Fernandez-Vargas v. Gonzales ( 2006 )

(Slip Opinion) OCTOBER TERM, 2005 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FERNANDEZ-VARGAS v. GONZALES, ATTORNEY
GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No. 04–1376. Argued March 22, 2006—Decided June 22, 2006
Immigration law has for some time provided that an order for removing
an alien present unlawfully may be reinstated if he leaves and
unlawfully reenters. The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) amended the Immigration and
Nationality Act (INA) to enlarge the class of illegal reentrants whose
orders may be reinstated and limit the possible relief from a removal
order available to them. See §241(a)(5), 8 U. S. C. §1235(a)(5). Peti
tioner Fernandez-Vargas, a Mexican citizen, illegally reentered the
United States in 1982, after having been deported. He remained un
detected for over 20 years, fathering a son in 1989 and marrying the
boy’s mother, a United States citizen, in 2001. After he filed an ap
plication to adjust his status to that of a lawful permanent resident,
the Government began proceedings to reinstate his 1981 deportation
order under §241(a)(5), and deported him. He petitioned the Tenth
Circuit to review the reinstatement order, claiming that, because he
illegally reentered the county before IIRIRA’s effective date,
§241(a)(5) did not bar his application for adjustment of status, and
that §241(a)(5) would be impermissibly retroactive if it did bar his ad
justment application. The court held that §241(a)(5) barred his ap
plication and followed Landgraf v. USI Film Products, 511 U. S. 244,
in determining that the new law had no impermissibly retroactive ef
fect in his case.
Held: Section 241(a)(5) applies to those who reentered the United
States before IIRIRA’s effective date and does not retroactively affect
any right of, or impose any burden on, the continuing violator of the
INA now before this Court. Pp. 5–16.
(a) Statutes are disfavored as retroactive when their application
2 FERNANDEZ-VARGAS v. GONZALES
Syllabus
“would impair rights a party possessed when he acted, increase a
party’s liability for past conduct, or impose new duties with respect to
transactions already completed.” Landgraf, supra, at 280. A statute
is not given retroactive effect “unless such construction is required by
explicit language or by necessary implication.” United States v. St.
Louis, S. F. & T. R. Co., 270 U. S. 1, 3. In determining whether a
statute has an impermissibly retroactive effect, the Court first looks
to “whether Congress has expressly prescribed the statute’s proper
reach,” Landgraf, supra, at 280, and in the absence of express lan
guage tries to draw a comparably firm conclusion about the temporal
reach specifically intended by applying its “normal rules of construc
tion,” Lindh v. Murphy, 521 U. S. 320, 326. If that effort fails, the
Court asks whether applying the statute to the person objecting
would have a retroactive effect in the disfavored sense of “affecting
substantive rights, liabilities, or duties [on the basis of] conduct aris
ing before [its] enactment,” Landgraf, supra, at 278. If the answer is
yes, the Court then applies the presumption against retroactivity by
construing the statute as inapplicable to the event or act in question.
INS v. St. Cyr, 533 U. S. 289, 316. Pp. 5–7.
(b) Common principles of statutory interpretation fail to unsettle
§241(a)(5)’s apparent application to any reentrant present in the
country, whatever the date of return. The statute does not expressly
include in or exclude from §241(a)(5)’s ambit individuals who illegally
entered the country before IIRIRA’s effective date. Fernandez-
Vargas argues that the fact that the old reinstatement provision ap
plied to aliens who had “unlawfully reentered . . . after having previ
ously departed or been deported . . . , whether before or after June 27,
1952 [the INA’s effective date], on any ground described in . . . sub
section (e),” §242(f), while §241(a)(5) lacks language of temporal
reach, shows that Congress no longer meant to cover preenactment
reentrants. But the old before-or-after clause, which was sandwiched
between references to departure or deportation and grounds for de
portation, most naturally referred not to an alien’s illegal reentry but
to the previous deportation or departure. The better inference is that
the clause was removed because, in 1996, application keyed to depar
tures in 1952 or earlier was academic. Applying §241(a)(5) only to
deportations or departures after IIRIRA’s effective date would ex
empt anyone who departed before that date but reentered after it.
That would be a strange result, since the statute was revised to ex
pand the scope of the reinstatement authority and invest it with
something closer to finality. Fernandez-Vargas errs in suggesting
that the new law is bereft of clarity and the Court should apply the
presumption against retroactivity as a tool for interpreting the stat
ute at the first Landgraf step. It is not until a statute is shown to
Cite as: 548 U. S. ____ (2006) 3
Syllabus
have no firm provision about temporal reach but to produce a retroac
tive effect when straightforwardly applied that the presumption has
its work to do. And IIRIRA has other provisions on temporal reach,
which blunt Fernandez-Vargas’s argument that a negative inference
in his favor may be drawn from removal of the before-or-after clause.
Pp. 7–10.
(c) This facial reading is confirmed by two features of IIRIRA.
First, the provision’s text shows that it applies here not because Fer
nandez-Vargas reentered at any particular time, but because he
chose to remain after the new statute became effective. While the
law looks back to “an alien [who] has reentered . . . illegally,” 8
U. S. C. §1231(a)(5), the provision does not penalize an alien for the
reentry; it establishes a process to remove him under a “prior order
any time after the reentry,” ibid. Thus, it is the conduct of remaining
in the country after entry that is the predicate action; the law applies
to stop an indefinitely continuing violation that the alien could end at
any time by voluntarily leaving. It is therefore the alien’s choice to
continue his illegal presence, after illegal reentry and after the new
law’s effective date, that subjects him to the new and less generous
regime, not a past act that is he helpless to undo. INS v. St. Cyr, su
pra, distinguished. Second, IIRIRA’s effective date provision shows
that Fernandez-Vargas had ample warning of the coming change in
the law, but chose to remain until the old regime expired and
§241(a)(5) took its place. He had an opportunity to avoid the new
law’s application by leaving the country and ending his violation dur
ing the 6 months between IIRIRA’s enactment and effective date.
