Oral Argument in Fernandez-Vargas v. Gonzales

Note: This post was authored by Michael Kaufman, a second-year student at Stanford Law School, on Tuesday, March 21, 2006.

Tomorrow, the Court will revisit the murky waters of the retroactive application of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) when it hears arguments in Fernandez-Vargas v. Gonzales. The case presents the question of whether and under what circumstances an alien who reentered the U.S. illegally before the effective date of IIRIRA is barred from applying for relief from removal under Section 241(a)(5) of the Act. Petitioner Fernandez-Vargas was deported in 1981 and reentered the U.S. the next year without inspection. In 2003 he was in the process of applying for adjustment of status when he was arrested and, pursuant to Section 241(a)(5), his previous order of removal was reinstated. Under pre-IIRIRA law, Fernandez-Vargas would have been eligible to apply for adjustment of status notwithstanding his previous order of deportation. But under Section 241(a)(5), as amended by IIRIRA, if an alien is found to have illegally reentered the U.S. “the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this Act, and the alien shall be removed under the prior order any time after the reentry.”

For the rest of the entry, see

http://www.scotusblog.com/movabletype/

KJ