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SUPREME COURT OF THE UNITED STATES
_________________
No. 10–1211
_________________
PANAGIS VARTELAS, PETITIONER
v. ERIC H.
HOLDER, Jr., ATTORNEY GENERAL
on writ of certiorari to the united states
court of appeals for the second circuit
[March 28, 2012]
Justice Ginsburg delivered the opinion of the
Court.
Panagis Vartelas, a native of Greece, became a
lawful permanent resident of the United States in 1989. He pleaded
guilty to a felony (conspiring to make a counterfeit security) in
1994, and served a prison sentence of four months for that offense.
Vartelas traveled to Greece in 2003 to visit his parents. On his
return to the United States a week later, he was treated as an
inadmissible alien and placed in removal proceedings. Under the law
governing at the time of Vartelas’ plea, an alien in his
situation could travel abroad for brief periods without
jeopardizing his resident alien status. See 8 U. S. C.
§1101(a)(13) (1988 ed.), as construed in
Rosenberg v.
Fleuti,
374 U.S.
449 (1963).
In 1996, Congress enacted the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA),
110Stat. 3009–546. That Act effectively precluded foreign
travel by lawful permanent residents who had a conviction like
Vartelas’. Under IIRIRA, such aliens, on return from a
sojourn abroad, however brief, may be permanently removed from the
United States. See 8 U. S. C. §1101(a)(13)(C)(v);
§1182(a)(2).
This case presents a question of retroactivity
not addressed by Congress: As to a lawful permanent resident
convicted of a crime before the effective date of IIRIRA, which
regime governs, the one in force at the time of the conviction, or
IIRIRA? If the former, Vartelas’ brief trip abroad would not
disturb his lawful permanent resident status. If the latter, he may
be denied reentry. We conclude that the relevant provision of
IIRIRA, §1101(a)(13)(C)(v), attached a new disability (denial
of reentry) in respect to past events (Vartelas’ pre-IIRIRA
offense, plea, and conviction). Guided by the deeply rooted
presumption against retroactive legislation, we hold that
§1101(a)(13)(C)(v) does not apply to Vartelas’
conviction. The impact of Vartelas’ brief travel abroad on
his per- manent resident status is therefore determined not by
IIRIRA, but by the legal regime in force at the time of his
conviction.
I
A
Before IIRIRA’s passage, United States
immigration law established “two types of proceedings in
which aliens can be denied the hospitality of the United States:
deportation hearings and exclusion hearings.”
Landon
v.
Plasencia,
459 U.S.
21, 25 (1982). Exclusion hearings were held for certain aliens
seeking entry to the United States, and deportation hearings were
held for certain aliens who had already entered this country. See
ibid.
Under this regime, “entry” into the
United States was defined as “any coming of an alien into the
United States, from a foreign port or place.” 8
U. S. C. §1101(a)(13) (1988 ed.). The statute,
however, provided an exception for lawful permanent residents;
aliens lawfully residing here were not regarded as making an
“entry” if their “departure to a foreign port or
place . . . was not intended or reasonably to be expected
by [them] or [their] presence in a foreign port or place
. . . was not voluntary.”
Ibid. Interpreting
this cryptic provision, we held in
Fleuti, 374 U. S.,
at 461–462, that Congress did not intend to exclude aliens
long resident in the United States upon their return from
“innocent, casual, and brief excursion[s] . . .
outside this country’s borders.” Instead, the Court
determined, Congress meant to rank a once-permanent resident as a
new entrant only when the foreign excursion “meaningfully
interrupt[ed] . . . the alien’s [U. S.]
residence.”
Id., at 462. Absent such
“disrupti[on]” of the alien’s residency, the
alien would not be “subject . . . to the
consequences of an ‘entry’ into the country on his
return.”
Ibid.[
1]
In IIRIRA, Congress abolished the distinction
between exclusion and deportation procedures and created a uniform
proceeding known as “removal.” See 8 U. S. C.
§§1229, 1229a;
Judulang v.
Holder, 565
U. S. ___, ___ (2011) (slip op., at 1–2). Congress made
“admission” the key word, and defined admission to mean
“the lawful entry of the alien into the United States after
inspec- tion and authorization by an immigration officer.”
