Today in Sacramento, I was the luncheon speaker for Operation Protect and Defend.

Operation Protect and Defend is a program of Sacramento Law Foundation.  With a steering committee that includes lawyers and judges, the program’s mission is to protect the Constitution and promote civic participation in Sacramento-area high schools.  You can see the program brochure here.

Today’s luncheon was at The Firehouse Restaurant in Sacramento.  I spoke about current issues in immigration law.  Sacramento Superior Court Judge Emily Vasquez introduced me.  We had many alums in attendance including Melissa Jones, Judge Larry Brown, Kara Ueda (Alumni Board President), Dian Vorters, Diane Boyer-Vine, and Judge Judy Holzer Hersher.  About 75-100 people were in attendance. 

I enjoyed seeing everyone!

Next weekend brings another exciting event to King Hall.  From the event listing for the ABA Client Counseling competition:

King Hall will host the American Bar Association's Regional Client Counseling Competition for Region 9 on the weekend of Feb. 18-19, 2012. Each year, teams of law students from all over the western United States compete in mock client intake meetings where they are evaluated on their ability to critically analyze cases at their inception while establishing a working relationship with new clients.

This year, client-actors will come to the 12 participating teams with issues pertaining to K-12 education law. The top six teams (as ranked by the judges) will advance to the semifinals, held that afternoon. From there, the remaining three teams will compete on Sunday morning for a chance to represent our region in the ABA National Client Counseling Competition in Durham, NC.

Judges for the competition, particularly local practitioners specializing in education law or with client intake experience, will provide important input to participants.  

For more information about the competition, please visit the King Hall Negotiations Team website at
http://students.law.ucdavis.edu/negotiations/

Best wishes to the King Hall Negotiations Team (KHNT) for a GREAT event next weekend!!!

Professor Donna Shestowsky passes along this announcement from the student leaders of the King Hall Negotiations Team.  Thanks for sharing the news, Professor Shestowsky.  AND GREAT WORK, TEAM!!

On February 3-4, 2012, Kyle Junginger ’14 and Sean Newland ’14 competed in the ABA National Negotiation Competition in New Orleans, Louisiana.  This set of students earned the opportunity to represent the school at ABA competitions by placing in the three top teams at the King Hall Negotiations Competition in October 2011 (just a few short weeks after they started law school).  They subsequently placed third in Region 9 (i.e., the Ninth Circuit) at the Regional Competition, which earned them the chance to advance to the Nationals, which took place during the ABA Mid-Year Meeting.

This year the fact patterns concerned property law.  At the Nationals, Kyle and Sean negotiated against other top teams from across the United States and Canada.  Their strong performance in the preliminary rounds allowed them to advance to the semi-final round. Ultimately, the team placed 3rd in their semi-finalist bracket and tied for 11th place overall out of 24 teams.

The team would like to thank Professor Shestowsky (faculty advisor) and the King Hall Negotiations Team Board (“KHNT”), especially President Jesse Suarez '12 who served as the team’s main advisor, as well as alumni Jeff Osofsky '09 and Sarah McBride '09 who generously volunteered a significant amount of time to advising and mooting the team.  The team would also like to thank Professor Green for providing counseling on real estate law.  Finally, the team is very grateful to the Deans of UC Davis School of Law for their financial support. 

For more information about KHNT's activities, please visit http://students.law.ucdavis.edu/negotiations/index.html

The UC Davis Asylum & Refugee Law National Moot Court Competition took place over the weekend.  It is the only immigration law moot court competition on the West Coast and the only moot court competition in the nation devoted exclusively to asylum and refugee law.  Participants tested their advocacy skills before distinguished members of the judiciary, attorneys and legal scholars who served as judges.  Schools from across the country took part in the competition.

I was at the Law School for Friday night's preliminary rounds, and there was a lot of great positive energy throughout King Hall!  Among the judges for the finals on Saturday were Judge William Shubb and our own Professor Emeritus Cruz Reynoso.    

Look for a wrap-up of the competition, including the big winners, in the news section of the UC Davis School of Law website in the coming days!