For that matter, he could have married his son’s mother and applied
for adjustment of status during the period, in which case he would at
least have had a claim that proven reliance on the law should be hon
ored by applying the presumption against retroactivity. Instead, he
augmented his 15 years of unlawful presence by remaining in the
country into the future subject to the new law. And the presumption
against retroactivity does not amount to a presumption of legal stasis
for the benefit of continuous lawbreakers. Pp. 11–15.
394 F. 3d 881, affirmed.
SOUTER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, THOMAS, GINSBURG, BREYER, and ALITO,
JJ., joined. STEVENS, J., filed a dissenting opinion.
Cite as: 548 U. S. ____ (2006) 1
Opinion of the Court
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, Wash
ington, 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
_________________
No. 04–1376
_________________
HUMBERTO FERNANDEZ-VARGAS, PETITIONER v.
ALBERTO R. GONZALES, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[June 22, 2006]
JUSTICE SOUTER delivered the opinion of the Court.
For some time, the law has provided that an order for
removing an alien present unlawfully may be reinstated if
he leaves and unlawfully enters again. The Illegal Immi
gration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Pub. L. 104–208, div. C, 110 Stat. 3009–546,
enlarged the class of illegal reentrants whose orders may
be reinstated and limited the possible relief from a re
moval order available to them. See Immigration and
Nationality Act (INA), §241(a)(5), 66 Stat. 204, as added
by IIRIRA §305(a)(3), 110 Stat. 3009–599, 8 U. S. C.
§1231(a)(5). The questions here are whether the new
version of the reinstatement provision is correctly read to
apply to individuals who reentered the United States
before IIRIRA’s effective date, and whether such a reading
may be rejected as impermissibly retroactive. We hold the
statute applies to those who entered before IIRIRA and
does not retroactively affect any right of, or impose any
burden on, the continuing violator of the INA now before
us.
2 FERNANDEZ-VARGAS v. GONZALES
Opinion of the Court
I
In 1950, Congress provided that deportation orders
issued against some aliens who later reentered the United
States illegally could be reinstated.1 Internal Security Act
of 1950, §23(d), 64 Stat. 1012, 8 U. S. C. §156(d) (1946 ed.,
Supp. V).2 Only specific illegal reentrants were subject to
the provision, those deported as “anarchists” or “subver
sives,” for example, see §23(c), 64 Stat. 1012, while the
rest got the benefit of the ordinary deportation rules.
Congress retained a reinstatement provision two years
later when it revised the immigration laws through the
INA, §242(f), 66 Stat. 212, as codified in this subsection:
“Should the Attorney General find that any alien has
unlawfully reentered the United States after having
previously departed or been deported pursuant to an
order of deportation, whether before or after June 27,
1952,3 on any ground described in subsection (e) . . . ,
the previous order of deportation shall be deemed to
be reinstated from its original date and such alien
shall be deported under such previous order at any
time subsequent to such reentry.” 8 U. S. C. §1252(f)
(1994 ed.).
——————
1 What was formerly known as “deportation” is now called “removal”
in IIRIRA. See Neuman, Habeas Corpus, Executive Detention, and the
Removal of Aliens, 98 Colum. L. Rev. 961, 966 (1998) (IIRIRA “re
aligned the vocabulary of immigration law, creating a new category of
‘removal’ proceedings that largely replaces what were formerly exclu
sion proceedings and deportation proceedings”). Our use of each term
here will vary according to the scheme under discussion.
2 This is the full text of the provision: “Should any alien subject to the
provisions of subsection (c) unlawfully return to the United States after
having been released for departure or deported pursuant to this section,
the previous warrant of deportation against him shall be considered as
reinstated from its original date of issuance.”
3 A date was inserted when the provision was codified; as originally
enacted, the text read, “whether before or after the date of enactment of
this Act.” 66 Stat. 212.
Cite as: 548 U. S. ____ (2006) 3
Opinion of the Court
Again, only a limited class of illegal reentrants was sus
ceptible, see §242(e), 66 Stat. 211; cf. §241(a), id., at 204,
and even those affected could seek some varieties of dis
cretionary relief, see, e.g., 8 U. S. C. §1254(a)(1) (1994 ed.)
(suspension of deportation available to aliens who main
tained a continuous presence in the United States for
seven years and could demonstrate extreme hardship and
a good moral character).
In IIRIRA, Congress replaced this reinstatement provi
sion with one that toed a harder line, as the old §242(f)
was displaced by the new §241(a)(5):
“If the Attorney General finds that an alien has reen
tered the United States illegally after having been
removed or having departed voluntarily, under an or
der of removal, the prior order of removal is reinstated
from its original date and is not subject to being re
opened or reviewed, the alien is not eligible and may
not apply for any relief under this chapter, and the
alien shall be removed under the prior order at any
time after the reentry.” 8 U. S. C. §1231(a)(5) (1994
ed., Supp. III).
The new law became effective on April 1, 1997, “the first
day of the first month beginning more than 180 days after”
IIRIRA’s enactment. §309(a), 110 Stat. 3009–625. Unlike
its predecessor, §241(a)(5) applies to all illegal reentrants,
explicitly insulates the removal orders from review, and
generally forecloses discretionary relief from the terms of
the reinstated order.4
——————
4 Notwithstanding the absolute terms in which the bar on relief is
stated, even an alien subject to §241(a)(5) may seek withholding of
removal under 8 U. S. C. §1231(b)(3)(A) (2000 ed.) (alien may not be
removed to country if “the alien’s life or freedom would be threatened in
that country because of the alien’s race, religion, nationality, member
ship in a particular social group, or political opinion”), or under 8 CFR
§§241.8(e) and 208.31 (2006) (raising the possibility of asylum to aliens
4 FERNANDEZ-VARGAS v. GONZALES
Opinion of the Court
II
Humberto Fernandez-Vargas is a citizen of Mexico, who
first came to the United States in the 1970s, only to be
deported for immigration violations, and to reenter, sev
eral times, his last illegal return having been in 1982.
