(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
VARTELAS v. HOLDER, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 10–1211. Argued January 18, 2012—Decided March 28, 2012
Before passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), United States immigration law
provided deportation hearings for excludable aliens who had already
entered the United States and exclusion hearings for excludable aliens seeking entry into the United States. Lawful permanent residents were not regarded as making an “entry,” upon their return
from “innocent, casual, and brief excursion[s] . . . outside this country’s borders.” Rosenberg v. Fleuti, 374 U. S. 449, 462. In IIRIRA,
Congress abolished the distinction between exclusion and deportation
procedures, creating a uniform “removal” proceeding. See 8 U. S. C.
§§1229, 1229a. Congress made “admission” the key word, and defined “admission” to mean “the lawful entry of the alien into the
United States after inspection and authorization by an immigration
officer.” §1101(a)(13)(A). This alteration, the Board of Immigration
Appeals (BIA) determined, superseded Fleuti. Thus, lawful permanent residents returning from a trip abroad are now regarded as
seeking admission if they have “committed an offense identified in
section 1182(a)(2),” §1101(a)(13)(C)(v), including, as relevant here, “a
crime involving moral turpitude . . . or conspiracy to commit such a
crime,” §1182(a)(2)(A)(i).
Petitioner Vartelas, a lawful permanent resident of the United
States since 1989, pleaded guilty to a felony (conspiring to make a
counterfeit security) in 1994, and served a 4-month prison sentence.
In the years after his conviction, and even after IIRIRA’s passage,
Vartelas regularly traveled to Greece to visit his aging parents. In
2003, when Vartelas returned from a week-long trip to Greece, an
immigration officer classified him as an alien seeking “admission”
based on his 1994 conviction. At Vartelas’ removal proceedings, his
2 VARTELAS v. HOLDER
Syllabus
attorneys conceded removability and requested discretionary relief
under former §212(c) of the Immigration and Nationality Act. The
Immigration Judge denied the request for relief, and ordered Vartelas removed to Greece. The BIA affirmed. In 2008, Vartelas filed
with the BIA a timely motion to reopen the removal proceedings, alleging that his previous attorneys were ineffective for, among other
lapses, conceding his removability. He sought to withdraw the concession of removability on the ground that IIRIRA’s new “admission”
provision did not reach back to deprive him of lawful resident status
based on his pre-IIRIRA conviction. The BIA denied the motion. The
Second Circuit affirmed. Rejecting Vartelas’ argument that IIRIRA
operated prospectively and therefore did not govern his case, the Second Circuit reasoned that he had not relied on the prior legal regime
at the time he committed the disqualifying crime.
Held: The impact of Vartelas’ brief travel abroad on his permanent resident status is determined not by IIRIRA, but by the legal regime in
force at the time of his conviction. Pp. 7–17.
(a) Under the principle against retroactive legislation invoked by
Vartelas, courts read laws as prospective in application unless Congress has unambiguously instructed retroactivity. See Landgraf v.
USI Film Products, 511 U. S. 244, 263. The presumption against retroactive legislation “embodies a legal doctrine centuries older than
our Republic.” Id., at 265. Numerous decisions of this Court have
invoked Justice Story’s formulation for determining when a law’s retrospective application would collide with the doctrine, namely, as relevant here, when such application would “attac[h] a new disability, in
respect to transactions or considerations already past,” Society for
Propagation of Gospel v. Wheeler, 22 F. Cas. 756, 767. See, e.g., INS
v. St. Cyr, 533 U. S. 289, 321; Hughes Aircraft Co. v. United States ex
rel. Schumer, 520 U. S. 939, 947; Landgraf, 511 U. S., at 283. Vartelas urges that applying IIRIRA to him would attach a “new disability,” effectively a ban on travel outside the United States, “in respect
to” past events, specifically, his offense, guilty plea, conviction, and
punishment, all occurring prior to IIRIRA’s passage.
Congress did not expressly prescribe §1101(a)(13)’s temporal reach.
The Court, therefore, proceeds to the dispositive question whether
application of IIRIRA’s travel restraint to Vartelas “would have retroactive effect” Congress did not authorize. See id., at 280. Vartelas
presents a firm case for application of the antiretroactivity principle.
Beyond genuine doubt §1101(a)(13)(C)(v)’s restraint on lawful permanent residents like Vartelas ranks as a “new disability.” Once
able to journey abroad to, e.g., fulfill religious obligations or respond
to family emergencies, they now face potential banishment, a severe
sanction. See, e.g., Padilla v. Kentucky, 559 U. S. ___, ___. The Gov-
Cite as: 566 U. S. ____ (2012) 3
Syllabus
ernment suggests that Vartelas could have avoided any adverse consequences if he simply stayed at home in the United States. But losing the ability to travel abroad is itself a harsh penalty, made all the
more devastating if it means enduring separation from close family
members.
This Court has rejected arguments for retroactivity in similar
cases, see Chew Heong v. United States, 112 U. S. 536, 559; St. Cyr,
533 U. S., at 321–323, and in cases in which the loss at stake was less
momentous, see Landgraf, 511 U. S., at 280–286; Hughes Aircraft,
520 U. S., at 946–950. Pp. 7–11.
(b) The Court finds disingenuous the Government’s argument that
no retroactive effect is involved in this case because the relevant
event is the alien’s post-IIRIRA return to the United States. Vartelas’ return occasioned his treatment as a new entrant, but the reason for his “new disability” was his pre-IIRIRA conviction. That past
misconduct is the wrongful activity targeted by §1101(a)(13)(C)(v).
Pp. 11–13.
(c) In determining that the change IIRIRA wrought had no retroactive effect, the Second Circuit homed in on the words “committed an
offense” in §1101(a)(13)(C)(v). It reasoned that reliance on the prior
law is essential to application of the antiretroactivity principle, and
that Vartelas did not commit his crime in reliance on immigration
laws. This reasoning is doubly flawed. A party is not required to
show reliance on the prior law in structuring his conduct. See, e.g.,
Landgraf, 511 U. S., at 282, n. 35. In any event, Vartelas likely relied on then-existing immigration law, and this likelihood strengthens the case for reading a newly enacted law prospectively. St. Cyr is
illustrative. There, a lawful permanent resident pleaded guilty to a
criminal charge that made him deportable. Under the immigration
law in effect when he was convicted, he would have been eligible to
apply for a waiver of deportation. But his removal proceeding was
commenced after IIRIRA withdrew that dispensation. Disallowance
of discretionary waivers attached a new disability to past conduct,
533 U. S., at 321. Aliens like St. Cyr “almost certainly relied upon
th[e] likelihood [of receiving discretionary relief] in deciding [to plead
guilty, thereby] forgo[ing] their right to a trial,” id., at 325. Because
applying the IIRIRA withdrawal to St. Cyr would have an “obvious
and severe retroactive effect,” ibid., and Congress made no such intention plain, ibid., n. 55, the prior law governed St. Cyr’s case. Vartelas’ case is at least as clear as St. Cyr’s for declining to apply a new
law retroactively. St. Cyr could seek only the Attorney General’s discretionary dispensation, while Vartelas, under Fleuti, was free, without seeking an official’s permission, to make short trips to see and assist his parents in Greece. The Second Circuit compounded its initial
4 VARTELAS v. HOLDER
Syllabus
misperception of the antiretroactivity principle by holding otherwise.