This year's Fenwick & West Symposium, "Connect! Social Media as a Platform for Innovation and Collaboration," is a huge success!  The topic, social media, is both timely and fascinating.  Today we have heard from a lineup of Silicon Valley all-stars, including Twitter Co-Founder Jason Goldman, who delivered the keynote speech at lunchtime.  He tweeted his thanks to us @UCDavisLaw (and to his 1.3 million followers) for having him speak!  I thought his talk was fascinating.

Jason Goldman takes a question from Professor Mario Biagioli.

The turnout for today's symposium has been great.  I saw lots of King Hall alums in the audience, including Toso Himel, Grace Arupo, Lee Ann Eager, Alberto Roldan, Jan Carmikle, and more.  Alums David Bell and Robert Hulse of Fenwick & West were organizers of the event.  Alums Jim Scheinman (of Maven Ventures) and Jishnu Menon (of Mozilla) were panelists.  Professor Anupam Chander gave a great opening speech, titled "How Law Made Silicon Valley." 

There's still time to come to our Kalmanovitz Appellate Courtroom to catch more panel presentations.  Or watch a live stream here.

If you're tweeting about the symposium, as many people are, check out our Twitter page, and look for the hashtag #UCDLawConnect.

Many thanks to our organizers, presenters, audience members, and, of course, Fenwick & West!

Here's a message from Professor Anupam Chander, Director of the California International Law Center.

STUDENTS:

            The California International Law Center (CILC) at UC Davis School of Law is pleased to announce the 2012 UC Human Rights Fellowship competition!  Two fellowships are available for fieldwork by UC Davis students, either within the United States or abroad, during the summer of 2012.  Each fellowship carries a stipend of $4,500.

            The fellowship offers each student recipient the opportunity to carry out fieldwork with human rights organizations related to the student’s area of study.  The purpose of the fellowship is to provide students with an opportunity to contribute to the work of human rights organizations while gaining practical experience that may influence the students’ area of research or academic focus.  Students are encouraged to publish the results of their fieldwork.  In recent years, fellows from UC Davis have traveled to Sierra Leone, Ethiopia, and New York to work on human rights.

            Any student registered at UC Davis is eligible, though preference will be given to graduate students and returning students.

            Further information on the fellowship, including the application and information on past student fellows from Davis can be found at http://www.law.ucdavis.edu/centers/cilc/human-rights-fellowship.html.  For questions regarding the UC Davis application, please contact Kristen Hill at khhill@ucdavis.edu.  Fellowship applications are due on Tuesday, February 28, 2012, 4:00 p.m.

LSA External Vice-President Jared Voskuhl '13 attended the National Association of Graduate & Professional Students (NAGPS) conference in Boulder, Colorado.  Here is his summary of this great event.

The National Association of Graduate & Professional Students assembled for the first time 25 years ago to successfully advocate Congress reinstate the tax exempt status for graduate stipends. This past year, NAGPS held their annual conference in Boulder, CO.  Students from across the nation gathered for three days and led over thirty-five different presentations about effective outreach efforts on their campuses, communities, and capitols.

The Dean’s Office awarded me a generous travel grant to participate in the conference this year.  I attended sessions on Effective Advocacy, Organizational Branding, Advocacy Balanced By Professionalism, Models of Student Governance, Federal Legislative Action Items, the Board Structure of NAGPS, and Comprehensive Student-Government Outreach Programs.

I developed professional relationships with student government leaders in the Western Region of NAGPS’s constituency, including UC Irvine’s Graduate External Chair, Greg Wiley.  I also dialogued with law students from Florida State University involved in social justice outreach efforts in Tallahassee.  The conference provided several ideas and strategies to increase the efficacy of advocacy in Davis, Oakland, and Sacramento. I look forward to partnering with NAGPS over the next year as they carry out their 2012 agenda.

The NAGPS Board. Jared is fourth from the right.

Thanks for sharing the details of your experience, Jared!  The Dean's Office was happy to lend its support!

Professor Madhavi Sunder, a leading scholar of law and culture, will make a presentation on a fascinating topic today as part of the Cultural Studies Graduate Group's Winter 2012 Colloquium Series.