Then his luck changed, and for over 20 years he remained
undetected in Utah, where he started a trucking business
and, in 1989, fathered a son, who is a United States citi
zen. In 2001, Fernandez-Vargas married the boy’s
mother, who is also a United States citizen. She soon filed
a relative-visa petition on behalf of her husband, see 8
U. S. C. §§1154(a), 1151(b) (2000 ed.); see Fernandez-
Vargas v. Ashcroft, 394 F. 3d 881, 883, n. 4 (CA10 2005), on
the basis of which he filed an application to adjust his
status to that of lawful permanent resident, see §1255(i).
The filings apparently tipped off the authorities to his
illegal presence here, and in November 2003, the Govern
ment began proceedings under §241(a)(5) that eventuated
in reinstating Fernandez-Vargas’s 1981 deportation order,
but without the possibility of adjusting his status to lawful
residence. He was detained for 10 months before being
removed to Juarez, Mexico in September 2004.
Fernandez-Vargas petitioned the United States Court of
Appeals for the Tenth Circuit to review the reinstatement
order. He took the position that because he illegally reen
tered the country before IIRIRA’s effective date, the con
trolling reinstatement provision was the old §242(f), which
meant he was eligible to apply for adjustment of status as
spouse of a citizen, and he said that the new §241(a)(5)
would be impermissibly retroactive if it barred his applica
tion for adjustment. The Court of Appeals held that
§241(a)(5) did bar Fernandez-Vargas’s application and
followed Landgraf v. USI Film Products, 511 U. S. 244(1994), in determining that the new law had no impermissi
——————
whose removal order has been reinstated under INA §241(a)(5)).
Cite as: 548 U. S. ____ (2006) 5
Opinion of the Court
bly retroactive effect in Fernandez-Vargas’s case. 394 F. 3d,
at 886, 890–891. We granted certiorari to resolve a split
among the Courts of Appeals over the application of
§241(a)(5) to an alien who reentered illegally before
IIRIRA’s effective date,5 546 U. S. ___ (2005), and we now
affirm.
III
Statutes are disfavored as retroactive when their appli
cation “would impair rights a party possessed when he
acted, increase a party’s liability for past conduct, or im
pose new duties with respect to transactions already
completed.” Landgraf, supra, at 280. The modern law
thus follows Justice Story’s definition of a retroactive
statute, as “tak[ing] away or impair[ing] vested rights
acquired under existing laws, or creat[ing] a new obliga
tion, impos[ing] a new duty, or attach[ing] a new disabil
ity, in respect to transactions or considerations already
past,” Society for the Propagation of the Gospel v. Wheeler,
22 F. Cas. 756, 767 (No. 13,156) (CCNH 1814). Accord
ingly, it has become “a rule of general application” that “a
——————
5 Two Courts of Appeals have held that §241(a)(5) does not apply at
all to aliens who reentered before the provision’s effective date, see
Bejjani v. INS, 271 F. 3d 670 (CA6 2001); Castro-Cortez v. INS, 239
F. 3d 1037 (CA9 2001), while eight have held that it does, at least in
some circumstances, see Arevalo v. Ashcroft, 344 F. 3d 1 (CA1 2003);
Avila-Macias v. Ashcroft, 328 F. 3d 108 (CA3 2003); Velasquez-Gabriel
v. Crocetti, 263 F. 3d 102 (CA4 2001); Ojeda-Terrazas v. Ashcroft, 290
F. 3d 292 (CA5 2002); Faiz-Mohammad v. Ashcroft, 395 F. 3d 799 (CA7
2005); Alvarez-Portillo v. Ashcroft, 280 F. 3d 858 (CA8 2002); 394 F. 3d
881 (CA10 2005) (case below); Sarmiento Cisneros v. United States
Attorney General, 381 F. 3d 1277 (CA11 2004). The Courts of Appeals
in the majority are themselves divided on the question whether an
alien’s marriage or application for adjustment of status before the
statute’s effective date (facts not in play here) renders the statute
impermissibly retroactive when it is applied to the alien. See, e.g.,
Faiz-Mohammad, supra, at 809–810 (application for adjustment of
status); Alvarez-Portillo, supra, at 862, 867 (marriage).
6 FERNANDEZ-VARGAS v. GONZALES
Opinion of the Court
statute shall not be given retroactive effect unless such
construction is required by explicit language or by neces
sary implication.” United States v. St. Louis, S. F. & T. R.
Co., 270 U. S. 1, 3 (1926) (opinion for the Court by
Brandeis, J.).
This Court has worked out a sequence of analysis when
an objection is made to applying a particular statute said
to affect a vested right or to impose some burden on the
basis of an act or event preceding the statute’s enactment.
We first look to “whether Congress has expressly pre
scribed the statute’s proper reach,” Landgraf, supra, at
280, and in the absence of language as helpful as that we
try to draw a comparably firm conclusion about the tem
poral reach specifically intended by applying “our normal
rules of construction,” Lindh v. Murphy, 521 U. S. 320, 326
(1997). If that effort fails, we ask whether applying the
statute to the person objecting would have a retroactive
consequence in the disfavored sense of “affecting substan
tive rights, liabilities, or duties [on the basis of] conduct
arising before [its] enactment,” Landgraf, supra, at 278;
see also Lindh, supra, at 326. If the answer is yes, we
then apply the presumption against retroactivity by con
struing the statute as inapplicable to the event or act in
question owing to the “absen[ce of] a clear indication from
Congress that it intended such a result.” INS v. St. Cyr,
533 U. S. 289, 316 (2001); see Martin v. Hadix, 527 U. S.
343, 352 (1999) (quoting Landgraf, supra, at 280).
