (ii), the 180-day provision is actually a fairly generous codification of Fleuti probably extending beyond what would have been regarded as a brief trip under Fleuti.
Chief Justice John G. Roberts: Counsel, I have to -- I just don't understand this statute.
This is somebody we would not allow into the country.
And yet the only thing we say is: You can't leave.
I just don't understand how that -- how that works.
Mr. Miller: I think there are two points to be made about that.
And the first is that that is a feature of the statute at large.
That exists even with respect to post enactment criminal convictions.
Chief Justice John G. Roberts: Right.
Mr. Miller: And the second, I think to understand it, it's helpful to look at the history.
The distinction between grounds of inadmissibility and grounds of deportability goes back all the way back to the 1917 Act.
In that statute, a single crime of moral turpitude was the basis for inadmissibility but was generally not a basis for deportability unless it had a-one-year sentence and was committed within five years--
Chief Justice John G. Roberts: Well, I know, and I understand that there is a limitation on actually deporting the person.
But here I think the one thing you want the person to do is leave.
Maybe for a particular event, but maybe he will decide to stay in Greece if once he's there for the -- but it seems very odd to say: We are going to show you how much we don't want you here; we are not going to let you leave.
Mr. Miller: --I think what the -- history shows that it's the crossing the border that has always been regarded as a legally significant event.
This Court's cases recognizing--
Justice Ruth Bader Ginsburg: It wasn't before.
We -- I think we have held that an immigration lawyer is obliged to tell a defendant facing a criminal charge what the legal consequences -- what the immigration consequences will be.
And here, suppose before the -- at the time of the plea in this case, the attorney had said, once you've served your time, you will be able to take brief casual trips.
That would have been after his advice, right?
Before IIRIRA, I mean.
Mr. Miller: --Well, I think, I think the most important point about the consequence of the plea is that as an immediate result of the plea under pre-IIRIRA law, so at the time he pleaded guilty in 1984, he made himself inadmissible.
So that is not anything that has changed.
So he knew that he was--
Justice Ruth Bader Ginsburg: I meant to use "lawyer" talking to his client, and the client wants to know: Before I enter this plea, what will be the consequence for me?
And the question that is asked is: Will I be able to visit my mother in Greece?
What should the lawyer -- what should the lawyer at that time have answered?
Mr. Miller: --I think the lawyer should have said: By pleading guilty, you are making yourself inadmissible to the United States.
Justice Stephen G. Breyer: Rosenberg would have been the law.
And the answer to the question would have been: Yes, you can make trips abroad, wouldn't it?
Mr. Miller: --That's right.
And I think you might also have said that under a current law, you will not be regarded as seeking an admission if you take a brief, casual, and innocent trip.
But the change in the law--
Justice Elena Kagan: Well, that's what is going to be important to the person, right?
It's not inadmissible and all the legal terms.
It's: Am I going to be able to make short trips to visit my mother?
Yes, you are going to be able to make short trips to visit your mother.
And then you wake up the next morning, and Congress has passed a statute, and now you are not able to take short trips to visit your mother.
So something very real has happened to the life of this person.
Mr. Miller: --That's right.
I mean, and there is no question but that there is a serious consequence as a result of the change in the law.
But the Court has made clear in Landgraf and in a number of other cases that even uncontroversially prospective statutes can impose burdens.
Justice Stephen G. Breyer: That's true, but in St. Cyr, as I read it, on pages 322 and 23, the Court focused directly, not on the crime point of time, but the time of the guilty plea.
And what the Court says there is that a person who is thinking of pleading guilty might well have taken into account the fact that he could ask the Attorney General later when he's about to be deported to exercise discretion in his favor.
So that's -- as I read those pages, you can say, I'm not reading them correctly, but that's how I read them.
And then, having read them that way, I thought the question in this case is whether the person who is sitting at the table and deciding whether to plead guilty or not is likely to think, well, if I plead guilty, I can always ask for discretion.
That's St. Cyr.
Well, if I plead guilty, I can still visit my aging parents and grandparents, a matter that could be of importance to some people, as opposed to whether I will never see them again.
Now, that seems to be the question.
Is the second as likely to be in the person's mind as the first?
And to tell you the truth, I don't know the answer.