§1101(a)(13)(A). This alteration, the Board of Immigration
Appeals (BIA) determined, superseded
Fleuti. See
In re Collado-Munoz, 21 I. & N. Dec. 1061,
1065–1066 (1998) (en banc).[
2] Thus, lawful permanent residents returning post-IIRIRA,
like Vartelas, may be required to “ ‘see[k] an
admission’ into the United States, without regard to whether
the alien’s departure from the United States might previously
have been ranked as ‘brief, casual, and innocent’ under
the Fleuti doctrine.”
Id., at 1066.
An alien seeking “admission” to the
United States is subject to various requirements, see,
e.g.,
§1181(a), and cannot gain entry if she is deemed
“inadmissible” on any of the numerous grounds set out
in the immigration stat- utes, see §1182. Under IIRIRA, lawful
permanent residents are regarded as seeking admission into the
United States if they fall into any of six enumerated categories.
§1101(a)(13)(C). Relevant here, the fifth of these categories
covers aliens who “ha[ve] committed an offense identified in
section 1182(a)(2) of this title.” §1101(a)(13)(C)(v).
Offenses in this category include “a crime involving moral
turpitude (other than a purely political offense) or an attempt or
conspiracy to commit such a crime.”
§1182(a)(2)(A)(i).
In sum, before IIRIRA, lawful permanent
residents who had committed a crime of moral turpitude could, under
the
Fleuti doctrine, return from brief trips abroad with-
out applying for admission to the United States. Under IIRIRA, such
residents are subject to admission procedures, and, potentially, to
removal from the United States on grounds of
inadmissibility.[
3]
B
Panagis Vartelas, born and raised in Greece,
has resided in the United States for over 30 years. Originally
admitted on a student visa issued in 1979, Vartelas became a lawful
permanent resident in 1989. He currently lives in the New York area
and works as a sales manager for a roofing company.
In 1992, Vartelas opened an auto body shop in
Queens, New York. One of his business partners used the
shop’s photocopier to make counterfeit travelers’
checks. Vartelas helped his partner perforate the sheets into
individual checks, but Vartelas did not sell the checks or receive
any money from the venture. In 1994, he pleaded guilty to
conspiracy to make or possess counterfeit securities, in violation
of 18 U. S. C. §371. He was sentenced to four months’
incarceration, followed by two years’ supervised release.
Vartelas regularly traveled to Greece to visit
his aging parents in the years after his 1994 conviction; even
after the passage of IIRIRA in 1996, his return to the United
States from these visits remained uneventful. In January 2003,
however, when Vartelas returned from a week-long trip to Greece, an
immigration officer classified him as an alien seeking
“admission.” The officer based this classi- fication on
Vartelas’ 1994 conviction. See
United States ex rel.
Volpe v.
Smith,
289 U.S.
422, 423 (1933) (counterfeiting ranks as a crime of moral
turpitude).
At Vartelas’ removal proceedings, his
initial attorney conceded removability, and requested discretionary
relief from removal under the former §212(c) of the
Immigration and Nationality Act (INA). See 8 U. S. C.
§1182(c) (1994 ed.) (repealed 1996). This attorney twice
failed to appear for hearings and once failed to submit a requested
brief. Vartelas engaged a new attorney, who continued to concede
removability and to request discretionary relief. The Immigration
Judge denied the request for relief, and ordered Vartelas removed
to Greece. The BIA affirmed the Immigration Judge’s
decision.
In July 2008, Vartelas filed with the BIA a
timely motion to reopen the removal proceedings, alleging that his
previous attorneys were ineffective for, among other lapses,
conceding his removability. He sought to withdraw the concession of
removability on the ground that IIRIRA’s new
“admission” provision, codified at §1101(a)(13),
did not reach back to deprive him of lawful resident status based
on his pre-IIRIRA conviction. The BIA denied the motion, declaring
that Vartelas had not been prejudiced by his lawyers’
performance, for no legal authority prevented the application of
IIRIRA to Vartelas’ pre-IIRIRA conduct.
The U. S. Court of Appeals for the Second
Circuit affirmed the BIA’s decision, agreeing that Vartelas
had failed to show he was prejudiced by his attorneys’
allegedly ineffective performance. Rejecting Vartelas’
argument that IIRIRA operated prospectively and therefore did not
govern his case, the Second Circuit reasoned that he had not relied
on the prior legal regime at the time he committed the
disqualifying crime. See 620 F.3d 108, 118–120 (2010).
