FERNANDEZ-VARGAS v. GONZALES, ATTORNEY GENERAL

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Syllabus
FERNANDEZ-VARGAS v. GONZALES, ATTORNEY
GENERAL
certiorari to the united states court of appeals for
the tenth circuit
No. 04–1376. Argued March 22, 2006—Decided June 22, 2006
Immigration law has for some time provided that an order for removing an
alien present unlawfully may be reinstated if he leaves and unlawfully
reenters. The Illegal Immigration Reform and Immigrant Responsibil
ity Act of 1996 (IIRIRA) amended the Immigration and Nationality Act
(INA) to enlarge the class of illegal reentrants whose orders may be
reinstated and limit the possible relief from a removal order available
to them. See § 241(a)(5), 8 U. S. C. § 1231(a)(5). Petitioner Fernandez-
Vargas, a Mexican citizen, illegally reentered the United States in 1982,
after having been deported. He remained undetected for over 20
years, fathering a son in 1989 and marrying the boy’s mother, a United
States citizen, in 2001. After he filed an application to adjust his status
to that of a lawful permanent resident, the Government began proceed
ings to reinstate his 1981 deportation order under § 241(a)(5), and de
ported him. He petitioned the Tenth Circuit to review the reinstate
ment order, claiming that, because he illegally reentered the country
before IIRIRA’s effective date, § 241(a)(5) did not bar his application
for adjustment of status, and that § 241(a)(5) would be impermissibly
retroactive if it did bar his adjustment application. The court held that
§ 241(a)(5) barred his application and followed Landgraf v. USI Film
Products, 511 U. S. 244, in determining that the new law had no imper
missibly retroactive effect in his case.
Held: Section 241(a)(5) applies to those who reentered the United States
before IIRIRA’s effective date and does not retroactively affect any
right of, or impose any burden on, the continuing violator of the INA
now before this Court. Pp. 37–47.
(a) Statutes are disfavored as retroactive when their application
“would impair rights a party possessed when he acted, increase a party’s
liability for past conduct, or impose new duties with respect to trans
actions already completed.” Landgraf, supra, at 280. A statute is not
given retroactive effect “unless such construction is required by explicit
language or by necessary implication.” United States v. St. Louis,
S. F. & T. R. Co., 270 U. S. 1, 3. In determining whether a statute has
an impermissibly retroactive effect, the Court first looks to “whether
Congress has expressly prescribed the statute’s proper reach,” Land

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graf, supra, at 280, and in the absence of express language tries to draw
a comparably firm conclusion about the temporal reach specifically in
tended by applying its “normal rules of construction,” Lindh v. Murphy,
521 U. S. 320, 326. If that effort fails, the Court asks whether applying
the statute to the person objecting would have a retroactive effect in
the disfavored sense of “affecting substantive rights, liabilities, or duties
[on the basis of] conduct arising before [its] enactment,” Landgraf,
supra, at 278. If the answer is yes, the Court then applies the pre
sumption against retroactivity by construing the statute as inapplicable
to the event or act in question. INS v. St. Cyr, 533 U. S. 289, 316.
Pp. 37–38.
(b) Common principles of statutory interpretation fail to unsettle
§ 241(a)(5)’s apparent application to any reentrant present in the country,
whatever the date of return. The statute does not expressly include in
or exclude from § 241(a)(5)’s ambit individuals who illegally entered the
country before IIRIRA’s effective date. Fernandez-Vargas argues that
the fact that the old reinstatement provision applied to aliens who had
“unlawfully reentered . . . after having previously departed or been de
ported . . . , whether before or after June 27, 1952 [the INA’s effective
date], on any ground described in . . . subsection (e),” § 242(f), while
§ 241(a)(5) lacks language of temporal reach, shows that Congress no
longer meant to cover preenactment reentrants. But the old before
or-after clause, which was sandwiched between references to departure
or deportation and grounds for deportation, most naturally referred not
to an alien’s illegal reentry but to the previous deportation or departure.
The better inference is that the clause was removed because, in 1996,
application keyed to departures in 1952 or earlier was academic.
Applying § 241(a)(5) only to deportations or departures after IIRIRA’s
effective date would exempt anyone who departed before that date but
reentered after it. That would be a strange result, since the statute
was revised to expand the scope of the reinstatement authority and
invest it with something closer to finality. Fernandez-Vargas errs in
suggesting that the new law is bereft of clarity and the Court should
apply the presumption against retroactivity as a tool for interpreting
the statute at the first Landgraf step. It is not until a statute is shown
to have no firm provision about temporal reach but to produce a retroac
tive effect when straightforwardly applied that the presumption has its
work to do. And IIRIRA has other provisions on temporal reach,
which blunt Fernandez-Vargas’s argument that a negative inference in
his favor may be drawn from removal of the before-or-after clause.
Pp. 38–42.
(c) This facial reading is confirmed by two features of IIRIRA.
First, the provision’s text shows that it applies here not because