Fleuti continues to govern Vartelas’ short-term travel. Pp. 14–17.
620 F. 3d 108, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined.
SCALIA, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ.,
joined.
_________________
_________________
Cite as: 566 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 10–1211
PANAGIS VARTELAS, PETITIONER v. ERIC H.
HOLDER, JR., ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[March 28, 2012]
JUSTICE GINSBURG delivered the opinion of the Court.
Panagis Vartelas, a native of Greece, became a lawful
permanent resident of the United States in 1989. He
pleaded guilty to a felony (conspiring to make a counterfeit
security) in 1994, and served a prison sentence of four
months for that offense. Vartelas traveled to Greece in
2003 to visit his parents. On his return to the United
States a week later, he was treated as an inadmissible
alien and placed in removal proceedings. Under the law
governing at the time of Vartelas’ plea, an alien in his
situation could travel abroad for brief periods without
jeopardizing his resident alien status. See 8 U. S. C.
§1101(a)(13) (1988 ed.), as construed in Rosenberg v.
Fleuti, 374 U. S. 449 (1963).
In 1996, Congress enacted the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA), 110
Stat. 3009–546. That Act effectively precluded foreign
travel by lawful permanent residents who had a conviction
like Vartelas’. Under IIRIRA, such aliens, on return from
a sojourn abroad, however brief, may be permanently
removed from the United States. See 8 U. S. C.
2 VARTELAS v. HOLDER
Opinion of the Court
§1101(a)(13)(C)(v); §1182(a)(2).
This case presents a question of retroactivity not addressed by Congress: As to a lawful permanent resident
convicted of a crime before the effective date of IIRIRA,
which regime governs, the one in force at the time of
the conviction, or IIRIRA? If the former, Vartelas’ brief
trip abroad would not disturb his lawful permanent resident status. If the latter, he may be denied reentry. We
conclude that the relevant provision of IIRIRA,
§1101(a)(13)(C)(v), attached a new disability (denial of
reentry) in respect to past events (Vartelas’ pre-IIRIRA
offense, plea, and conviction). Guided by the deeply rooted
presumption against retroactive legislation, we hold that
§1101(a)(13)(C)(v) does not apply to Vartelas’ conviction.
The impact of Vartelas’ brief travel abroad on his permanent resident status is therefore determined not by
IIRIRA, but by the legal regime in force at the time of his
conviction.
I
A
Before IIRIRA’s passage, United States immigration law
established “two types of proceedings in which aliens can
be denied the hospitality of the United States: deportation
hearings and exclusion hearings.” Landon v. Plasencia,
459 U. S. 21, 25 (1982). Exclusion hearings were held for
certain aliens seeking entry to the United States, and
deportation hearings were held for certain aliens who had
already entered this country. See ibid.
Under this regime, “entry” into the United States was
defined as “any coming of an alien into the United States,
from a foreign port or place.” 8 U. S. C. §1101(a)(13) (1988
ed.). The statute, however, provided an exception for
lawful permanent residents; aliens lawfully residing here
were not regarded as making an “entry” if their “departure
to a foreign port or place . . . was not intended or reasona-
Cite as: 566 U. S. ____ (2012) 3
Opinion of the Court
bly to be expected by [them] or [their] presence in a foreign
port or place . . . was not voluntary.” Ibid. Interpreting
this cryptic provision, we held in Fleuti, 374 U. S., at 461–
462, that Congress did not intend to exclude aliens long
resident in the United States upon their return from
“innocent, casual, and brief excursion[s] . . . outside this
country’s borders.” Instead, the Court determined, Congress meant to rank a once-permanent resident as a new
entrant only when the foreign excursion “meaningfully
interrupt[ed] . . . the alien’s [U. S.] residence.” Id., at 462.
Absent such “disrupti[on]” of the alien’s residency, the
alien would not be “subject . . . to the consequences of an
‘entry’ into the country on his return.” Ibid.1
In IIRIRA, Congress abolished the distinction between
exclusion and deportation procedures and created a uniform proceeding known as “removal.” See 8 U. S. C.
§§1229, 1229a; Judulang v. Holder, 565 U. S. ___, ___
(2011) (slip op., at 1–2). Congress made “admission” the
key word, and defined admission to mean “the lawful
entry of the alien into the United States after inspec-
tion and authorization by an immigration officer.”
§1101(a)(13)(A). This alteration, the Board of Immigration
Appeals (BIA) determined, superseded Fleuti. See In re
Collado-Munoz, 21 I. & N. Dec. 1061, 1065–1066 (1998)
(en banc).2
Thus, lawful permanent residents returning
——————
1
The dissent appears driven, in no small measure, by its dim view of
the Court’s opinion in Fleuti. See post, at 6 (“same instinct” operative
in Fleuti and this case).
2
The BIA determined that the Fleuti doctrine no longer held sway
because it was rooted in the “no longer existent definition of ‘entry’ in
[the INA].” 21 I. & N. Dec., at 1065. The Board also noted that “Congress . . . amended the law to expressly preserve some, but not all, of
the Fleuti doctrine” when it provided that a lawful permanent resident
absent from the United States for less than 180 days would not be
regarded as seeking an admission except in certain enumerated circumstances, among them, prior commission of a crime of moral turpitude. See ibid. (citing 8 U. S. C. §1101(a)(13)(C)(ii)).
4 VARTELAS v. HOLDER
Opinion of the Court
post-IIRIRA, like Vartelas, may be required to “‘see[k] an
admission’ into the United States, without regard to
whether the alien’s departure from the United States
might previously have been ranked as ‘brief, casual, and
innocent’ under the Fleuti doctrine.” Id., at 1066.
An alien seeking “admission” to the United States is
subject to various requirements, see, e.g., §1181(a), and
cannot gain entry if she is deemed “inadmissible” on any of
the numerous grounds set out in the immigration statutes, see §1182. Under IIRIRA, lawful permanent residents
are regarded as seeking admission into the United States
if they fall into any of six enumerated categories.
§1101(a)(13)(C). Relevant here, the fifth of these categories covers aliens who “ha[ve] committed an offense identified in section 1182(a)(2) of this title.” §1101(a)(13)(C)(v).