In so ruling, the Second Circuit created a split
with two other Circuits. The Fourth and Ninth Circuits have held
that the new §1101(a)(13) may not be applied to lawful
permanent residents who committed crimes listed in §1182
(among them, crimes of moral turpitude) prior to IIRIRA’s
enactment. See
Olatunji v.
Ashcroft,
387 F.3d 383 (CA4 2004);
Camins v.
Gonzales, 500
F.3d 872 (CA9 2007). We granted certiorari, 564 U. S. ___ (2011),
to resolve the conflict among the Circuits.
II
As earlier explained, see
supra, at
2–4, pre-IIRIRA, a resident alien who once committed a crime
of moral turpitude could travel abroad for short durations without
jeopardizing his status as a lawful permanent resident. Under
IIRIRA, on return from foreign travel, such an alien is treated as
a new arrival to our shores, and may be removed from the United
States. Vartelas does not question Congress’ authority to
restrict reentry in this manner. Nor does he contend that Congress
could not do so retroactively. Instead, he invokes the principle
against retro- active legislation, under which courts read laws as
prospective in application unless Congress has unambiguously
instructed retroactivity. See
Landgraf v.
USI Film
Products,
511 U.S.
244, 263 (1994).
The presumption against retroactive legislation,
the Court recalled in
Landgraf, “embodies a legal
doctrine centuries older than our Republic.”
Id., at
265. Several provisions of the Constitution, the Court noted,
embrace the doctrine, among them, the
Ex Post Facto
Clause, the Contract Clause, and the Fifth Amendment’s Due
Process Clause.
Id., at 266. Numerous decisions of this
Court repeat the classic formulation Justice Story penned for
determining when retrospective application of a law would collide
with the doctrine. It would do so, Story stated, when such
application would “tak[e] away or impai[r] vested rights
acquired under existing laws, or creat[e] a new obligation,
impos[e] a new duty, or attac[h] a new disability, in respect to
transactions or considerations already past.”
Society for
Propagation of Gospel v.
Wheeler, 22 F. Cas. 756, 767
(No. 13,156) (CC NH 1814). See,
e.g.,
INS v.
St.
Cyr,
533 U.S.
289, 321 (2001) (invoking Story’s formulation);
Hughes
Aircraft Co. v.
United States ex rel. Schumer,
520 U.S.
939, 947 (1997);
Landgraf, 511 U. S., at
283.[
4]
Vartelas urges that applying IIRIRA to him,
rather than the law that existed at the time of his conviction,
would attach a “new disability,” effectively a ban on
travel outside the United States, “in respect to [events]
. . . already past,”
i.e., his offense,
guilty plea, conviction, and punishment, all occurring prior to the
passage of IIRIRA. In evaluating Vartelas’ argument, we note
first a matter not disputed by the Government: Congress did not
expressly prescribe the temporal reach of the IIRIRA provision in
question, 8 U. S. C. §1101(a)(13). See
Landgraf, 511 U. S., at 280 (Court asks first
“whether Congress has expressly prescribed [new
§1101(a)(13)’s] proper reach”); Brief for
Respondent 11 (Court’s holding in
INS v.
St.
Cyr, 533 U. S., at 317–320, “compels the
conclusion that Congress has not ‘expressly prescribed the
statute’s proper reach’ ” (quoting
Landgraf, 511 U. S., at 280)).[
5] Several other provisions of IIRIRA, in contrast to
§1101(a)(13), expressly direct retroactive application,
e.g., 8 U. S. C. §1101(a)(43) (IIRIRA’s
amendment of the “aggravated felony” definition applies
expressly to “conviction[s] . . . entered before,
on, or after” the statute’s enactment date (internal
quotation marks omitted)). See
St. Cyr, 533 U. S., at
319–320, and n. 43 (setting out further examples).
Accordingly, we proceed to the dispositive question whether, as
Vartelas maintains, application of IIRIRA’s travel restraint
to him “would have retroactive effect” Congress did not
authorize. See
Landgraf, 511 U. S., at 280.
Vartelas presents a firm case for application of
the antiretroactivity principle. Neither his sentence, nor the
immigration law in effect when he was convicted and sentenced,
blocked him from occasional visits to his parents in Greece.