Fernandez-Vargas fights at each step of the way, argu
ing that Congress intended that INA §241(a)(5) would not
apply to illegal reentrants like him who returned to this
country before the provision’s effective date; and in any
event, that application of the provision to such illegal
reentrants would have an impermissibly retroactive effect,
to be avoided by applying the presumption against it. We
Cite as: 548 U. S. ____ (2006) 7
Opinion of the Court
are not persuaded by either contention.6
A
Needless to say, Congress did not complement the new
version of §241(a)(5) with any clause expressly dealing
with individuals who illegally reentered the country before
IIRIRA’s April 1, 1997, effective date, either including
them within §241(a)(5)’s ambit or excluding them from it.
Fernandez-Vargas argues instead on the basis of the
generally available interpretive rule of negative implica
tion, when he draws attention to language governing
temporal reach contained in the old reinstatement provi
sion, but missing from the current one. Section 242(f)
applied to “any alien [who] has unlawfully reentered the
United States after having previously departed or been
deported pursuant to an order of deportation, whether
before or after June 27, 1952, on any ground described in
. . . subsection (e).” 8 U. S. C. §1252(f) (1994 ed.). Accord
ing to Fernandez-Vargas, since that before-or-after clause
made it clear that the statute applied to aliens who reen
tered before the enactment date of the earlier version, its
elimination in the current iteration shows that Congress
no longer meant to cover preenactment reentrants. See
Brewster v. Gage, 280 U. S. 327, 337 (1930) (“deliberate
selection of language . . . differing from that used in the
earlier Acts” can indicate “that a change of law was in
——————
6 The Government urges us to forgo Landgraf analysis altogether
because §241(a)(5) regulates only a present removal process, not past
primary conduct, citing our recent decision in Republic of Austria v.
Altmann, 541 U. S. 677 (2004). Although we ultimately agree with the
Government, in the abstract at least, that the reinstatement provision
concerns itself with postenactment affairs, see infra, at 13–15, we find
the Government’s allusion to Altmann inapt. The Court’s conclusion in
that case, that Landgraf was to be avoided, turned on the peculiarities
of the Foreign Sovereign Immunities Act. See Altmann, supra, at 694–
696. Those peculiarities are absent here, and we thus advert to Land
graf, as we ordinarily do.
8 FERNANDEZ-VARGAS v. GONZALES
Opinion of the Court
tended”); cf. 2B N. Singer, Statutes and Statutory Construc
tion §51.04, p. 244 (6th rev. ed. 2000). But the clues are not
that simple.
To begin with, the old before-or-after clause was sand
wiched between references to departure or deportation
under a deportation order and to grounds for deportation
set out in a different subsection of the INA. It thus most
naturally referred not to the illegal reentry but to the
alien’s previous deportation or departure. If its omission
from the new subsection (a)(5) is significant, its immediate
significance goes to the date of leaving this country, not
the date of illegal return. Since the old clause referred to
the date of enactment of the INA in 1952, the negative
implication argument from dropping the language is that
the reinstatement section no longer applies to those who
left the country before that date. But, in 1996, application
keyed to departures in 1952 or earlier was academic, and
the better inference is that the clause was removed for
that reason.7
If, moreover, we indulged any suggestion that omitting
the clause showed an intent to apply §241(a)(5) only to
deportations or departures after IIRIRA’s effective date,
the result would be a very strange one: it would exempt
from the new reinstatement provision’s coverage anyone
who departed before IIRIRA’s effective date but reentered
after it. The point of the statute’s revision, however, was
obviously to expand the scope of the reinstatement author
ity and invest it with something closer to finality, and it
would make no sense to infer that Congress meant to
except the broad class of persons who had departed before
the time of enactment but who might return illegally at
some point in the future.
——————
7 We therefore need not entertain Fernandez-Vargas’s argument that
the provision’s drafting history indicates that the language was elimi
nated deliberately.
Cite as: 548 U. S. ____ (2006) 9
Opinion of the Court
Fernandez-Vargas sidesteps this problem (on a very
generous reading of his argument) by making a more
general suggestion of congressional intent: whatever the
event to which the old law was tied, activity before as well
as activity after it implicated the reinstatement power.
Since the new law is bereft of such clarity, we should
apply the “ ‘longstanding principle of construing any lin
gering ambiguities in deportation statutes in favor of the
alien,’ ” St. Cyr, 533 U. S., at 320 (quoting INS v. Car
doza-Fonseca, 480 U. S. 421, 449 (1987)), which would
effectively impose “[t]he presumption against retroactive
application of ambiguous statutory provisions,” St. Cyr,
supra, at 320. If we did so, we would find that §241(a)(5)
operates only to reentries after its effective date.
Even at this amorphously general level, however, the
argument suffers from two flaws, the first being that it
puts the cart before the horse. As Fernandez-Vargas
realizes, he urges application of the presumption against
retroactivity as a tool for interpreting the statute at the
first Landgraf step. But if that were legitimate, a statute
lacking an express provision about temporal reach would
never be construed as having a retroactive potential and
the final two steps in the Landgraf enquiry would never
occur (that is, asking whether the statute would produce a
retroactive effect, and barring any such application by
applying the presumption against retroactivity). It is not
until a statute is shown to have no firm provision about
temporal reach but to produce a retroactive effect when
straightforwardly applied that the presumption has its
work to do. See 511 U. S., at 280.