Offenses in this category include “a crime involving moral
turpitude (other than a purely political offense) or an
attempt or conspiracy to commit such a crime.”
§1182(a)(2)(A)(i).
In sum, before IIRIRA, lawful permanent residents who
had committed a crime of moral turpitude could, under
the Fleuti doctrine, return from brief trips abroad without applying for admission to the United States. Under
IIRIRA, such residents are subject to admission procedures, and, potentially, to removal from the United States
on grounds of inadmissibility.3
——————
Vartelas does not challenge the ruling in Collado-Munoz. We therefore assume, but do not decide, that IIRIRA’s amendments to
§1101(a)(13)(A) abrogated Fleuti.
3
Although IIRIRA created a uniform removal procedure for both
excludable and deportable aliens, the list of criminal offenses that
subject aliens to exclusion remains separate from the list of offenses
that render an alien deportable. These lists are “sometimes overlapping and sometimes divergent.” Judulang v. Holder, 565 U. S. ___, ___
(2011) (slip op., at 2). Pertinent here, although a single crime involving
moral turpitude may render an alien inadmissible, it would not render
her deportable. See 8 U. S. C. §1182(a)(2) (listing excludable crimes);
Cite as: 566 U. S. ____ (2012) 5
Opinion of the Court
B
Panagis Vartelas, born and raised in Greece, has resided
in the United States for over 30 years. Originally admitted on a student visa issued in 1979, Vartelas became a
lawful permanent resident in 1989. He currently lives in
the New York area and works as a sales manager for a
roofing company.
In 1992, Vartelas opened an auto body shop in Queens,
New York. One of his business partners used the shop’s
photocopier to make counterfeit travelers’ checks. Vartelas helped his partner perforate the sheets into individual checks, but Vartelas did not sell the checks or receive
any money from the venture. In 1994, he pleaded guilty to
conspiracy to make or possess counterfeit securities, in
violation of 18 U. S. C. §371. He was sentenced to four
months’ incarceration, followed by two years’ supervised
release.
Vartelas regularly traveled to Greece to visit his aging
parents in the years after his 1994 conviction; even after
the passage of IIRIRA in 1996, his return to the United
States from these visits remained uneventful. In January
2003, however, when Vartelas returned from a week-long
trip to Greece, an immigration officer classified him as an
alien seeking “admission.” The officer based this classification on Vartelas’ 1994 conviction. See United States
ex rel. Volpe v. Smith, 289 U. S. 422, 423 (1933) (counterfeiting ranks as a crime of moral turpitude).
At Vartelas’ removal proceedings, his initial attorney
conceded removability, and requested discretionary relief
from removal under the former §212(c) of the Immigration
and Nationality Act (INA). See 8 U. S. C. §1182(c) (1994
ed.) (repealed 1996). This attorney twice failed to appear
for hearings and once failed to submit a requested brief.
Vartelas engaged a new attorney, who continued to con-
——————
§1227(a)(2) (listing deportable crimes).
6 VARTELAS v. HOLDER
Opinion of the Court
cede removability and to request discretionary relief. The
Immigration Judge denied the request for relief, and
ordered Vartelas removed to Greece. The BIA affirmed
the Immigration Judge’s decision.
In July 2008, Vartelas filed with the BIA a timely motion to reopen the removal proceedings, alleging that his
previous attorneys were ineffective for, among other
lapses, conceding his removability. He sought to withdraw
the concession of removability on the ground that IIRIRA’s
new “admission” provision, codified at §1101(a)(13), did
not reach back to deprive him of lawful resident status
based on his pre-IIRIRA conviction. The BIA denied the
motion, declaring that Vartelas had not been prejudiced by
his lawyers’ performance, for no legal authority prevented
the application of IIRIRA to Vartelas’ pre-IIRIRA conduct.
The U. S. Court of Appeals for the Second Circuit affirmed the BIA’s decision, agreeing that Vartelas had
failed to show he was prejudiced by his attorneys’ allegedly ineffective performance. Rejecting Vartelas’ argument
that IIRIRA operated prospectively and therefore did not
govern his case, the Second Circuit reasoned that he had
not relied on the prior legal regime at the time he committed the disqualifying crime. See 620 F. 3d 108, 118–120
(2010).
In so ruling, the Second Circuit created a split with two
other Circuits. The Fourth and Ninth Circuits have held
that the new §1101(a)(13) may not be applied to lawful
permanent residents who committed crimes listed in
§1182 (among them, crimes of moral turpitude) prior to
IIRIRA’s enactment. See Olatunji v. Ashcroft, 387 F. 3d
383 (CA4 2004); Camins v. Gonzales, 500 F. 3d 872 (CA9
2007). We granted certiorari, 564 U. S. ___ (2011), to
resolve the conflict among the Circuits.
II
As earlier explained, see supra, at 2–4, pre-IIRIRA, a
Cite as: 566 U. S. ____ (2012) 7
Opinion of the Court
resident alien who once committed a crime of moral turpitude could travel abroad for short durations without jeopardizing his status as a lawful permanent resident. Under
IIRIRA, on return from foreign travel, such an alien is
treated as a new arrival to our shores, and may be removed from the United States. Vartelas does not question
Congress’ authority to restrict reentry in this manner.
Nor does he contend that Congress could not do so retroactively. Instead, he invokes the principle against retro-
active legislation, under which courts read laws as prospective in application unless Congress has unambiguously
instructed retroactivity. See Landgraf v. USI Film Products, 511 U. S. 244, 263 (1994).
The presumption against retroactive legislation, the
Court recalled in Landgraf, “embodies a legal doctrine
centuries older than our Republic.” Id., at 265. Several
provisions of the Constitution, the Court noted, embrace
the doctrine, among them, the Ex Post Facto Clause, the
Contract Clause, and the Fifth Amendment’s Due Process
Clause. Id., at 266. Numerous decisions of this Court
repeat the classic formulation Justice Story penned for
determining when retrospective application of a law would
collide with the doctrine. It would do so, Story stated,
when such application would “tak[e] away or impai[r]
vested rights acquired under existing laws, or creat[e] a
new obligation, impos[e] a new duty, or attac[h] a new
disability, in respect to transactions or considerations
already past.” Society for Propagation of Gospel v.
Wheeler, 22 F. Cas. 756, 767 (No. 13,156) (CC NH 1814).