Current §1101(a)(13)(C)(v), if applied to him, would thus
attach “a new disability” to conduct over and done well
before the provision’s enactment.
Beyond genuine doubt, we note, the restraint
§1101(a)(13)(C)(v) places on lawful permanent residents like
Vartelas ranks as a “new disability.” Once able to
journey abroad to fulfill religious obligations, attend funerals
and weddings of family members, tend to vital financial interests,
or respond to family emergencies, permanent residents situated as
Vartelas is now face potential banishment. We have several times
recognized the severity of that sanction. See,
e.g., Padilla
v.
Kentucky, 559 U. S. ___, ___ (2010) (slip op.,
at 8–9, 16).
It is no answer to say, as the Government
suggests, that Vartelas could have avoided any adverse consequences
if he simply stayed at home in the United States, his residence for
24 years prior to his 2003 visit to his parents in Greece. See
Brief in Opposition 13 (Vartelas “could have avoided the
application of the statute . . . [by] refrain[ing] from
departing from the United States (or from returning to the United
States).”);
post, at 3. Loss of the ability to travel
abroad is itself a harsh penalty,[
6] made all the more devastating if it means enduring
separation from close family members living abroad. See Brief for
Asian American Justice Center et al. as
Amici Curiae
16–23 (describing illustrative cases). We have rejected
arguments for retroactivity in similar cases, and in cases in which
the loss at stake was less momentous.
In
Chew Heong v.
United States,
112 U.S.
536 (1884), a pathmarking decision, the Court confronted the
“Chinese Restriction Act,” which barred Chinese
laborers from reentering the United States without a certificate
issued on their departure. The Court held the reentry bar
inapplicable to aliens who had left the country prior to the
Act’s passage and tried to return afterward without a
certificate. The Act’s text, the Court observed, was not
“so clear and positive as to leave no room to doubt
[retroactive application] was the intention of the
legislature.”
Id., at 559.
In
Landgraf, the question was whether an
amendment to Title VII’s ban on employment discrimination
authorizing compensatory and punitive damages applied to
pre-enactment conduct. The Court held it did not. No doubt the
complaint against the employer charged discrimination that violated
the Act at the time it occurred. But compensatory and punitive
damages were not then available remedies. The later provision for
such damages, the Court determined, operated prospectively only,
and did not apply to employers whose discriminatory conduct oc-
curred prior to the amendment. See 511 U. S., at
280–286. And in
Hughes Aircraft, the Court held that a
provision removing an affirmative defense to
qui tam suits
did not apply to pre-enactment fraud. As in
Landgraf, the
provision attached “a new disability” to past wrongful
conduct and therefore could not apply retrospectively unless
Congress clearly manifested such an intention.
Hughes
Aircraft, 520 U. S., at 946–950.
Most recently, in
St. Cyr, the Court took
up the case of an alien who had entered a plea to a deportable
offense. At the time of the plea, the alien was eligible for
discretionary relief from deportation. IIRIRA, enacted after entry
of the plea, removed that eligibility. The Court held that the
IIRIRA provision in point could not be applied to the alien, for it
attached a “new disability” to the guilty plea and
Congress had not instructed such a result. 533 U. S., at
321–323.
III
The Government, echoed in part by the dissent,
argues that no retroactive effect is involved in this case, for the
Legislature has not attached any disability to past conduct.
Rather, it has made the relevant event the alien’s
post-IIRIRA act of returning to the United States. See Brief for
Respondent 19–20;
post, at 3. We find this argument
disingenuous. Vartelas’ return to the United States
occasioned his treatment as a new entrant, but the reason for the
“new disability” imposed on him was not his lawful
foreign travel. It was, indeed, his conviction, pre-IIRIRA, of an
offense qualifying as one of moral turpitude. That past misconduct,
in other words, not present travel, is the wrongful activity
Congress targeted in §1101(a)(13)(C)(v).
The Government observes that lower courts have
up- held Racketeer Influenced and Corrupt Organizations Act
prosecutions that encompassed pre-enactment conduct. See Brief for
Respondent 18 (citing
United States v.
Brown, 555
F.2d 407, 416–417 (CA5 1977), and
United States v.
