Thread: Supreme Court hears deportation case

http://www.cleveland.com/newsflash/poli ... washington

Supreme Court hears deportation case
3/22/2006, 4:46 p.m. ET
By JENNIFER TALHELM
The Associated Press

WASHINGTON (AP) — In a case that could determine how the U.S. deals with longtime illegal residents, Supreme Court justices considered Wednesday whether a deported Mexican man should be allowed to join his family in Utah.

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

But 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 Fernandez-Vargas at all because he last entered the U.S. 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 Fernandez-Vargas was deported the last time. Also, Congress was clear that it should apply to immigrants who entered the U.S. before the statute was passed.

But Fernandez-Vargas's lawyer, 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 Roberts asked why any illegal immigrant who had been deported would think they had a right to appeal.

"Why wouldn't (the immigrant) think ... 'whatever rules they have for kicking me out would apply?'" Scalia asked.

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 only should apply to residents who re-entered the country after the law became effective.

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

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

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

The case is Fernandez-Vargas v. Gonzales, 04-1376.

I think he should move his trucking company along with himself back to Mexico.

http://www.sltrib.com/utah/ci_3630484

Deportee given cool reception by justices
Is retroactive law unfair? Court appears skeptical
By Thomas Burr
The Salt Lake Tribune
Salt Lake Tribune

WASHINGTON - The U.S. Supreme Court on Wednesday seemed skeptical of a last-chance appeal by a business owner deported to Mexico trying to return and live with his family in Utah.

Justices peppered the attorney for Humberto Fernandez-Vargas with questions about his case, arguing that a 1996 law should not apply to the Mexican native, who was arrested and deported when he sought a green card after marrying a U.S. citizen. Chief Justice John Roberts said part of the case was a "stretch," and Justice Anthony Kennedy said Fernandez-Vargas' "argument is a difficult one."

Justice Antonin Scalia was even more blunt, asking why an illegal immigrant would not think he would be subject to deportation. "That would be my expectation," Scalia said. "[That] I shouldn't be here and whatever rules they have for kicking me out would apply."

The case Ð which could affect hundreds of thousands of immigrants and their families Ð centers on whether the government can retroactively apply a 1996 law to deportation orders issued before its enactment.

Fernandez-Vargas, 53, who now resides in Mexico while his family remains in Ogden, had entered the United States several times illegally, the last time in 1982, but was seeking legal status when he was arrested in 2003 for violating a previous deportation order. His wife, Rita, and son, Anthony, who were at the hearing Wednesday, still live in Ogden, where Fernandez-Vargas used to own a trucking company.

His attorney, David Gossett, argued it was unfair, and against Congress' intent, to deport someone for a crime committed 20 years previously and before the law was changed.

Gossett said after Wednesday's hearing that he felt it "went pretty well" and he is "cautiously optimistic" Fernandez-Vargas will prevail. "It's hard to read" the justices, however, Gossett said.

Sri Srinivasan, an assistant solicitor general who defended the government's decision, argued during the hearing that Congress was clear in wanting the law to apply to Fernandez-Vargas and other immigrants who violated a deportation order. "Congress did not intend to exempt those already in the country," Srinivasan said.

Scalia appeared unsympathetic to Fernandez-Vargas' arguments and said it didn't appear that the law was being applied retroactively, but prospectively since Fernandez-Vargas was still breaking the law when arrested Ð he was in the United States despite a deportation order from 1982.

"I don't see how you can call this law retroactive," Scalia said. Eight of the nine justices questioned Gossett and Srinivasan. Justice Clarence Thomas stayed silent through the one-hour hearing, often gazing at the ceiling, while Scalia often leaned far back in his black leather chair, almost out of sight.

But as the most vocal justice in the hearing, Scalia said it seemed clear Congress intended to make the law apply to people like Fernandez-Vargas. "You really think Congress wanted to keep faith with people who have already been deported once?" he asked. "I find that a - how do I say this - a very touching attitude for Congress to have."

The audience laughed. Then he referred to deported immigrants who return to the United States as "two-time losers," implying they should have learned the consequence of their actions the first time.

Justice Stephen Breyer wondered if there were a way for Fernandez-Vargas to have obtained legal status, which he could have done, his attorney said, if he returned to Mexico in 1996 and waited five years. Even a "saint" would have to wait, apparently, Breyer said.

"That's a pretty harsh penalty to be separated from your family, or have your family move to a foreign country," Breyer said, especially for "old and unchangeable behavior."

The high court's decision - expected later this year - could have wide implications for those people in the United States illegally who have standing deportation orders, though the current rule has been applied by the government since 1996.

