John G. Roberts, Jr.: We'll hear argument first this morning in Fernandez Vargas versus Gonzales. Mr. Gossett.
David M. Gossett: Mr. Chief Justice, and may it please the Court-- Using the ordinary tools of statutory construction, it is clear that Congress intended the 1996 reinstatement provision to apply only prospectively. But even if Congress had no specific intent as to the retroactive applicability of that provision, under Landgraf it would, nonetheless, not apply in this case. Applying it to aliens who reentered before IIRIRA's effective date would give the statute an impermissively retroactive effect. Before IIRIRA, such aliens were entitled to seek, and eligible to receive, discretionary relief from deportation. Now if the provision is applied to them, they are not.
John G. Roberts, Jr.: Wouldn't it be the same result if Congress decided, for example, to take away one of the available methods of seeking discretionary review, just saying, "We're not going to have that available anymore? "
David M. Gossett: Congress might change the specific types of review that are available, and then this Court would have to... but would either have to... would have to engage in a Landgraf analysis of whether--
John G. Roberts, Jr.: But that would be--
David M. Gossett: --that would be--
John G. Roberts, Jr.: --a pretty easy case, wouldn't it? I mean, if you have a mechanism saying some... an alien in this position can apply for, you know, this type of relief, this type of relief, or another, and they say, "Well, we're not going to allow this type of relief anymore. " "We're going to change those. " --was... that's a pretty easy case, under Landgraf, isn't it?
David M. Gossett: --The... yes, Mr. Chief Justice. And the transition from suspension of deportation to cancellation of removal would fall into that category. However, the reinstatement provision talks in terms... in categorical terms of any forms of relief from deportation. It doesn't specify the particular types of relief that would be available--
Antonin Scalia: But why should that--
David M. Gossett: --and, therefore--
Antonin Scalia: --why should that make a difference as to whether it's retroactive or not? I mean, if it... it seems to me you look to the activity that it governs. And the activity that it governs is the deportation or removal from now on. Now, you could argue that... if you want, that there are some due process violations in making that prospective law affect past activities as they do. I mean, let's... one of the examples given in Landgraf, or at least in my concurrence in Landgraf, was a change of the law procedure so that expert testimony, which previously was not admissible, is now admissible. Now, the person who committed the crime that's involved in the next case that comes up when that new procedural rule is applied, he can say, "Well, you know, you've changed... you've changed the rules on me. " "When I committed the crime, the expert testimony wasn't admissible. " "Now it is admissible. " "That's not fair. " Well, whether it's fair or not is something we can inquire into under the due process clause, but nobody would say that that procedural change is retroactive. And it--
David M. Gossett: --Two--
Antonin Scalia: --seems to me that's what's going on here.
David M. Gossett: --Two responses, Justice Scalia. The first is, I think it's unfair to say that this provision merely regulates the procedure of removal.
Antonin Scalia: That wasn't my point. My point--
David M. Gossett: The--
Antonin Scalia: --was, you look to the... to the activity which is governed by the new law. In the case of the... of the expert testimony, the activity governed is the trial, so that law applies prospectively to all future trials. So, also, in this case, this law applies prospectively to all future removals, QED. It is not retroactive. Now, you may have an argument, although I don't think it's a very good one, that there are due process problems involved in this prospective law. But I don't see how you can call the law retroactive.
David M. Gossett: --Justice Scalia, the portions of the reinstatement provision, besides for the provision barring other forms of relief, I would agree, are simply procedural provisions. And, again, there might be due process challenges to those, but I... we're not raising those here. It's the provision that says that merely because you illegally reentered the country at some prior date, you will... because you illegally reenter the country, you will be ineligible, that I think can only fairly be categorized as regulating the process of reentry, not the process of removal. It's--
Antonin Scalia: That doesn't affect--
David M. Gossett: --the fact that you--
Antonin Scalia: --doesn't affect his reentry at all. His reentry occurred. It... how could it possibly have anything to do with his reentry?
David M. Gossett: --Under Your Honor's analysis, a statute that said that if the attorney general finds that an alien has reentered in the past, the alien may be sentenced to 15 years in prison, would also merely be procedural and governing the sentencing rather than the underlying act of reentry. I think that parallel hypothetical, which obviously would... would violate the ex post facto clause--
Antonin Scalia: That would apply new penalties to the reentry. This law does not apply any new penalties to the reentry, it just... it just establishes a new regime for removing the person who has reentered.
David M. Gossett: --But the act of removing the right to seek adjustment of status, suspension of deportation, voluntary departure, that is a new penalty. In the Landon v. Placencia case, in fact, this Court called those "substantive rights". It called, specifically, voluntary departure and suspension of deportation "substantive rights". That's at 459 U.S. 26 to 27. Therefore, I think it's unfair to say that the removal of those substantive rights is merely a procedural change. Of course, we don't even get into the question of whether there's a procedural change here, or a substantive change, unless we get to stage two of the Landgraf analysis under the... under, I would say, either the majority's approach in Landgraf or your approach, Justice Scalia, because the first stage of Landgraf is about this Court's deferring to Congress's specific intent as to the applicability of a statute, because if Congress has decided whether a statute should apply prospectively or retroactively, this Court defers to that, outside of the ex post facto context. And I think here it's clear that, in fact, Congress intended the 1996 reinstatement provision to apply only prospectively.
Ruth Bader Ginsburg: Has any... a number of courts have considered this question... have any of them accepted your first... your argument that the statute is clear that it is nonretroactive?
David M. Gossett: Yes, Justice Ginsburg, both the Sixth and the Ninth Circuits have accepted that argument. They've accepted it in a slightly different form than we are currently raising, because before the Government's brief in this case, no one has laid out the history of the 1950 and 1952 statutes as carefully as the Solicitor General's Office now has. But both the Sixth and Ninth Circuit have held that this statute is exclusively prospective by a comparison between the 1952 Act and the 1996 Act.
Ruth Bader Ginsburg: I'd... I'll have to look at those decisions. It was my impression that they did, indeed, hold that it was retroactive, but not on the ground that Congress had clearly spoken to the point, so that you didn't need any further inquiry.