Campanale, 518 F.2d 352, 364–365 (CA9 1975)
(per
curiam)). But those prosecutions depended on criminal activity,
i.e., an act of racketeering occuring
after the
provision’s effective date. Section 1101(a)(13)(C)(v), in
contrast, does not require any showing of criminal conduct
postdating IIRIRA’s enactment.
Fernandez-Vargas v.
Gonzales,
548 U.S.
30 (2006), featured by the Government and the dissent, Brief
for Respondent 17, 36–37;
post, at 3, is similarly
inapposite. That case involved 8 U. S. C.
§1231(a)(5), an IIRIRA addition, which provides that an alien
who reenters the United States after having been removed can be
removed again under the same removal order. We held that the
provision could be applied to an alien who reentered illegally
before IIRIRA’s enactment. Explaining the Court’s
decision, we said: “[T]he conduct of remaining in the country
. . . is the predicate action; the statute applies to
stop
an indefinitely continuing violation
. . . . It is therefore the alien’s choice
to continue his illegal presence . . .
after the effective date of the new la[w] that subjects him
to the new . . . legal regime, not a past act that he is
helpless to undo.” 548 U. S., at 44 (emphasis added).
Vartelas, we have several times stressed, engaged in no criminal
activity after IIRIRA’s passage. He simply took a brief trip
to Greece, anticipating a return without incident as in past visits
to his parents. No “indefinitely continuing” crime
occurred; instead, Vartelas was apprehended because of a pre-IIRIRA
crime he was “helpless to undo.”
Ibid.
The Government further refers to lower court
decisions in cases involving 18 U. S. C. §922(g),
which prohibits the possession of firearms by convicted felons.
Brief for Respondent 18–19 (citing
United States v.
Pfeifer,
371 F.3d 430, 436 (CA8 2004), and
United States v.
Hemmings,
258 F.3d 587, 594 (CA7 2001)). “[L]ongstanding
prohibitions on the possession of firearms by felons,”
District of Columbia v.
Heller,
554 U.S.
570, 626 (2008), however, target a present danger,
i.e.,
the danger posed by felons who bear arms. See,
e.g.,
Pfeifer, 371 F. 3d, at 436 (hazardous conduct that
statute targets “occurred after enactment of the
statute”); Omnibus Crime Control and Safe Streets Act of
1968, §1201, 82Stat. 236 (noting hazards involved when felons
possess firearms).[
7]
Nor do recidivism sentencing enhancements
support the Government’s position. Enhanced punishment
imposed for the later offense “ ‘is not to be
viewed as . . . [an] additional penalty for the earlier
crimes,’ but instead, as a ‘stiffened penalty for the
latest crime, which is considered to be an aggravated offense
because [it is] a repetitive one.’ ”
Witte
v.
United States,
515 U.S.
389, 400 (1995) (quoting
Gryger v.
Burke,
334 U.S.
728, 732 (1948)). In Vartelas’ case, however, there is no
“aggravated . . . repetitive” offense. There
is, in contrast, no post-IIRIRA criminal offense at all.
Vartelas’ travel abroad and return are “innocent”
acts, see
Fleuti, 374 U. S., at 462, burdened only
because of his pre-IIRIRA offense.
In sum, Vartelas’ brief trip abroad
post-IIRIRA involved no criminal infraction. IIRIRA disabled him
from leaving the United States and returning as a lawful permanent
resident. That new disability rested not on any continuing criminal
activity, but on a single crime committed years before
IIRIRA’s enactment. The antiretroactivity principle instructs
against application of the new proscription to render Vartelas a
first-time arrival at the country’s gateway.
IV
The Second Circuit homed in on the words
“committed an offense” in §1101(a)(13)(C)(v) in
determining that the change IIRIRA wrought had no retroactive
effect. 620 F. 3d, at 119–121. It matters not that
Vartelas may have relied on the prospect of continuing visits to
Greece in deciding to plead guilty, the court reasoned. “[I]t
would border on the absurd,” the court observed, “to
suggest that Vartelas committed his counterfeiting crime in
reliance on the immigration laws.”
Id., at 120. This
reasoning is doubly flawed.