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Fernandez-Vargas reentered at any particular time, but because he
chose to remain after the new statute became effective. While the law
looks back to “an alien [who] has reentered . . . illegally,” 8 U. S. C.
§ 1231(a)(5), the provision does not penalize an alien for the reentry; it
establishes a process to remove him under a “prior order any time after
the reentry,” ibid. Thus, it is the conduct of remaining in the country
after entry that is the predicate action; the law applies to stop an in
definitely continuing violation that the alien could end at any time by
voluntarily leaving. It is therefore the alien’s choice to continue his
illegal presence, after illegal reentry and after the new law’s effective
date, that subjects him to the new and less generous regime, not a past
act that he is helpless to undo. INS v. St. Cyr, supra, distinguished.
Second, IIRIRA’s effective date provision shows that Fernandez-Vargas
had ample warning of the coming change in the law, but chose to remain
until the old regime expired and § 241(a)(5) took its place. He had an
opportunity to avoid the new law’s application by leaving the country
and ending his violation during the six months between IIRIRA’s enact
ment and effective date. For that matter, he could have married his
son’s mother and applied for adjustment of status during the period, in
which case he would at least have had a claim that proven reliance on
the law should be honored by applying the presumption against retroac
tivity. Instead, he augmented his 15 years of unlawful presence by re
maining in the country into the future subject to the new law. And the
presumption against retroactivity does not amount to a presumption of
legal stasis for the benefit of continuous lawbreakers. Pp. 42–46.
394 F. 3d 881, affirmed.
Souter, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Scalia, Kennedy, Thomas, Ginsburg, Breyer, and Alito, JJ.,
joined. Stevens, J., filed a dissenting opinion, post, p. 47.
David M. Gossett argued the cause for petitioner. With
him on the briefs was Andrew Tauber.
Sri Srinivasan argued the cause for respondent. With
him on the brief were Solicitor General Clement, Assistant
Attorney General Keisler, Deputy Solicitor General Kneed
ler, Donald E. Keener, and Alison Marie Igoe.*
*Trina A. Realmuto, Matt Adams, Marc Van Der Hout, and Stacy Tol
chin filed a brief for the American Immigration Law Foundation et al. as
amici curiae urging reversal.

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Opinion of the Court
Justice Souter delivered the opinion of the Court.
For some time, the law has provided that an order for
removing an alien present unlawfully may be reinstated if
he leaves and unlawfully enters again. The Illegal Immi
gration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Pub. L. 104–208, div. C, 110 Stat. 3009–546, en
larged the class of illegal reentrants whose orders may be
reinstated and limited the possible relief from a removal
order available to them. See Immigration and Nationality
Act (INA), § 241(a)(5), 66 Stat. 204, as added by IIRIRA
§ 305(a)(3), 110 Stat. 3009–599, 8 U. S. C. § 1231(a)(5). The
questions here are whether the new version of the reinstate
ment provision is correctly read to apply to individuals who
reentered the United States before IIRIRA’s effective date,
and whether such a reading may be rejected as impermissi
bly retroactive. We hold the statute applies to those who
entered before IIRIRA and does not retroactively affect any
right of, or impose any burden on, the continuing violator of
the INA now before us.
I
In 1950, Congress provided that deportation orders issued
against some aliens who later reentered the United States
illegally could be reinstated.1 Internal Security Act of 1950,
§ 23(d), 64 Stat. 1012, 8 U. S. C. § 156(d) (1946 ed., Supp. V).2
Only specific illegal reentrants were subject to the provision,
1 What was formerly known as “deportation” is now called “removal”
in IIRIRA. See Neuman, Habeas Corpus, Executive Detention, and the
Removal of Aliens, 98 Colum. L. Rev. 961, 966 (1998) (IIRIRA “realigned
the vocabulary of immigration law, creating a new category of ‘removal’
proceedings that largely replaces what were formerly exclusion proceed
ings and deportation proceedings”). Our use of each term here will vary
according to the scheme under discussion.
2 This is the full text of the provision: “Should any alien subject to the
provisions of subsection (c) unlawfully return to the United States after
having been released for departure or deported pursuant to this section,
the previous warrant of deportation against him shall be considered as
reinstated from its original date of issuance.”

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those deported as “anarchists” or “subversives,” for example,
see § 23(c), 64 Stat. 1012, while the rest got the benefit of the
ordinary deportation rules. Congress retained a reinstate
ment provision two years later when it revised the immigra
tion laws through the INA, § 242(f), 66 Stat. 212, as codified
in this subsection:
“Should the Attorney General find that any alien has
unlawfully reentered the United States after having
previously departed or been deported pursuant to an
order of deportation, whether before or after June 27,
1952,[3] on any ground described . . . in subsection (e)
. . . , the previous order of deportation shall be deemed
to be reinstated from its original date and such alien
shall be deported under such previous order at any time
subsequent to such reentry.” 8 U. S. C. § 1252(f) (1994
ed.).
Again, only a limited class of illegal reentrants was suscepti
ble, see § 242(e), 66 Stat. 211; cf. § 241(a), id., at 204, and even
those affected could seek some varieties of discretionary re
lief, see, e. g., 8 U. S. C. § 1254(a)(1) (1994 ed.) (suspension of
deportation available to aliens who maintained a continuous
presence in the United States for seven years and could dem
onstrate extreme hardship and a good moral character).
In IIRIRA, Congress replaced this reinstatement provi
sion with one that toed a harder line, as the old § 242(f) was
displaced by the new § 241(a)(5):
“If the Attorney General finds that an alien has reen
tered the United States illegally after having been re
moved or having departed voluntarily, under an order
of removal, the prior order of removal is reinstated from
its original date and is not subject to being reopened or
reviewed, the alien is not eligible and may not apply
3 A date was inserted when the provision was codified; as originally
enacted, the text read, “whether before or after the date of enactment of
this Act.” 66 Stat. 212.