David M. Gossett: Both... they didn't use the term "clearly", because, of course, as we explained in our brief, there's an asymmetry in retroactivity analysis, and using the ordinary tools of statutory construction, one can demonstrate a prospective intent on the part of Congress. But both the Sixth and the Ninth Circuit, in the Bejjani case and the Castro Cortez case, did stop their retroactivity analysis at stage one of the Landgraf inquiry--
Antonin Scalia: Yes, but--
David M. Gossett: --decided that.
Antonin Scalia: --I think that's because they were using the version of stage one that you are using, which includes, in the consideration of whether Congress has been clear, an inquiry into whether the... whether the law is retroactive or not, which, as I understand it, should be left to stage two, exclusively.
David M. Gossett: I--
Antonin Scalia: Your analysis in your brief mingles the two. It says one of the factors that you can take into account in stage one is whether it's retroactive. And as I... I don't understand Landgraf to speak that way. I thought you were supposed to use all other indicia of legislative intent, other than the normal rule against retroactivity, in deciding congressional intent, and then you go to stage two, which is where retroactivity comes in.
David M. Gossett: --In both the St. Cyr's case and the Lindh case, this Court did invoke the presumption against retroactivity in its stage one analysis. But, more generally, I don't think we need a presumption to win this case. I think that... under stage one, under an inquiry into congressional intent... what we have in this case is a history of Congress providing for the reinstatement of deportation that goes back to 1950. In 1950, Congress passed a reinstatement provision that said that for the specified aliens... and it was only a subgroup... if they were deported and reentered, they would be... that their previous deportation order would be reinstated. The INS... and that statute's quoted in page 2 of the Government's brief... the INS interpreted that statute as applying only prospectively, and only applying to an alien who was deported, and, therefore, obviously reinstated... reentering after the effective date of that statute. Now, in 1952, Congress, evidently dissatisfied with an interpretation... with a reinstatement provision that was only prospective, added the "before or after" language to the reinstatement provision. They said, under this 1952 Act, "If you were deported, either before or after the effective date of the INA, your deportation order can be reinstated. " But in 1996, Congress removed that "before or after" clause. Congress expanded the scope of reinstatement and provided that a much broader category of reentrants could be subject to reinstatement.
Antonin Scalia: Yes, but as the Government points out, that "either before or after" applied to when you had been deported--
David M. Gossett: Yes, Justice Scalia.
Antonin Scalia: --not to when you reentered. And what we're... what you're arguing for here is a rule that goes from the time of reentry, not from the time of deportation. So, it's not really a parallel.
David M. Gossett: Actually, Justice Scalia, under our stage one argument, we are now arguing that, in fact, the Government is right, that the 1952 Act was tied to the date of deportation. What we don't understand is how the Government thinks that helps its case, because the obvious and necessary consequence of that is that the removal of the 1996 must imply that the 1996 provision only is triggered by post enactment deportations.
John G. Roberts, Jr.: Well, that's an--
David M. Gossett: And--
John G. Roberts, Jr.: --that may be a reasonable inference, but I think it's a real stretch to say that it "clearly establishes". When you're talking about a statute, and you say something's "clear", you want to be able to point to actual words. And, on the other side, the Government points out that, elsewhere in IIRIRA, Congress specifically delineates when it wants the statute to apply prospectively only. And they did not do that in this case.
David M. Gossett: --They also specifically delineated, in some context, Mr. Chief Justice, that it would be retroactive. The Government's primary comparison... and I think it's an important one for this Court to focus on... is to the criminal reinstatement provision, which is Section 1326... 8 U.S.C. at 1326. Now, the Government asserts that that provision is exclusively prospective, and, therefore, that the comparison should be that, in this context, the reinstatement provision must be retroactive. But, in so arguing, the Government hides, in ellipses in its brief, on page 14, the actual text of the provision of the criminal... the temporal applicability of the criminal reentry provision. What Congress actually said was that deportations that predate IIRIRA could trigger reinstatement, but reentries post... only reentries post dating IIRIRA could trigger it. So, in fact, what Congress was doing in the criminal context was reaching back and saying, "We're changing the consequences of pre enactment deportations, but not pre enactment reentry. " So, the comparison, if anything, I think, strengthens our case. I'd say--
John G. Roberts, Jr.: I'm sorry, I... you lost--
David M. Gossett: --The--
John G. Roberts, Jr.: --me there.
David M. Gossett: --I'm sorry.
John G. Roberts, Jr.: Can you--
David M. Gossett: That's on--
John G. Roberts, Jr.: --I'm looking at page--
David M. Gossett: --page--
John G. Roberts, Jr.: --I'm--
David M. Gossett: --It's quoted on page 27, note 15, of our opening brief. It's Section 324(c) of IIRIRA. I can read it, exactly, "The amendment made by subsection (a) expanding the criminal reentrant provision shall apply to departures that occurred before, on, or after the date of enactment of this Act, but only with respect to entries and attempted entries occurring on or after such date. " The Government omits the fact that it applies to deportations pre IIRIRA. So, I think that there are two cases that this Court has--
John G. Roberts, Jr.: --I don't how--
David M. Gossett: --decided--
John G. Roberts, Jr.: --I don't see how that undermines their point that when Congress wants to specify that something "shall apply prospectively only", as they quote, "only with respect to entries occurring on or after a date. " they spell it out. And they did not similarly spell it out in the provision on... that you suggest is prospective only.
David M. Gossett: --No, Justice... Mr. Chief Justice. I agree that this doesn't explicitly spell it out in the criminal provision, but I don't think we need to explicitly spell it out... or we... that this Court needs to find that Congress explicitly spelled out the prospective applicability. I think that the Lindh case and the American National Red Cross case both demonstrate that when Congress changes text over time, it matters. In the Lindh case, of course, there were two provisions, one of which had retroactivity language, the other which had none, and... and this Court intuited that, "Therefore, Congress must have meant that the... the section without retroactivity language would be exclusively-- "
Antonin Scalia: I wish we could get some new vocabulary. Terminology is destiny, and I really don't follow the discussion of speaking about whether it was prospective or retroactive. I don't think, whichever way it applied, it is retroactive. But the issue still remains, Did Congress intend pre IIRIRA reentries to be covered or not? I--
David M. Gossett: --Was it triggered?
