The U.S. Supreme Court has a long tradition of treating immigration law as “exceptional,” deferring to Congress and executive agencies when determining the scope of various immigration laws. The Court’s refusal to subject immigration statutes to the ordinary level of judicial review has left immigrants even more susceptible to the effects of anti-immigrant legislation.
When the Court decided Fernandez-Vargas v. Gonzales in 2006 it increased the scope of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) by allowing portions of the statute to be applied to immigrants who had reentered the United States prior to its effective date. At first glance Fernandez-Vargas might appear to be just another example of the Court’s deference to the anti-immigrant policies of the legislature that created IIRIRA and the agencies that enforce it.
However, a closer look at Fernandez-Vargas and the Court’s related decisions on IIRIRA’s scope reveals that the Court is using ordinary tools of statutory interpretation to determine the outer bounds of that statute’s reach, reflecting a broader trend of more normalized treatment of immigration law.
There and Back, Now and Then: IIRIRA’s Retroactivity and the Normalization of Judicial Review in Immigration Law,
83 Fordham L. Rev. 949
Available at: http://ir.lawnet.fordham.edu/flr/vol83/iss2/19