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for any relief under this chapter, and the alien shall be
removed under the prior order at any time after the
reentry.” 8 U. S. C. § 1231(a)(5) (1994 ed., Supp. III).
The new law became effective on April 1, 1997, “the first
day of the first month beginning more than 180 days after”
IIRIRA’s enactment. § 309(a), 110 Stat. 3009–625. Unlike
its predecessor, § 241(a)(5) applies to all illegal reentrants,
explicitly insulates the removal orders from review, and gen
erally forecloses discretionary relief from the terms of the
reinstated order.4
II
Humberto Fernandez-Vargas is a citizen of Mexico, who
first came to the United States in the 1970s, only to be de
ported for immigration violations, and to reenter, several
times, his last illegal return having been in 1982. Then his
luck changed, and for over 20 years he remained undetected
in Utah, where he started a trucking business and, in 1989,
fathered a son, who is a United States citizen. In 2001,
Fernandez-Vargas married the boy’s mother, who is also a
United States citizen. She soon filed a relative-visa petition
on behalf of her husband, see 8 U. S. C. §§ 1154(a), 1151(b)
(2000 ed.); see Fernandez-Vargas v. Ashcroft, 394 F. 3d 881,
883, n. 4 (CA10 2005), on the basis of which he filed an appli
cation to adjust his status to that of lawful permanent resi
dent, see § 1255(i). The filings apparently tipped off the au
thorities to his illegal presence here, and in November 2003,
the Government began proceedings under § 241(a)(5) that
eventuated in reinstating Fernandez-Vargas’s 1981 deporta
4 Notwithstanding the absolute terms in which the bar on relief is stated,
even an alien subject to § 241(a)(5) may seek withholding of removal under
8 U. S. C. § 1231(b)(3)(A) (2000 ed.) (alien may not be removed to country
if “the alien’s life or freedom would be threatened in that country because
of the alien’s race, religion, nationality, membership in a particular social
group, or political opinion”), or under 8 CFR §§ 241.8(e) and 208.31 (2006)
(raising the possibility of asylum to aliens whose removal order has been
reinstated under INA § 241(a)(5)).

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tion order, but without the possibility of adjusting his status
to lawful residence. He was detained for 10 months before
being removed to Juarez, Mexico, in September 2004.
Fernandez-Vargas petitioned the United States Court of
Appeals for the Tenth Circuit to review the reinstatement
order. He took the position that because he illegally reen
tered the country before IIRIRA’s effective date, the con
trolling reinstatement provision was the old § 242(f), which
meant he was eligible to apply for adjustment of status as
spouse of a citizen, and he said that the new § 241(a)(5) would
be impermissibly retroactive if it barred his application for
adjustment. The Court of Appeals held that § 241(a)(5) did
bar Fernandez-Vargas’s application and followed Landgraf
v. USI Film Products, 511 U. S. 244 (1994), in determining
that the new law had no impermissibly retroactive effect in
Fernandez-Vargas’s case. 394 F. 3d, at 886, 890–891. We
granted certiorari to resolve a split among the Courts of Ap
peals over the application of § 241(a)(5) to an alien who reen
tered illegally before IIRIRA’s effective date,5 546 U. S. 975
(2005), and we now affirm.
5 Two Courts of Appeals have held that § 241(a)(5) does not apply at all
to aliens who reentered before the provision’s effective date, see Bejjani
v. INS, 271 F. 3d 670 (CA6 2001); Castro-Cortez v. INS, 239 F. 3d 1037
(CA9 2001), while eight have held that it does, at least in some circum
stances, see Arevalo v. Ashcroft, 344 F. 3d 1 (CA1 2003); Avila-Macias v.
Ashcroft, 328 F. 3d 108 (CA3 2003); Velasquez-Gabriel v. Crocetti, 263 F. 3d
102 (CA4 2001); Ojeda-Terrazas v. Ashcroft, 290 F. 3d 292 (CA5 2002);
Faiz-Mohammad v. Ashcroft, 395 F. 3d 799 (CA7 2005); Alvarez-Portillo
v. Ashcroft, 280 F. 3d 858 (CA8 2002); 394 F. 3d 881 (CA10 2005) (case
below); Sarmiento Cisneros v. United States Attorney General, 381 F. 3d
1277 (CA11 2004). The Courts of Appeals in the majority are themselves
divided on the question whether an alien’s marriage or application for ad
justment of status before the statute’s effective date (facts not in play
here) renders the statute impermissibly retroactive when it is applied to
the alien. See, e. g., Faiz-Mohammad, supra, at 809–810 (application for
adjustment of status); Alvarez-Portillo, supra, at 862, 867 (marriage).

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III
Statutes are disfavored as retroactive when their applica
tion “would impair rights a party possessed when he acted,
increase a party’s liability for past conduct, or impose new
duties with respect to transactions already completed.”
Landgraf, supra, at 280. The modern law thus follows Jus
tice Story’s definition of a retroactive statute, as “tak[ing]
away or impair[ing] vested rights acquired under existing
laws, or creat[ing] a new obligation, impos[ing] a new duty,
or attach[ing] a new disability, in respect to transactions or
considerations already past,” Society for the Propagation of
the Gospel v. Wheeler, 22 F. Cas. 756, 767 (No. 13,156) (CCNH
1814). Accordingly, it has become “a rule of general applica
tion” that “a statute shall not be given retroactive effect un
less such construction is required by explicit language or by
necessary implication.” United States v. St. Louis, S. F. &
T. R. Co., 270 U. S. 1, 3 (1926) (opinion for the Court by Bran
deis, J.).
This Court has worked out a sequence of analysis when an
objection is made to applying a particular statute said to
affect a vested right or to impose some burden on the basis
of an act or event preceding the statute’s enactment. We
first look to “whether Congress has expressly prescribed the
statute’s proper reach,” Landgraf, supra, at 280, and in the
absence of language as helpful as that we try to draw a com
parably firm conclusion about the temporal reach specifically
intended by applying “our normal rules of construction,”
Lindh v. Murphy, 521 U. S. 320, 326 (1997). If that effort
fails, we ask whether applying the statute to the person ob
jecting would have a retroactive consequence in the disfa
vored sense of “affecting substantive rights, liabilities, or du
ties [on the basis of] conduct arising before [its] enactment,”
Landgraf, supra, at 278; see also Lindh, supra, at 326. If
the answer is yes, we then apply the presumption against
retroactivity by construing the statute as inapplicable to the