Antonin Scalia: --I would consider that still prospective, but just note my--
David M. Gossett: I--
Antonin Scalia: --that I don't--
David M. Gossett: --I think, actually--
Antonin Scalia: --go along with you when you force this terminology on me, whether Congress intended it to be retroactive. As I see it, the issue is whether Congress intended it to apply to reentries that occurred before IIRIRA was enacted. I would not consider that retroactive, but it's still an open question what Congress intended.
David M. Gossett: --Justice Scalia, I agree... I agree that that's for purposes... that terminology is better for stage one. It's... whether it was triggered by a pre enactment deportation or reentry.
Samuel A. Alito, Jr.: Aren't there several possible explanations for why Congress would leave the "before or after" language out of the... out of the new provision? They might have wanted it just to be decided under the Landgraf framework. Isn't that one possibility? Or they might have thought that INA, which would be 1952, and, therefore, irrelevant by the time this was passed.
David M. Gossett: I don't think either of those possibilities is plausible, Justice Alito. The first is implausible because we know that the INS had already interpreted the 1950 Act, which was silent as to applicability, to be exclusively prospective. And the second is implausible because the... the 1952 Act, which would presumably have been brought forward, the 1996 Act, had they wanted to, specified the date of enactment of this Act. It would have been about this Act. And, in fact, the Senate proposal to modify the first... the provision also would have left it in terms of this Act, not of a specific date of 1952, which would have been the INA date. More generally, I think that with this history of the 1950 Act, the 1952 Act, and the 1996 Act, any interpretation of the 1996 Act as being retroactive, or as being ambiguously retroactive, doesn't pay adequate deference to Congress's choice over time that this Act should apply prospectively in 1996.
Antonin Scalia: Why would... I find it difficult to understand why Congress wouldn't have wanted this to apply to illegal entrants who had come in before IIRIRA. Bear in mind, these are people who have been deported once, already deported once, and then, in violation of the law, come back in again. And there was a regime for deporting them, which allowed certain variations, which are eliminated by IIRIRA, permission for them to stay. You really think Congress wanted to keep faith with the people who had, already have... having been deported once for illegal reentry... illegal entry... come in again... and you think Congress says, "Oh, well, you know, we have to keep faith with these people who are violating our law, and not... and not deport them except under the conditions that existed when they broke the law to reenter? " I find that a very... what should I say +/? touching-- [Laughter] --attitude for Congress to have.
David M. Gossett: Justice Scalia, clearly Congress was attempting to change... or to increase the disincentives to reentry. At the same time that they modified the reinstatement provision, they extended the criminal reentry provisions.
Antonin Scalia: Not only the--
David M. Gossett: So, the question isn't--
Antonin Scalia: --disincentives.
David M. Gossett: --whether--
Antonin Scalia: They were trying to get out of the country people who were here illegally, two time losers who were here illegally for the second time.
David M. Gossett: --The question, however, though, is not whether they were trying to change that consequence. The question is whether they did so retroactively, because this Court presumes that if Congress is trying to change the consequences of an action that has occurred in the past in substantive ways, Congress should say so explicitly, because, as your... you have said in previous decisions, it is a foundational principle of Western law that primary... the consequences of primary conduct are judged as--
Stephen G. Breyer: But is that--
David M. Gossett: --of the time of that conduct.
Stephen G. Breyer: --so here? I want to know, if your client had known about this law or gone to a lawyer and said, "What do I do now"? wouldn't the lawyer have said, or would he have said, "Just leave. " "Leave the country, quick, before you're caught. " "Now, when you get back to Mexico, you can apply and point out you've married an American citizen, and then you'll be able to come in, in all likelihood. " And if I'm right about that, the Act does not attach new consequences to old behavior, it attaches new consequences to new behavior; namely, the act of staying within the United States, when you could leave.
David M. Gossett: I presume, Justice Breyer, you mean at the time that Congress enacted IIRIRA?
Stephen G. Breyer: I mean when this particular--
David M. Gossett: Was--
Stephen G. Breyer: --provision was passed--
David M. Gossett: --That--
Stephen G. Breyer: --a week later, he goes to a lawyer, and the lawyer says, "You'd better get out of here fast, because if you're caught while you're here, you're married now, and you won't be able to take advantage of that. " "It would be terrible. " "So, go to Mexico. " "Then there is no problem. " And if, in fact, I'm right, you see what I'm... I find your argument excellent on the first part, but so is the Government's. So, I think there's a kind of wash there, so I'm looking to the second part. And there, you're just said, it attaches new consequences to old behavior. So, I'm asking you, if it doesn't attach the new consequences to old, but, necessarily, plus new behavior... namely, remaining.
David M. Gossett: --No, Justice Breyer, it does not, because had he left in 1996, upon enactment of IIRIRA, he would have been inadmissible for 5 years--
Stephen G. Breyer: Well--
David M. Gossett: --as a result of having left. Whereas, otherwise, otherwise, if he had stayed in the country, he would be eligible to apply for suspension of deportation--
Stephen G. Breyer: --Being... if you get married... if you're outside the country and you marry an American, you're married to an American and you can't come in for 5 years?
David M. Gossett: --As a result of his initial... having reentered--
Stephen G. Breyer: As a result of--
David M. Gossett: --within 5 years--
Stephen G. Breyer: --the initial deporting order.
David M. Gossett: --As a result of his reentry five... within 5 years of the date of his 1981 deportation, he would be ineligible for readmission for 5 years, had he left the country.
Stephen G. Breyer: So, his choice is this Act or... in which case, you never can get back, if you're caught... or go to Mexico, wait 5 years.
David M. Gossett: Or 10 to 20 years, if--
Stephen G. Breyer: Ten to 20 years?
David M. Gossett: --Ten to 20 years if you're caught, under this Act, is my understanding. It depends on... the Government--
Stephen G. Breyer: No, no. I mean, he either stays in the United States--
David M. Gossett: --Yes.
Stephen G. Breyer: --in 10 to 20 years--
David M. Gossett: No, we... if he stays in the United States, he's... and is--
Stephen G. Breyer: --Is caught.
David M. Gossett: --entitled to apply for these forms of relief from deportation, then he will... then he can become an American citizen, or become a lawful permanent resident, as a result of the forms--
Stephen G. Breyer: If you lose this--
David M. Gossett: --of relief that existed--
Stephen G. Breyer: --case... if you lose this case, then his choice would be, stay here, get caught, and you never can come back, or 10 to 20 years?