See, e.g., INS v. St. Cyr, 533 U. S. 289, 321 (2001) (invoking Story’s formulation); Hughes Aircraft Co. v. United
States ex rel. Schumer, 520 U. S. 939, 947 (1997); Landgraf, 511 U. S., at 283.4
——————
4
The dissent asserts that Justice Story’s opinion “bear[s] no relation
to the presumption against retroactivity.” Post, at 6. That is a bold
8 VARTELAS v. HOLDER
Opinion of the Court
Vartelas urges that applying IIRIRA to him, rather than
the law that existed at the time of his conviction, would
attach a “new disability,” effectively a ban on travel outside the United States, “in respect to [events] . . . already
past,” i.e., his offense, guilty plea, conviction, and punishment, all occurring prior to the passage of IIRIRA. In
evaluating Vartelas’ argument, we note first a matter not
disputed by the Government: Congress did not expressly
prescribe the temporal reach of the IIRIRA provision in
question, 8 U. S. C. §1101(a)(13). See Landgraf, 511 U. S.,
at 280 (Court asks first “whether Congress has expressly
prescribed [new §1101(a)(13)’s] proper reach”); Brief for
Respondent 11 (Court’s holding in INS v. St. Cyr, 533
U. S., at 317–320, “compels the conclusion that Congress
has not ‘expressly prescribed the statute’s proper reach’ ”
(quoting Landgraf, 511 U. S., at 280)).5
Several other
provisions of IIRIRA, in contrast to §1101(a)(13), expressly
direct retroactive application, e.g., 8 U. S. C. §1101(a)(43)
(IIRIRA’s amendment of the “aggravated felony” definition
applies expressly to “conviction[s] . . . entered before, on,
or after” the statute’s enactment date (internal quotation
marks omitted)). See St. Cyr, 533 U. S., at 319–320, and
n. 43 (setting out further examples). Accordingly, we
proceed to the dispositive question whether, as Vartelas
maintains, application of IIRIRA’s travel restraint to him
“would have retroactive effect” Congress did not authorize.
See Landgraf, 511 U. S., at 280.
Vartelas presents a firm case for application of the
antiretroactivity principle. Neither his sentence, nor the
——————
statement in view of this Court’s many references to Justice Story’s
formulation in cases involving the presumption that statutes operate
only prospectively in the absence of a clear congressional statement to
the contrary.
5
In St. Cyr, 533 U. S., at 317–320, we rejected the Government’s
contention that Congress directed retroactive application of IIRIRA in
its entirety.
Cite as: 566 U. S. ____ (2012) 9
Opinion of the Court
immigration law in effect when he was convicted and
sentenced, blocked him from occasional visits to his parents in Greece. Current §1101(a)(13)(C)(v), if applied to
him, would thus attach “a new disability” to conduct over
and done well before the provision’s enactment.
Beyond genuine doubt, we note, the restraint
§1101(a)(13)(C)(v) places on lawful permanent residents
like Vartelas ranks as a “new disability.” Once able to
journey abroad to fulfill religious obligations, attend funerals and weddings of family members, tend to vital
financial interests, or respond to family emergencies,
permanent residents situated as Vartelas is now face
potential banishment. We have several times recognized
the severity of that sanction. See, e.g., Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (slip op., at 8–9, 16).
It is no answer to say, as the Government suggests, that
Vartelas could have avoided any adverse consequences if
he simply stayed at home in the United States, his residence for 24 years prior to his 2003 visit to his parents in
Greece. See Brief in Opposition 13 (Vartelas “could have
avoided the application of the statute . . . [by] refrain[ing]
from departing from the United States (or from returning
to the United States).”); post, at 3. Loss of the ability to
travel abroad is itself a harsh penalty,6
made all the more
devastating if it means enduring separation from close
family members living abroad. See Brief for Asian American Justice Center et al. as Amici Curiae 16–23 (describing illustrative cases). We have rejected arguments for
retroactivity in similar cases, and in cases in which the
——————
6
See Kent v. Dulles, 357 U. S. 116, 126 (1958) (“Freedom of movement
across frontiers . . . may be as close to the heart of the individual as the
choice of what he eats, or wears, or reads.”); Aptheker v. Secretary of
State, 378 U. S. 500, 519–520 (1964) (Douglas, J., concurring) (right to
travel, “at home and abroad, is important for . . . business[,] . . . cul-
tural, political, and social activities—for all the commingling which gregarious man enjoys”).
10 VARTELAS v. HOLDER
Opinion of the Court
loss at stake was less momentous.
In Chew Heong v. United States, 112 U. S. 536 (1884), a
pathmarking decision, the Court confronted the “Chinese
Restriction Act,” which barred Chinese laborers from
reentering the United States without a certificate issued
on their departure. The Court held the reentry bar inapplicable to aliens who had left the country prior to the
Act’s passage and tried to return afterward without a
certificate. The Act’s text, the Court observed, was not “so
clear and positive as to leave no room to doubt [retroactive
application] was the intention of the legislature.” Id., at
559.
In Landgraf, the question was whether an amendment
to Title VII’s ban on employment discrimination authorizing compensatory and punitive damages applied to preenactment conduct. The Court held it did not. No doubt
the complaint against the employer charged discrimination that violated the Act at the time it occurred. But
compensatory and punitive damages were not then available remedies. The later provision for such damages, the
Court determined, operated prospectively only, and did
not apply to employers whose discriminatory conduct occurred prior to the amendment. See 511 U. S., at 280–
286. And in Hughes Aircraft, the Court held that a provision removing an affirmative defense to qui tam suits did
not apply to pre-enactment fraud. As in Landgraf, the
provision attached “a new disability” to past wrongful
conduct and therefore could not apply retrospectively
unless Congress clearly manifested such an intention.
Hughes Aircraft, 520 U. S., at 946–950.
Most recently, in St. Cyr, the Court took up the case of
an alien who had entered a plea to a deportable offense.
At the time of the plea, the alien was eligible for discretionary relief from deportation. IIRIRA, enacted after
entry of the plea, removed that eligibility. The Court held
that the IIRIRA provision in point could not be applied to
Cite as: 566 U. S. ____ (2012) 11
Opinion of the Court
the alien, for it attached a “new disability” to the guilty
plea and Congress had not instructed such a result. 533
U. S., at 321–323.
III
The Government, echoed in part by the dissent, argues
that no retroactive effect is involved in this case, for the
Legislature has not attached any disability to past conduct. Rather, it has made the relevant event the alien’s
post-IIRIRA act of returning to the United States. See
Brief for Respondent 19–20; post, at 3. We find this argument disingenuous. Vartelas’ return to the United States
occasioned his treatment as a new entrant, but the reason
for the “new disability” imposed on him was not his lawful
foreign travel. It was, indeed, his conviction, pre-IIRIRA,
of an offense qualifying as one of moral turpitude. That
past misconduct, in other words, not present travel, is the
wrongful activity Congress targeted in §1101(a)(13)(C)(v).
The Government observes that lower courts have upheld Racketeer Influenced and Corrupt Organizations Act
prosecutions that encompassed pre-enactment conduct.
See Brief for Respondent 18 (citing United States v.