The title of her talk, scheduled for 4 P.M. in Room 1008, is "From Free Culture to Fair Culture: Cultural Sharing Amidst Global Inequalities." 

Description: At the turn of the millennium, the Participation Age and the goal of poverty eradication have dovetailed. As a recent U.N. Human Development Report has noted, in a Knowledge Age in which wealth derives from cultural production and exchange in global markets, “cultural freedom is not just a human right, but also a key to development.” The concept of fair culture yokes together meaning and livelihood. Increasingly, the poor seek to participate in the development and sharing of cultural products, from coffee to music to film. But free culture  - in which cultural goods are freely shared across borders - is not always a fair culture. In this talk, Professor Sunder considers impediments to cultural participation on fair terms by the poor. In so doing, she exposes blind spots in recent scholarship that celebrates the "public domain" and "free culture"--what she calls "the romance of the public domain."

For more information, click here.

I had a busy day yesterday in the greater Bay Area.  James Woods ’72 hosted a wonderful lunch at his Dewey & LeBoeuf offices in Palo Alto.  We had 30 people in attendance, from a first year law student and several recent graduates to senior attorneys.  It was a great lunch, with incredible energy and enthusiasm.  I updated the group on the great happenings at King Hall as well as the budgetary and other challenges ahead.  Assistant Dean for Career Services Craig Compton and Assistant Dean for Development and Alumni Relations Jean Korinke joined me to visit with the alums.

That evening, I headed north to UC Berkeley – and Barrows Hall, where I studied Economics years ago – and talked about law school admissions to a packed house of energetic and enthusiastic members of the UC Berkeley Latino Pre-Law Society.  Second year law student Fabiola Larios joined me.  The 50+ students listened carefully to her advice about the admissions process and the wonderful community that we have at UC Davis School of Law.

I must say that one of the wonderful things about being Dean is talking to alums, prospective students, and others about the wonderful community and excellence that we have at King Hall!

I just found out that About.com ranks ImmigrationProf (where I am a blog editor) as the Number 1 blog on immigrants' rights.  It states that "ImmigrationProf covers both the basics and the esoterica of the immigration debate in a friendly, engaging, and sometimes surprisingly witty way. Come for the expertise; stay for the multiple daily updates."  Thanks, About.com!

The Sacramento Bee recently featured a heartbreaking story about a Sacramento-area grandfather, suffering from end-stage kidney failure, who faced deportation to Mexico.  The article quoted Immigration Law Clinic student Nicholas Starkman ’13, who contributes this entry to the Dean’s Blog:

Recently, while working at the Immigration Law Clinic, I advocated on behalf of a Mexican client all the way through his removal from the United States.  Under the tireless leadership of Professor Amagda Pérez, I received “M’s” case as a referral from the Mexican Consulate during summer of 2011.  When he came to us, M was in a dire state.  His body was ravaged internally from Chronic Kidney Disease; his kidneys had ceased functioning.  He suffered from heart failure, diabetes, pleural effusion (liquid build up in his lungs), and hypertension.  He is only 51, but is nearing the end of his life.

The client holds a photo of himself receiving a dialysis treatment.  Photo from The Sacramento Bee.

Like M’s health, his legal proceedings had been steadily marching toward an unfortunate end.  M had no more appeals in the immigration court system.  All that was left us to do was to appeal to the will of the administrative body responsible for his removal: Immigration and Customs Enforcement (“ICE”).  M presented us with one of the most difficult situations to be in as an immigration attorney: what to do with a client whose case represents a humanitarian crisis but who has a serious criminal record? On one hand, M has two drug-related convictions and had received a final order of removal (deportation) from ICE.  On the other, he is poor and has developed a terminal illness while living and working within our borders.  The life-sustaining hemodialysis treatment he received in the United States three times a week—for three hours or more hours at a time—was unavailable in Mexico due to a saturated public health system in his home state. Quite simply, M would die if removed, not to mention the cost in pain and trauma that removal tolls on families and loved ones.     

