- The Washington Times - Thursday, June 22, 2006

The Supreme Court yesterday upheld the deportation of an illegal alien who lived here for more than 20 years, started a business, married a U.S. citizen and fathered a child — delivering what immigration specialists said was a setback to other longtime illegal residents who might seek legal status.

Justice David H. Souter, in the 8-1 majority ruling, said Humberto Fernandez-Vargas, a Mexican national who first entered the United States illegally in the 1970s, sought to bypass a 1996 federal immigration statute by claiming a right under earlier law to continue staying here indefinitely.

“If 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,” Justice Souter said.

The high court’s lone dissenter was Justice John Paul Stevens, who said the majority had erroneously interpreted the 1996 law in justifying Fernandez-Vargas’ 1981 deportation.

Immigration specialists yesterday were not certain how the decision will affect illegal aliens now in the country who find themselves in a similar situation, but agreed that thousands could be affected.

Justice Souter said Fernandez-Vargas, an Ogden, Utah, businessman, was subject to provisions of the Illegal Immigration Reform and Immigrant Responsibility Act passed by Congress in 1996, mandating the deportation of illegal aliens who unlawfully re-enter the country after having departed or been deported.

Fernandez-Vargas was deported for immigration law violations on several occasions. His last illegal entry was in 1982.

“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 citizen,” Justice Souter said. “In 2001, Fernandez-Vargas married the boy’s mother, who is also a United States citizen.”

Justice Souter said that when the wife filed a relative-visa petition to adjust her husband’s status to lawful permanent resident, federal authorities began an investigation that resulted in a November 2003 order to reinstate a 1981 deportation order. Fernandez-Vargas was held for 10 months before being removed to Juarez, Mexico, in September 2004.

Mike Hethmon, general counsel for the Immigration Reform Law Institute, said the ruling gave a “long-needed sense of finality” to the question of removal, determining that “final orders of removal are final.” He said it would be difficult to estimate how many illegals now in the United States would be affected by the ruling, but noted, “It probably is more pervasive than most people would expect.”

David Leopold, a Cleveland immigration attorney and executive officer of the American Immigration Lawyers Association, said the ruling ended a disparity among several courts that had issued opposing views on the matter. He said many people entered the United States illegally before the 1996 law, but he did not know how many would be affected by the decision.

“I would guess that it would be in the thousands and thousands,” he said.

Justice Stevens said Fernandez-Vargas was qualified for discretionary relief under pre-1996 rules, in that 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 deportation would result in extreme hardship to himself or to his United States citizen wife or child.”

But the justice said the government “changed the rules midgame.”

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