Brown, 555 F. 2d 407, 416–417 (CA5 1977), and United
States v. Campanale, 518 F. 2d 352, 364–365 (CA9 1975)
(per curiam)). But those prosecutions depended on criminal activity, i.e., an act of racketeering occuring after the
provision’s effective date. Section 1101(a)(13)(C)(v), in
contrast, does not require any showing of criminal conduct
postdating IIRIRA’s enactment.
Fernandez-Vargas v. Gonzales, 548 U. S. 30 (2006),
featured by the Government and the dissent, Brief for
Respondent 17, 36–37; post, at 3, is similarly inapposite.
That case involved 8 U. S. C. §1231(a)(5), an IIRIRA addition, which provides that an alien who reenters the United
States after having been removed can be removed again
under the same removal order. We held that the provision
12 VARTELAS v. HOLDER
Opinion of the Court
could be applied to an alien who reentered illegally before
IIRIRA’s enactment. Explaining the Court’s decision, we
said: “[T]he conduct of remaining in the country . . . is the
predicate action; the statute applies to stop an indefinitely
continuing violation . . . . It is therefore the alien’s choice
to continue his illegal presence . . . after the effective date
of the new la[w] that subjects him to the new . . . legal
regime, not a past act that he is helpless to undo.” 548
U. S., at 44 (emphasis added). Vartelas, we have several
times stressed, engaged in no criminal activity after
IIRIRA’s passage. He simply took a brief trip to Greece,
anticipating a return without incident as in past visits to
his parents. No “indefinitely continuing” crime occurred;
instead, Vartelas was apprehended because of a preIIRIRA crime he was “helpless to undo.” Ibid.
The Government further refers to lower court decisions
in cases involving 18 U. S. C. §922(g), which prohibits the
possession of firearms by convicted felons. Brief for Respondent 18–19 (citing United States v. Pfeifer, 371 F. 3d
430, 436 (CA8 2004), and United States v. Hemmings, 258
F. 3d 587, 594 (CA7 2001)). “[L]ongstanding prohibitions
on the possession of firearms by felons,” District of Columbia v. Heller, 554 U. S. 570, 626 (2008), however, target a
present danger, i.e., the danger posed by felons who bear
arms. See, e.g., Pfeifer, 371 F. 3d, at 436 (hazardous conduct that statute targets “occurred after enactment of the
statute”); Omnibus Crime Control and Safe Streets Act of
1968, §1201, 82 Stat. 236 (noting hazards involved when
felons possess firearms).7
——————
7
The dissent, see post, at 6, notes two statutes of the same genre:
laws prohibiting persons convicted of a sex crime against a victim
under 16 years of age from working in jobs involving frequent contact
with minors, and laws prohibiting a person “who has been adjudicated
as a mental defective or who has been committed to a mental insti-
tution” from possessing guns, 18 U. S. C. §922(g)(4). The dissent is
correct that these statutes do not operate retroactively. Rather, they Cite as: 566 U. S. ____ (2012) 13
Opinion of the Court
Nor do recidivism sentencing enhancements support the
Government’s position. Enhanced punishment imposed
for the later offense “‘is not to be viewed as . . . [an] additional penalty for the earlier crimes,’ but instead, as a
‘stiffened penalty for the latest crime, which is considered
to be an aggravated offense because [it is] a repetitive
one.’” Witte v. United States, 515 U. S. 389, 400 (1995)
(quoting Gryger v. Burke, 334 U. S. 728, 732 (1948)). In
Vartelas’ case, however, there is no “aggravated . . . repetitive” offense. There is, in contrast, no post-IIRIRA criminal offense at all. Vartelas’ travel abroad and return are
“innocent” acts, see Fleuti, 374 U. S., at 462, burdened
only because of his pre-IIRIRA offense.
In sum, Vartelas’ brief trip abroad post-IIRIRA involved
no criminal infraction. IIRIRA disabled him from leaving
the United States and returning as a lawful permanent
resident. That new disability rested not on any continuing
criminal activity, but on a single crime committed years
before IIRIRA’s enactment. The antiretroactivity principle
instructs against application of the new proscription
to render Vartelas a first-time arrival at the country’s
gateway.
——————
address dangers that arise postenactment: sex offenders with a history
of child molestation working in close proximity to children, and men-
tally unstable persons purchasing guns. The act of flying to Greece, in
contrast, does not render a lawful permanent resident like Vartelas
hazardous. Nor is it plausible that Congress’ solution to the problem of
dangerous lawful permanent residents would be to pass a law that
would deter such persons from ever leaving the United States.
As for student loans, it is unlikely that the provision noted by the
dissent, 20 U. S. C. §1091(r), would raise retroactivity questions in the
first place. The statute has a prospective thrust. It concerns
“[s]uspension of eligibility” when a student receiving a college loan
commits a drug crime. The suspension runs “from the date of th[e]
conviction” for specified periods, e.g., two years for a second offense of
possession. Moreover, eligibility may be restored before the period of
ineligibility ends if the student establishes, under prescribed criteria,
his rehabilitation.
14 VARTELAS v. HOLDER
Opinion of the Court
IV
The Second Circuit homed in on the words “committed
an offense” in §1101(a)(13)(C)(v) in determining that the
change IIRIRA wrought had no retroactive effect. 620
F. 3d, at 119–121. It matters not that Vartelas may have
relied on the prospect of continuing visits to Greece in
deciding to plead guilty, the court reasoned. “[I]t would
border on the absurd,” the court observed, “to suggest that
Vartelas committed his counterfeiting crime in reliance on
the immigration laws.” Id., at 120. This reasoning is
doubly flawed.
As the Government acknowledges, “th[is] Court has not
required a party challenging the application of a statute to
show [he relied on prior law] in structuring his conduct.”
Brief for Respondent 25–26. In Landgraf, for example,
the issue was the retroactivity of compensatory and punitive damages as remedies for employment discrimination.
“[C]oncerns of . . . upsetting expectations are attenuated in
the case of intentional employment discrimination,” the
Court noted, for such discrimination “has been unlawful
for more than a generation.” 511 U. S., at 282, n. 35. But
“[e]ven when the conduct in question is morally reprehensible or illegal,” the Court added, “a degree of unfairness is
inherent whenever the law imposes additional burdens
based on conduct that occurred in the past.” Id., at 283,
n. 35. And in Hughes Aircraft, the Court found that Congress’ 1986 removal of a defense to a qui tam action did
not apply to pre-1986 conduct in light of the presumption
against retroactivity. 520 U. S., at 941–942.8
As in Land-
——————
8
The deleted defense permitted qui tam defendants to escape liability
if the information on which a private plaintiff (relator) relied was
already in the Government’s possession. Detrimental reliance was
hardly apparent, for the Government, both before and after the statu-
tory change, could bring suit with that information, and “the monetary
liability faced by [a False Claims Act] defendant is the same whether
the action is brought by the Government or by a qui tam relator.” 520 Cite as: 566 U. S. ____ (2012) 15
Opinion of the Court
graf, the relevant conduct (submitting a false claim) had
been unlawful for decades. See 520 U. S., at 947.
