There is no question that Humberto Fernandez-Vargas, a 53-year-old Mexican native who made his home in Utah for decades, was in the United States illegally. But the issue before the high court today is whether Fernandez-Vargas, and thousands like him, should have had the right to court hearings before being deported.

In 1996, Congress passed a law that did away with such hearings for those arrested after previously being deported.

The U.S. government says the law, which went into effect in 1997, can be applied retroactively to people like Fernandez-Vargas, who was deported in 1981 and illegally re-entered the United States the next year. His attorneys argue the law can't be applied to an act that happened before the law existed.

"That's a lot of years," says Nadine Wettstein, legal director of the American Immigration Law Foundation, which filed a friend-of-the-court brief supporting Fernandez-Vargas. "People wouldn't want things that they did 20 years ago to come back to haunt them when they've established a life, done what they should be doing and are trying to get their papers in order."

Fernandez-Vargas, who owned a trucking company in Ogden, was attempting to gain legal status in 2003 when he was arrested at a routine hearing for a green card. Two years earlier, he had married his longtime girlfriend, Rita, a U.S. citizen, with whom he has a 16-year-old son, Anthony.

Immigration officials exercised a previous deportation order against Fernandez-Vargas and sent him back to Mexico without a court hearing. The U.S. government says Congress in 1996 was clear that it wanted standing deportation orders to be reinstated if someone re-entered the country.

Federal circuit courts have split on the question, with the 10th Circuit Court of Appeals - the one overseeing Utah - agreeing with the government that it acted correctly, but others, the 9th and 6th circuits, saying the law couldn't be applied retroactively.

"The bottom line is that in 1996 Congress was concerned about people crossing and re-crossing the border and they specifically attempted to create a disincentive for re-entering the country illegally, which is perfectly reasonable," says David Gossett, a Washington attorney for Fernandez-Vargas.

The problem, Gossett says, is that the government applied the law to say that anyone who re-entered the country before 1996 could be arrested and deported for breaking a law that didn't go into effect until 1997.

"It's simply cruel to apply this law retroactively," Gossett says. Fernandez-Vargas' wife and son, who plan to be at the hearing today, are struggling to make ends meet in Ogden without their breadwinner. The family almost lost their home last year to foreclosure until anonymous donors came forward to pay off their mortgage.

The U.S. Solicitor General's Office, which will argue the government's case today, did not return calls seeking comment. In court filings, the office says Congress was clear in its intention for the law to be retroactive.

The court's decision in the case will affect thousands of people in situations like Fernandez-Vargas', his attorneys say. But the case also could affect the current debate in Congress over immigration-law reform.

"This case kind of demonstrates that our current immigration laws are not sane," says Seth Stodder, a lawyer with the Los Angeles firm Akin Gump Strauss Hauer & Feld, and the former director of policy and planning for U.S. Customs and Border Protection.

"He's clearly come here, had a good life here, is a productive person in America. If the '96 law applies to him, he's out of luck. [If the law applies retroactively, it] is going to require the total disruption of his family and disruption of the economic impact this guy makes."

tburr@sltrib.com

An immigrant's timeline

* 1969: Humberto Fernandez-Vargas entered the United States illegally.

* 1969-1981: Fernandez-Vargas was deported and re-entered the United States an unknown amount of times.

* October 1981: Fernandez-Vargas was deported to Mexico.

* January 1982: Fernandez-Vargas again entered the United States illegally.

* 2001: After his marriage to a U.S. citizen, Fernandez-Vargas applied for a green card, the first step to becoming a legal resident.

* November 2003: Fernandez-Vargas was arrested and, after a year in jail, deported to his native Mexico.