Vartelas v. Holder

Whether INA § 101(a)(13)(C)(v) can be enforced against lawful permanent residents who, prior to the passage of IIRIRA in 1997, pleaded guilty to an offense identified in INA § 212(a)(2), 8 U.S.C section 1182(a)(2).

Petitioner Vartelas is a citizen of Greece and a lawful permanent resident of the United States. In 1997 Congress passed IIRIRA, including INA § 101(a)(13)(C)(v), which barred admission to lawful permanent residents upon their return from a trip to a foreign country if they had committed an offense in violation of INA § 212(a)(2). In 1994, prior to the passage of IRRIRA, Petitioner pleaded guilty to the charge of conspiring to make or possess a counterfeit security in violation of 18 U.S.C. § 371. In 2003 Petitioner was denied admission to the United States upon his return from a trip to Greece. The Second Circuit found that the crime to which Petitioner pleaded guilty was an offense included within INA § 212(a)(2), and reviewed the issue of whether INA § 101(a)(13)(C)(v) applies to pre-IRRIRA guilty pleas de novo.

The Second Circuit noted that Congress chooses sometimes that the commission of a crime, and at other times that the conviction of a crime, will determine how an immigration law will apply. The Second Circuit previously has held that an alien cannot reasonably rely on immigration laws when deciding whether to commit a crime. The Second Circuit found that INA § 101(a)(13)(C)(v) turns on whether the lawful permanent alien has committed an offense and that therefore the fact of commission, and not Vartelas’s's plea and resulting conviction, prevented Petitioner’s admission to the United States. The Second Circuit held that denying Petitioner’s admission into the United States on the basis of INA § 101(a)(13)(C)(v) was not impermissibly retroactive.

Petitioner argues on appeal that 1) Congress did not intend the statute to apply retroactively; 2) that retroactive application of the statute would impose a “substantial new disability and penalty” on aliens who had committed offenses prior to IRRIRA’s passage; and 3) retroactive application would undermine lawful permanent residents’ reasonable reliance on the pre-IRRIRA right to travel when deciding whether to enter a guilty plea.