The operative presumption, after all, is that Congress
intends its laws to govern prospectively only. See supra,
at 7. “It is a strange ‘presumption,’ ” the Third Circuit
commented, “that arises only on . . . a showing [of] actual
reliance.” Ponnapula v. Ashcroft, 373 F. 3d 480, 491
(2004). The essential inquiry, as stated in Landgraf, 511
U. S., at 269–270, is “whether the new provision attaches
new legal consequences to events completed before its
enactment.” That is just what occurred here.
In any event, Vartelas likely relied on then-existing
immigration law. While the presumption against retroactive application of statutes does not require a showing of
detrimental reliance, see Olatunji, 387 F. 3d, at 389–395,
reasonable reliance has been noted among the “familiar
considerations” animating the presumption, see Landgraf,
511 U. S., at 270 (presumption reflects “familiar consid-
erations of fair notice, reasonable reliance, and settled
expectations”). Although not a necessary predicate for invoking the antiretroactivity principle, the likelihood of
reliance on prior law strengthens the case for reading a
newly enacted law prospectively. See Olatunji, 387 F. 3d,
at 393 (discussing St. Cyr).
St. Cyr is illustrative. That case involved a lawful permanent resident who pleaded guilty to a criminal charge
that made him deportable. Under the immigration law in
effect when he was convicted, he would have been eligible
to apply for a waiver of deportation. But his removal
proceeding was commenced after Congress, in IIRIRA,
withdrew that dispensation. Disallowance of discretionary
waivers, the Court recognized, “attache[d] a new disability, in respect to transactions or considerations already
past.” 533 U. S., at 321 (internal quotation marks omit-
——————
U. S., at 948.
16 VARTELAS v. HOLDER
Opinion of the Court
ted). Aliens like St. Cyr, the Court observed, “almost
certainly relied upon th[e] likelihood [of receiving discretionary relief] in deciding [to plead guilty, thereby] forgo[ing] their right to a trial.” Id., at 325.9
Hence, applying
the IIRIRA withdrawal to St. Cyr would have an “obvious
and severe retroactive effect.” Ibid. Because Congress
made no such intention plain, ibid., n. 55, we held that the
prior law, permitting relief from deportation, governed St.
Cyr’s case.
As to retroactivity, one might think Vartelas’ case even
easier than St. Cyr’s. St. Cyr could seek the Attorney
General’s discretionary dispensation. Vartelas, under
Fleuti, was free, without seeking an official’s permission,
to make trips of short duration to see and assist his parents in Greece.10
The Second Circuit thought otherwise,
compounding its initial misperception (treating reliance as
essential to application of the antiretroactivity principle).
The deportation provision involved in St. Cyr, 8 U. S. C.
§1229b(a)(3), referred to the alien’s “convict[ion]” of a
crime, while the statutory words sub judice in Vartelas’
case were “committed an offense.” §1101(a)(13)(C)(v); see
supra, at 12–13.11
The practical difference, so far as retro-
——————
9
“There can be little doubt,” the Court noted in St. Cyr, “that, as
a general matter, alien defendants considering whether to enter into a
plea agreement are acutely aware of the immigration consequences of
their convictions.” 533 U. S., at 322. Indeed, “[p]reserving [their] right
to remain in the United States may be more important to [them] than
any potential jail sentence.” Ibid. (internal quotation marks omitted).
See Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (slip op., at 9–11)
(holding that counsel has a duty under the Sixth Amendment to inform
a noncitizen defendant that his plea would make him eligible for
deportation).
10
Armed with knowledge that a guilty plea would preclude travel
abroad, aliens like Vartelas might endeavor to negotiate a plea to a
nonexcludable offense—in Vartelas’ case, e.g., possession of counterfeit
securities—or exercise a right to trial.
11
After the words “committed an offense,” §1101(a)(13)(C)(v)’s next
words are “identified in section 1182(a)(2).” That section refers to “any
Cite as: 566 U. S. ____ (2012) 17
Opinion of the Court
activity is concerned, escapes from our grasp. Ordinarily,
to determine whether there is clear and convincing evidence that an alien has committed a qualifying crime, the
immigration officer at the border would check the alien’s
records for a conviction. He would not call into session a
piepowder court12
to entertain a plea or conduct a trial.
Satisfied that Vartelas’ case is at least as clear as St.
Cyr’s for declining to apply a new law retroactively, we
hold that Fleuti continues to govern Vartelas’ short-term
travel.
* * *
For the reasons stated, the judgment of the Court of
Appeals for the Second Circuit is reversed, and the case is
remanded for further proceedings consistent with this
opinion.
It is so ordered.
——————
alien convicted of, or who admits having committed,” inter alia, “a crime
involving moral turpitude.” §1182(a)(2)(A)(i)(I) (emphasis added). The
entire §1101(a)(13)(C)(v) phrase “committed an offense identified in
section 1182(a)(2),” on straightforward reading, appears to advert to a
lawful permanent resident who has been convicted of an offense under
§1182(a)(2) (or admits to one).
12
Piepowder (“dusty feet”) courts were temporary mercantile courts
held at trade fairs in Medieval Europe; local merchants and guild
members would assemble to hear commercial disputes. These courts
provided fast and informal resolution of trade conflicts, settling cases
“while the merchants’ feet were still dusty.” Callahan, Medieval
Church Norms and Fiduciary Duties in Partnership, 26 Cardozo L. Rev.
215, 235, and n. 99 (2004) (internal quotation marks omitted) (quoting
H. Berman, Law and Revolution: The Formation of the Western Legal
Tradition 347 (1983)). _________________
_________________
Cite as: 566 U. S. ____ (2012) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 10–1211
PANAGIS VARTELAS, PETITIONER v. ERIC H.
HOLDER, JR., ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[March 28, 2012]
JUSTICE SCALIA, with whom JUSTICE THOMAS and
JUSTICE ALITO join, dissenting.
As part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress required that lawful permanent residents who have committed certain crimes seek formal “admission” when they
return to the United States from abroad. 8 U. S. C.
§1101(a)(13)(C)(v). This case presents a straightforward
question of statutory interpretation: Does that statute
apply to lawful permanent residents who, like Vartelas,
committed one of the specified offenses before 1996, but
traveled abroad after 1996? Under the proper approach to
determining a statute’s temporal application, the answer
is yes.