I quickly found myself in the middle of moral and ethical quandary.  How could I make a winning argument on behalf of M to ICE, when I was having my own reservations about my ability to “defend the indefensible”, a man with two convictions?  After all, hadn’t President Obama said—after the record number of deportations under his administration—that ICE would be focusing its efforts on people like M, people who committed drug-related and violent crimes?  Then I remembered the story of John Thompson, a man who spent 14 years on death row before he was exonerated.  At one event, he appealed to his audience, protesting the closed-mindedness of some defense attorneys: “you have to at least give the accused a chance to lie about their innocence."  He believed that the case was closed when a public defender reserved judgment before even meeting the client.  I took this approach with M.  Resolving to not engage in weighing right and wrong, I followed Professor Pérez’s lead and focused on the facts at hand: that a dying man with a family needed our help, not in the criminal justice system, but to the immigration system.  This was particularly difficult when I began to have regular meetings with M, during which the topic of his convictions would inevitably arise.  My heartstrings pulled me in another direction when M told me that he was tricked by unscrupulous acquaintances into handling the drugs. 

While to this day it is still unclear to me what happened regarding his convictions based on M’s testimony and his RAP sheet, an interesting thing occurred in my life while working on M’s case.  A friend of a friend, who I’ll call Carl, worked at a successful Silicon Valley startup tech firm.  The previous summer I attended San Francisco’s pride parade with both him and his girlfriend, so I knew them as acquaintances. Carl was at home with her one night.  They got into an argument and a physical fight ensued.  Carl’s girlfriend called the police on him to report a domestic violence incident.  When the police arrived to apprehend Carl for domestic violence, they found his stash of cocaine.  After spending just one night in jail, he hired an expensive attorney, and the charges were later dropped against him.  Watching all this unfold through conversations with my friend, Carl’s former roommate, I realized the depth of John Thompson’s admonishment to defense attorneys.  I understood that while the labels of “convict”, “accused” or “defendant” stick with people throughout their lives, these labels are not infallible.  Similarly, “innocent” may in some situations be just as deceptive.

In light of the Carl situation, I shelved my reservations and proceeded to attempt to exhaust every form of relief on behalf of M.  Shortly thereafter, I ran into a wall that is notorious in the world of immigration attorneys: prosecutorial discretion.  In recent years, directors of the legacy Immigration and Naturalization Service (INS), now known as ICE, have issued a series of memoranda describing prosecutorial discretion.  Technically, prosecutorial discretion is the “authority of an agency charged with enforcing a law to decide what degree to enforce the law against a particular individual”.  While in reality, any enforcement agency has this power; in the immigration context, prosecutorial discretion is a fickle beast.  In June of 2011, ICE director John Morton published a series of memos summarizing the prosecutorial discretion processes.  The problem lies in the fact that these memos were widely disseminated, highly politicized, and completely vague substantively.  With other immigration procedures there are tried and true areas of protocol: United States Citizenship and Immigration Service (USCIS) forms to submit, aspects of the case to highlight and touch upon, and a general format that is widely accessible.  In the realm of prosecutorial discretion, however, there is no such thing.  Literally thousands of advocates and pro se individuals are shooting in the dark, with no verifiable blueprint other than the penumbras of Morton’s memo.    

Nonetheless, after consulting with many immigrants’ rights and defense attorneys from the Bay Area, as well as the library of experience and expertise that is Professor Pérez, I requested prosecutorial discretion in the form of 1) deferred action and 2) staying a final order of removal.  This is a process by which an attorney cites to significant humanitarian factors counterbalancing the order to remove an immigrant.  Our requests were denied, even though a facility had not been located that could provide M with adequate care to sustain his life.  Working up to the moment of his removal, we even explored remedies such as filing a Change.org petition, newspaper publicity and appealing to the very humanity of ICE executives.  Though this process left me ragged and emotionally raw, I glimpsed what it really takes to be a tireless advocate. It means refusing to cede defeat even when the path is not clear, and, unlike so many other areas of the law, where the outcome of your case is not in the hands of an impartial magistrate.  From M’s case, I learned that when you appeal to the person or people with all the power in a situation, with all the cards in their favor, there can be no sportsmanship, no shaking of hands and walking away.  There is no discernible end to a case such as M’s, because right now he is in Mexico, in a hospice center, hopefully receiving the treatment he needs.