David M. Gossett: --Ten to 20 years.
Stephen G. Breyer: I see.
David M. Gossett: Ten to 20.
Stephen G. Breyer: Or go to Mexico, and you can come back in 5 years.
David M. Gossett: Yes.
Stephen G. Breyer: Okay.
David M. Gossett: But, of course, at the time... pre IIRIRA, the choice was, stay in the country and seek... and seek American citizenship through these other routes. And so, the forcing of him to leave is itself a retroactive effect of the enactment of this Act--
Anthony M. Kennedy: Well, in this--
David M. Gossett: --because--
Anthony M. Kennedy: --in this case, he was married after the effective date of the new statute.
David M. Gossett: --Yes, Justice Kennedy.
Anthony M. Kennedy: Did Judge McConnell, in the Tenth Circuit, suggest... because he discussed this... suggest that the result might have been different if the marriage had been before?
David M. Gossett: Yes, he did suggest that. And several courts have--
Anthony M. Kennedy: Why would that be consistent with his... with his analysis?
David M. Gossett: --Justice... Judge McConnell and several other courts have focused on the types of relief that an alien was eligible for as of the effective date of IIRIRA. We think that's the wrong first inquiry. We think that the way to approach the stage two analysis is on a categorical basis, because Congress, in the statute, said that, at the time of reentry, the mere act of reentry wouldn't categorically preclude you from seeking any forms of relief from deportation. And so, had Congress wanted to change that, it would have... it would have had to do so retroactively on a categorical basis. But even if one accepts Judge McConnell's analysis of the forms of relief you're entitled to as of that date, at the very least, at that point, my client would be eligible to seek both voluntary departure and cancellation of removal. We think he'd... also should be eligible to seek adjustment of status, because, although it's true that he is not... he was not, at that point, married to his now wife, adjustment of status was a... is a defense from deportation, and he would have been able to get married even if put into deportation proceedings. And given that, at that point, he and his now wife had... already had a 8-year-old son--
Anthony M. Kennedy: Well, but--
David M. Gossett: --there would be no question that it was a real marriage.
Anthony M. Kennedy: --it does point out that your argument is a difficult one, because this expectation that you argue for is that, number one, he has an expectation that he'd be able to adjust his status even after Congress has changed the law respecting reinstatement.
David M. Gossett: I don't think that's--
Anthony M. Kennedy: This is--
David M. Gossett: --a difficult analysis.
Anthony M. Kennedy: --this is a far reaching expectation on his part.
David M. Gossett: The only expectation, Justice Kennedy, that we are proposing is that my client... and aliens, generally, because this is an analysis that must be done on a categorical basis... reasonably expected that Congress wouldn't change the consequences of their reentries far in the past without doing so explicitly.
Ruth Bader Ginsburg: Am I wrong in thinking that readjustment based on his marriage was not one of the modes of relief that he could have had in '82 or... that that didn't come in until much later, is that so?
David M. Gossett: That is true, Justice Ginsburg.
Ruth Bader Ginsburg: So, any... so, that was a consequence that certainly wasn't taken away from him, because it wasn't there in '82.
David M. Gossett: In 1982, Justice Ginsburg, my client reasonably presumed that the act of reentry, while itself a crime and while itself rendering him deportable, wouldn't categorically preclude him from seeking relief from deportation if, at a future date, he might become eligible to adjust in some way, either through suspension of deportation by having been here for 7 years, or by marrying an American citizen, or by having a reasonable claim for asylum. All of these were routes to stay, despite illegal entry or reentry.
Ruth Bader Ginsburg: He didn't know what--
Antonin Scalia: Why would he think that? Why wouldn't he just think, being here illegally, he is subject to being deported under such rules as the country has for deporting people who are here illegally, whatever they may be, from time to time? That would be my expectation if I came in illegally, in violation of the law. I'm saying, "I'm here at the sufferance of the country. " "I shouldn't be here. " "And whatever rules they have for kicking me out are the rules that I'll have to abide by. "
David M. Gossett: The implications of your--
Antonin Scalia: "I'm lucky not to be in jail. "
David M. Gossett: --Justice Scalia, the implication of your argument is that a wrongdoer has no reasonable expectation in the law staying constant. But, of course, both the Hughes Aircraft and the Landgraf decisions are cases in which a conduct was clearly illegal or unlawful at the time it was done, but, nonetheless, a change in the law would retroactively change the implications of that unlawful conduct. And this Court, in both those cases, held that it was... that such change cannot be effected retroactively.
Ruth Bader Ginsburg: --Well, in St. Cyr--
David H. Souter: Under the--
Ruth Bader Ginsburg: --was... in St. Cyr, I think it was he pled guilty under one set of expectations, and that's what the Court fastened on. Isn't that so?
David M. Gossett: That's true, Justice Ginsburg. However, the parallel in St. Cyr is that at the time the immigrant in St. Cyr pled guilty, he was presumptively deportable as a result of having pled guilty to a crime. He was eligible to seek discretionary relief from deportation, which this Court called St. Cyr decision.
Ruth Bader Ginsburg: Well, he--
David M. Gossett: Similarly, here--
Ruth Bader Ginsburg: --might not have pled guilty if there was a different set of rules. I thought that was what drove the Court's opinion.
David M. Gossett: --It's unclear to me whether or not the St. Cyr case would also generalize to someone who simply was convicted of a crime at that date. And there's a debate in the lower courts about that. But, more generally, in my client's context, at the very least his decision to stay in the United States for 7 years, and thus become eligible for suspension of deportation, and then not to leave thereafter, was, itself, a very similar choice to that of the alien in St. Cyr. It's a conscious decision to remain here, rather than to leave.
David H. Souter: --If he had left voluntarily under the pre-'96 law, would he still have been subject to criminal prosecution for his prior illegal entry if he had later come back into the United States?
David M. Gossett: I'm not sure, Your Honor. I don't know.
David H. Souter: Okay.
David M. Gossett: If there are no further questions, I'd like to reserve the remainder of my time for rebuttal.
John G. Roberts, Jr.: Thank you, Mr. Gossett. Mr. Srinivasan.