I mean, maybe it would be.
There isn't that much chance of getting discretion.
It might be important to some people to visit their aging parents and grandparents.
So, go ahead.
Answer the question.
Is the one more important than the other?
And if not, why not?
Mr. Miller: I think you have correctly described the reasoning of the Court in St. Cyr, and I think that that reasoning highlights two ways in which this case is significantly different.
And the first is that in St. Cyr it was the guilty plea, the conviction that was legally significant under the provision is of IIRIRA at issue there, and the Court emphasized that a guilty plea is a quid pro quo, it has to be knowing and voluntary.
The Court cited Santabello against New York, a due process about guilty pleas.
And then the one difference in this case is that the legally significant event here--
Justice Stephen G. Breyer: No, but I -- isn't my question the key question?
Now you can answer that no.
But I, I mean, I suppose you could prove that the only thing that mattered to LPRs who plead guilty, the only thing that mattered was visiting their parents and grandparents, a matter I doubt; but, you can say, even on that situation, it would make no difference.
Or you could say, I think the one is as important as the other.
Or you could say they are not.
I just want to get your full answer, your whole answer to my question.
Mr. Miller: --The conclusion to the first part of the answer is that it wouldn't make a difference because what matters here is not the guilty plea, what triggers the application of 1101(a)(13)(C) is the underlying criminal conduct.
Justice Elena Kagan: You are quite right, Mr. Miller, as a formal matter that that is true, that that's the words of the statute.
But how many times has the Department of Homeland Security tried to declare a person inadmissible on the basis of the commission of a crime without putting into evidence either a conviction or a guilty plea?
Mr. Miller: I don't have any--
Justice Elena Kagan: I can't imagine that it's like more than on one, you know, five fingers of your hand.
I mean, that's the way people prove crimes in this area, isn't it, by convictions or guilty pleas.
Mr. Miller: --Well, I would say that -- this is a statue--
Justice Elena Kagan: Or after trial or convictions by guilty pleas.
Mr. Miller: --The statute is being applied by, in the first instance, by customs officers at the airport or at the land border crossing.
They have access to a number of databases which include not only records of convictions but also things like arrest warrants.
And an arrest warrant by itself would not, not be enough to show that a person had in fact committed an offense, but it might trigger some further inquiry from the customs officer that would lead to finding out more information or perhaps getting an admission from the person.
Justice Elena Kagan: If, as a fact of the matter, the way the commission of crime is proved in this area is through showing a conviction, does your distinction stand up at all?
Mr. Miller: I mean, there is still, I think, a significant formal distinction and then there is also another important distinction from St. Cyr which is that that was the case where as a result of the guilty plea plus the change in law, the person there faced immediate deportability with no prospect of discretionary relief.
And the Court said that there is a clear difference for purposes of the retroactivity analysis between the possibility of deportability and a certainty of deportation.
Here, not only is he not deportable, but there is no immediate consequence for him at all.
The statute only has any effect on him when he engages in the post enactment travel.
And I think--
Justice Ruth Bader Ginsburg: What about the characterization?
It would seem to me to make common sense, yes, the trigger is that he has gone abroad and is returning.
But the target, they say, was the crime.
That's why the law -- the law really doesn't care about the travel back and forth; what it cares about is this person was convicted of a crime.
Mr. Miller: --Right.
I don't think that's correct, Your Honor.
And I think that highlights one of the distinctions between this case and Cummings against Missouri and ex parte Garland.
In those cases, you had statutes that were nominally prospective in application, but the Court actually said that we think that what is really happening here is the statutes are imposing punishment for completed acts.
To the extent there was any doubt in those cases themselves, this Court discussed them both in Harisiades v. Shaughnessy and said that it viewed them as cases about punishment.
Justice Sonia Sotomayor: But isn't that the case here, meaning -- it goes back to the Chief Justice's question, which is, what they're trying to do is punish those individuals, those LPRs who have committed this kind of crime, by not letting them travel or come back in.
That's really what their argument is, is, you are imposing a punishment, a disability for having committed the crime.
You're not imposing a disability merely for the act of traveling.
Mr. Miller: I mean, I think when you look at the statute as a whole, you see that it's a -- the comprehensive regulation of crossing the border, which has always been regarded as a legally significant event.