Here's the most recent entry I wrote for SCOTUSblog.

On January 18, the Supreme Court heard oral arguments in Vartelas v. Holder, a case raising the question whether the U.S. government can, based on a 1996 amendment to the immigration laws, bar a lawful permanent resident from returning to the United States after a short trip to Greece to visit his parents.  The central issue in the case is whether the 1996 amendment can be applied retroactively to a pre-1996 criminal conviction.  For the argument preview, see here.  Here is the transcript of the argument.

Criminal law expert Professor Stephanos Bibas of the University of Pennsylvania Law School’s Supreme Court Clinic argued the case for the petitioner.  Professor Bibas was co-counsel on the landmark decision in Padilla v. Kentucky (2010), in which the Court held that an ineffective assistance of counsel claim could be based on an attorney’s failure to inform a noncitizen of the immigration consequences of his criminal conviction.  Assistant to the Solicitor General Eric Miller argued the case for the United States.

The arguments focused on the retroactive application of Immigration & Nationality Act § 101(a)(13)(C)(v), which was added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and defines an “admission” into the United States.  Under the new sub-section, the U.S. government sought to bar Vartelas from returning to the United States based on his conviction for a “crime involving moral turpitude.”   Importantly, Vartelas would not have been subject to deportation if he had not left the United States.  Moreover, before 1996, he probably would have prevailed in returning unimpeded from the short trip.

In INS v. St. Cyr (2001), the Supreme Court held that the repeal of a form of relief — known as Section 212(c) relief — from removal by the 1996 immigration reforms could not be applied retroactively to bar a legal immigrant from seeking such relief for which he would have been eligible when he entered the plea.  In its analysis, the Court weighed heavily the immigrant’s reliance on the availability of Section 212(c) relief at the time he entered the plea.  Much of the questioning of the Justices at the oral argument in this case concerned the application of St. Cyr – for example, Chief Justice Roberts specifically asked Miller how St. Cyr was distinguishable from this case.

Early in the argument, Chief Justice Roberts expressed the opinion that the time to look at reliance on the law was at the time of the commission of the criminal offense.  Petitioner’s counsel, however, seemed to persuade the Court that, under the circumstances of this case, the appropriate time to evaluate reliance was at the time of the plea, when the immigrant defendant must weigh all of the ramifications (including the possibility of visiting family and friends in their native country) of a criminal conviction.

Several Justices asked questions about whether, when he entered the plea in 1994, Vartelas would have relied on the then-current state of the law concerning travel outside the United States.  The Justices pressed Miller on whether an attorney would have advised Vartelas at the time of the plea that he could leave and return to the United States.

At various times in the argument, the complexities of the statutory provision at issue seemed to befuddle the Justices.  Justice Ginsburg questioned Miller about why the statute focused on entry into the United States when Congress’s real concern was with noncitizens with criminal convictions.  Justices Ginsburg and Sotomayor emphasized that the 1996 amendment added punishment to an immigrant’s criminal conviction, imposing a new “disability” on the noncitizen, and that the U.S. government sought to impose this penalty retroactively.

Chief Justice Roberts seemed genuinely perplexed by the statutory language, which is a common reaction of many judges to the provisions of the Immigration and Nationality Act.  He grappled with why Congress would not admit a noncitizen for a crime but punished a lawful permanent resident convicted of that crime by requiring that he remain in the country.  The Chief also asked Miller to offer a policy justification for barring a lawful permanent resident from leaving the country for a few days to attend a family member’s funeral.