I
The text of §1101(a)(13)(C)(v) does not contain a clear
statement answering the question presented here. So
the Court is correct that this case is governed by our
longstanding interpretive principle that, in the absence of
a contrary indication, a statute will not be construed to
have retroactive application. See, e.g., Landgraf v. USI
Film Products, 511 U. S. 244, 280 (1994). The operative
provision of this text—the provision that specifies the act
that it prohibits or prescribes—says that lawful perma-
2 VARTELAS v. HOLDER
SCALIA, J., dissenting
nent residents convicted of offenses similar to Vartelas’s
must seek formal “admission” before they return to the
United States from abroad. Since Vartelas returned to the
United States after the statute’s effective date, the application of that text to his reentry does not give the statute a
retroactive effect.
In determining whether a statute applies retroactively,
we should concern ourselves with the statute’s actual
operation on regulated parties, not with retroactivity as an
abstract concept or as a substitute for fairness concerns.
It is impossible to decide whether a statute’s application
is retrospective or prospective without first identifying a
reference point—a moment in time to which the statute’s
effective date is either subsequent or antecedent. (Otherwise, the obvious question—retroactive in reference to
what?—remains unanswered.) In my view, the identity of
that reference point turns on the activity a statute is
intended to regulate. For any given regulated party, the
reference point (or “retroactivity event”) is the moment at
which the party does what the statute forbids or fails to do
what it requires. See Martin v. Hadix, 527 U. S. 343, 362–
363 (1999) (SCALIA, J., concurring in part and concurring
in judgment); Landgraf, supra, at 291 (SCALIA, J., concurring in judgments). With an identified reference point, the
retroactivity analysis is simple. If a person has engaged in
the primary regulated activity before the statute’s effective
date, then the statute’s application would be retroactive.
But if a person engages in the primary regulated activity
after the statute’s effective date, then the statute’s application is prospective only. In the latter case, the interpretive presumption against retroactivity does not bar the
statute’s application.
Under that commonsense approach, this is a relatively
easy case. Although the class of aliens affected by
§1101(a)(13)(C)(v) is defined with respect to past crimes,
the regulated activity is reentry into the United States. By
Cite as: 566 U. S. ____ (2012) 3
SCALIA, J., dissenting
its terms, the statute is all about controlling admission at
the border. It specifies six criteria to identify lawful permanent residents who are subject to formal “admission”
procedures, most of which relate to the circumstances of
departure, the trip itself, or reentry. The titles of the
statutory sections containing §1101(a)(13)(C)(v) confirm
its focus on admission, rather than crime: The provision is
located within Title III of IIRIRA (“Inspection, Apprehension, Detention, Adjudication, and Removal of Inadmissible and Deportable Aliens”), under Subtitle A (“Revision of
Procedures for Removal of Aliens”), and §301 (“Treating
Persons Present in the United States Without Authorization as Not Admitted”). 110 Stat. 3009–575. And the
specific subsection of IIRIRA at issue (§301(a), entitled
“‘Admission’ Defined”) is an amendment to the definition
of “entry” in the general “Definitions” section of the Immigration and Nationality Act (INA). See ante, at 2–3. The
original provision told border officials how to regulate
admission—not how to punish crime—and the amendment
does as well.
Section 1101(a)(13)(C)(v) thus has no retroactive effect
on Vartelas because the reference point here—Vartelas’s
readmission to the United States after a trip abroad—
occurred years after the statute’s effective date. Although
Vartelas cannot change the fact of his prior conviction,
he could have avoided entirely the consequences of
§1101(a)(13)(C)(v) by simply remaining in the United
States or, having left, remaining in Greece. That
§1101(a)(13)(C)(v) had no effect on Vartelas until he performed a post-enactment activity is a clear indication
that the statute’s application is purely prospective. See
Fernandez-Vargas v. Gonzales, 548 U. S. 30, 45, n. 11,
46 (2006) (no retroactive effect where the statute in
question did “not operate on a completed preenactment
act” and instead turned on “a failure to take timely action
that would have avoided application of the new law
4 VARTELAS v. HOLDER
SCALIA, J., dissenting
altogether”).
II
The Court avoids this conclusion by insisting that
“[p]ast misconduct, . . . not present travel, is the wrongful
activity Congress targeted” in §1101(a)(13)(C)(v). Ante,
at 11. That assertion does not, however, have any basis
in the statute’s text or structure, and the Court does not
pretend otherwise. Instead, the Court simply asserts that
Vartelas’s “lawful foreign travel” surely could not be the
“reason for the ‘new disability’ imposed on him.” Ibid.
(emphasis added). But the reason for a prohibition has
nothing to do with whether the prohibition is being applied to a past rather than a future act. It may be relevant
to other legal inquiries—for example, to whether a legislative act violates one of the Ex Post Facto Clauses in Article
I, see, e.g., Smith v. Doe, 538 U. S. 84, 92 (2003), or one of
the Due Process Clauses in the Fifth and Fourteenth
Amendments, see, e.g., Williamson v. Lee Optical of Okla.,
Inc., 348 U. S. 483, 487 (1955), or the Takings Clause in
the Fifth Amendment, see, e.g., Kelo v. New London, 545
U. S. 469, 477–483 (2005), or the Obligation of Contracts
Clause in Article I, see, e.g., United States Trust Co. of
N. Y. v. New Jersey, 431 U. S. 1, 29 (1977). But it has no
direct bearing upon whether the statute is retroactive.*
The Court’s failure to differentiate between the statutoryinterpretation question (whether giving certain effect to a
provision would make it retroactive and hence presump-
——————
* I say no direct bearing because if the prospective application of a
statute would raise constitutional doubts because of its effect on preenactment conduct, that would be a reason to presume a legislative
intent not to apply it unless the conduct in question is postenactment—that is, to consider it retroactive when the conduct in
question is pre-enactment. See Clark v. Martinez, 543 U. S. 371, 380–
381 (2005). That is not an issue here. If the statute had expressly
made the new “admission” rule applicable to those aliens with prior
convictions, its constitutionality would not be in doubt. Cite as: 566 U. S. ____ (2012) 5
SCALIA, J., dissenting
tively unintended) and the validity question (whether
giving certain effect to a provision is unlawful) is on full
display in its attempts to distinguish §1101(a)(13)(C)(v)
from similar statutes. Take, for example, the Court’s discussion of the Racketeer Influenced and Corrupt Organizations Act (RICO). That Act, which targets “patterns
of racketeering,” expressly defines those “patterns” to
include some pre-enactment conduct. See 18 U. S. C.
§1961(5). Courts interpreting RICO therefore need not
consider the presumption against retroactivity; instead,
the cases cited by the majority consider whether RICO
violates the Ex Post Facto Clause. See United States v.
Brown, 555 F. 2d 407, 416–417 (CA5 1977); United States
v. Campanale, 518 F. 2d 352, 364–365 (CA9 1975)
(per curiam). The Government recognized this distinction
and cited RICO to make a point about the Ex Post Facto
Clause rather than the presumption against retroactivity,
Brief for Respondent 17–18; the Court evidently does not.