There are six subparts to 1101(a)(13)(c).
Five of them have nothing to do with past conduct.
They're about the -- the nature of the trip and -- and what the alien is doing as he's coming in.
And then you have -- have this one, which is of a piece with the long history of drawing a distinction between inadmissibility and deportability.
And I think it recognizes--
Chief Justice John G. Roberts: What -- what is the -- what is the policy underlying the rule that doesn't allow somebody who has lawful status here to go to his grandmother's funeral--
Mr. Miller: --I -- I--
Chief Justice John G. Roberts: --and come back?
It's going to take four days.
He goes, he comes back.
What policy supports prohibiting that travel?
Mr. Miller: --I mean, I -- I think it reflects a -- a judgment on the part of Congress over many, many years that it is one thing to say to an alien, all right, we're not going to go and try and find you and take you and kick you out of the country.
It is quite another to say you may freely cross our borders -- even after having left, you may come back, and we're -- without any inquiry.
Chief Justice John G. Roberts: Okay.
They're two different things.
But I don't know that you've articulated what the policy is to prevent -- prohibit somebody from doing that.
Mr. Miller: I mean -- other than, you know, referring you to -- to the history and to -- to the idea that has been reflected -- this Court has recognizes that control over the border is a core sovereign prerogative that lies at the heart of Congress's immigration power.
And I think--
Justice Antonin Scalia: Well, I suppose you could say that there's a -- a likelihood of quite inequitable enforcement if indeed you adopt a position we're going to pick up all of these people and send them away.
That's not going to happen.
It'll -- it'll be hit and miss.
And on the other hand, you can enforce it rigorously and equitably upon everyone if you only forbid reentry to those people who want to come back in, and they'll have to, you know, give their names to Immigration, and you can check on -- on this status.
That seems to me a sensible reason.
Mr. Miller: --That's right.
Justice Stephen G. Breyer: So why do you -- as I read the statute, it isn't even clear whether it overrules Rosenberg v. Fleuti.
I mean, they talk about admission, but admission after all could be, we have an exception for the 4-day trip.
That's what the Court said effectively in Rosenberg v. Fleuti.
So Congress certainly wasn't clear on what policy they're following.
I would have thought that.
You can disagree with that.
But I -- but the part that's still gnawing at me: 95 percent of the people plead guilty.
Everybody pleads guilty.
And now the -- the consequence that this ex post enacts is he can't take the 4-day trip.
And you keep saying well, a 4-day trip requires action on a person's part.
Of course it does.
So why does that matter?
I mean, the fact is he can't take the 4-day trip.
A 4-day trip requires action.
You have to buy a trip -- ticket.
You have to get on a plane.
Mr. Miller: --I think -- if I could just first address the -- the question of whether the statute in fact ever gets Fleuti, and just to be clear on that -- the question presented assumes that it does.
The Petitioner isn't challenging that.
And the board in the Collado-Munoz decision has explained why the -- the statute in fact does have that effect.
And I -- I think the significance of this post-enactment conduct, the significance of the trip, is illustrated there by this Court's decision in Fernandez-Vargas, which -- which made clear that when you have -- when the application of the statute is within the control of the person to whom it's being applied, because he has to do something after it comes into effect -- there, it was choosing to remain in the United States and becoming subject to the reinstatement of a prior order of removal -- here, it's taking the travel.
But that goes a long way towards establishing that it -- it doesn't have a retroactive effect, that it's regulating future conduct.
Justice Sonia Sotomayor: Prior to the Fernandez case, the illegal act remained.
And so that was within your control.
But the -- you can't undo an illegal act that you've done to be able to travel.
The act is now part of your background.
And so there's nothing in your control to change that act once the statute has passed.
Mr. Miller: --Well--
Justice Sonia Sotomayor: So you're -- you're carrying that around as a disability.
Mr. Miller: --In Fernandez-Vargas, the -- the conduct that subjected the alien to the application of this -- this procedural -- disadvantageous removal procedure -- was remaining in the United States.
And it's true that that conduct was unlawful, but for purposes of the retroactivity analysis, the Court didn't focus on whether it was lawful or unlawful.
What matters is that it was conduct that was in the future, that that was after the statute was enacted.
