May-June 2012

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Retroactivity Prevails Before Supreme Court L BEHIND THE CASE Argument Against by Sheeba Raj CASE: Vartelas v. Holder, No. 10-1211 (March 28, 2012) ATTORNEYS: Stephanos Bibas and Nancy Morawetz unless Congress is very clear, and the Court gives the benefit of that all the time to businesses and employ- ers.'" Bibas added that immigrants should enjoy the same protections against retroactivity that everyone does, "and if Congress doesn't spell it out, then IIR- AIRA in 1996 shouldn't change the consequences of pre-IIRAIRA convictions." Not only did Vartelas's team face time constraints, convictions that predate the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the U.S. Supreme Court held in Varte- las v. Holder, _ U.S. _ (No. 10-1211, Mar. 28, 2012). "The Government suggests that Vartelas could have avoided any adverse consequences if he sim- ply stayed at home in the United States," the Court wrote. "But losing the ability to travel abroad is it- self a harsh penalty, made all the more devastating if it means enduring separation from close family members." Stephanos Bibas, a professor at the University of awful permanent residents who take short trips outside the United States may not be denied readmission because of criminal but it also had to address the ineffective assistance of previous counsel. "The IJ had made findings that these lawyers had failed to show up and had failed to file briefs, so we had those findings down," Bibas said. He added that it was difficult to identify the different crimes to which Vartelas could have pled guilty. "And it's not always 100 percent clear whether a certain crime is a crime involving moral turpitude or not, so there was a lot of group brainstorming to come up with the right things that a good lawyer would have raised. Pennsylvania Law School and the director of its Su- preme Court Clinic, offered representation to Var- telas, who was a pro se litigant at the time. Bibas and a large legal team took the case right aſter certiorari was granted last fall; they had only about a month and a half to prepare for oral argument. "We actually changed the way the courts had been looking at it," Bibas said. "I think almost everybody, including [those who had written] the briefs below in our case and the opinions below, had been looking at the case issue solely as 'Is there reliance because of the plea bargain?' And, so, the new perspective we brought to the case was, 'Well, whether there's reli- ance or not, there's just a rule against retroactivity 26 VOICE immigration advocates. "We were blessed to have had the support of a lot of people in the immigrants rights community and we had worked with a lot of them on Padilla, so we knew them," he said. "The immi- grants rights community was great in scrambling on very short notice. Each of us took perspectives and we really coordinated all those arguments. One person can't possibly do a good job on this." Among those immigration advocates were Flori- da chapter member Ira Kurzban, New York chapter Bibas attributes the victory to his collaboration with " THE IMMIGRATION PRACTICE PRESERVER— COMING THIS JUNE! Kurzban's Immigration Law Sourcebook, 13th Ed. Purchase >

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