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Mr. Vartelas Goes to Washington How Did Vartelas Get to the Supreme Court from the Practitioner's Stand Point

by Andrew K. Chow, Neil A. Weinrib, Kimberley MacKay

On March 28, 2012, the Supreme Court issued an important decision in Vartelas v. Holder, No. 10-1211, and held that the Fleuti doctrine continues to apply to lawful permanent residents with pre-IIRIRA convictions. As counsel for Mr. Panagis Vartelas, a native and citizen of Greece, we will rewind the tape and play how the case of Vartelas made it to the US Supreme Court.

Mr. Vartelas first came to our office for a consultation in or about June 2008, after he had received an adverse decision from the Board of Immigration Appeals affirming the denial of his application for discretionary relief under the former 212(c). He indicated that he had previously been represented by two different lawyers. The initial question presented was what should we do insofar as the courts of appeal lack jurisdiction to review an agency's decision with respect to discretionary relief? A review of the decision and the hearing transcript failed to suggest a viable basis for a statutory and/or constitutional claim relating to 212(c). Our dilemma was as follows: do we simply advise Mr. Vartelas to give up the case and await the ultimate fate of being removed from the United States to Greece?

The next logical question presented was why Mr. Vartelas had been placed in removal proceedings. After a further interview with the client we learned that from January 22 to January 29, 2003, Mr. Vartelas traveled to Greece (apparently he had several prior trips without incident) and upon his return he was placed under removal proceedings for being inadmissible under 212(a)(2)(A)(i)(I) for having been convicted of a crime of moral turpitude (a counterfeiting offense) in 1994. Mr. Vartelas had received a sentence of 4 months incarceration. The Fleuti doctrine instantly came to mind and we immediately filed a motion to reopen the removal proceeding on the basis that his prior counsel had been ineffective for, among other reasons, conceding his removability and not requesting termination of the proceedings because the trip was truly "innocent, casual, and brief" under Fleuti.

The motion was also based on the argument that 101(a)(13)(C)(v) should not be retroactively applied to Mr. Vartelas. The filing of the motion with the BIA would preserve Mr. Vartelas' statutory right to review by the Court of Appeals for the Second Circuit. The BIA subsequently denied the motion and held that Mr. Vartelas had not proven prejudice because his argument against 101(a)(13) retroactivity was misplaced as Fleuti was abrogated by Collado-Munoz, 21 I & N Dec. 1061 (BIA 1997).

A petition for review was timely filed with the Second Circuit Court of Appeals. Although this was a case of first impression in the Second Circuit we felt confident that the Second Circuit would concur with the Fourth Circuit (Olatunji v. Ashcroft) and Ninth Circuit (Camins v. Gonzales) on the issue of retroactivity. However, much to our surprise after vigorous oral argument on January 12, 2010, the Second Circuit denied Mr. Vartelas' petition for review of the BIA decision.

The Second Circuit held that 101(a)(13)(C)(v) was not impermissibly retroactive as applied to a lawful permanent resident who was convicted of crime of moral turpitude, thereafter departed the United States, and was seeking admission upon his return. The Second Circuit reasoned that the dispositive act to assess the retroactivity of the amended 101(a)(13)(C)(v) is the alien's decision to commit an offense, rather than his decision to plead guilty to the crime. The Second Circuit asserted that "[w]e have consistently rejected the notion that an alien can reasonably have relied on provisions of the immigration laws in 'committing' his crimes." 620 F.3d 108, 120. The Second Circuit clearly and erroneously followed its precedent case of Zuluaga-Martinez v. IN, 523 F.3d 365 (2d Cir. 2008). In Zuluaga-Martinez, the main issue was the new stop-time rule in INA ?240A(d)(1) for calculating an alien's period of continuous residence or physical presence. In that case the commission of a crime operated to cut off Zuluaga-Martinez's continuous residence period and thereby destroyed his eligibility for cancellation of removal.

An astute immigration practitioner would likely agree that the Second Circuit's reasoning was fundamentally incorrect. As Justice Ginsburg perceptively observed, the Second Circuit's reliance on the commission of the crime is "doubly flawed". Counsel then filed a motion for a panel rehearing and hearing en banc with the Second Circuit. We argued that the determinative event in Zuluaga-Martinez was the commission of the crime and not the decision to enter a guilty plea as in the case of Mr. Vartelas. In addition, the term "committed" as used in 101(a)(13)(C)(v) must be construed in conjunction with 212 (A)(2)(a)(i)(I). The Supreme Court agreed in n.12 of the opinion that the entire 1101(a)(13(C)(v) phrase "committed an offense identified in section 1181(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). The Second Circuit, however, denied the motion without an opinion.

The Second Circuit's adverse ruling on the petition for review created a split with the Fourth and Ninth Circuits which have held that the new 101(a)(13) may not be applied retroactively to lawful permanent residents who committed crimes set forth in 212(a)(2). Our firm subsequently assisted Mr. Vartelas in filing a successful petition for certiorari to the U.S. Supreme Court and served as co-counsel in this important case before the U.S. Supreme Court. Professor Stephanos Bibas of the University of Pennsylvania Law School and Director of Penn Law's Supreme Court Legal Clinic argued for Mr. Vartelas before the Supreme Court. Counsel attended the oral argument which was unquestionably a once in a lifetime experience for a legal practitioner. In fact, the enormity of the experience does not fully kick in until you are standing in front of the impressive Supreme Court building, pass through the multiple layers of security, and stand at attention as the Court comes to order and the justices take their regular places in the courtroom only a few feet away from us. True to ideological form, several of the justices questioned whether or not it was appropriate for the Court to reward an individual who had committed a criminal act. Consistent with his reputation, Justice Thomas was the only justice who refrained from asking any questions. Justice Ginsburg was extremely familiar with the entire history of the case and took the lead in questioning. The U.S. Supreme Court ruled in favor of Mr. Vartelas in a 6-3 opinion. It is especially gratifying because the U.S. Supreme Court rarely reverses the judgment of the venerable Second Circuit.

About The Author

Andrew K. Chow, Esq. (Brooklyn Law School), Neil A. Weinrib, Esq. (Hofstra Law School), and Kimberley MacKay, Of Counsel (New York Law School), are attorneys at the Neil A. Weinrib & Associates. The firm is located in New York City since 1978 and is one of the leading law firms that specializes in US immigration law. They have been committed for the past 24 years to providing foreign and domestic corporations as well as individuals with legal services tailored to their needs as well as their requirements.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.