It is hazardous to speculate about the outcome of a case based on oral arguments.  Nonetheless, here are my conjectures.  Justices Scalia and Alito generally seemed unsympathetic to the petitioner’s arguments.   As is his custom, Justice Thomas did not ask a question; Justice Kennedy only chimed in briefly and it was hard to read where his leanings were.  Justices Ginsburg, Breyer, Sotomayor, and Kagan appeared concerned that Vartelas might well have considered his right to travel under the law in 1996 when he accepted the plea.  Finding the statute and its justification somewhat mystifying, Chief Justice Roberts seemed unsympathetic to the U.S. government’s positions.  I would say that Vartelas stands a fair chance of prevailing on the retroactivity argument.

In deciding the case, the Court seems unlikely to address any questions broader than the application of the 1996 statutory amendment.   Because the issue rarely was mentioned in the arguments, and the parties do not contest the issue, it seems unlikely that the Court will address whether Immigration and Nationality Act § 101(a)(13)(C)(v) overruled Rosenberg v. Fleuti (1963), which held that an “innocent, casual, and brief” trip from the country did not subject the returning lawful permanent resident to treatment as seeking admission.  Nor does it appear the Court will address more broadly the constitutional rights of lawful permanent residents.  Rather, like Judulang v. Holder decided in December, the Court is likely to decide Vartelas v. Holder on relatively narrow statutory grounds.

On Friday, I attended a panel discussion on “Inequality, Educational Access and the Future of the University” sponsored by the new UC Davis Center on Poverty Research.  

Among others, UC Davis School of Law alum Darrell Steinberg '84, President Pro Tem of the California Senate, and UC Berkeley law dean Christopher Edley gave thoughtful presentations on the educational crisis in California.  The room was packed with students and faculty, as well as Chancellor Katehi and other campus leaders.    I enjoyed seeing Darrell and Chris, both of whom I have known and respected for many years.

We had a great turnout for an alumni lunch in San Diego last week, with a stunning view of the Pacific from our restaurant on a beautiful (and warm) day in paradise. We had a group of 15 or so from different eras of King Hall graduates.  Among those in attendance were Charlie Bird '73, Mike Duckor '70, Michael Van Horne '75 (an alumni board member), and Judith Islas ’84 from a few years back, and Scott Goss ’98, Jan Westfall ’05, Marissa (Ramos) Dragoo '06 and Jennifer Carbuccia '07 from recent years.  All were happy to hear that the Law School's unparalleled school spirit is alive and well.  I updated the group on the wonderful happenings at King Hall, including the building renovation, the exploration of a California Supreme Court Clinic, the hiring of great faculty, and the Law School's growing national and international reputation.

I must say that, from my visits from Sacramento to Washington D.C. to San Diego in just the last few weeks, The Indomitable Spirit of King Hall is alive and well!

For our Black Law Students Association (BLSA), “King Week” started before the school week even began.

BLSA students marched in the MLK365 march in Sacramento, an event that drew an estimated 20,000 people.  They also hosted a booth at the post-march expo inside the Sacramento Convention Center, where they provided information about King Hall to interested members of the community.

On Tuesday, they sponsored a screening of “Bringing King to China,” which I blogged about here.

Yesterday brought some powerful personal anecdotes from Professors Evelyn Lewis and Angela Harris.  The two faculty members spoke about what it was like for them growing up African-American, and shared their impressions of the civil rights movement.  I enjoyed hearing about the two of them, both of whom we are very lucky to have at King Hall.  Their presentation was truly excellent and insightful.

Today I am meeting Law School alums in San Diego, but I asked King Hall staffer Sam Sellers to snap a photo of today’s King Week presenter, Justice William Murray of the California Courts of Appeal, Third District. 

Many thanks to Justice Murray (second from left) for sharing his knowledge with King Hall students!

Tomorrow brings a presentation by criminal defense attorney Keith Staten and Project Pipeline "Shadow Day.”  See an earlier post about Shadow Day here.

As it does every year, King Week does an excellent job of highlighting our Law School’s connection to Dr. King, for whom our building is named.  Great job, BLSA!

Saw this on the Sacramento Bee’s website yesterday.  Sara is a graduate of King Hall who drew praise from Governor Schwarzenegger and made headlines in 2009.