And so here, although the -- the trip is not unlawful in that sense, it is future conduct, and here as in Fernandez-Vargas, there is ample warning -- which was another point the Court emphasized in that case -- ample warning that the statute would be applied to people who engaged in that conduct.
I -- I do want to address your--
Justice Elena Kagan: It -- it can't be right that it's "any" future conduct.
If -- if there's a trigger mechanism that is entirely random, you know, it's -- you can be deported if you've committed a crime of moral turpitude in the past, but not until you go to the movies on a Saturday.
Surely that would not change the analysis.
Mr. Miller: --I think that's right, Your Honor, and I think the -- the reason it wouldn't -- is reflected in some of this Court's -- in the ex post facto analysis.
If you have a statute that for example makes it a crime to have engaged in certain conduct in the past, and then, you know, something -- some commonplace utterly trivial activity in the future, I think a court looking at that would say, this is not -- although it is nominally prospective -- this is really a statute aimed at punishing the prior conduct.
Justice Antonin Scalia: No.
I -- I don't know -- I think it would be prospective and unconstitutional because it's irrational.
I mean, not -- not everything that's unconstitutional is unconstitutional -- not everything that is unconstitutional is not prospective, it seems to -- or do you think that's so?
If it's -- if it is unconstitutional in violation of the ex post facto law, the statute has to be pro -- has to be prospective.
I'm sorry, has to be assumed not to cover that prior conduct.
Is that right?
Mr. Miller: I mean, I think -- the hypothetical statute I was describing I think would violate the ex post facto clause under the sort of analysis that this Court used in Smith v. Doe.
Justice Antonin Scalia: Okay.
And if it does, it automatically has to be interpreted not to cover that, by reason of the presumption that--
Mr. Miller: You mean -- if you mean a parallel statute in the civil context.
Justice Antonin Scalia: --Yes, yes.
Mr. Miller: I -- I -- I think that's the best reading of -- of Landgraf.
And I think under the analysis suggested in your concurring opinion in Landgraf, I think you'd want to look at that statute and say this is really a statute that's aimed at regulating the -- the past conduct, and that -- that has a retroactive effect.
So -- to -- to finish that thought, I think I would just say that there is a narrow category of cases where you have what is informed, a prospective regulation that's really aimed at -- aimed at burdening or punishing a past act.
But this is not that.
Justice Elena Kagan: And how do we separate those two?
How do we decide that this is not that, and that it's instead something else, that it's a regulation of future conduct?
Mr. Miller: I -- in the criminal context, the Court has used the analysis of Kennedy v. Mendoza-Martinez to figure out whether a statute is -- is imposing punishment for past conduct.
And that looks at a number of factors.
And the most important factor under that test, the Court has said, is whether the statute appears to be related to a legitimate prospective regulatory purpose.
And so that's why, for example, statutes like 922(g), the felon in possession statute, which was, I would point out, amended back in 1996 to add misdemeanor crimes of domestic violence which had not previously been something that would subject one to a firearms disability.
That was added.
Every court of appeals that has considered the question has held that it doesn't violate the ex post facto clause, and I think implicitly has held that it does in fact reach that conduct.
Justice Antonin Scalia: Even -- even if you had pleaded guilty to spousal abuse?
Mr. Miller: I'm not aware of any cases--
Justice Antonin Scalia: Yes.
Mr. Miller: --specifically addressing that question, but -- but yes, because there you have a statute that is regulating future conduct, it only applies to somebody who engages in the future conduct.
The sex offender registration laws are another example of -- this Court has upheld that kind of law obviously imposes a very significant burden of people on the basis of prior conduct, but the fact that there is some burden by itself does not mean that the statute is retroactive.
Nor does it mean that it is appropriately viewed as imposing a disability.
I mean I think that the Court in Landgraf quoted Justice Story's formulation of a disability as referring to statutes that impose a disability in respect to transactions that are already passed.
So it is not enough that there used to be something that you could do and now in the future you are not going to be able to do that.
That is not a disability in the relevant sense, and if it were the Court would have a very difficult line-drawing problem to figure out why it is that statutes like 922(g) are okay, or sex offender administration laws, or any number of--
Justice Stephen G. Breyer: --That's -- that's why I think the Chief Justice's question and the ambiguity of the statute are relevant.
