Justices peppered the attorney for Humberto Fernandez-Vargas with questions about his case, arguing that a 1996 law should not apply to the Mexican native, who was arrested and deported when he sought a green card after marrying a U.S. citizen. Chief Justice John Roberts said part of the case was a "stretch," and Justice Anthony Kennedy said Fernandez-Vargas' "argument is a difficult one."
Justice Antonin Scalia was even more blunt, asking why an illegal immigrant would not think he would be subject to deportation. "That would be my expectation," Scalia said. "[That] I shouldn't be here and whatever rules they have for kicking me out would apply."
The case Ð which could affect hundreds of thousands of immigrants and their families Ð centers on whether the government can retroactively apply a 1996 law to deportation orders issued before its enactment.
Fernandez-Vargas, 53, who now resides in Mexico while his family remains in Ogden, had entered the United States several times illegally, the last time in 1982, but was seeking legal status when he was arrested in 2003 for violating a previous deportation order. His wife, Rita, and son, Anthony, who were at the hearing Wednesday, still live in Ogden, where Fernandez-Vargas used to own a trucking company.
His attorney, David Gossett, argued it was unfair, and against Congress' intent, to deport someone for a crime committed 20 years previously and before the law was changed.
Gossett said after Wednesday's hearing that he felt it "went pretty well" and he is "cautiously optimistic" Fernandez-Vargas will prevail. "It's hard to read" the justices, however, Gossett said.
Sri Srinivasan, an assistant solicitor general who defended the government's decision, argued during the hearing that Congress was clear in wanting the law to apply to Fernandez-Vargas and other immigrants who violated a deportation order. "Congress did not intend to exempt those already in the country," Srinivasan said.
Scalia appeared unsympathetic to Fernandez-Vargas' arguments and said it didn't appear that the law was being applied retroactively, but prospectively since Fernandez-Vargas was still breaking the law when arrested Ð he was in the United States despite a deportation order from 1982.
"I don't see how you can call this law retroactive," Scalia said. Eight of the nine justices questioned Gossett and Srinivasan. Justice Clarence Thomas stayed silent through the one-hour hearing, often gazing at the ceiling, while Scalia often leaned far back in his black leather chair, almost out of sight.
But as the most vocal justice in the hearing, Scalia said it seemed clear Congress intended to make the law apply to people like Fernandez-Vargas. "You really think Congress wanted to keep faith with people who have already been deported once?" he asked. "I find that a - how do I say this - a very touching attitude for Congress to have."
The audience laughed. Then he referred to deported immigrants who return to the United States as "two-time losers," implying they should have learned the consequence of their actions the first time.
Justice Stephen Breyer wondered if there were a way for Fernandez-Vargas to have obtained legal status, which he could have done, his attorney said, if he returned to Mexico in 1996 and waited five years. Even a "saint" would have to wait, apparently, Breyer said.
"That's a pretty harsh penalty to be separated from your family, or have your family move to a foreign country," Breyer said, especially for "old and unchangeable behavior."
The high court's decision - expected later this year - could have wide implications for those people in the United States illegally who have standing deportation orders, though the current rule has been applied by the government since 1996.
And with Congress debating more reform to immigration laws, observers say the court opinion in this case could impact the nation's future policy.
tburr@sltrib.com
