By Gary Endelman
My guru on the law of removal, the learned Salvador Colon of Houston, is worried. Why you ask? It is because he wonders if the Fifth Circuit decision in Martinez v. Mukasey can survive a future Supreme Court ruling in Vartelas v Holder. Now, this may seem very much like inside baseball trivia to the uninitiated but it actually can have real life consequences. Permit me to explain.
In my last blog, I discussed Vartelas v Holder, 620 F. 3d 108 (2d Cir. 2010), cert. granted sept. 27, 2011 (No. 10-1211). Here, an LPR had plead guilty in 1994 to the crime of possessing or making bogus securities. At that time, IIRIRA was not yet a gleam in the eye of the most fervent nativist. Why is this relevant? Look at INA 101(a)(13)(C)(v) that renders a returning LPR an applicant for admission if he or she has committed a crime involving moral turpitude that is not a petty offense. Even though the incident in question took place under a different legal regime, the BIA and the Second Circuit both held that the applicaitn of the post-IIRIRA admission standard was not impermissibly retroactive. This was in conflict with the contrary conclusions on this same question reached by the Ninth Circuit in Camins v. Gonzales, 500 F. 3d 872(9th Cir. 2007) and the Fourth Circuit in Olatunji v. Ashcroft, 387 F. ed 3838(4th Cir. 2004). Perhaps, given this conflict among the circuits, the Supreme Court granted certiorari to determine whether the current INA 101(a)(13)(C)(v) can be applied retroactively.
Doubtless, the conceptual framework that will govern such constitutional exegesis is the traditional two-step approach articulated in Landgraf v. USI Film Products, 511 U.S. 244 (1984). Since Congress did not expressly instruct on how far back IIRIRA can go, we move to the second prong announced by the High Court at page 277 of Landgraf, namely whether giving retrospective effect to INA 101 (a)(13)(C)(v) will contradict basic notions of proper notice and upset “settled expectations” on which the actor ”reasonably relied.” Interestingly, IIRIRA’s temporal reach cannot be circumscribed simply because “it is applied in a case arising from conduct antedating the statute’s enactment or upsets expectations based in prior law.” Landgraf, 511 US at 269. When in doubt, retroactivity is disfavored. The Supreme Court got it right: ” Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.” Landgraf, 511 US at 265,
All of the above brings us, and brought sensei Chava Colon, to consider what might be the fate of the Fifth Circuit’s enlightend ruling in Martinez v. Mukasey, 519 US F.3d 532(5t Cir. 2008) . This case held that the bar against INA 212(h) waivers for permanent residents who have committed aggravated felonies or have resided in the USA less than 7 years does not apply to one who adjusted status within the USA rather than having entered on an immigrant visa after consular processing. A cogent and incisive analysis of this case was offered by my learned colleague David Isaacson in this same space (http://www.ilw.com/articles/2008,0930-isaacson.shtm). Now, Chava Colon had the inspired thought that a Supreme Court affirmation of IIRIRA retroactivity in Vartelas v Holder might undermine the distinction between adjustment of status and admission on which Martinez v. Mukasey rests. Once the Supemes start tinkering with the notion of “admission”, there is no way to predict where they or we will end up. Any Supreme Court pronouncement in Vartelas could well conflate the two ways of becoming an LPR that the Fifth Circuit in Martinez v. Mukasey was so careful to keep separate and apart.
So, a decision how far back the IIRIRA notion of “admission” goes could wind up leaving an alien who needs 212(h) relief with no hope. When, to borrow a happy phrase from Einstein, the Supreme Court starts to play dice with the universe, mere mortals can only hope that the last laugh will not be on them or their clients.