The second flaw is the argument’s failure to account for
the new statute’s other provisions on temporal reach, from
which one might draw a negative inference that subsec
tion (a)(5) was (or at least may well have been) meant to
apply to reentries before its effective date. In contrast to
their silence about the temporal sweep of §241(a)(5), the
10 FERNANDEZ-VARGAS v. GONZALES
Opinion of the Court
1996 amendments speak directly to the scope of changes
in provisions making reentry criminal and setting civil
penalties. IIRIRA §324(c), 110 Stat. 3009–629, note fol
lowing 8 U. S. C. §1326 (2000 ed.), provides that the ex
panded criminal prohibitions, see §1326(a), apply only to
reentries or attempts after the effective date, and §105(b),
110 Stat. 3009–556, note following 8 U. S. C. §1325, pro
vides the same as to civil penalties for illegal reentry, see
§1325(b). The point here is not that these provisions alone
would support an inference of intent to apply the rein
statement provision retroactively, see Lindh, 521 U. S., at
328, n. 4, for we require a clear statement for that, see
Martin, 527 U. S., at 354. But these provisions do blunt
any argument that removal of the before-or-after clause
suffices to establish the applicability of §241(a)(5) only to
posteffective date reentries. The fact is that IIRIRA some
times expressly made changes prospective as from its
effective date and sometimes expressly provided they were
applicable to earlier acts; compare §§324(c) and 105(b),
with §347(c), 110 Stat. 3009–639 (provision governing
removal of aliens who have unlawfully voted is applicable
“to voting occurring before, on, or after the date of the
enactment of this Act”), and §351(c), id., at 3009–640
(provision applicable to “waivers filed before, on, or after
the date of the enactment of this Act”). With such a vari
ety of treatment, it is just too hard to infer any clear inten
tion at any level of generality from the fact of retiring the
old before-or-after language from what is now §241(a)(5).
One conclusion can be stated, however. Common prin
ciples of statutory interpretation fail to unsettle the ap
parent application of §241(a)(5) to any reentrant present
in the country, whatever the date of return.8
——————
8 JUSTICE STEVENS states that when, in 1952, Congress inserted the
before-or-after clause with the old §242(f), it was responding to the
Immigration and Naturalization Service (INS) practice of applying the
Cite as: 548 U. S. ____ (2006)
11
Opinion of the Court
B
This facial reading is confirmed by two features of
IIRIRA, not previously discussed, that describe the con
duct to which §241(a)(5) applies, and show that the appli
cation suffers from no retroactivity in denying Fernandez-
Vargas the opportunity for adjustment of status as the
spouse of a citizen of the United States.9 One is in the text
of that provision itself, showing that it applies to Fernan
dez-Vargas today not because he reentered in 1982 or at
any other particular time, but because he chose to remain
after the new statute became effective. The second is the
provision setting IIRIRA’s effective date, §309(a), 110 Stat.
3009–625, which shows that Fernandez-Vargas had an
ample warning of the coming change in the law, but chose
——————
reinstatement provision only to deportation orders issued after the
provision’s enactment, a practice that necessarily meant INS applied
the provision only to postenactment reentries. By correcting the INS’s
interpretation only as to deportation orders, JUSTICE STEVENS suggests,
Congress did nothing to disturb the practice as to reentries. And when
it removed the obsolete before-or-after clause in 1996 without adding
alternative language of temporal reach, the argument goes, Congress
held fast to its intent in 1950 and 1952 to apply the reinstatement
provision only to postenactment reentries. But the INS’s practice circa
1951 of applying the reinstatement provision only to postenactment
reentries followed from its policy regarding deportation orders, and in
1952 Congress might just as easily have assumed that the branch
would go the way of the root. In any event, it is difficult to accept
JUSTICE STEVENS’s view that congressional understanding from 40
years back was intended to govern the IIRIRA reinstatement provision,
given Congress’s care to make the revised criminal and civil penalties
applicable only to postenactment reentries.
9 We would reach the same conclusion about denial of opportunities to
apply for permission for voluntary departure as an alternative to
removal, see 8 U. S. C. §1229c, and about cancellation of removal, see
§1229b(b), if there were a need to deal with these matters separately.
Although Fernandez-Vargas argues that he is being denied the chance
to seek these forms of relief, he never applied for either of them and has
not formally attempted to claim them in response to the reinstatement
and removal proceedings.
12 FERNANDEZ-VARGAS v. GONZALES
Opinion of the Court
to remain until the old regime expired and §241(a)(5) took
its place.
As a preface to identifying the conduct by Fernandez-
Vargas to which the reinstatement provision applies (the
conduct that results in reinstating the old deportation
order without the former opportunities to seek adjustment
of status), a look at our holding in St. Cyr, 533 U. S. 289, is
helpful. The alien, St. Cyr, was a lawful, permanent
resident who made a plea agreement and pleaded guilty to
an aggravated felony charge. Although the resulting
conviction justified his deportation, when he entered his
plea the law allowed him to seek a waiver of deportation
at the discretion of the Attorney General. Between the
plea and deportation proceedings, however, IIRIRA and
another statute repealed the provision for that discretion
ary relief, converting deportation from a possibility to a
certainty. Id., at 325. The question was whether Land
graf barred application of the new law eliminating discre
tionary relief, on the ground that applying it to a defen
dant who pleaded guilty before the enactment of the new
law would attach a further burdensome consequence to his
plea, amounting to “a new disability, in respect to transac
tions or considerations already past,” 533 U. S., at 321(internal quotation marks omitted). The answer was that
converting deportation from a likely possibility to a dead
certainty would add such a burden, and application of the
new law was accordingly barred. Id., at 325. In making
this “commonsense, functional judgment,” Martin, supra,
at 357, we emphasized that plea agreements “involve a
quid pro quo between a criminal defendant and the gov
ernment,” St. Cyr, 533 U. S., at 321, in which a waiver of
“constitutional rights (including the right to a trial),” had
been exchanged for a “perceived benefit,” id., at 322, which
in practical terms was valued in light of the possible dis
cretionary relief, a focus of expectation and reliance, id., at
323.
