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39 Preview U.S. Sup. Ct. Cas. 175 (2011-2012)
Right to Reenter - Retroactively Applying a Law against a Lawful Permanent Resident for a Prior Criminal Offense, The (10-1211)

handle is hein.journals/prvw39 and id is 187 raw text is: 

     The Right to Reenter-Retroactively Applying a Law Against
       a Lawful Permanent Resident for a Prior Criminal Offense

The United States Supreme Court will review whether a law that takes away a lawful permanent resident's
right to reenter the country can be applied retroactively. The law in question states that an alien can be
denied entry into the United States if the alien has committed an offense of so-called moral turpitude. In
this case, the petitioner is fighting to stay in the United States after being denied reentry following a 2003
trip to Greece. In 1994, he pled guilty after playing a small part in a counterfeiting scheme. The petitioner
claims that the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which came into effect
in 1997, cannot be applied retroactively to his 1994 guilty plea.

          Vartelas v. Holder
        Docket No. 10-1211

Argument Date: January 18, 2012
     From: The Second Circuit

            by Andrew Clark
Suffolk University Law School, Boston, MA

Can 8 U.S.C. § 1101(a)(13)(C)(v), which denies a lawful permanent
resident to have the right to make innocent, casual, and brief' trips
across international borders without the threat of being denied entry
back into the United States under Rosenberg v. Fleuti, 374 U.S. 449
(1963), be applied retroactively to a guilty plea made before the Illegal
Immigration Reform and Immigrant Responsibility Act (1996) came
into effect?

Since 1979, Panagis Vartelas has lived in the United States. In 1989,
Vartelas was admitted as a legal permanent resident following his
marriage to a U.S. citizen. Three years later, he took part in a scheme
to manufacture and sell $50,000 worth of counterfeit traveler's
checks. His partner, a coworker, made the counterfeit checks and
Vartelas contributed by providing the paper the checks were printed
on. Ultimately, Vartelas did not make any money from the scheme. In
1994, he pleaded guilty to conspiracy to make or possess counterfeit
securities and subsequently served four months in prison. Nearly a
decade later, in 2003, Vartelas went to Greece for seven days to see
his family. When Vartelas attempted to return to the United States,
he was denied entry under 8 U.S.C. § 1182 (a) (2) (A) (i) (I), as he was
considered an inadmissible alien due to his 1994 conviction.

Vartelas appeared before an immigration judge and acknowledged
that he was removable. However, Vartelas sought a waiver. His ap-
plication for waiver was denied for a number of reasons, including his
penchant for taking lengthy trips to Greece. He was then ordered by
the immigration judge to be removed to Greece. Vartelas filed a

motion to reopen his proceedings in 2008 with the Board of Immigra-
tion Appeals (BIA) on the basis that he received ineffective counsel
from his attorney. His motion was denied.

Vartelas next sought judicial review of the BIA's denial. The Second
Circuit denied his petition for review, as they found he did not meet
the standards to show he was prejudiced by ineffective counsel. Ad-
ditionally, the court found that his counterfeiting conviction made
him eligible for removal. The court next considered the retroactive
applicability of the amended definition of admission in the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA). The
court held that although Congress had not dealt with the reach of the
IIRIRA in regards to time, Vartelas could not claim he made a reason-
able reliance on the former version of the law when he originally de-
cided to plead guilty, and moreover, that the act didn't have a genu-
inely retroactive effect. Ultimately, the court stated that the BIA
reasonably interpreted IIRIRA as superseding the Fleuti doctrine.

Following the Second Court's decision, Vartelas filed a petition for a
writ of certiorari with the Supreme Court on April 4, 2011. The peti-
tion was granted on September 27, 2011.

At issue in this case is an amendment to 8 U.S.C. § 1101 (a)(13)(C)
(v) through the IIRIRA which caused a repeal of 8 U.S.C. § 1101(a)
(13). The new language stated: An alien lawfully admitted for perma-
nent residence in the United States shall not be regarded as seeking
an admission into the United States for the purpose of the immigra-
tion laws unless the alien, (v) has committed an offense identified in
section 212(a)(2), unless since offense the alien has been granted

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