Detrimental Reliance on Detrimental Reliance: The Courts’ Conflicting Standards for the Retroactive Application of New Immigration Laws to Past Acts
Rutgers Law School
January 13, 2012
Rutgers Law Review, Forthcoming
Rutgers School of Law-Newark Research Paper No. 113
A decade ago, the United States Supreme Court held that a newly enacted law that attaches adverse immigration consequences to certain criminal convictions could not be retroactively applied in the case of an immigrant who was convicted of the offense pursuant to a guilty plea before enactment of the new law. Since then, the courts of appeals that have addressed the same issue in the context of an immigrant who was convicted at trial, rather than after a guilty plea, have done so with remarkable divergence. Some courts have held that, unlike immigrants who pled guilty, immigrants who went to trial cannot show that they detrimentally relied on the old law; accordingly, the new law may be applied retroactively. Other courts have rejected the detrimental reliance requirement. In this article, I argue that detrimental reliance, while properly viewed as a factor in retroactivity analysis, must not be viewed as a requirement for challenging the retroactive application of a new law to past acts.
Number of Pages in PDF File: 16
Keywords: retroactivity, retroactive, Vartelas, 212(c), Supreme Court, immigration
Date posted: January 14, 2012 ; Last revised: March 29, 2012
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