Lawyer pleased to hear stolen special-equipped van found in Bay Area
By Cynthia Hubert

Sara Granda is the first to admit that her beige 2001 Ford Econoline van is not a "hot" car in the traditional sense of the word.

But it became one this weekend when thieves stole it from the driveway from her apartment in Davis.

Granda, a lawyer who is paralyzed from the neck down, was left wondering why anyone would want the van, which has been gutted to accommodate her wheelchair and medical equipment, plugs along at about 10 mph and "has a hard time accelerating," she said.

"Maybe they wanted to transport something?" she asked.

She may never know. But after a few days of fretting about how she would get to her job with the state - not to mention important errands, including having her eyebrows waxed - she learned that the van had been found by police in the Bay Area.

Granda, 31, paralyzed in a car accident when she was a teenager, serves as special assistant to the chief counsel for the state Department of Health Care Services.

She said she expects to get her vehicle back next week after it has been inspected and repaired. Among other things, the thieves apparently jammed a screwdriver into its ignition to get it started.

"It's not worth much to anyone else, but its value to me is very high," she said. "I'll never be happier to see that old van again."

 (Source: http://blogs.sacbee.com/crime/archives/2012/01/lawyer-pleased-to-hear-stolen-special-equipped-van-found-in-bay-area.html)

Glad to see that you’ll be getting your van back soon, Sara!

Frank Orozco '97, an adjunct professor at Whittier Law School, was profiled in the student newspaper.  In the article, he praises his experience as a student at King Hall and recalls receiving advice from a "Professor Johnson."  Thanks for the shout-out, Frank!  Congratulations on the great profile.

I am a regular contributor to SCOTUSblog.  Here is my most recent entry: a preview of Vartelas v. Holder.

Argument preview: The rights of lawful permanent residents returning to the U.S.

The Supreme Court soon will again turn its gaze to a complex immigration case involving a long-term lawful permanent resident of the United States facing deportation.  Just last December, the Court in Judulang v. Holder rejected as arbitrary and capricious the ruling of the Board of Immigration Appeals that a lawful permanent resident convicted of a crime was not eligible for relief from deportation.  On January 18, in Vartelas v. Holder the Court will hear oral arguments in a removal case that raises an issue that has confounded the courts, namely, how the immigration laws and the U.S. Constitution apply to lawful permanent residents (i.e., legal immigrants) who leave the United States and then return.

Legal Background

The Immigration and Nationality Act of 1952 (INA) is this nation’s omnibus immigration law.  In 1996, Congress, as it has repeatedly over the years, amended the INA and enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), a piece of enforcement-oriented immigration legislation.  Through a variety of mechanisms, the Act seeks to facilitate the removal of “criminal aliens.”  The operation of IIRIRA has contributed to the record number of removals of non-citizens by the U.S. government in recent years (as well as large numbers of appeals of removal orders).

As a legal matter, under both the INA and the Constitution, the procedure, rights, and available relief historically have turned on whether a non-citizen was seeking entry into the United States or facing removal from the country.  Before 1996, the Supreme Court’s precedent was relatively clear.  Non-citizens denied entry into the country were subject to “exclusion” proceedings with no, or limited, due process rights.  The Supreme Court has held that the U.S. government has “plenary power” over the rules and procedures for admission of non-citizens to the United States.  In contrast, non-citizens facing deportation from the United States were placed in “deportation” proceedings, where they possessed a much fuller panoply of due process protections.  The differential legal treatment was justified by the fact that non-citizens facing removal ordinarily have deeper family, community, and other ties with the United States than non-citizens seeking admission into the country.

In 1996, Congress collapsed exclusion and deportation proceedings into one “removal hearing.”  However, that change in the law did not alter the differential constitutional protections available under relevant Supreme Court precedent depending on whether the non-citizens were seeking entry into or, alternatively, facing removal from the United States.

The courts, including the Supreme Court, when addressing the case of a noncitizen who fails to fit neatly into the established legal categories, such as when a lawful permanent resident who has lived in the United States for many years — and thus has significant community ties – travels outside the country and seeks to return.  Given the ties that these lawful permanent residents generally have to the community, courts frequently have been reluctant to impose on them the stricter rules applicable to initial entrants.