And with Congress debating more reform to immigration laws, observers say the court opinion in this case could impact the nation's future policy.
tburr@sltrib.com

http://deseretnews.com/dn/view/0,1249,635193806,00.html

Deseret Morning News, Thursday, March 23, 2006

Justices weighing deportation case

Ex-Ogden man is hoping to rejoin his wife, son

By Dennis Romboy
Deseret Morning News

WASHINGTON — An Ogden man who was deported more than two years ago had his day at the U.S. Supreme Court Wednesday.

Though Humberto "Bert" Fernandez-Vargas was thousands of miles away in Mexico, his lawyer argued the merits of a law that could impact thousands of longtime illegal immigrants seeking to stay in the United States.

"They asked tough questions, but I think we had good answers for them," attorney David Gossett said. "It's hard to know what the court will do, but I'm cautiously optimistic."

Justices will decide whether a provision in a 1997 federal law that tightened restrictions in illegal immigration applies to people who were already in the United States when it took effect. A ruling is expected by the end of June.

The law says that deported people who return to the country without documentation have no right to become lawful, permanent residents or citizens, regardless of how long they've been in the country or whether they are married to American citizens.

Gossett argued that it doesn't make sense to apply the law retroactively because it means Fernandez-Vargas and other established immigrants cannot become legal residents.

The toughest questions came from Justice Antonin Scalia, who at one point referred to people like Fernandez-Vargas, who retuned after being deported more than once, as "two-time losers." Fernandez-Vargas' wife, Rita, and 16-year-old son, Anthony, made the trip from Utah to attend the hourlong hearing. She said it was tough to listen to Scalia's stinging words.

"I wish they would have let us speak as a family so they would know what we've gone through," she said.

Fernandez, who lives in a tiny house near I-15 in west Ogden, sold her furniture and other possessions to make ends meet. She and her son have also gone without food at times. A family friend paid her way to Washington. She's working to pay him back.

"What about me? What about us? What about our family? Do we leave the United States and live in Mexico, a country we don't know?" a teary-eyed Fernandez said on the Supreme Court steps after the hearing.

"I don't lose hope or faith; I just pray every day that we'll make it."

Fernandez-Vargas, who was featured in a Deseret Morning News series last October, came to the United States as a teenager about 1970. He was deported three times, most recently about 1981. He settled in Ogden, married a U.S. citizen, fathered a child and owned a small trucking business. He paid taxes and, other than a few traffic tickets, had no brushes with the law.

In November 2001, Fernandez-Vargas, 54, applied for residency based on his marriage to Rita. During a routine interview on his application, immigration authorities arrested him and reinstated a 1982 deportation order. He spent a year in the Utah County Jail and was sent back to Mexico in September 2004.

He settled in Cuauhtemoc, near where he spent his childhood.

Due to the 1982 deportation order, Fernandez-Vargas was not entitled to a court hearing after his arrest. Provo-based immigrant attorney Chris Keen appealed to the 10th Circuit Court of Appeals — Fernandez-Vargas' only recourse — but the Denver based panel upheld the order. Keen then appealed to the U.S. Supreme Court, setting up Wednesday's hearing.

Part of the debate before the court centered on what Congress intended when it passed the law.

Gossett argued it should not apply to undocumented immigrants who arrived before 1976 because Congress removed a "before and after" clause contained in the previous statute.

Assistant Solicitor General Sri Srinivasan countered that the time of the unlawful return to the United States is irrelevant. The law, he said, focuses on deportation, not re-entry.

Furthermore, he argued in court briefs that it doesn't matter that Fernandez-Vargas lived in the United States for 21 years with a U.S. citizen family and a steady job. The law should be applied no differently than if he had crossed the border one day before it took effect.

Scalia said it's difficult to believe federal lawmakers would want to "keep faith" that deported people who re-enter the United States unlawfully could then someday become citizens.

"I find that a very touching attitude for Congress to have," he said sarcastically, drawing laughter from the gallery.

Keen said he was shocked at Scalia's characterization of illegal immigrants. "The hostility was obvious in his questions," he said.

Prior to the 1997 reinstatement statute, longtime unlawful immigrants had some options to remain in the country.

Justice Stephen Breyer said separating a family is "a pretty harsh result of the current law." He concluded it attached new consequences to old behavior.

The Supreme Court ruling will clarify a law that is currently interpreted in different ways across the country. It would ensure that possibly hundreds of thousands would be treated the same regardless of where they live.

If the court decides the law applies to everyone who re-entered unlawfully, there would be no way for them to seek residency status. It would include those subject to persecution in their home countries, those whose families or employees file visa petitions on their behalf and victims of domestic violence.

A ruling in Fernandez-Vargas' favor would not automatically allow him to live in the United States again. He would be only eligible to apply for residency status, a process Gossett called "somewhat of a crap shoot."

The illegal immigration debate will soon heat up on Capitol Hill.

In a press conference Tuesday, President Bush said illegal immigrants, including longtime residents, should not get automatic citizenship as part of a new guest worker program. They should not be able to jump in line ahead of those who have waited legally for citizenship, he said.


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