The Court’s confident assertion that Congress surely
would not have meant this statute to apply to Vartelas,
whose foreign travel and subsequent return to the United
States were innocent events, ante, at 11, 14, simply begs
the question presented in this case. Ignorance, of course,
is no excuse (ignorantia legis neminem excusat); and his
return was entirely lawful only if the statute before us did
not render it unlawful. Since IIRIRA’s effective date in
1996, lawful permanent residents who have committed
crimes of moral turpitude are forbidden to leave the
United States and return without formally seeking “admission.” See §1101(a)(13)(C)(v). As a result, Vartelas’s
numerous trips abroad and “uneventful” reentries into the
United States after the passage of IIRIRA, see ante, at 5,
were lawful only if §1101(a)(13)(C)(v) does not apply to
him—which is, of course, precisely the matter in dispute
here.
The Court’s circular reasoning betrays its underlying
6 VARTELAS v. HOLDER
SCALIA, J., dissenting
concern: Because the Court believes that reentry after a
brief trip abroad should be lawful, it will decline to apply a
statute that clearly provides otherwise for certain criminal
aliens. (The same instinct likely produced the Court’s
questionable statutory interpretation in Rosenberg v.
Fleuti, 374 U. S. 449 (1963).) The Court’s test for retroactivity—asking whether the statute creates a “new disability” in “respect to past events”—invites this focus on fairness. Understandably so, since it is derived from a Justice
Story opinion interpreting a provision of the New Hampshire Constitution that forbade retroactive laws—a provision comparable to the Federal Constitution’s ex post facto
prohibition and bearing no relation to the presumption
against retroactivity. What is unfair or irrational (and
hence should be forbidden) has nothing to do with whether
applying a statute to a particular act is prospective (and
thus presumptively intended) or retroactive (and thus
presumptively unintended). On the latter question, the
“new disability in respect to past events” test provides no
meaningful guidance.
I can imagine countless laws that, like §1101(a)(13)
(C)(v), impose “new disabilities” related to “past events”
and yet do not operate retroactively. For example, a statute making persons convicted of drug crimes ineligible for
student loans. See, e.g., 20 U. S. C. §1091(r)(1). Or laws
prohibiting those convicted of sex crimes from working in
certain jobs that involve repeated contact with minors.
See, e.g., Cal. Penal Code Ann. §290.95(c) (West Supp.
2012). Or laws prohibiting those previously committed
for mental instability from purchasing guns. See, e.g., 18
U. S. C. §922(g)(4). The Court concedes that it would not
consider the last two laws inapplicable to pre-enactment
convictions or commitments. Ante, at 12, n. 7. The Court
does not deny that these statutes impose a “new disability
in respect to past events,” but it distinguishes them based
on the reason for their enactment: These statutes “address Cite as: 566 U. S. ____ (2012) 7
SCALIA, J., dissenting
dangers that arise postenactment.” Ante, at 13, n. 7. So
much for the new-disability-in-respect-to-past-events test;
it has now become a new-disability-not-designed-to-guardagainst-future-danger test. But why is guarding against
future danger the only reason Congress may wish to regulate future action in light of past events? It obviously is
not. So the Court must invent yet another doctrine to
address my first example, the law making persons
convicted of drug crimes ineligible for student loans.
According to the Court, that statute differs from
§1101(a)(13)(C)(v) because it “has a prospective thrust.”
Ante, at 13, n. 7. I cannot imagine what that means, other
than that the statute regulates post-enactment con-
duct. But, of course, so does §1101(a)(13)(C)(v). Rather
than reconciling any of these distinctions with Justice
Story’s formulation of retroactivity, the Court leaves to
lower courts the unenviable task of identifying newdisabilities- not- designed- to- guard-against-future-dangerand-also-lacking-a-prospective-thrust.
And anyway, is there any doubt that §1101(a)(13)(C)(v)
is intended to guard against the “dangers that arise
postenactment” from having aliens in our midst who have
shown themselves to have proclivity for crime? Must that
be rejected as its purpose simply because Congress has not
sought to achieve it by all possible means—by ferreting
out such dangerous aliens and going through the expensive and lengthy process of deporting them? At least some
of the post-enactment danger can readily be eliminated by
forcing lawful permanent residents who have committed
certain crimes to undergo formal “admission” procedures
at our borders. Indeed, by limiting criminal aliens’ opportunities to travel and then return to the United States,
§1101(a)(13)(C)(v) may encourage self-deportation. But all
this is irrelevant. The positing of legislative “purpose” is
always a slippery enterprise compared to the simple
determination of whether a statute regulates a future
8 VARTELAS v. HOLDER
SCALIA, J., dissenting
event—and it is that, rather than the Court’s pronouncement of some forward-looking reason, which governs
whether a statute has retroactive effect.
Finally, I cannot avoid observing that even if the Court’s
concern about the fairness or rationality of applying
§1101(a)(13)(C)(v) to Vartelas were relevant to the statutory interpretation question, that concern is greatly exaggerated. In disregard of a federal statute, convicted criminal Vartelas repeatedly traveled to and from Greece
without ever seeking formal admission at this country’s
borders. When he was finally unlucky enough to be apprehended, and sought discretionary relief from removal
under former §212(c) of the INA, 8 U. S. C. §1182(c) (1994
ed.), the Immigration Judge denying his application found
that Vartelas had made frequent trips to Greece and had
remained there for long periods of time, that he was “a
serious tax evader,” that he had offered testimony that
was “close to incredible,” and that he had not shown hardship to himself or his estranged wife and children should
he be removed. See 620 F. 3d 108, 111 (CA2 2010); Brief
for Respondent 5 (internal quotation marks omitted). In
decrying the “harsh penalty” imposed by this statute on
Vartelas, the Court ignores those inconvenient facts.
Ante, at 9. But never mind. Under any sensible approach
to the presumption against retroactivity, these factual
subtleties should be irrelevant to the temporal application
of §1101(a)(13)(C)(v).
* * *
This case raises a plain-vanilla question of statutory
interpretation, not broader questions about frustrated
expectations or fairness. Our approach to answering that
question should be similarly straightforward: We should
determine what relevant activity the statute regulates
(here, reentry); absent a clear statement otherwise, only
such relevant activity which occurs after the statute’s Cite as: 566 U. S. ____ (2012) 9
SCALIA, J., dissenting
effective date should be covered (here, post-1996 reentries). If, as so construed, the statute is unfair or irrational enough to violate the Constitution, that is another
matter entirely, and one not presented here. Our interpretive presumption against retroactivity, however, is just
that—a tool to ascertain what the statute means, not a
license to rewrite the statute in a way the Court considers
more desirable.
I respectfully dissent.