Like with SORNA you would apply it backwards, because that's a pretty clear intent.
I don't know about you know, like, "three times and you're out" statutes, et cetera.
But -- but here you have a disability on the ones -- the disadvantage to the person pleading guilty, the problem on the one hand, and on the other hand you have the policy that with a -- fill in the blank -- with a statute that doesn't talk about it, but simply uses a new definition of admission or admissibility.
That's -- do you want to say something about that.
Mr. Miller: --I think, if you are -- if you're -- if you are asking whether Congress has specifically addressed the temporal scope of the statute, we -- we -- we acknowledge under St. Cyr that it hasn't.
And so that's why we're at--
Justice Stephen G. Breyer: More than that -- I'm ignoring -- more than that, I'm saying what's the policy on the other side?
The policy that favors the retroactivity despite the fact that the person might not have pleaded guilty?
And that's why I was interested in the Chief Justice's question and also the ambiguity of the language in the statute that they used.
Mr. Miller: --I think that the -- the policy is Congress was trying to redefine -- they were replacing the old term of entry and replacing it with a new concept of admission, they're trying to redefine a comprehensive scheme for treatment of aliens arriving at the border.
And you have to look at all the parts of it together as a scheme that was to be applied going forward, when people arrived at the border in the future, after the enactment of the statute.
If there are no further questions--
Chief Justice John G. Roberts: Could you go over again for me your distinction of St. Cyr?
Mr. Miller: --I think it's twofold, Your Honor.
The first is that in St. Cyr the legally significant event was the conviction, the guilty plea.
Here the guilty plea is significant because it makes Petitioner inadmissible but that was true under current law.
Chief Justice John G. Roberts: You don't argue that -- that the significance of what the individual is giving up makes a difference?
Mr. Miller: That's our second point, is that -- St. Cyr said there is a big difference between immediate deportability and the potential--
Chief Justice John G. Roberts: Is there a difference in terms of what they face if they don't plead guilty?
I've always had difficulty with St. Cyr on the notion that say, someone pleads -- is facing, you know, 10 years, and they plead -- plead guilty to 2 years.
The -- the reason they did that was to, you know, avoid one of these -- positions.
It seems to me it is to avoid 8 years.
Mr. Miller: --I -- I--
Chief Justice John G. Roberts: And I just wonder if the relative significance of what is at issue under the immigration law is something we can take into account, or if St. Cyr prohibits that?
Mr. Miller: --No, I think it is certainly appropriate to take into account, that however -- however significant the application of Fleuti might be to aliens, it's on a different order of significance from--
Justice Elena Kagan: Well, Mr. Miller, the Solicitor General actually represented to us -- in the Judulang argument used that as an example, the Fleuti case, as something that people doing pleas did think about and did rely upon.
Mr. Miller: --Well, I -- I think -- we don't question that that's something that people might have -- have been aware of, and have been thinking about, but it not something that was bargained for in the plea agreement, because it's not something that is affected by the plea agreement.
The statute here is triggered by the post-enactment conduct of entering the country, but also by the -- the pre-enactment conduct of committing the crime.
And as Petitioner has acknowledged, there isn't any reliance in the state of immigration law when you choose to commit the crime.
So I think that's -- that's a difference from the scenario that was addressed in Judulang.
Chief Justice John G. Roberts: Thank you, Mr. Miller.
Mr. Bibas, you have 6 minutes remaining.
REBUTTAL ARGUMENT OF STEPHANOS BIBAS ON BEHALF OF THE PETITIONER
Mr. Bibas: Thank you, Your Honor.
I would like to make five points.
The first one is the statute is poorly tailored to any protective or forward-looking effect.
As the Court has noted, its perverse effect is to discourage people from leaving the country, to keep them in.
So any idea that the purpose is to get them out doesn't square with the way the statute is written.
As Justice Ginsburg noted, while the post-IIRIRA innocent travel may be the trigger here, the obvious target is the pre-IIRIRA offense.
The statute is tied to misconduct.
The natural inference of making this conduct not just a piece of evidence but a prerequisite is that it is the misconduct that is being penalized.
Second, the impact we suggest is the relevant test.
The impact is a penalty.