Sri Srinivasan: Thank you, Mr. Chief Justice, and may it please the Court-- Section 1231(a)(5) aims to streamline the removal of aliens who were already removed but have since illegally reentered. The Congress that enacted IIRIRA did not intend to grandfather the provision and exempt those aliens who are already in the country illegally. Rather, the focus on streamlining the rules for getting illegal reentrants out of the country is fully applicable, and, indeed, is especially applicable to illegal reentrants who were already in the country at the time of IIRIRA's enactment. Three considerations, I think, point to the conclusion that Section 1231(a)(5) is addressed to removing illegal reentrants from the country, including aliens who are already in the country, and that the provision is not so much addressed to the antecedent act of illegal reentry, as such. The first consideration I would point to is the operation of the provision. And it's useful to bear in mind the following possible scenario in which a person, who's been removed, illegally reenters the country, but then returns to his home country. Now, in that situation the individual would have engaged in the act of illegal reentry, but Section 1231(a)(5) simply would have no relevance to him whatsoever, because what Section 1231(a)(5) seeks to do is to remove someone who's found in the country on the basis of their previous removal order. Now, if they have engaged in the act of illegal reentry, but then have gone back, Section 1231(a)(5) simply is not relevant. And I think that goes to show that what the statute is focused on is not the act of illegal reentry, as such, but, rather, removing someone who's found in the country and who's determined to be an illegal reentrant. Now, that operation stands in significant contrast to the criminal prohibition against illegal reentry, which is at 8 U.S.C. 1326, and the prohibition against illegal entry, which is 8 U.S.C. 1325. With respect to both of those provisions, the act of illegal reentry, or the act of illegal entry, necessarily triggers the operation of the criminal prohibition, and there's nothing that the alien can do after the fact to take himself outside of the... of the purview of that criminal--
Antonin Scalia: And those--
David H. Souter: Should--
Sri Srinivasan: --I'm sorry?
Antonin Scalia: --And those provisions are specifically recited to apply only to reentrants after the effective date.
Sri Srinivasan: That's right. Congress specifically indicated, in the text of IIRIRA, that it's... it understood the distinction between the way in which those provisions operate and the way that 1231(a)(5) operates. The IIRIRA expanded the scope of the criminal prohibition on an illegal reentry, and it also, for the first time, imposed civil monetary penalties on the act of illegal entry. There were civil fines, and then... I think, $50 to $250 per episode. But what's critical is that with respect to both of those changes, Congress specified, in the terms of IIRIRA, that they would only apply, on a prospective basis, to acts of illegal entry or reentry that post dated IIRIRA. Now, Congress made no such specification with respect to 1231(a)(5), and I think that's significant, because what that indicates is that Congress understood that that provision, unlike the two criminal... unlike the two criminal provisions, focuses not on the act of illegal reentry, as such, but rather--
David H. Souter: --Well, let me go back to the criminal provision for a second. I take it your answer to the question I asked your brother a moment ago is that if the individual reenters, and, hence, has committed a criminal offense, and later voluntarily returns to... in this case, to Mexico, that the criminal violation, in effect, would not, in any sense, be canceled out.
Sri Srinivasan: --That's right.
David H. Souter: And that if he returned, he could be prosecuted for the prior reentry. And I suppose, in theory... I don't know what the extradition treaty is... in theory, he might be subject to extradition for it.
Sri Srinivasan: That's right.
David H. Souter: The odd way to--
Sri Srinivasan: That's right, Justice--
David H. Souter: --Yes.
Sri Srinivasan: --Souter.
David H. Souter: Okay.
Sri Srinivasan: The criminal act is completed at the moment that the criminal reentry is completed, and nothing that he does afterwards can take--
David H. Souter: There's no forgiveness--
Sri Srinivasan: --That's right.
David H. Souter: --provision.
Sri Srinivasan: That's right. Which is different, obviously, from the operation of Section 1231(a)(5). Now, another consideration that I think indicates that Section 1231(a)(5) is focused on the timing of the removal, as opposed to the timing of reentry, is to take into account Section 1231(a)(5) in the context of Section 1231 as a whole. Section 1231 was a new provision that was enacted by IIRIRA, and Congress entitled it, quote, "Detention and Removal of Aliens Ordered Removed. " close quote. And, as its title indicates, the provisions in Section 1231, like 1231(a)(5), all pertain to executing an order of removal against an alien who's been ordered removed. For example, those provisions concern the time period within which somebody is to be removed. They address the travel of somebody to the removal destination, the identification of the countries to which they may be removed, the payment of expenses. But all of them address the execution of an order of removal in the same way that Section 1231(a)(5) does. Section 1231(a)(5) speaks to the execution of the preexisting order of removal, the one that the alien had in place when he illegally reentered the country, but it's of a piece with those other provisions, in the sense that it, like them, addresses the timing of removal rather than speaking to the act of illegal reentry, as such. The third consideration, I think, that points to the same conclusion, which is that Congress was focused prospectively on removals that postdated IIRIRA, rather than retrospectively, in some sense, on acts of illegal reentry that predated IIRIRA, is that at the time of illegal reentry, as we explain in... at length in our brief, an alien would have had no eligibility, as a categorical matter, and at least as a practical matter, for the three types of relief that Petitioner invokes. And those three types of relief are adjustment of status, suspension of deportation, and voluntary departure. Now, with respect to adjustment of status, as the colloquy earlier indicated, at the time that Petitioner illegally reentered the country in 1981, up until 1994, which was just 2 years before IIRIRA, adjustment of status was categorically unavailable to illegal entrants and illegal reentrants. In that light, it's... one would be hard pressed to assert that an illegal reentrant would have performed that act in reasonable reliance on the availability of adjustment of status. It was simply--
Antonin Scalia: You don't want to--
Sri Srinivasan: --unavailable.
Antonin Scalia: --You don't want us to decide it on that ground, do you, so that all future cases you'll have to decide whether he came in before '94 or after '94, right?
Sri Srinivasan: That's right, Justice Scalia. I think a virtue of focusing on the fact that this statute is addressed to the removal, rather than the act of illegal reentry, is that it decides, once and for all, what the temporal reach of the statute is. And--
John G. Roberts, Jr.: Well, but your point, though... I mean, someone illegally reentering at that time might not have had a reasonable expectation of the availability of discretionary relief. On the other hand, someone in the... a petitioner's position, after all that had happened, did have a fairly good case under those provisions that were no longer available.
