Retoactivity and Citizenship

Fernandez-Vargas v. Gonzales

Humberto Fernandez-Vargas, a Mexican citizen, repeatedly entered the United States and was deported. In 1997 the IIRIRA went into effect, which transformed a previous rule that allowed the reinstatement of deportation orders as to specific classes of illegal immigrants to apply to all illegal immigrants. Fernandez-Vargas married a U.S citizen and bore a child. On this basis he applied to alter is citizenship status. Fernandez-Vargas argues that because he illegally reentered the United States before the IIRIRA went into effect the controlling law was its predecessor (under which he would be eligible for citizenship), and that if the IIRIRA does control it is unconstitutionally retroactive.

Court explains that in the absence of clearly expressed congressional intent, and when it is unable to make the determination of “temporal reach specifically intended” entirely based on “normal rules of statutory construction” it considers whether the Act’s retroactivity in the case at hand would “impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.” If it would, the Court instates a “presumption against retroactivity,” as applied, for lack of Congressional intent.

Fernandez-Vargas begins by arguing by the “generally available rule of negative implication” that the absence of a phrase, present in the prior law, that extended its reach retroactively implies that Congress did not intend such an extension. To this, the Court argues that because the previous clause referred to deportation, not re-entry, and that its absence can only bear on that issue. Additionally, the conclusion would run contrary to the general purpose of the revision to expand its scope. Vargas then argues that according to INS v. Cardoza-Fonseca the ambiguity should be construed in his favor. First of all, the Court argues, this would put the cart before the horse by making the last two parts of the previously described test mute, and that this ignores any contrary arguments that could be raised from the newly added provisions. These provisions remain ambiguous though, because of the inconsistency in their express methods of application. The Court then decides that standard methods of statutory construction insist that the law is applicable to any reentrant, regardless of the date of reentry.

The Court goes on to argue that the law is not retroactive since (1) it would apply to Fernandez-Vargas because he chose to remain in the country after its passage, not his reentry (on whatever date); and (2) the law’s effective date gave Fernandez-Vargas ample warning. The first argument is bolstered by distinguishing this case from one where the application of the IRA was held unconstitutionally retroactive because it interfered with the quid pro quo of a plea agreement.

In short, the law is not applied retroactively because Vargas could have avoided the application of the law by suffering its consequences by his own volition before it went into effect. This argument is addressed in a footnote. The majority points out that on the one had, this argument concedes the illegality of the prior condition and the government’s authority to rectify it and on the other hand retroactivity is different than the right to proceedings that are as favorable as the law was when it was violated. No, really, read: “[Justice Stevens, dissenting] says, however, that Congress should not be understood to provide that if the violation continues into the future it may be ended on terms less favorable than those at the beginning. But this is not the position that retroactivity doctrine imputes to an inexplicit Congress.

Justice Stevens bolsters this argument with the history of the law indicating that Congress added the clause that was found missing in the new statute to its predecessor in order to correct the INS on its interpretation of the law and so as to make it applicable to preenactment deportations but not preenactment reentries.