- The Washington Times - Wednesday, March 22, 2006


In a case that could determine how the United States deals with longtime illegal aliens, Supreme Court justices yesterday considered whether a deported Mexican should be allowed to join his family in Utah.

Humberto Fernandez-Vargas first came to the United States from Mexico in the 1970s and lived steadily in the country since 1982 after being deported several times. He married a U.S. citizen, fathered a child and started a trucking company.

After he applied for legal status in 2001, he was deported under a 1996 law that revoked the right to an appeal before an immigration judge. He was barred from applying for legal residency or even from seeking relief.

At issue is whether the law should have applied to Mr. Fernandez-Vargas at all because he last entered the United States more than a decade before the statute was enacted.

Sri Srinivasan, assistant to the solicitor general, argued for the government that the law took effect when Mr. Fernandez-Vargas was deported the last time. Also, Congress was clear that it should apply to those who entered the United States before the statute was passed.

Mr. Fernandez-Vargas’ attorney, David Gossett, told the justices that by applying a law that was not in place when Fernandez-Vargas last entered the country, the government retroactively created a punishment.

Justice Antonin Scalia and Chief Justice John G. Roberts Jr. asked why any illegal alien who had been deported would think they had a right to appeal.

“Why wouldn’t [the alien] think … ‘whatever rules they have for kicking me out would apply?’” Justice Scalia asked.

Mr. Gossett answered, “In 1982, my client reasonably expected Congress wouldn’t categorically take away from him the right to give him a route to stay.”

The lower courts have divided over whether the statute is retroactive. The 6th U.S. Circuit Court of Appeals and the 9th Circuit have said the law should apply only to residents who re-entered the country after the law became effective.

Others courts, including the 10th Circuit, which decided Mr. Fernandez-Vargas’ case, follow the government’s argument.

Immigration lawyers and advocacy groups are watching the case closely. The issue is particularly sensitive as Congress is debating whether to again change laws applying to the estimated 12 million illegal aliens living in the United States.

The court’s decision has widespread implications for those residents, hundreds of thousands of whom may be in the same position as Mr. Fernandez-Vargas.

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