Cite as: 548 U. S. ____ (2006) 13
Opinion of the Court
St. Cyr’s agreement for a quid pro quo and his plea were
entirely past, and there was no question of undoing them,
but the “transactio[n] or consideratio[n]” on which
§241(a)(5) turns is different.10 While the law looks back to
a past act in its application to “an alien [who] has reen
tered . . . illegally,” 8 U. S. C. §1231(a)(5), the provision
does not penalize an alien for the reentry (criminal and
civil penalties do that); it establishes a process to remove
him “under the prior order at any time after the reentry.”
Ibid. Thus, it is the conduct of remaining in the country
after entry that is the predicate action; the statute applies
to stop an indefinitely continuing violation that the alien
himself could end at any time by voluntarily leaving the
country. It is therefore the alien’s choice to continue his
illegal presence, after illegal reentry and after the effective
date of the new law, that subjects him to the new and less
generous legal regime, not a past act that he is helpless to
undo up to the moment the Government finds him out.
That in itself is enough to explain that Fernandez-
Vargas has no retroactivity claim based on a new disabil
——————
10 We understand Fernandez-Vargas’s claim as falling within the
second of Justice Story’s categories of retroactivity (new consequences
of past acts), not the first category of canceling vested rights. The
forms of relief identified by Fernandez-Vargas as rendered unavailable
to him by §241(a)(5) include cancellation of removal, see 8 U. S. C.
§1229b(b), adjustment of status, see §1255, and voluntary departure,
see §1229c. These putative claims to relief are not “vested rights,” a
term that describes something more substantial than inchoate expecta
tions and unrealized opportunities. In contrast to “an immediate fixed
right of present or future enjoyment,” Pearsall v. Great Northern R. Co.,
161 U. S. 646, 673 (1896) (internal quotation marks omitted), Fernandez-
Vargas’s claim to such relief was contingent, and it was up to him to take
some action that would elevate it above the level of hope. It is not that
these forms of relief are discretionary, cf. St. Cyr, 533 U. S., at 325; it is
rather that before IIRIRA’s effective date Fernandez-Vargas never availed
himself of them or took action that enhanced their significance to him in
particular, as St. Cyr did in making his quid pro quo agreement, see
supra, at 11–12.
14 FERNANDEZ-VARGAS v. GONZALES
Opinion of the Court
ity consequent to a completed act, but in fact his position
is weaker still. For Fernandez-Vargas could not only have
chosen to end his continuing violation and his exposure to
the less favorable law, he even had an ample warning that
the new law could be applied to him and ample opportu
nity to avoid that very possibility by leaving the country
and ending his violation in the period between enactment
of §241(a)(5) and its effective date. IRRIRA became law on
September 30, 1996, but it became effective and enforce
able only on “the first day of the first month beginning
more than 180 days after” IIRIRA’s enactment, that is,
April 1, 1997. §309(a), 110 Stat. 3009–625. Unlawful
alien reentrants like Fernandez-Vargas thus had the
advantage of a grace period between the unequivocal
warning that a tougher removal regime lay ahead and
actual imposition of the less opportune terms of the new
law. In that stretch of six months, Fernandez-Vargas
could have ended his illegal presence and potential expo
sure to the coming law by crossing back into Mexico.11 For
——————
11 In a series of letters submitted to the Court after oral argument,
the parties dispute the consequences if Fernandez-Vargas had left
voluntarily after IIRIRA’s enactment and, specifically, the period of
inadmissibility to which Fernandez-Vargas would thereupon have been
subject. Because we conclude that §241(a)(5) does not operate on a
completed pre-enactment act, we need not consider the retroactive
implications either of the fact of his inadmissibility or of any variance
between the period of inadmissibility upon a postenactment voluntary
return and that prescribed under the old regime. The period of inad
missibility stems from an alien’s illegal reentry within a specified time
after a prior removal and is applicable to Fernandez-Vargas because he
reentered shortly after his 1981 deportation, but Fernandez-Vargas
does not challenge as impermissibly retroactive IIRIRA’s lengthening of
that period from 5 to 10 or 20 years, see 8 U. S. C. §1182(a)(6)(B) (1994
ed.); §1182(a)(9)(A)(ii) (2000 ed.).
In any event, any period of inadmissibility is subject to waiver by the
Attorney General, see §1182(a)(6)(B) (1994 ed.); §1182(a)(9)(A)(iii)
(2000 ed.), and presumably Fernandez-Vargas could plead his serious
case for such a waiver (his marriage, his child) in seeking legal reentry
Cite as: 548 U. S. ____ (2006) 15
Opinion of the Court
that matter, he could have married the mother of his son
and applied for adjustment of status during that period, in
which case he would at least have had a claim (about
which we express no opinion) that proven reliance on the
old law should be honored by applying the presumption
against retroactivity.12
Fernandez-Vargas did not, however, take advantage of
the statutory warning, but augmented his past 15 years of
unlawful presence by remaining in the country into the
future subject to the new law, whose applicability thus
turned not on the completed act of reentry, but on a failure
to take timely action that would have avoided application
of the new law altogether. To be sure, a choice to avoid
the new law before its effective date or to end the continu
ing violation thereafter would have come at a high per
sonal price, for Fernandez-Vargas would have had to leave
a business and a family he had established during his
illegal residence. But the branch of retroactivity law that
concerns us here is meant to avoid new burdens imposed
on completed acts, not all difficult choices occasioned by
new law. What Fernandez-Vargas complains of is the
application of new law to continuously illegal action within
his control both before and after the new law took effect. He
claims a right to continue illegal conduct indefinitely under
the terms on which it began, an entitlement of legal stasis
for those whose lawbreaking is continuous. But “[i]f every
time a man relied on existing law in arranging his affairs,
he were made secure against any change in legal rules, the
whole body of our law would be ossified forever.” L. Fuller,
The Morality of Law 60 (1964) (quoted in Landgraf, 511
U. S., at 269, n. 24).13
——————
to the United States.
