The United States Supreme Court handed down an opinion on 22 June, 2006 that allows long-term illegal residents to be deported under a 1996 law that became effective on 01 April, 1997.
In an 8-1 vote, the justices ruled that Humberto Fernandez-Vargas has no right to return to the U.S., even though he lived in the country for over 30 years, married a U.S. citizen, fathered a child who is a U.S. citizen, and operated his own business for many years. He apparently had no valid work permit or visa at any point.
Fernandez-Vargas argued that the law, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), should not apply to him because he had resided in the U.S. without being detected, caught or deported since at least 1982. In his claim, he argued that the law should not be retroactively applied to him (and therefore other illegal aliens of similar status).
However, the case was a bit more complex than that.
Fernandez-Vargas had been illegally in the U.S. several times, the first in approximately 1970. He was also arrested and deported several times prior to his last illegal entry in 1981 or 1982 (there is some ambiguity between news reports). At least one court order for his removal was issued, and the 1996 IIRIRA allowed that previous deportation orders may be re-issued if a person attempts re-entry. If the re-entry attempted is illegal, the previous deportation may be automatic; if the re-entry is legal, it is possible that a decision may be made to invoke a previous order for removal.
Largely, Fernandez-Vargas argued that he could not be deported or barred from re-entry based upon his illegal entry prior to the IIRIRA. However, the court ruled on several points, the first being that he was barred from re-entry based not upon his illegal entry, but, rather, the previous order for removal being re-invoked, which was based upon a 1956 law that preceded his activity. Retroactive application of the 1996 law was not judged to be the circumstance. Application of the 1956 law, which the IIRIRA amended, was judged to be the critical point.
Further, the law was passed on September 30, 1996 but it did not become effective for 180 days, beginning on 01 April, 1997. The fact that Fernandez-Vargas did not voluntarily leave the U.S. and re-apply for re-entry during this grace period is cited in the opinion, noting that he voluntarily continued to violate the law even when offered an opportunity to comply.
Even more complications arise from the fact that he fathered a son prior to the law and had the opportunity to marry the mother of his son. Once married to a U.S. citizen at the time, he could have applied for adjustment of his status from illegal to legal during this grace period. Given the time frame, he most likely would have gained permanent residency under such circumstances.
He eventually did marry the mother of his son, in March 2001, and then attempted to adjust his residency from illegal to legal in 2003. However, he was detained in November 2003 by Immigration, which determined that a previous court order for his deportation was already re-instated and effective. He was deported to Mexico in September 2004 after spending nearly a year in a Utah jail contesting the determination.
Homeland Security reinstated a previous deportation order from 1981 against Fernandez-Vargas. IIRIRA, known as the "reinstatement statute," specifies that a previous order for removal may be reinstated to an undocumented immigrant who has illegally re-entered the U.S. after being removed. It also bans the individual from any form of "relief." A waiver to avoid the statute may only be sought following a 10-year period outside of the U.S.
Fernandez-Vargas attempted to fight the ruling from Mexico, but with the Supreme Court decision all of his possible appeals are now exhausted.
While it is not currently a serious crime (such as a felony) to enter the U.S. illegally, once an order for removal has been issued against a person, their re-entry becomes vastly more difficult. In the case of Fernandez-Vargas, the other aggravating circumstances virtually ensure that normal application for entry into the U.S. is unlikely to be granted.
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