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event or act in question owing to the “absen[ce of] a clear
indication from Congress that it intended such a result.”
INS v. St. Cyr, 533 U. S. 289, 316 (2001); see Martin v. Hadix,
527 U. S. 343, 352 (1999) (quoting Landgraf, supra, at 280).
Fernandez-Vargas fights at each step of the way, arguing
that Congress intended that INA § 241(a)(5) would not apply
to illegal reentrants like him who returned to this country
before the provision’s effective date; and in any event, that
application of the provision to such illegal reentrants would
have an impermissibly retroactive effect, to be avoided by
applying the presumption against it. We are not persuaded
by either contention.6
A
Needless to say, Congress did not complement the new
version of § 241(a)(5) with any clause expressly dealing
with individuals who illegally reentered the country before
IIRIRA’s April 1, 1997, effective date, either including
them within § 241(a)(5)’s ambit or excluding them from it.
Fernandez-Vargas argues instead on the basis of the gener
ally available interpretive rule of negative implication, when
he draws attention to language governing temporal reach
contained in the old reinstatement provision, but missing
from the current one. Section 242(f) applied to “any alien
[who] has unlawfully reentered the United States after hav
ing previously departed or been deported pursuant to an
6 The Government urges us to forgo Landgraf analysis altogether be
cause § 241(a)(5) regulates only a present removal process, not past
primary conduct, citing our recent decision in Republic of Austria v.
Altmann, 541 U. S. 677 (2004). Although we ultimately agree with the
Government, in the abstract at least, that the reinstatement provision con
cerns itself with postenactment affairs, see infra, at 44–46, we find the
Government’s allusion to Altmann inapt. The Court’s conclusion in that
case, that Landgraf was to be avoided, turned on the peculiarities of the
Foreign Sovereign Immunities Act. See Altmann, supra, at 694–696.
Those peculiarities are absent here, and we thus advert to Landgraf, as
we ordinarily do.

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order of deportation, whether before or after June 27, 1952,
on any ground described in . . . subsection (e).” 8 U. S. C.
§ 1252(f) (1994 ed.). According to Fernandez-Vargas, since
that before-or-after clause made it clear that the statute ap
plied to aliens who reentered before the enactment date of
the earlier version, its elimination in the current iteration
shows that Congress no longer meant to cover preenactment
reentrants. See Brewster v. Gage, 280 U. S. 327, 337 (1930)
(“deliberate selection of language . . . differing from that
used in the earlier Acts” can indicate “that a change of law
was intended”); cf. 2B N. Singer, Statutes and Statutory Con
struction § 51.04, p. 244 (6th rev. ed. 2000). But the clues
are not that simple.
To begin with, the old before-or-after clause was sand
wiched between references to departure or deportation
under a deportation order and to grounds for deportation
set out in a different subsection of the INA. It thus most
naturally referred not to the illegal reentry but to the alien’s
previous deportation or departure. If its omission from the
new subsection (a)(5) is significant, its immediate significance
goes to the date of leaving this country, not the date of illegal
return. Since the old clause referred to the date of enact
ment of the INA in 1952, the negative implication argument
from dropping the language is that the reinstatement section
no longer applies to those who left the country before that
date. But, in 1996, application keyed to departures in 1952
or earlier was academic, and the better inference is that the
clause was removed for that reason.7
If, moreover, we indulged any suggestion that omitting the
clause showed an intent to apply § 241(a)(5) only to deporta
tions or departures after IIRIRA’s effective date, the result
would be a very strange one: it would exempt from the new
7 We therefore need not entertain Fernandez-Vargas’s argument that
the provision’s drafting history indicates that the language was elimi
nated deliberately.

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reinstatement provision’s coverage anyone who departed be
fore IIRIRA’s effective date but reentered after it. The
point of the statute’s revision, however, was obviously to ex
pand the scope of the reinstatement authority and invest it
with something closer to finality, and it would make no sense
to infer that Congress meant to except the broad class of
persons who had departed before the time of enactment but
who might return illegally at some point in the future.
Fernandez-Vargas sidesteps this problem (on a very gener
ous reading of his argument) by making a more general sug
gestion of congressional intent: whatever the event to which
the old law was tied, activity before as well as activity after
it implicated the reinstatement power. Since the new law
is bereft of such clarity, we should apply the “ ‘longstanding
principle of construing any lingering ambiguities in deporta
tion statutes in favor of the alien,’ ” St. Cyr, supra, at 320
(quoting INS v. Cardoza-Fonseca, 480 U. S. 421, 449 (1987)),
which would effectively impose “[t]he presumption against
retroactive application of ambiguous statutory provisions,”
St. Cyr, supra, at 320. If we did so, we would find that
§ 241(a)(5) operates only to reentries after its effective date.
Even at this amorphously general level, however, the argu
ment suffers from two flaws, the first being that it puts the
cart before the horse. As Fernandez-Vargas realizes, he
urges application of the presumption against retroactivity as
a tool for interpreting the statute at the first Landgraf step.
But if that were legitimate, a statute lacking an express pro
vision about temporal reach would never be construed as
having a retroactive potential and the final two steps in the
Landgraf enquiry would never occur (that is, asking whether
the statute would produce a retroactive effect, and barring
any such application by applying the presumption against
retroactivity). It is not until a statute is shown to have no
firm provision about temporal reach but to produce a retro
active effect when straightforwardly applied that the pre
sumption has its work to do. See 511 U. S., at 280.

