Supreme Court Upholds Strict Deportation Law

Illegal immigrants who return to the United States after being deported are “continuous lawbreakers” and are subject to automatic removal from this country, the Supreme Court ruled Thursday, even if they have lived here more than 20 years and have jobs and families.

The 8-1 decision upholds a strict 1996 law that adopted a no-leniency policy for those who returned illegally to this country after having been deported.

“This is a ‘two strikes and you’re out’ law,” said Washington lawyer David Gossett, who challenged its application to illegal immigrants who reentered the country before 1996, when Congress toughened the law. He estimated that Thursday’s ruling would apply to “tens of thousands, perhaps hundreds of thousands” of immigrants who reentered the country illegally in recent decades.

His client, Humberto Fernandez-Vargas, is a 53-year-old citizen of Mexico who, starting in the 1970s, entered the United States illegally -- and was subsequently deported -- several times.

In 1982, he returned for the last time and settled quietly in Utah. He started a trucking business, fathered a son in 1989 and married the boy’s mother in 2001.

Based on his marriage to a U.S. citizen, he applied for lawful permanent residence in the United States. That filing backfired, since it tipped off immigration authorities that he was here illegally. He was taken into custody and deported to Juarez, Mexico, two years ago. His wife, Rita, has continued the legal battle on his behalf.

The Supreme Court took up the case because several lower courts -- including the U.S. 9th Circuit Court of Appeals, which has jurisdiction in California and eight other Western states -- had adopted a lenient standard for illegal immigrants who had been in the United States for decades. The 9th Circuit judges had ruled that Congress did not mean to apply the new law to illegal immigrants who had reentered the country before 1996.

But writing for the majority on the Supreme Court, Justice David H. Souter disagreed, saying that Congress meant the law to apply to every once-deported immigrant who had returned illegally and stayed.

Fernandez-Vargas “had an ample warning” of the strict new law in 1996, and “he chose to remain after the new statute became effective,” Souter wrote in Fernandez-Vargas vs. Gonzales. “He claims a right to continue illegal conduct indefinitely under the terms on which it began, an entitlement of legal stasis for those whose lawbreaking is continuous.”

Souter acknowledged that complying with the law “would have come at a high personal price, for Fernandez-Vargas would have had to leave a business and a family he had established during his illegal residence.”

But in the end, he is paying for “continuously illegal action” over an extended period, Souter wrote.

At one point, the court appeared to leave open the possibility that the result could be different for once-deported illegal immigrants who had married U.S. citizens or applied to become legal residents before 1996. Some judges have blocked the deportation of such immigrants, but those are “facts not in play here,” Souter said in a footnote.

In the past, it was understood that persons who entered the United States illegally after having been deported were subject to being sent home again. However, the immigration laws allowed them to seek a waiver if, for example, they had a job and a family.

The no-exceptions rule was adopted shortly after Republicans took control of Congress in the 1994 elections. It appears in the Illegal Immigration Reform and Immigrant Responsibility Act and says that “an alien [who] reentered the United States illegally after having been removed” may not seek to have his case “reopened or reviewed. [He] is not eligible and may not apply for any relief ... and the alien shall be removed ... at any time after the reentry.”

Jennifer Chacon, a law professor at UC Davis, said the ruling highlights an unfairness in the law.

“This concerns the people we should be the least concerned about. They are stable people with jobs: grandparents, parents, husbands,” she said. “These people are not security threats.”

This year, Congress and the Bush administration have been debating whether to change immigration laws again. The Senate’s bill, but not the House version, would give longtime illegal immigrants a path to seeking legal status in the United States.

But immigration experts said it was not altogether clear that the proposed changes in the law, if adopted, would aid those who reentered the country after being deported.

The American Civil Liberties Union and several immigrant-rights groups had urged the court not to apply the 1996 law retroactively.

“It is a disappointing decision, and it is a further example of the harshness of the 1996 law,” said Lucas Guttentag, who heads the ACLU Foundation’s Immigrants’ Rights Project.

Dissenting alone, Justice John Paul Stevens said the court usually did not apply new laws to old cases. Because Fernandez-Vargas had a 15-year record of stable work and a family, he would have been eligible to stay in the United States prior to the passage of the 1996 law. For that reason, it is unfair to apply the law to him now, Stevens said.