12 See 394 F. 3d, at 890, and n. 11 (distinguishing Fernandez-Vargas’s
circumstance from that of aliens who had married, or both married and
applied for adjustment of status, before IIRIRA’s effective date).
13 This is the nub of our disagreement with JUSTICE STEVENS. He says
16 FERNANDEZ-VARGAS v. GONZALES
Opinion of the Court
Because we conclude that §241(a)(5) has no retroactive
effect when applied to aliens like Fernandez-Vargas, we
affirm the judgment of the Court of Appeals.
It is so ordered.
——————
it misses the point to say that Fernandez-Vargas could avoid the new
law by returning to Mexico, which he thinks is like saying that a
defendant could avoid a retroactive criminal penalty by locking himself
up for 10 years, post, at 5, n. 2. JUSTICE STEVENS thus argues that
reimposing an order of removal to end illegal residence is like imposing
a penalty for a completed act (the defendant’s unspecified act in his
analogy). But even on his own analysis, Fernandez-Vargas continued
to violate the law by remaining in this country day after day, and
JUSTICE STEVENS does not deny that the United States was entitled to
bring that continuing violation to an end. He says, however, that
Congress should not be understood to provide that if the violation
continues into the future it may be ended on terms less favorable than
those at the beginning. But this is not the position that retroactivity
doctrine imputes to an inexplicit Congress. Fernandez-Vargas may
have an equitable argument that the Government should not, for the
future, eliminate an opportunity for continuing illegality accompanied
by the hopes that long illegal residence and a prospect of marriage gave
him in the past. But Congress apparently did not accept such an
argument, which could prevail here only if the presumption against
retroactivity amounted to a presumption of legal stasis for the benefit
of continuous lawbreakers.
Cite as: 548 U. S. ____ (2006) 1
STEVENS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 04–1376
_________________
HUMBERTO FERNANDEZ-VARGAS, PETITIONER v.
ALBERTO R. GONZALES, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[June 22, 2006]
JUSTICE STEVENS, dissenting.
In 1982, petitioner Humberto Fernandez-Vargas, an
alien who had previously been deported, reentered the
United States illegally. Over the next 20 years, petitioner
remained here. He worked as a truckdriver, owned a
trucking business, fathered a child, and eventually mar
ried the child’s mother, a United States citizen. The laws
in place at the time of petitioner’s entry and for the first
15 years of his residence in this country would have re
warded this behavior, allowing him to seek discretionary
relief from deportation on the basis of his continued pres
ence in and strong ties to the United States. See 8 U. S. C.
§1254(a)(1) (1994 ed.).
In 1996, however, Congress passed a new version of the
applicable provision eliminating almost entirely the possi
bility of relief from deportation for aliens who reenter the
country illegally having previously been deported. See
Illegal Immigration Reform and Immigration Responsibil
ity Act (IIRIRA), §305(a)(3), 110 Stat. 3009–599, 8 U. S. C.
§1231(a)(5) (2000 ed.); see also ante, at 3, n. 4. The 1996
provision is silent as to whether it was intended to apply
retroactively to conduct that predated its enactment.1
——————
1 The statutory provisions expanding the class of people to whom
criminal penalties for illegal reentry might apply, however, explicitly
2 FERNANDEZ-VARGAS v. GONZALES
STEVENS, J., dissenting
Despite a historical practice supporting petitioner’s read
ing, and despite the harsh consequences that attend its
application to thousands of individuals who, like peti
tioner, entered the country illegally before 1997, the Court
not only holds that the statute applies to preenactment
reentries but also that it has no retroactive effect. I dis
agree with both of these conclusions.
I
In 1950, when Congress first gave the Attorney General
the authority to reinstate an order of deportation, it en
acted a reinstatement provision containing no explicit
temporal reach.2 See Internal Security Act, §23(d), 64
Stat. 1012, 8 U. S. C. §156(d) (1946 ed., Supp. V). The
natural reading of this provision, the one most consistent
with the “deeply rooted” traditional presumption against
retroactivity, Landgraf v. USI Film Products, 511 U. S.
244, 265 (1994), is that it would apply to deportations that
occurred before the provision’s enactment but not to
preenactment reentries. While both deportation and
reentry can constitute “events completed before [the provi
sion’s] enactment,” id., at 270, an alien’s reentry is the act
that triggers the provision’s operation and is therefore the
act to which the provision attaches legal consequences.
When the Immigration and Naturalization Service (INS)
promulgated regulations implementing the 1950 statute,
however, it did not read the statute so naturally. Instead,
the INS’ regulations, embodying an overly strong version
——————
apply only to postenactment reentries. See IIRIRA, §324(c), 110 Stat.
3009–629, note following 8 U. S. C. §1326.
2 The provision stated:
“Should any alien subject to the provisions of subsection (c) unlawfully
return to the United States after having been released for departure or
deported pursuant to this section, the previous war-rant of deportation
against him shall be considered as reinstated from its original date of
issuance.” 64 Stat. 1012, codified as 8 U. S. C. §156(d) (1946 ed., Supp.
V).
Cite as: 548 U. S. ____ (2006) 3
STEVENS, J., dissenting
of the presumption against retroactivity, provided that an
order of deportation could only be reinstated if that depor
tation occurred after the statute’s enactment date. See 8
CFR §152.5 (1950 Cum. Supp.). Thus, the INS read the
reinstatement provision as inapplicable even to reentries
that occurred after the statute’s enactment date if the
underlying deportation had been entered before that date;
it follows a fortiori that the provision was considered
inapplicable to reentries that occurred before the statute’s
enactment.