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The second flaw is the argument’s failure to account for
the new statute’s other provisions on temporal reach, from
which one might draw a negative inference that subsection
(a)(5) was (or at least may well have been) meant to apply
to reentries before its effective date. In contrast to their
silence about the temporal sweep of § 241(a)(5), the 1996
amendments speak directly to the scope of changes in provi
sions making reentry criminal and setting civil penalties.
IIRIRA § 324(c), 110 Stat. 3009–629, note following 8 U. S. C.
§ 1326 (2000 ed.), provides that the expanded criminal prohi
bitions, see § 1326(a), apply only to reentries or attempts
after the effective date, and § 105(b), 110 Stat. 3009–556, note
following 8 U. S. C. § 1325, provides the same as to civil pen
alties for illegal reentry, see § 1325(b). The point here is not
that these provisions alone would support an inference of
intent to apply the reinstatement provision retroactively, see
Lindh, 521 U. S., at 328, n. 4, for we require a clear statement
for that, see Martin, 527 U. S., at 354. But these provisions
do blunt any argument that removal of the before-or-after
clause suffices to establish the applicability of § 241(a)(5) only
to posteffective date reentries. The fact is that IIRIRA
sometimes expressly made changes prospective as from its
effective date and sometimes expressly provided they were
applicable to earlier acts; compare §§ 324(c) and 105(b) with
§ 347(c), 110 Stat. 3009–639 (provision governing removal of
aliens who have unlawfully voted is applicable “to voting oc
curring before, on, or after the date of the enactment of this
Act”), and § 351(c), id., at 3009–640 (provision applicable to
“waivers filed before, on, or after the date of the enactment
of this Act”). With such a variety of treatment, it is just too
hard to infer any clear intention at any level of generality
from the fact of retiring the old before-or-after language
from what is now § 241(a)(5).
One conclusion can be stated, however. Common princi
ples of statutory interpretation fail to unsettle the apparent

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application of § 241(a)(5) to any reentrant present in the
country, whatever the date of return.8
B
This facial reading is confirmed by two features of
IIRIRA, not previously discussed, that describe the conduct
to which § 241(a)(5) applies, and show that the application
suffers from no retroactivity in denying Fernandez-Vargas
the opportunity for adjustment of status as the spouse of a
citizen of the United States.9 One is in the text of that pro
vision itself, showing that it applies to Fernandez-Vargas
today not because he reentered in 1982 or at any other par
8 Justice Stevens states that when, in 1952, Congress inserted the
before-or-after clause with the old § 242(f), it was responding to the Immi
gration and Naturalization Service (INS) practice of applying the re
instatement provision only to deportation orders issued after the provi
sion’s enactment, a practice that necessarily meant the INS applied the
provision only to postenactment reentries. By correcting the INS’s inter
pretation only as to deportation orders, Justice Stevens suggests, Con
gress did nothing to disturb the practice as to reentries. And when it
removed the obsolete before-or-after clause in 1996 without adding alter
native language of temporal reach, the argument goes, Congress held fast
to its intent in 1950 and 1952 to apply the reinstatement provision only to
postenactment reentries. But the INS’s practice circa 1951 of applying
the reinstatement provision only to postenactment reentries followed from
its policy regarding deportation orders, and in 1952 Congress might just
as easily have assumed that the branch would go the way of the root. In
any event, it is difficult to accept Justice Stevens’s view that con
gressional understanding from 40 years back was intended to govern
the IIRIRA reinstatement provision, given Congress’s care to make the
revised criminal and civil penalties applicable only to postenactment
reentries.
9 We would reach the same conclusion about denial of opportunities to
apply for permission for voluntary departure as an alternative to removal,
see 8 U. S. C. § 1229c, and about cancellation of removal, see § 1229b(b),
if there were a need to deal with these matters separately. Although
Fernandez-Vargas argues that he is being denied the chance to seek these
forms of relief, he never applied for either of them and has not formally
attempted to claim them in response to the reinstatement and removal
proceedings.

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Opinion of the Court
ticular time, but because he chose to remain after the new
statute became effective. The second is the provision set
ting IIRIRA’s effective date, § 309(a), 110 Stat. 3009–625,
which shows that Fernandez-Vargas had an ample warning
of the coming change in the law, but chose to remain until
the old regime expired and § 241(a)(5) took its place.
As a preface to identifying the conduct by Fernandez-
Vargas to which the reinstatement provision applies (the
conduct that results in reinstating the old deportation order
without the former opportunities to seek adjustment of
status), a look at our holding in St. Cyr, 533 U. S. 289, is
helpful. The alien, St. Cyr, was a lawful, permanent resi
dent who made a plea agreement and pleaded guilty to an
aggravated felony charge. Although the resulting convic
tion justified his deportation, when he entered his plea the
law allowed him to seek a waiver of deportation at the dis
cretion of the Attorney General. Between the plea and de
portation proceedings, however, IIRIRA and another statute
repealed the provision for that discretionary relief, convert
ing deportation from a possibility to a certainty. Id., at 325.
The question was whether Landgraf barred application of
the new law eliminating discretionary relief, on the ground
that applying it to a defendant who pleaded guilty before the
enactment of the new law would attach a further burden
some consequence to his plea, amounting to “a new disability,
in respect to transactions or considerations already past,”
533 U. S., at 321 (internal quotation marks omitted). The
answer was that converting deportation from a likely possi
bility to a dead certainty would add such a burden, and appli
cation of the new law was accordingly barred. Id., at 325.
In making this “commonsense, functional judgment, ”
Martin, supra, at 357, we emphasized that plea agree
ments “involve a quid pro quo between a criminal defendant
and the government,” St. Cyr, 533 U. S., at 321, in which a
waiver of “constitutional rights (including the right to a
trial),” had been exchanged for a “perceived benefit,” id., at

