Unless you’re an attorney who specializes in immigration issues its likely that you didn’t recognize the Supreme Court case I used for a title.

In brief Panagis Vartelas was born in Greece, came to the U.S. in 1979 on a student visa, became a permanent resident in 1989, started a business in 1992, was convicted of a non-violent offense in 1994 and served four months.

In 1996 the U. S. Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) which among other things,  changed the status of a permanent resident who had been convicted of certain offenses upon reentering the country. Such a person was now considered to be “seeking admission” even though they were a lawful permanent resident who, if they had stayed in the U.S., would not have been subject to deportation for the same offense.

Between his conviction in 1994 and the subsequent adoption of the IIRIRA in 1996 and 2003, Mr. Vartelas went back to Greece to visit his parents on several occasions without incident. In 2003 he was stopped while trying to  re-enter the country on the basis of his 1994 conviction and the provisions of IIRIRA. He lost the hearings before the Immigration Judge and the Board of Immigration Appeals (BIA) and was ordered removed to Greece.

In 2008 he brought a new action to the BIA, lost, appealed to the Second Circuit and lost again. In January of this year the case was argued before the Supreme Court. It was decided on March 28 and featured a 6-3 vote with Ginsberg writing the opinion and Scalia writing the dissent joined by Thomas and Alito.

The case fascinates me because it is an example of how ultimately some cases are decided by how the justices’ brains are wired.  I found the arguments of each side persuasive but would likely have sided with the majority had they asked my opinion.

In short the case revolved around retroactivity and WHICH action triggered the retroactivity clock. Because Congress had not made the IIRIRA retroactive, any offense committed before the adoption of the law could not be used in enforcing that law. The majority held that the point to test for retroactivity was the 1994 conviction (before the IIRIRA was adopted) while the dissent found that point should have been the return to the U.S. after the trip to Greece in 2003 (after the IIRIRA was adopted). On that basis Mr. Vartelas won his appeal and is today a salesman for a roofing company in New York.

To my layman’s eye this case was decided based on interpreting the law rather than on some squishy “let’s make the law conform to what we think it should be” basis. Yet Roberts and Kennedy (Kennedy being a moderate and Roberts being the next most moderate of the conservative wing) came to different conclusions than did the three most conservative justices, and joined with the four liberals. So what does it all mean? Is there something about being “liberal” or “conservative” that makes us key on different things when faced with questions that touch on social justice?

To sum his dissent Scalia brilliantly wrote

“This case raises a plain-vanilla question of statutory interpretation, not broader questions about frustrated expectations or fairness. Our approach to answering that question should be similarly straightforward: We should determine what relevant activity the statute regulates (here, reentry); absent a clear statement otherwise, only such relevant activity which occurs after the statute’s effective date should be covered (here, post-1996 re­entries). If, as so construed, the statute is unfair or irra­tional enough to violate the Constitution, that is another matter entirely, and one not presented here. Our inter­pretive presumption against retroactivity, however, is just that—a tool to ascertain what the statute means, not a license to rewrite the statute in a way the Court considers more desirable.”

As to process I agree with Justice Scalia, however I can’t agree with his conclusion that the 2003 re-entry was what caused the removal to Greece of Mr. Vartelas.

None of the forgoing should be taken as my position on what immigration law should be. The law is what it is and in this case at least I guess I’m a moderate.