It is a disability based on a past act that Mr. Vartelas is now helpless to undo.
That is all that is required under Landgraf.
If Congress thinks it important, it can expressly require retroactivity.
But it hasn't done so.
Third, let me make clear that we have alternative theories here.
Reliance is something that makes the case worse.
It is something that exacerbates the problem, makes it obvious and severe.
And our amici, the NACDL brief, points out very movingly how important these kinds of considerations are in immigrants' decisions to plead guilty.
Here for example, my client received a 4-month discount off his sentencing range.
It's entirely plausible to believe that immigrants in his situation might value the ability to stay in the same country with their 4-year-old and 2-year-old child as much as 4 months in jail.
But our broader theory is that the violation of settled expectations is sufficient whether or not there is reliance.
The settled expectations that one has of planning one's life in this country and yet having relatives abroad one will tend to or care for their business, etcetera, that is sufficient.
Just as in Landgraf and Hughes Aircraft Company there were no legally cognizable reliance interests in discriminating or in submitting false claims, but changing the penalty is enough.
Fourth, this Court's decision in St. Cyr I believe strongly helps our case.
The first reason is that it imposed a disability, a disability on filing in the future for discretionary relief, but as a practical matter it is burdening past conduct.
Secondly, St. Cyr didn't purport to change the holdings in Landgraf and Hughes Aircraft Company that those are other ways of showing impermissible retroactivity.
The logic in St. Cyr is ineluctable that because you are burdening a decision, a decision that, as the Court and the amici in St. Cyr noted, matters greatly and factors into the plea bargaining calculus, that the retroactivity is especially obvious and severe.
And let me note that St. Cyr was decided under this same statute, a privilege, not a right, a privilege that Congress can abrogate at any time.
That did not influence this Court's holding at all.
The right-privilege distinction is dead in this area of law.
If there is a privilege under IIRIRA to apply for discretionary relief, there is a privilege to not be subject to the disability on one's traveling and returning.
Finally, let me talk about the criminal-civil line.
My my brother here introduced Smith v. Doe and mentioned some of the sex offender cases.
I've explained why the criminal cases in ex post facto are different, but let me go into some more detail.
The Court is well familiar with Smith v. Doe.
That was a civil case that Doe attempted to turn into a criminal case under the very demanding standard in Kennedy v. Mendoza.
But that's a very uphill fight.
As the Court's opinion recognized, the court must be very deferential before turning something facially civil into criminal because then it's categorically forbidden and it comes with the criminal procedure protections in the Bill of Rights.
That's not what we are doing now.
We are not trying to say this law is forbidden.
Smith v. Doe involved a law where the court's opinion said on its face: The legislature made it retroactive; it says it's retroactive.
Federal law SORNA is expressly retroactive in section 113(d).
IIRIRA is expressly retroactive.
That's a different inquiry, where you're asking does the Ex Post Facto Clause forbids something that is expressly retroactive, does Mendoza-Martinez turn it into a criminal case?
Versus here, where it's not retroactive.
All Congress has to do is spell it out.
If this Court adheres to its previous jurisprudence, the guidance to the drafters across the street is clear: Just draft the statutes the way you have always been doing it, say before, on, or after effective date.
Justice Samuel Alito: Do you think we have the authority to tell Congress how to draft its laws?
I thought what we were doing was trying to infer what they intended.
Mr. Bibas: Yes, Your Honor.
Justice Samuel Alito: Do we send them a drafting manual?
Now, you can do this, but you can only do it if you do it -- if you follow the steps that we've prescribed.
And we've said this over and over.
It seems to be completely unfounded.
Mr. Bibas: Your Honor, this Court has said that it's important to adhere to its traditional tools of statutory construction because it's a settled background rule against which Congress legislates, which it is aware of.
Justice Antonin Scalia: You think Landgraf is clear and settled, and you are over there in Congress and you say: Boy, I know how this statute is going to come out under Landgraf.
Mr. Bibas: Yes, Your Honor.
Justice Antonin Scalia: Better than I am.
Mr. Bibas: Let me explain.
This Court decided Landgraf 2 decades ago.
A few years after Landgraf, Congress passed IIRIRA in 1996.
IIRIRA contains express retroactivity provisions that go hand in glove with the Landgraf presumption.