Sri Srinivasan: --Well, that might be, Mr. Chief Justice, but his claim is that Section 1231(a)(5) should be construed not to apply to anyone who illegally reentered before IIRIRA. And so, I think the proper frame of reference is to look, ex ante, at what someone would be thinking, had they illegally reentered before IIRIRA, because he seeks to treat everyone who illegally reentered before IIRIRA as a uniform category.
John G. Roberts, Jr.: Well, and someone entering says, "Well, obviously, if I'm detained the day after I enter, I'm not going to have a very good case. " "On the other hand, if I'm not, and I happen to make a life here, and I'm here for 20 years, and I get married and I have a child, I'm going to have a strong case. " and he's going to... he's willing to take his chances.
Sri Srinivasan: Well, two responses. First of all, that's not true with respect to adjustment of status, because someone who reentered before IIRIRA, at least if they reentered before 1984, couldn't have imagined that their marriage to a United States citizen would have given them a basis for adjustment, because adjustment simply was categorically unavailable to illegal entrants.
Antonin Scalia: Did you say '84 or '94? I couldn't--
Sri Srinivasan: 1994, I'm sorry--
Antonin Scalia: --All right.
Sri Srinivasan: --I didn't... I... in '81, when he illegally reentered, through 1994, adjustment of status was categorically unavailable to people who illegally reentered, so he couldn't--
Anthony M. Kennedy: And--
Sri Srinivasan: --have relied on the availability of that form of relief.
Anthony M. Kennedy: --And the executive couldn't weigh that. You say, categorically, it... there's no--
Sri Srinivasan: It simply wasn't provided--
Anthony M. Kennedy: --no possibility for discretion.
Sri Srinivasan: --It simply wasn't provided for by statute. A precondition of eligibility for adjustment, until 1994, was that the person was not an illegal entrant. So--
Anthony M. Kennedy: Well, could the... could the INS have just stayed its hand for... in--
Sri Srinivasan: --I mean, I suppose they could have stayed their hand, in the sense that they wouldn't have applied the immigration laws to begin with, but I don't think there--
Anthony M. Kennedy: --No.
Sri Srinivasan: --would have been any basis to stay their hand, in the sense of granting--
Antonin Scalia: Can't imagine that.
Sri Srinivasan: --adjustment of status. I'm sorry?
Antonin Scalia: I say, I cannot imagine that. No.
Stephen G. Breyer: I... but I... I didn't understand this now. I guess I don't. Forget the '94/'96 periods.
Sri Srinivasan: Sure.
Stephen G. Breyer: Suppose it had stayed the same throughout. Would you say, then, that someone who came illegally into the country, and he's caught, and he's married to an American, there's no possibility he can stay, no matter what, no matter how appealing? Is that the answer?
Sri Srinivasan: Not with respect to adjustment of status.
Stephen G. Breyer: I'm... yes, but you're talking technically.
Sri Srinivasan: Yes, I'm speaking--
Stephen G. Breyer: Maybe there's--
Sri Srinivasan: --technically, but--
Stephen G. Breyer: --some other way you could stay. What's the other way?
Sri Srinivasan: --There is... there's another form of relief that--
Stephen G. Breyer: Yes.
Sri Srinivasan: --conceivably could give them a claim--
Stephen G. Breyer: Which was what?
Sri Srinivasan: --and that's suspension of deportation--
Stephen G. Breyer: All right. Well--
Sri Srinivasan: --which is the same--
Stephen G. Breyer: --then it comes to the--
Sri Srinivasan: --But--
Stephen G. Breyer: --same thing. So, that... what I'm thinking is that a person who is here, and they marry an American... all right +/? they marry a citizen. Now, before this Act was passed, there was a way that if they're really good... let's assume they're the best human beings around, and the attorney general finds all that out, and everybody knows this is like a saint, and they say, "Okay, you behave well enough. " "You can stay. " Now, after the Act is passed, all those relevant actions have taken place in '86, long before. Now, there's absolutely nothing they can do. All they can do is go home. And now I've learned that when they go home, they will be told, "You cannot come back, no matter what, for 5 years. " Now, that's a pretty harsh consequence, to separate yourself from your family or have your family come to a foreign country. So, if I think the first part of this is a wash, you have a great argument, they have a great argument, and I look to the second part, does it attach new consequences to old and unchangeable behavior? I say, yes, it sure does. Now, why doesn't it?
Sri Srinivasan: --Well, there's a lot in that question. Let me just try to address it one step at a time. With respect to whether it attaches new legal consequences, I think you were right, Justice Breyer, earlier, in asking about what would happen if he had gone back voluntarily. Now, it's true that if he had been removed, then there would have been the consequence, in the sense that there would be a period of inadmissibility, at least presumptive inadmissibility, a period, which, by the way, is subject to waiver, which he could apply for. But if he had just gone back voluntarily after IIRIRA's enactment, or, indeed, in the 6-month window between IIRIRA's enactment and IIRIRA's effective date, my understanding is that there would have been no presumptive period of inadmissibility.
Stephen G. Breyer: Ah. So, then, you're saying the answer I got before was wrong--
Sri Srinivasan: I think--
Stephen G. Breyer: --that, in fact--
Sri Srinivasan: --I think that's correct.
Stephen G. Breyer: --I now have my client in, he's come after IIRIRA has been enacted, and he says, "I've heard about this in IIRIRA, and what in heaven's name am I supposed to do? " And the lawyer says, "Get out fast, next train. " "Go back. " "And if you get across that border, you're safe. " "Because at that point, you can apply; and you're a saint, and you've been married, they'll let you right in, because they'll find out. " That's what your view of the law is.
Sri Srinivasan: That's my understanding of the law.
Stephen G. Breyer: It must be the one way or the other.
Sri Srinivasan: Well, the five... the 5-year period that Petitioners... Mr. Gossett was referring to, I think, relates to the period after the point in time at which somebody's deported or removed. And so, his initial deportation--
Stephen G. Breyer: No, in... and this is not... I was saying the question--
Sri Srinivasan: --He would--
Stephen G. Breyer: --would be, Is this Act attaching consequences to old things that you couldn't do anything about? And you're saying, "Not entirely. " "You can. " "You can leave. " "In which case, you'll be no worse off, except for the train fare. "
Sri Srinivasan: --That's right.