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44 FERNANDEZ-VARGAS v. GONZALES
Opinion of the Court
322, which in practical terms was valued in light of the possi
ble discretionary relief, a focus of expectation and reliance,
id., at 323.
St. Cyr’s agreement for a quid pro quo and his plea were
entirely past, and there was no question of undoing them,
but the “transactio[n] or consideratio[n]” on which § 241(a)(5)
turns is different.10 While the law looks back to a past act
in its application to “an alien [who] has reentered . . . ille
gally,” 8 U. S. C. § 1231(a)(5), the provision does not penalize
an alien for the reentry (criminal and civil penalties do that);
it establishes a process to remove him “under the prior order
at any time after the reentry,” ibid. Thus, it is the conduct
of remaining in the country after entry that is the predicate
action; the statute applies to stop an indefinitely continuing
violation that the alien himself could end at any time by vol
untarily leaving the country. It is therefore the alien’s
choice to continue his illegal presence, after illegal reentry
and after the effective date of the new law, that subjects him
to the new and less generous legal regime, not a past act
that he is helpless to undo up to the moment the Government
finds him out.
10 We understand Fernandez-Vargas’s claim as falling within the second
of Justice Story’s categories of retroactivity (new consequences of past
acts), not the first category of canceling vested rights. The forms of relief
identified by Fernandez-Vargas as rendered unavailable to him by
§ 241(a)(5) include cancellation of removal, see 8 U. S. C. § 1229b(b), adjust
ment of status, see § 1255, and voluntary departure, see § 1229c. These
putative claims to relief are not “vested rights,” a term that describes
something more substantial than inchoate expectations and unrealized op
portunities. In contrast to “an immediate fixed right of present or future
enjoyment,” Pearsall v. Great Northern R. Co., 161 U. S. 646, 673 (1896)
(internal quotation marks omitted), Fernandez-Vargas’s claim to such re
lief was contingent, and it was up to him to take some action that would
elevate it above the level of hope. It is not that these forms of relief are
discretionary, cf. St. Cyr, 533 U. S., at 325; it is rather that before IIRIRA’s
effective date Fernandez-Vargas never availed himself of them or took
action that enhanced their significance to him in particular, as St. Cyr did
in making his quid pro quo agreement, see supra, at 43 and this page.

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Opinion of the Court
That in itself is enough to explain that Fernandez-Vargas
has no retroactivity claim based on a new disability conse
quent to a completed act, but in fact his position is weaker
still. For Fernandez-Vargas could not only have chosen to
end his continuing violation and his exposure to the less fa
vorable law, he even had an ample warning that the new law
could be applied to him and ample opportunity to avoid that
very possibility by leaving the country and ending his viola
tion in the period between enactment of § 241(a)(5) and its
effective date. IIRIRA became law on September 30, 1996,
but it became effective and enforceable only on “the first
day of the first month beginning more than 180 days after”
IIRIRA’s enactment, that is, April 1, 1997. § 309(a), 110
Stat. 3009–625. Unlawful alien reentrants like Fernandez-
Vargas thus had the advantage of a grace period between
the unequivocal warning that a tougher removal regime lay
ahead and actual imposition of the less opportune terms of
the new law. In that stretch of six months, Fernandez-
Vargas could have ended his illegal presence and potential
exposure to the coming law by crossing back into Mexico.11
11 In a series of letters submitted to the Court after oral argument, the
parties dispute the consequences if Fernandez-Vargas had left voluntarily
after IIRIRA’s enactment and, specifically, the period of inadmissibility
to which Fernandez-Vargas would thereupon have been subject. Be
cause we conclude that § 241(a)(5) does not operate on a completed pre
enactment act, we need not consider the retroactive implications either of
the fact of his inadmissibility or of any variance between the period of
inadmissibility upon a postenactment voluntary return and that prescribed
under the old regime. The period of inadmissibility stems from an alien’s
illegal reentry within a specified time after a prior removal and is applica
ble to Fernandez-Vargas because he reentered shortly after his 1981 de
portation, but Fernandez-Vargas does not challenge as impermissibly ret
roactive IIRIRA’s lengthening of that period from 5 to 10 or 20 years, see
8 U. S. C. § 1182(a)(6)(B) (1994 ed.); § 1182(a)(9)(A)(ii) (2000 ed.).
In any event, any period of inadmissibility is subject to waiver by the
Attorney General, see § 1182(a)(6)(B) (1994 ed.); § 1182(a)(9)(A)(iii) (2000
ed.), and presumably Fernandez-Vargas could plead his serious case for
such a waiver (his marriage, his child) in seeking legal reentry to the
United States.

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46 FERNANDEZ-VARGAS v. GONZALES
Opinion of the Court
For that matter, he could have married the mother of his son
and applied for adjustment of status during that period, in
which case he would at least have had a claim (about which
we express no opinion) that proven reliance on the old law
should be honored by applying the presumption against
retroactivity.12
Fernandez-Vargas did not, however, take advantage of the
statutory warning, but augmented his past 15 years of un
lawful presence by remaining in the country into the future
subject to the new law, whose applicability thus turned not
on the completed act of reentry, but on a failure to take
timely action that would have avoided application of the new
law altogether. To be sure, a choice to avoid the new law
before its effective date or to end the continuing violation
thereafter would have come at a high personal price, for
Fernandez-Vargas would have had to leave a business and a
family he had established during his illegal residence. But
the branch of retroactivity law that concerns us here is
meant to avoid new burdens imposed on completed acts,
not all difficult choices occasioned by new law. What
Fernandez-Vargas complains of is the application of new law
to continuously illegal action within his control both before
and after the new law took effect. He claims a right to con
tinue illegal conduct indefinitely under the terms on which it
began, an entitlement of legal stasis for those whose law
breaking is continuous. But “[i]f every time a man relied on
existing law in arranging his affairs, he were made secure
against any change in legal rules, the whole body of our law
would be ossified forever.” L. Fuller, The Morality of Law
60 (1964) (quoted in Landgraf, 511 U. S., at 270, n. 24).13
12 See 394 F. 3d, at 890, and n. 11 (distinguishing Fernandez-Vargas’s
circumstance from that of aliens who had married, or both married and
applied for adjustment of status, before IIRIRA’s effective date).
13 This is the nub of our disagreement with Justice Stevens. He says
it misses the point to say that Fernandez-Vargas could avoid the new law
by returning to Mexico, which he thinks is like saying that a defendant

