http://www.chron.com/disp/story.mpl/spe ... 94576.html

June 22, 2006, 9:31PM
High court spurns deportee's return
8-1 decision is seen as a blow to illegal immigrants


By PATTY REINERT
Copyright 2006 Houston Chronicle Washington Bureau

WASHINGTON - Making it more difficult for longtime illegal immigrants to remain in the United States, the U.S. Supreme Court on Thursday upheld the deportation of a Mexican national who lived in the United States for 20 years and is married to a U.S. citizen.

Of the nine justices, only John Paul Stevens sided with Humberto Fernandez-Vargas, who has been trying to return to his wife and child in Utah since being deported in 2004.

Lawyers for Fernandez-Vargas had argued that the federal Illegal Immigration and Immigrant Responsibility Act — which Congress passed in 1996 to speed up the removal of those who illegally re-enter the country after being deported at least once — did not apply to him because he had last re-entered 15 years before the law took effect.

Stevens said Fernandez-Vargas, who is in his 50s, rightly complained that the U.S. government "changed the rules midgame." Under previous law, the justice said, the best chance of eventually becoming a legal resident or U.S. citizen was to do exactly what Fernandez-Vargas did: Remain in the country at least seven years, start a business, stay out of trouble and build a U.S. family.

Stevens said the new law had an "undeniably harsh retroactive effect" that Congress did not intend.


Ample warning
Disagreeing, the rest of the justices said the date that Fernandez-Vargas re-entered the country is irrelevant since he is not being penalized for illegally re-entering, but for illegally remaining in the country after the new law was passed.

Explaining the court's decision from the bench, Justice David Souter said it is Fernandez-Vargas' "choice to continue his illegal presence, after illegal re-entry and after the new law's effective date, that subjects him to the new and less generous regime, not a past act that he is helpless to undo."

Souter said Fernandez-Vargas had ample warning of the change in the law and should have returned to Mexico during the six months between when the law was passed and when it took effect. He also could have fought his potential deportation, Souter said, by marrying his son's mother during the six-month period and applying to change his immigration status while the old law was still in force.

Instead, the couple waited to marry until 2001, Souter said, and inadvertently tipped off authorities themselves by applying to change Fernandez-Vargas' immigration status.

"We're very pleased with the Supreme Court's decision," said Kathleen Blomquist, a Justice Department spokeswoman. She declined to discuss the case further.

David Gossett, a Washington lawyer who represented Fernandez-Vargas, said he was disappointed that only Stevens sided with his client.

"We continue to believe that our interpretation of the law is more faithful to people's sense of the way things should work," he said. He added that the 1996 law was designed to create new disincentives for people to re-enter the country illegally — not to punish those already here.

"To apply the law to them is nothing but cruel," he said.

patty.reinert@chron.com