More on Fernandez-Vargas

Kevin Johnson already posted the decision and some commentary (below). The decision was not particularly suprising. And while I disagree with it, the Court’s Landgraf analysis pertaining to retroactivity is not indefensible. But the case certainly is a disappointment for those hoping that the Supreme Court might read the 1996 law in a way that would minimize its unfairness. Instead, the court ruled that pre-1996 illegal entries render a person ineligible for relief from removal. Why is that a bad idea? For lots of reasons. Here are three:

1. This decision results in the application of section 241(a) to people whose most recent illegal reentry was 10 years ago or more. Thus, it takes aim directly at people who have formed family bonds, often have steady jobs, and pose no obvious threat to society. Mr. Fernandez-Vargas certainly fit that category. Yet his long-ago illegal entry renders him ineligible for relief — relief that he may well have been entitled to up until 1996. Do we really want this?;

2. The provision that the Court applied to Fernandez-Vargas actually works to stop people from obtaining legal status — or even seeking it. This was true before the decision, but the decision does nothing to curtail the madness.

Advocates of immigration restrictions often argue that they think that people who are here unlawfully should just do the necessary footwork to obtain legal status. That is precisely what Mr. Fernandez-Vargas tried to do. With a citizen wife and children, over 20 years of US residence and a steady job, one would think that he is precisely the sort of person who might be able to obtain legal status. INA section 241(a)(5) prevents him from doing so. This sends a message that there is no way for such people to obtain legal status, and it drives them into the shadows. Mr. Fernandez-Vargas was only detected and removed because he sought to legalize his status. Others may not be so brave after this….If you want to ensure the presence of an underground population that declines to seek legal status, provisions like this are a good way to do so.

3. The case illustrates how little work is being done to prioritize the use of government resources in immigration administration. ICE seems to remove most of the people who come to their attention, regardless of the humanity or need for such removal. The system is filled with long-term residents who are being removed, often for age-old offenses. Sometimes these offenses are quite minor. If we are genuinely concerned about using immigration enforcement to clamp down on security risks, it seems odd to clog the system by deporting productive members of society, who often happen to be the fathers, mothers and grandparents of citizens. For those who need evidence that this is happening, note that the government litigated this case to the Supreme Court, when it would have been a great case in which to exercise some much needed prosecutorial discretion.

Given the size of the undocumented population and the limitation on government resources, one would think that Congress would want to enact smart immigration laws. But that did not happen in 1996. And the proposed “immigration refom” bills currently dying in Congress have many provisions (including further expansion of aggravated felony provisions) which suggest that Congress still favors a quantity-not-quality strategy of immigration enforcement. Today’s decision reminds us that the Supreme Court won’t be second-guessing this misguided approach.

-jmc