In Rosenberg v. Fleuti (1963) a lawful permanent resident from Switzerland visited Mexico for a few hours and, upon his return, was charged with being excludable because he had committed a “crime involving moral turpitude” before he left the country; the U.S. government later claimed that he was also excludable because he was homosexual.  To avoid a harsh result, as well as to avoid deciding difficult constitutional questions, the Supreme Court interpreted the immigration statute to mean that Fleuti’s “innocent, casual, and brief” departure from the United States was not “meaningfully interruptive” of his lawful permanent residence and thus he was not seeking “entry” (and thus admission) into the country.  Under the Court’s reasoning, Fleuti therefore could not be denied admission on the exclusion grounds applicable to initial entrants.

The Case of Panagis Vartelas

In 1979, Panagis Vartelas, a native of Greece, came to the United States on a student visa to attend Queens College.  After marrying a U.S. citizen in 1985, he became a lawful permanent resident in 1989.  Vartelas and his wife, who later divorced, had two U.S. citizen children.  He owned an auto body shop in Queens, New York.  After his arrest on charges that he had assisted his business partner in preparing counterfeit traveler’s checks – conduct for which he did not receive any economic benefit, he pleaded guilty in 1994 to conspiring to make or possess a counterfeit security in violation of federal law and was sentenced to imprisonment for four months.

In 1996, Congress added Section 101(a)(13)(C)(v) to the INA.  That statute provides that a lawful permanent resident who returns from a trip out of the United States “shall not be regarded as seeking an admission” unless he “has committed an offense identified in” Section 212(a)(2) of the INA, which includes crimes involving moral turpitude.  The change in the law helped lawful permanent residents without criminal convictions who traveled abroad because it did not treat them as seeking admission (and thus like initial entrants subject to the inadmissibility grounds).  The amendment was no help to Vartelas, however.  Because counterfeiting is a crime of moral turpitude, a ground for inadmissibility, Vartelas was inadmissible under Section 101(a)(13)(C)(v) of the INA.

On January 29, 2003, Vartelas returned to the United States from a week-long trip to Greece, where he had gone to assist his parents with their business.  An immigration inspector questioned him about his 1994 criminal conviction.  Vartelas later was served with a notice to appear for removal proceedings on the ground that he was inadmissible as an alien who sought entry into the United States after being convicted of a crime of moral turpitude.  Under the applicable law, he would not have been subject to deportation if he had remained in the United States and had not left the country to visit his parents in Greece.

The immigration court ordered Vartelas removed from the United States.  The Board of Immigration Appeals (BIA) agreed.   The Second Circuit denied the petition for review of the BIA ruling. The court of appeals agreed with the Board that the 1996 amendments had abrogated the Court’s holding in Rosenberg v. Fleuti.  The Second Circuit further concluded that application of Section 101(a)(13)(C) (v) to Vartelas’s 2003 trip to Greece was not impermissibly retroactive.  In so doing, the court of appeals recognized that its holding was contrary to that of the Fourth and Ninth Circuits.

Cert. petition

Identifying the split in the circuits on the question, Vartelas filed a pro se petition for writ of certiorari in the Supreme Court.  The U.S. government opposed the petition:  in addition to defending the Second Circuit’s application of the statute, it argued that “the issue is of limited significance, as it involves the applicability of a statutory repeal and amendment that occurred more than 15 years ago and has precipitated only a handful of cases.”  The Court granted certiorari.

Merits briefs

In his brief on the merits, Vartelas argues that the application of the 1996 amendment to his case is unconstitutionally retroactive under the Court’s 1996 decision in Landsgraf v. USI Film Products . Assuming that the 1996 amendments abrogate the Court’s holding in Rosenberg v. Fleuti, he challenges the Second Circuit’s retroactive application of Section 101(a)(13)(C)(v).  If the Court concludes that the section does not apply, Vartelas can then argue under Rosenberg v. Fleuti that his trip to Greece was not “meaningfully interruptive” of his presence in the United States, such that he would not be subject to the inadmissibility grounds.