Stephen G. Breyer: Okay.
Sri Srinivasan: That's my--
John G. Roberts, Jr.: That--
Sri Srinivasan: --understanding.
John G. Roberts, Jr.: --That person has not illegally reentered the United States? He's gone back, but he did illegally reenter the United States. He wouldn't be covered by the same provision that we're talking about?
Sri Srinivasan: No, he... you're right, Mr. Chief Justice, that it's... that he's illegally reentered. But he wouldn't be covered by this provision, because all this provision seeks to do is to remove him. And then, once he's gone back, this provision simply ceases to have any relevance to him at all, because he's, in some sense, self removed. And so, he... any ineligibility wouldn't stem from this provision, it would come from somewhere else. And, as far as I'm aware, he wouldn't... he wouldn't be subject to the 5-year period of inadmissibility that's imposed by a separate provision and that would attach if he were removed, because, by hypothesis, he wouldn't have removed, he would have gone back on his own accord.
Antonin Scalia: And even if he was, that was waivable.
Sri Srinivasan: That's right. That's subject to waiver, which is another--
Antonin Scalia: Just as he doesn't automatically get admitted because he's married, does he?
Sri Srinivasan: --Right. That's--
Antonin Scalia: That's discretionary, as well.
Sri Srinivasan: --That's discretionary--
Antonin Scalia: So, it's--
Sri Srinivasan: --at the end of the day--
Antonin Scalia: --one discretion--
Sri Srinivasan: --as well.
Antonin Scalia: --and another discretion.
Sri Srinivasan: Right. And we lay this out in some detail in a... in a footnote in our brief. And that's at... that's at pages 39 to 40. But that footnote, I should point out, doesn't deal with your hypothetical, Justice Breyer, which is that he goes back of... on his own accord. And, I think, in that situation what he would do is what people ordinarily do when they're seeking to gain lawful admission to the country, which is to apply for admission on the basis of what would have been whatever relationships he could have asserted at that point. Now, he wasn't married at the time that IIRIRA was enacted, so he wouldn't have used his marriage as a basis for coming in, because he wasn't married as of yet. But I think that cuts more against him, rather than in his favor, because--
Ruth Bader Ginsburg: In the instance--
Sri Srinivasan: --of course--
Ruth Bader Ginsburg: --of a child--
John Paul Stevens: May I ask this--
Ruth Bader Ginsburg: --who had... he had a relationship to a child in the United States. And couldn't that have counted for suspension of deportation or removal, whatever terms I use now? Did--
Sri Srinivasan: --It--
Ruth Bader Ginsburg: --for a hardship claim, a parent child relationship?
Sri Srinivasan: --That's right, Justice Ginsburg, it would count for purposes of suspension of deportation, which was renamed cancellation of removal. But that form of relief is available to somebody who's inside the United States, and I was meaning to address the situation where he has voluntarily removed himself from the United States and is seeking admission from, presumably, Mexico, in which case, suspension of deportation wouldn't really come into play, because deportation wouldn't be on the table. But, you're right that if he had stayed in the country, suspension of deportation is a form of relief that he would have been eligible for... eligible for, pre IIRIRA. But, with respect to suspension of deportation, I think it's important to understand that that form of relief required an... a period of presence in the United States of 7 years before one could gain eligibility to seek that relief. And so--
Ruth Bader Ginsburg: He was here... he was here for 20--
Sri Srinivasan: --He--
Ruth Bader Ginsburg: --20 years, though.
Sri Srinivasan: --He was. So, he would have clearly met that eligibility criteria... there is no question about that... under the preexisting law. But if you put yourself in the position of somebody who is entering, pre IIRIRA, and is trying to determine whether suspension of deportation is relief that would be realistically available to them, you'd have to think that they would act on... in reliance on their ability to stay in the country for 7 years, and to remain undetected, only at which point they would qualify for suspension of deportation. And that not only seems to me, as a factual matter, somewhat farfetched, but it's not clear that the law should attach significance to that sort of reliance--
Ruth Bader Ginsburg: Is it--
Sri Srinivasan: --interest.
Ruth Bader Ginsburg: --Is it farfetched, in view of the history of now I... before INS, weren't there a great many people who got here and... just as this Petitioner... who just lived here for years and years, and were never disturbed?
Sri Srinivasan: As an... as an empirical matter, I think that's right, Justice Ginsburg, but I'm not sure that that necessarily means that that's a legitimate expectation or a reasonable reliance interest of the type that the Court would typically take into account in its retroactivity inquiry, because at the end of the day what it is, is a reliance interest that's predicated on essentially lack of prosecutorial resources, or a favorable exercise of prosecutorial discretion in some sense. And the Court hasn't attached significance to that sort of reliance before. It's--
Antonin Scalia: Or, put more starkly, if I continue to violate the law for 7 years, I can count on this kind of treatment. That's an odd reliance interest.
Sri Srinivasan: --That's right, and--
Antonin Scalia: Truly.
Sri Srinivasan: --particularly taking into account the reasonable reliance... the category "reasonable reliance" is designed to take... is designed to--
John Paul Stevens: --May I ask--
Sri Srinivasan: --account for its fairness--
John Paul Stevens: --this elementary--
Sri Srinivasan: --interests.
John Paul Stevens: --an elementary question, just to be sure we all agree on this? You do agree, do you not, that if, in 1997, Congress passed a statute that said you should get an extra $50 penalty for having come in, back in 1981, that would not be permissible?
Sri Srinivasan: Right. I think the presumption--
John Paul Stevens: And--
Sri Srinivasan: --against retroactive--
John Paul Stevens: --And there's sort of an irony in the fact that the actual consequence here is a great deal more serious.
Sri Srinivasan: --Well, the consequence of removal is more serious--
John Paul Stevens: Yes.
Sri Srinivasan: --than... in some sense, than a $50 penalty. That's right. But this is a person--
John Paul Stevens: Which is constitutionally prohibited. But the consequences here are permitted. I understand the analysis. It's like just saying we take away one ground for staying that we didn't have before. But looking at it in kind of a basic sense, that seems... it's a fairly serious thing--
Sri Srinivasan: --That's right, but--
John Paul Stevens: --that happens, and it effects an awful lot of people, doesn't it?