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47 Cite as: 548 U. S. 30 (2006)
Stevens, J., dissenting
Because we conclude that § 241(a)(5) has no retroactive ef
fect when applied to aliens like Fernandez-Vargas, we affirm
the judgment of the Court of Appeals.
It is so ordered.
Justice Stevens, dissenting.
In 1982, petitioner Humberto Fernandez-Vargas, an alien
who had previously been deported, reentered the United
States illegally. Over the next 20 years, petitioner re
mained here. He worked as a truckdriver, owned a trucking
business, fathered a child, and eventually married the child’s
mother, a United States citizen. The laws in place at the
time of petitioner’s entry and for the first 15 years of his
residence in this country would have rewarded this behavior,
allowing him to seek discretionary relief from deportation
on the basis of his continued presence in and strong ties to
the United States. See 8 U. S. C. § 1254(a)(1) (1994 ed.).
In 1996, however, Congress passed a new version of the
applicable provision eliminating almost entirely the possibil
ity of relief from deportation for aliens who reenter the coun
could avoid a retroactive criminal penalty by locking himself up for 10
years, post, at 48, n. 2. Justice Stevens thus argues that reimposing
an order of removal to end illegal residence is like imposing a penalty for
a completed act (the defendant’s unspecified act in his analogy). But even
on his own analysis, Fernandez-Vargas continued to violate the law by
remaining in this country day after day, and Justice Stevens does not
deny that the United States was entitled to bring that continuing violation
to an end. He says, however, that Congress should not be understood to
provide that if the violation continues into the future it may be ended on
terms less favorable than those at the beginning. But this is not the
position that retroactivity doctrine imputes to an inexplicit Congress.
Fernandez-Vargas may have an equitable argument that the Government
should not, for the future, eliminate an opportunity for continuing illegal
ity accompanied by the hopes that long illegal residence and a prospect of
marriage gave him in the past. But Congress apparently did not accept
such an argument, which could prevail here only if the presumption
against retroactivity amounted to a presumption of legal stasis for the
benefit of continuous lawbreakers.

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48 FERNANDEZ-VARGAS v. GONZALES
Stevens, J., dissenting
try illegally having previously been deported. See Illegal
Immigration Reform and Immigration Responsibility Act
(IIRIRA or Act), § 305(a)(3), 110 Stat. 3009–599, 8 U. S. C.
§ 1231(a)(5) (2000 ed.); see also ante, at 35, n. 4. The 1996
provision is silent as to whether it was intended to apply
retroactively to conduct that predated its enactment.1 De
spite a historical practice supporting petitioner’s reading,
and despite the harsh consequences that attend its applica
tion to thousands of individuals who, like petitioner, entered
the country illegally before 1997, the Court not only holds
that the statute applies to preenactment reentries but also
that it has no retroactive effect. I disagree with both of
these conclusions.
I
In 1950, when Congress first gave the Attorney General
the authority to reinstate an order of deportation, it enacted
a reinstatement provision containing no explicit temporal
reach.2 See Internal Security Act, § 23(d), 64 Stat. 1012, 8
U. S. C. § 156(d) (1946 ed., Supp. V). The natural reading of
this provision, the one most consistent with the “deeply
rooted” traditional presumption against retroactivity, Land
graf v. USI Film Products, 511 U. S. 244, 265 (1994), is
that it would apply to deportations that occurred before the
provision’s enactment but not to preenactment reentries.
While both deportation and reentry can constitute “events
completed before [the provision’s] enactment,” id., at 270, an
1 The statutory provisions expanding the class of people to whom crimi
nal penalties for illegal reentry might apply, however, explicitly apply only
to postenactment reentries. See IIRIRA, § 324(c), 110 Stat. 3009–629,
note following 8 U. S. C. § 1326.
2 The provision stated:
“Should any alien subject to the provisions of subsection (c) unlawfully
return to the United States after having been released for departure or
deported pursuant to this section, the previous warrant of deportation
against him shall be considered as reinstated from its original date of
issuance.” 64 Stat. 1012, codified as 8 U. S. C. § 156(d) (1946 ed., Supp. V).

