Supreme Court Takes Immigration Case

The Supreme Court has granted cert in an immigration case. The case is Fernandez-Vargas v. Ashcroft, 394 F.3d 881 (10th Cir. 2005). The decision, written by former law professor (and one of the persons rumored as a possible Supreme Court nominee) Mike McConnell, denied petitioner’s request for the reversal of denial of adjustment of status under INA § 245(i).  For the decision, see Download fernandez_vargas_immigration.pdf

For briefs and related materials, see

Download fernandezvargas_final.pdf

Download fernandezvargas_final1.pdf

Download fernandezvargas_cert_reply.pdf

Download fernandezvargas_cert_reply1.pdf

Download Humberto.04-1376.response.pdf

The Solictor General agreed with the petitioner that certiorari should be granted because of a split in the circuits on the application of aprovision of the Illegal Immigration Rreform and Immigrant Rresponsibility Act of 1996 (IIRIRA).  IIRIRA adde INA § 241(a)(5), which provides that a prior order of removal may be reinstated against a noncitizen who has illegally re-enterd the United States; and (2) bars the noncitizen for applying for any relief.  Fernandez-Vargas last was deported in 1981and was a small businessman for over twenty years and married a U.S. citizen in 2001.  He sought to adjust his status under Section 245(i).  At the interview for the petition, Fernandez-Vargas was placed incustody and placed in removal proceedings.  The question was whether the new provision in IIRIRA applied to deportations before the law went into effect.  The Tenth Circuit, in a decision by Judge McConnell, effectively found that it did and Fernandez was ineligible for relief under INA § 241(a)(5).  This is the question before the Supreme Court.  The briefing on the cert petition focused much on the retroactive effect of the 1996 law.

KJ