Congress corrected the INS’ error two years later by
adding the clause “whether before or after the date of
enactment of this Act.” Immigration and Nationality Act,
§242(f), 66 Stat. 212, 8 U. S. C. §1252(f) (1994 ed.); see also
ante, at 2, and nn. 2–3. As the Court correctly notes, that
amendment “most naturally referred not to the illegal
reentry but to the alien’s previous deportation or depar
ture.” Ante, at 8. The best interpretation of Congress’
intent with regard to the 1952 statute, then, was that it
meant to apply the reinstatement provision to preenact
ment deportations but to preserve the status quo with
regard to preenactment reentries: In accordance with the
traditional presumption against retroactivity, preenact
ment reentries would remain uncovered by the reinstate
ment provision.
In 1996, when Congress enacted the current reinstate
ment provision, it drafted a version of the statute that,
like its 1950 predecessor, was silent as to its temporal
reach. See 8 U. S. C. §1231(a)(5) (2000 ed.). If we assume
(as the Court does) that the addition of the “before-or
after” clause in the 1952 statute merely clarified Congress’
original intent in 1950 to make the provision applicable to
preenactment departures without authorizing any appli
cation to preenactment reentries, it is reasonable to at
tribute precisely the same intent to the Congress that
enacted the 1996 statute: As in the 1950 and 1952 ver
4 FERNANDEZ-VARGAS v. GONZALES
STEVENS, J., dissenting
sions of the provision, Congress intended the 1996 rein
statement provision to apply to preenactment deportations
but not to preenactment reentries.
In sum, our normal rules of construction support the
reasonable presumption that Congress intended the provi
sion to cover only postenactment reentries. Accordingly,
the 1996 reinstatement provision should not be construed
to apply to petitioner’s earlier entry into the United
States.
II
The Court not only fails to give the 1996 Act its most
normal interpretation, but also erroneously concludes that
the provision does not have any retroactive effect. The
Court reaches this conclusion based on its judgment that
the provision applies not to conduct that occurred before
the statute’s enactment date, but rather to “an indefinitely
continuing violation that the alien himself could end at
any time by voluntarily leaving the country.” Ante, at 13.
This reasoning is unpersuasive.
It is true, of course, that the order of deportation en
tered against petitioner in 1981 could not be reinstated
unless he was present in the United States, and that, until
he was arrested in 2003, petitioner could have chosen to
leave the United States. But it is precisely petitioner’s
“continuing violation” that allowed him to be eligible for
relief from deportation in the first place: He was required
to have been physically present in the United States for a
period of not less than seven years, to have been a person
of good moral character during that time, and to have
developed ties to the United States such that his deporta
tion would result in extreme hardship to himself or to his
United States citizen wife or child.3 See 8 U. S. C.
——————
3 Although petitioner became eligible for relief from deportation after
being physically present in the United States for seven years, he could
not apply for that relief until the Government placed him in deporta
Cite as: 548 U. S. ____ (2006) 5
STEVENS, J., dissenting
§1254(a)(1) (1994 ed.); see also INS v. Phinpathya, 464
U. S. 183 (1984) (strictly construing physical presence
requirement). Moreover, under the pre-1996 version of
the reinstatement provision, the longer petitioner re
mained in the United States the more likely he was to be
granted relief from deportation. See Matter of Ige, 20 I.
& N. Dec. 880, 882 (1994) (listing factors considered in
evaluating extreme hardship requirement, including
alien’s length of residence in United States, family in
United States, business or occupation, and position in
community).
Given these incentives, petitioner legitimately com
plains that the Government has changed the rules
midgame. At the time of his entry, and for the next 15
years, it inured to petitioner’s benefit for him to remain in
the United States continuously, to build a business, and to
start a family. After April 1, 1997, the date on which the
applicable reinstatement provision became effective, all of
these activities were rendered irrelevant in the eyes of the
law. Only the Court’s unfortunately formalistic search for
a single “past act that [petitioner] is helpless to undo,”
ante, at 13, allows it to conclude that the provision at issue
has no retroactive effect.4 For regardless of whether his
——————
tion proceedings, at which point he could raise his eligibility as an
affirmative defense. Cf. Hughes Aircraft Co. v. United States ex rel.
Schumer, 520 U. S. 939, 951–952 (1997) (applying presumption against
retroactivity to statute eliminating affirmative defense).
4 Even on its own terms the Court’s logic is troubling. The Court
believes that petitioner could have avoided being affected by the 1996
reinstatement provision, not just retroactively but in any way whatso
ever, by leaving the country prior to its effective date—a date that
occurred six months after the statute’s enactment date not to give
aliens “ample warning,” ante, at 11, 13, but instead to allow the Attor
ney General to prepare for the substantial changes caused by the
IIRIRA and to promulgate regulations to effectuate that Act. See §309,
110 Stat. 3009–625. But had petitioner “take[n] advantage of the
statutory warning,” ante, at 15, he would have imposed upon himself
6 FERNANDEZ-VARGAS v. GONZALES
STEVENS, J., dissenting
1982 reentry was or was not an act that he could now
“undo,” it is certainly an act to which the 1996 reinstate
ment provision has attached serious adverse conse
quences. Because the provision has an undeniably harsh
retroactive effect, “absent a clear indication from Congress
that it intended such a result,” INS v. St. Cyr, 533 U. S.
289, 316 (2001), we should apply the presumption against
retroactivity and hold that the 1996 reinstatement provi
sion does not apply to petitioner.
Accordingly, I respectfully dissent.
——————
the very same punishment—the guarantee of removal to Mexico—that
he hopes to avoid. Just as we would not say that a defendant may
avoid the retroactive application of a criminal statute by locking him
self up for 10 years, it cannot be that petitioner’s ability to leave the
country of his own accord somehow helps to prove that the provision at
issue has no retroactive effect.