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49 Cite as: 548 U. S. 30 (2006)
Stevens, J., dissenting
alien’s reentry is the act that triggers the provision’s opera
tion and is therefore the act to which the provision attaches
legal consequences.
When the Immigration and Naturalization Service (INS)
promulgated regulations implementing the 1950 statute,
however, it did not read the statute so naturally. Instead,
the INS’ regulations, embodying an overly strong version of
the presumption against retroactivity, provided that an order
of deportation could only be reinstated if that deportation
occurred after the statute’s enactment date. See 8 CFR
§ 152.5 (1950 Cum. Supp.). Thus, the INS read the re
instatement provision as inapplicable even to reentries that
occurred after the statute’s enactment date if the underlying
deportation had been entered before that date; it follows
a fortiori that the provision was considered inapplicable to
reentries that occurred before the statute’s enactment.
Congress corrected the INS’ error two years later by add
ing the clause “whether before or after the date of enactment
of this Act.” Immigration and Nationality Act, § 242(f), 66
Stat. 212, 8 U. S. C. § 1252(f) (1994 ed.); see also ante, at 33–
34, and nn. 2–3. As the Court correctly notes, that amend
ment “most naturally referred not to the illegal reentry but
to the alien’s previous deportation or departure.” Ante,
at 39. The best interpretation of Congress’ intent with re
gard to the 1952 statute, then, was that it meant to apply the
reinstatement provision to preenactment deportations but
to preserve the status quo with regard to preenactment
reentries: In accordance with the traditional presumption
against retroactivity, preenactment reentries would remain
uncovered by the reinstatement provision.
In 1996, when Congress enacted the current reinstatement
provision, it drafted a version of the statute that, like its
1950 predecessor, was silent as to its temporal reach. See 8
U. S. C. § 1231(a)(5) (2000 ed.). If we assume (as the Court
does) that the addition of the “before-or-after” clause in the
1952 statute merely clarified Congress’ original intent in

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50 FERNANDEZ-VARGAS v. GONZALES
Stevens, J., dissenting
1950 to make the provision applicable to preenactment de
partures without authorizing any application to preenact
ment reentries, it is reasonable to attribute precisely the
same intent to the Congress that enacted the 1996 statute:
As in the 1950 and 1952 versions of the provision, Congress
intended the 1996 reinstatement provision to apply to preen
actment deportations but not to preenactment reentries.
In sum, our normal rules of construction support the rea
sonable presumption that Congress intended the provision to
cover only postenactment reentries. Accordingly, the 1996
reinstatement provision should not be construed to apply to
petitioner’s earlier entry into the United States.
II
The Court not only fails to give the 1996 Act its most nor
mal interpretation, but also erroneously concludes that the
provision does not have any retroactive effect. The Court
reaches this conclusion based on its judgment that the provi
sion applies not to conduct that occurred before the statute’s
enactment date, but rather to “an indefinitely continuing vio
lation that the alien himself could end at any time by volun
tarily leaving the country.” Ante, at 44. This reasoning
is unpersuasive.
It is true, of course, that the order of deportation entered
against petitioner in 1981 could not be reinstated unless he
was present in the United States, and that, until he was ar
rested in 2003, petitioner could have chosen to leave the
United States. But it is precisely petitioner’s “continuing
violation” that allowed him to be eligible for relief from de
portation in the first place: He was required to have been
physically present in the United States for a period of not
less than seven years, to have been a person of good moral
character during that time, and to have developed ties to
the United States such that his deportation would result in
extreme hardship to himself or to his United States citizen

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51 Cite as: 548 U. S. 30 (2006)
Stevens, J., dissenting
wife or child.3 See 8 U. S. C. § 1254(a)(1) (1994 ed.); see also
INS v. Phinpathya, 464 U. S. 183 (1984) (strictly construing
physical presence requirement). Moreover, under the pre
1996 version of the reinstatement provision, the longer peti
tioner remained in the United States the more likely he was
to be granted relief from deportation. See Matter of Ige,
20 I. & N. Dec. 880, 882 (1994) (listing factors considered in
evaluating extreme hardship requirement, including alien’s
length of residence in United States, family in United States,
business or occupation, and position in community).
Given these incentives, petitioner legitimately complains
that the Government has changed the rules midgame. At
the time of his entry, and for the next 15 years, it inured to
petitioner’s benefit for him to remain in the United States
continuously, to build a business, and to start a family.
After April 1, 1997, the date on which the applicable re
instatement provision became effective, all of these activities
were rendered irrelevant in the eyes of the law. Only the
Court’s unfortunately formalistic search for a single “past act
that [petitioner] is helpless to undo,” ante, at 44, allows it to
conclude that the provision at issue has no retroactive ef
fect.4 For regardless of whether his 1982 reentry was or
3 Although petitioner became eligible for relief from deportation after
being physically present in the United States for seven years, he could
not apply for that relief until the Government placed him in deportation
proceedings, at which point he could raise his eligibility as an affirmative
defense. Cf. Hughes Aircraft Co. v. United States ex rel. Schumer, 520
U. S. 939, 951–952 (1997) (applying presumption against retroactivity to
statute eliminating affirmative defense).
4 Even on its own terms the Court’s logic is troubling. The Court be
lieves that petitioner could have avoided being affected by the 1996 re
instatement provision, not just retroactively but in any way whatsoever,
by leaving the country prior to its effective date—a date that occurred six
months after the statute’s enactment date not to give aliens “ample warn
ing,” ante, at 43, 45, but instead to allow the Attorney General to prepare
for the substantial changes caused by the IIRIRA and to promulgate regu
lations to effectuate that Act. See § 309, 110 Stat. 3009–625. But had

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52 FERNANDEZ-VARGAS v. GONZALES
Stevens, J., dissenting
was not an act that he could now “undo,” it is certainly an
act to which the 1996 reinstatement provision has attached
serious adverse consequences. Because the provision has
an undeniably harsh retroactive effect, “absent a clear indica
tion from Congress that it intended such a result,” INS v.
St. Cyr, 533 U. S. 289, 316 (2001), we should apply the pre
sumption against retroactivity and hold that the 1996 re
instatement provision does not apply to petitioner.
Accordingly, I respectfully dissent.
petitioner “take[n] advantage of the statutory warning,” ante, at 46, he
would have imposed upon himself the very same punishment—the guaran
tee of removal to Mexico—that he hopes to avoid. Just as we would not
say that a defendant may avoid the retroactive application of a criminal
statute by locking himself up for 10 years, it cannot be that petitioner’s
ability to leave the country of his own accord somehow helps to prove that
the provision at issue has no retroactive effect.