Remanded On: March 28, 2012
Before: KEARSE, CABRANES, and LIVINGSTON, Circuit Judges.
Remand from the March 28, 2012 decision of the Supreme Court, which reversed and remanded our decision of September 9, 2010. Because the Supreme Court's decision implicitly requires us to conclude that Petitioner was prejudiced by his attorneys' failure to argue the issue of retroactivity, we remand to the Board of Immigration Appeals for a determination in the first instance as to the quality of his attorneys' performance.
This case returns to us following the March 28, 2012 decision of the Supreme Court. Vartelas v. Holder, 132 S. Ct. 1479 (2012). For the reasons that follow, we remand the cause to the Board of Immigration Appeals for consideration in light of the Supreme Court decision.
Petitioner Panagis Vartelas ("Vartelas"), a native of Greece and permanent resident of the United States since 1989, pleaded guilty to a felony in 1994 and served a four-month prison sentence. At the time of Vartelas's guilty plea, lawful permanent residents were not regarded as making an "entry" when returning from "innocent, casual, and brief excursion[s] . . . outside this country's borders." Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963) (internal quotation marks omitted). That is, an alien in Vartelas's situation could travel abroad for brief periods without jeopardizing his resident alien status.
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), under which, effective April 1, 1997, lawful permanent residents returning from a trip abroad are regarded as seeking admission if they have "committed an offense identified in [8 U.S.C. § 1182(a)(2)]," 8 U.S.C. § 1101(a)(13)(C)(v), including "a crime involving moral turpitude . . . or conspiracy to commit such a crime," id. § 1182(a)(2)(A)(i)(I) (which would include the felony to which Vartelas had pleaded guilty).
In 2003, Vartelas briefly traveled to Greece to visit family members. Upon returning to the United States, he was treated as an inadmissible alien and placed in removal proceedings pursuant to the IIRIRA.
Following various appearances before an immigration judge ("IJ") in 2003, 2004, and early 2005, the IJ denied Vartelas's application for relief and ordered Vartelas removed to Greece. The Board of Immigration Appeals ("BIA") affirmed the order of removal in an opinion dated May 1, 2008.
In July 2008, represented by new counsel, Vartelas filed a motion before the BIA to reopen, alleging that the series of attorneys who represented him in the proceedings before the IJ had failed to provide him with effective assistance, and that he had been prejudiced by his attorneys' failure to pursue his defenses to removability, including their failure to challenge removability on the ground that the IIRIRA change should not be applied to him retroactively. The motion cited In re Lozada, 19 I. ...