As the Government acknowledges, “th[is]
Court has not required a party challenging the application of a
statute to show [he relied on prior law] in structuring his
conduct.” Brief for Respondent 25–26. In
Landgraf, for example, the issue was the retroactivity of
compensatory and punitive damages as remedies for employment
discrimination. “[C]oncerns of . . . upsetting
expectations are attenuated in the case of intentional employment
discrimination,” the Court noted, for such discrimination
“has been unlawful for more than a generation.” 511
U. S., at 282, n. 35. But “[e]ven when the conduct in
question is morally reprehensible or illegal,” the Court
added, “a degree of unfairness is inherent whenever the law
imposes additional burdens based on conduct that occurred in the
past.”
Id., at 283, n. 35. And in
Hughes
Aircraft, the Court found that Congress’ 1986 removal of
a defense to a
qui tam action did not apply to pre-1986
conduct in light of the presumption against retroactivity. 520
U. S., at 941–942.[
8] As in
Landgraf, the relevant conduct (submitting
a false claim) had been unlawful for decades. See 520 U. S.,
at 947.
The operative presumption, after all, is that
Congress intends its laws to govern prospectively only. See
supra, at 7. “It is a strange
‘presumption,’ ” the Third Circuit
commented, “that arises only on . . . a showing
[of] actual reliance.”
Ponnapula v.
Ashcroft,
373 F.3d 480, 491 (2004). The essential inquiry, as stated in
Landgraf, 511 U. S., at 269–270, is
“whether the new provision attaches new legal consequences to
events completed before its enactment.” That is just what
occurred here.
In any event, Vartelas likely relied on
then-existing immigration law. While the presumption against
retroactive application of statutes does not require a showing of
detrimental reliance, see
Olatunji, 387 F. 3d, at
389–395, reasonable reliance has been noted among the
“familiar considerations” animating the presumption,
see
Landgraf, 511 U. S., at 270 (presumption reflects
“familiar consid- erations of fair notice, reasonable
reliance, and settled expectations”). Although not a
necessary predicate for in- voking the antiretroactivity principle,
the likelihood of reliance on prior law strengthens the case for
reading a newly enacted law prospectively. See
Olatunji, 387
F. 3d, at 393 (discussing
St. Cyr).
St. Cyr is illustrative. That case
involved a lawful permanent resident who pleaded guilty to a
criminal charge that made him deportable. Under the immigration law
in effect when he was convicted, he would have been eligible to
apply for a waiver of deportation. But his removal proceeding was
commenced after Congress, in IIRIRA, withdrew that dispensation.
Disallowance of discretionary waivers, the Court recognized,
“attache[d] a new disability, in respect to transactions or
considerations already past.” 533 U. S., at 321
(internal quotation marks omitted). Aliens like St. Cyr, the Court
observed, “almost certainly relied upon th[e] likelihood [of
receiving discretionary relief] in deciding [to plead guilty,
thereby] forgo[ing] their right to a trial.”
Id., at
325.[
9] Hence, applying the
IIRIRA withdrawal to St. Cyr would have an “obvious and
severe retroactive effect.”
Ibid. Because Congress
made no such intention plain,
ibid., n. 55, we held that the
prior law, permitting relief from deportation, governed St.
Cyr’s case.
As to retroactivity, one might think
Vartelas’ case even easier than St. Cyr’s. St. Cyr
could seek the Attorney General’s
discretionary
dispensation. Vartelas, under
Fleuti, was free, without
seeking an official’s permission, to make trips of short
duration to see and assist his parents in Greece.[
10] The Second Circuit thought otherwise,
compounding its initial misperception (treating reliance as
essential to application of the antiretroactivity principle). The
deportation provision involved in
St. Cyr, 8
U. S. C. §1229b(a)(3), referred to the alien’s
“convict[ion]” of a crime, while the statutory words
sub judice in Vartelas’ case were “committed an
offense.” §1101(a)(13)(C)(v); see
supra, at
12–13.[
11] The
practical difference, so far as retroactivity is concerned, escapes
from our grasp. Ordinarily, to determine whether there is clear and
convincing evidence that an alien has committed a qualifying crime,
the immigration officer at the border would check the alien’s
records for a conviction. He would not call into session a
piepowder court[
12] to
entertain a plea or conduct a trial.
Satisfied that Vartelas’ case is at least
as clear as St. Cyr’s for declining to apply a new law
retroactively, we hold that
Fleuti continues to govern
Vartelas’ short-term travel.
* * *
For the reasons stated, the judgment of the
Court of Appeals for the Second Circuit is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.