And then Congress passed SORNA, to which my brother alludes.
SORNA in 2005 likewise in Section 113(d) says: Yes, this sex offender registration shall apply, the Attorney General can apply it to people with pre-SORNA convictions.
Congress understands the Landgraf presumption.
In those statutes and others it has legislated against it.
It can continue to do it because this Court should continue to use its traditional tools--
Justice Antonin Scalia: Well, that can be explained because Congress understands that, who knows whether it's going to be held to be retroactive or not; if you surely want it to apply you better say so.
If that's the rule you want us to adopt, that's okay.
Mr. Bibas: --Yes, Your Honor, and a clear statement rule has that virtue, as I believe Your Honor is well aware.
For all those reasons, we ask this Court to reverse the judgment below and remand.
Chief Justice John G. Roberts: Thank you, counsel, counsel.
The case is submitted.
Chief Justice John G. Roberts: Justice Ginsburg has our opinion this morning in Case 10-1211, Vartelas versus Holder.
Justice Ruth Bader Ginsburg: Petitioner Vartelas, a native of Greece, became a lawful permanent resident in 1989.
He pleaded guilty to conspiring to make counterfeit travelers' checks in 1994 and he served a prison term of four months.
At the time of his plea, an alien with a conviction like his could travel abroad for brief periods without jeopardizing his resident alien status.
Vartelas did so, travelling occasionally to Greece, both before and after serving his prison sentence to assist his aging parents.
In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act commonly known as IIRIRA.
Under that Act, aliens who have committed certain crimes, among them, counterfeiting, may be stopped from entering the United States when they return from a trip abroad.
By travelling and returning, they risk loss of their permanent resident status and are in danger of becoming excluded aliens.
Vartelas was so stopped in 2003 and was placed under an order permanently removing him from the United States.
This case presents a question of time.
Does IIRIRA reach back and apply to aliens like Vartelas, who committed a crime before IIRIRA's effective date?
The Court of Appeals for the Second Circuit held that IIRIRA applied to Vartelas and affirmed the removal order.
We reverse that judgment.
Applying IIRIRA to Vartelas rather than the law that governed at the time of his conviction would retroactively attach a new disability to his prior offense.
Our decisions, however, have long applied a presumption against retroactive legislation.
We read laws as operating prospectively only, unless Congress has instructed their application to past events.
The IIRIRA provision in question, the Government acknowledges, does not say anything about its temporal reach.
We hold that it does not apply to Vartelas' pre-IIRIRA conduct.
Beyond doubt, IIRIRA's entry bar would impose a severe disability on lawful permanent residents like Vartelas.
Loss of the freedom to travel abroad, for example, to fulfill his obligations attend births, weddings or funerals of family members, attend to financial interests or to respond to a family emergency, those are harsh penalties.
The Government argues that Congress has attached no disability to the past conduct of residents, like Vartelas, rather the Government says, “The relevant event is not Vartelas' pre-IIRIRA criminal offense, it is his post-IIRIRA act of returning to the United States after travel abroad,” but we disagree.
True, Vartelas' return to the United States from a week of caring for his parents in Greece occasioned his treatment as a newcomer to our shores, but the reason for his detention and the disability imposed on him was not his lawful foreign travel, it was his pre-IIRIRA conviction.
The Second Circuit ruled that IIRIRA's -- IIRIRA's entry bar did not apply retroactivity -- retroactively to Vartelas because he, in no way, relied on immigration laws when he committed the counterfeiting offense.
This reasoning is doubly fraud.
First, as the Government acknowledges, our decisions in point do not require a party challenging the retroactive application of a statute to show reliance on the prior law in arranging his conduct.
Second, Vartelas likely did rely on existing immigration law when he pleaded guilty to the counterfeiting offense.
There can be little doubt, we observed in the recent decision that alien defendants considering whether to enter into a plea agreement ordinarily are acutely aware of the immigration consequences of their convictions.
For these reasons spelled out in full in the Court's opinion, we hold that Vartelas' reentry into the United States after a brief trip to Greece was governed not by IIRIRA, but by the legal regime in place at the time of his conviction.
Justice Scalia has filed a dissenting opinion in which Justice Thomas and Justice Alito join.