Sri Srinivasan: --Sure. I think it affects anyone who had illegally reentered, at least. But it's important to bear in mind that this is somebody who was already subject to a removal order. So, in some sense, sending them back out of the country puts them in the same position that they would have been in under the old removal order. And so, insofar as it has that effect on them, I think it's different than a $50 penalty that attaches to the primary conduct of illegal reentry, as such.
Anthony M. Kennedy: Do you read the Tenth Circuit opinion as indicated it might have had a different result if he had been married before the enactment of the statute?
Sri Srinivasan: There is that suggestion, I think, in Judge McConnell's opinion, and that's--
Anthony M. Kennedy: How does that fit with the court's theory?
Sri Srinivasan: --With the... with the Tenth Circuit's theory or--
Anthony M. Kennedy: Yes.
Sri Srinivasan: --I think--
Anthony M. Kennedy: How does it--
Sri Srinivasan: --the idea was... I think what the Tenth Circuit failed to recognize was that adjustment of status was categorically unavailable to somebody who illegally reentered before IIRIRA, at least before 1994. And what Judge McConnell presumed was that it would have been available. And his point was that even if it would have been available, it's farfetched to think that somebody would have thought not only about coming into the country, but coming into the country and then meeting a United States citizen, and become married to the United States citizen, and using that as sort of a reliance basis for not applying the law retroactively to somebody who had come in beforehand. But I think that was based on a misimpression about the availability of adjustment of status. Now, I'd like to address, briefly, if I could, the argument at step one of the Landgraf inquiry concerning the negative inference the Petitioner seeks to draw from the "before or after" clause... so called "before or after" clause. And the two provisions can be compared side by side at pages 2 and 3 of the Government's brief, and that's in the body of the Government's brief. The fundamental flaw with the argument at step one is that the 2, referred, by terms, to the date of the INA's enactment. Now, what we've reflected is the codified version, which refers specifically to the date of June 27 of 1952. But even the INA itself referred to the date of the enactment of this Act, which can only be seen to refer to the INA itself. So, if this language had been carried forward in Section 1231(a)(5), it still would have been a reference to the date of the enactment of the INA. So, it would refer to somebody who was deported before or after 1952. Now, I think, as Justice Alito suggested, the probable reason that Congress decided not to carry forward this language is because the question of whether someone was deported before or after 1952 doesn't have a great deal of practical significance at this point in time. But whatever one might think was the actual reason for Congress's failing to carry forward the language, I don't think that you can draw any negative inference from Congress's failure to carry forward that language, at least certainly not the negative inference that Petitioner wants to draw. In fact, the negative inference that one would draw, if one were going to do so, is that the Section 1231(a)(5) applies only to people who were deported initially after 1952. But that sort of negative inference wouldn't be of much assistance to Petitioner, or any other person, for that matter, that illegally reentered before IIRIRA, at least as a practical matter, because everybody, I think, in that category, would have illegally reentered... or would have been deported after 1952--
Antonin Scalia: I'm not sure that gives the other side the... you know, the benefit of their argument. I think what they're arguing is not just that it was deleted, but that it was not replaced by... whether IIRIRA, rather than the date of the INA. I have... nobody thinks that they would leave in June 27, 1952, but why wouldn't they have substituted, for that, the date of this new legislation, the date of IIRIRA? I think that's the point he's making.
Sri Srinivasan: --Well--
Antonin Scalia: And isn't there something to that?
Sri Srinivasan: --I... it's... there's certainly not enough there to make the argument that he's making, I don't think, because what was... what Congress did was to replace that provision with utter silence. And from that utter silence, I don't think there's any way to read into it that Congress meant for the applicability of Section 1231(a)(5)--
Antonin Scalia: Just getting rid of old language that was no longer--
Sri Srinivasan: --That's right.
Antonin Scalia: --or intentionally not adding new language.
Sri Srinivasan: That's right. I don't think there's any way to read into it the inference that Congress meant to hinge the applicability of Section 1231(a)(5) on IIRIRA's enactment date. There never was a proposal on the table to hinge Section 1231(a)(5)'s applicability on IIRIRA's enactment date. The only possibility was to keep the old provision in the statute books unaffected, and the decision not do that doesn't have the negative inference that Petitioner suggests. If the Court has no more questions--
John G. Roberts, Jr.: Thank you, Counsel. Mr. Gossett, you have 2 minutes remaining.
David M. Gossett: Thank you, Mr. Chief Justice. Only a few points I want to make. The first is that illegal reentrants' reasonable expectation that they might grow into relief, as Mr.... the Chief Justice said, not only is reasonable, but has a statutory basis. Suspension of deportation and cancellation of removal, by their very terms, are only available to aliens who were illegally present in the United States for the relevant time period, and, therefore, these forms of relief specifically exist to... for such aliens. That people have a reasonable reliance interest in unlawful acts over time is also demonstrated by such doctrines as the doctrine of adverse possession, statutes of limitations/laches, et cetera. Second, Justice Breyer, your... it is the case that were he to have been... have left after the enactment of this Act, he would be kept out for... inadmissible for 5 years. That's 8 U.S.C. 1182(a)(6)(B). Because he had reentered the country within 5 years of his 1981 deportation, he... under the Government's interpretation of that statute, he would be inadmissible for 5 years from... even if he were to releave in 1996, he would have been ineligible to reenter for 5 years.
Stephen G. Breyer: So, a person who just leaves voluntarily, having reentered illegally, cannot come back for 5 years, no matter what, under 1156(a)(6)(B).
David M. Gossett: The former... that was repealed--
Stephen G. Breyer: That was repealed.
David M. Gossett: --in 1996. But, yes--
Stephen G. Breyer: Yes.
David M. Gossett: --that would have... as part of IIRIRA... but if he had waited til IIRIRA took effect, then it would have been... he would have been subject to this--
Stephen G. Breyer: All right.
David M. Gossett: --provision. The--
John G. Roberts, Jr.: Thank you, Mr. Gossett. Thank you.
David M. Gossett: --Thank you, Your Honor.
John G. Roberts, Jr.: The case is submitted.