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On April 24, 1996, former President Clinton reluctantly signed the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), and thereafter the Illegal Immigration Reform and
Immigrant Responsibility Act ("IIRIRA") on September 30, 1996. Both enactments, hereinafter referred to as the "new law," wrought significant changes in immigration
law,2 particularly as it relates to criminal aliens.3 These punitive laws included the expansion of the term "aggravated felony" to encompass garden variety crimes like simple theft and vehicular burglary, which the states have traditionally regarded as "misdemeanors." Moreover, Congress made retroactive the "aggravated felony" definition, such that the term now applies to specified crimes regardless of when the conviction was entered (INA ¤ 101(a)(43)). An alien who committed a misdemeanor crime in 1960 when the term "aggravated felony" was not even in the Act, becomes deportable after the new law because the crime is now defined as a felony nearly four decades later. Other punitive aspects of the new law include Immigration and Naturalization Service's ("INS") right to detain in custody aliens who have committed specified crimes without the possibility of a hearing to determine whether they could be released on bond pending deportation proceedings;4 the retroactive and prospective elimination of all forms of relief, including ¤¤ 212(c) and 212(h) relief,5 to convicted aggravated felons regardless of family ties and demonstrated rehabilitation (See INA ¤ 240(a); the definition of "conviction" to reach traditional inconclusive criminal dispositions such as pleas in abeyance(See INA ¤ 101(a)(48)); granting low-level INS officers the ability to solely reinstate prior deportation orders;6 and the elimination of judicial review for criminal aliens who have administratively been ordered removed from the United States (See INA ¤ 242(a)(2)(C)).
In St. Cyr II, the Supreme Court on June 25, 2001, joined the lower courts in striking down two of the most draconian aspects of the new law- one purporting to divest federal courts
of all jurisdiction to review issues relating to aliens convicted of crimes, and the other attempting to retroactively apply the new law to prior criminal conduct by eviscerating former
INA ¤ 212(c) relief.
Enrico St.Cyr, a lawful permanent resident since 1986, pleaded guilty in 1996 to a charge of selling a controlled substance in violation of Connecticut law. That conviction, without
doubt, rendered him deportable/removable from the United States. Under pre-new law, St. Cyr would have been eligible in an administrative deportation proceeding before an immigration
judge for relief from deportation under ¤212(c).7 But removal proceedings were not commenced against him until April 10, 1997, after the new law came into effect. Therefore,
the Attorney General interpreted the new law as divesting her of jurisdiction or discretion to grant such relief to St.Cyr.
St. Cyr then filed a habeas corpus action contending that the restrictions on ¤ 212(c) relief in the new law do not apply to proceedings brought against an alien who pleaded guilty to a
deportable crime before the law came into effect. The District Court granted the habeas, rejecting the Government's procedural claim that the new law divested it of habeas corpus
jurisdiction, and its substantive defense that, even if jurisdiction exists, the new law retroactively apply to bar St. Cyr's ¤ 212(c) application. On appeal, the United States Court of
Appeals for the Second Circuit affirmed.8 Because of the importance of the issues raised and conflicts among the circuits, the Supreme Court granted certiorari and affirmed the Second Circuit.
On the question whether the new law divested federal district courts of habeas jurisdiction, Justice Stevens, writing for the Court, first canvassed the historical background of ¤ 212(c)
relief, noting that the history "is relevant to our appraisal of the substantive and procedural issues raised by the Government." Justice Stevens then considered whether the new
law, as the Government argues, indeed bars federal courts from habeas review of St. Cyr's substantive ¤ 212(c) claim. After examining in detail the new law, Justice Stevens concluded,
like the overwhelming majority of the circuit courts,9 that none of the statutes revokes federal courts' habeas jurisdiction under ¤ 2241. In reaching that conclusion, Justice Stevens noted that the Government had failed to overcome the strong presumption in favor of judicial review of administrative actions and the long-standing common law rule requiring Congress to make clear its intent to repeal habeas jurisdiction which, "[a]t its historical core, . . . has served as a means of reviewing the legality of executive detention."
With respect to the substantive retroactivity claim, Justice Stevens applied the famous Landgraff analysis10 and the age-old presumption against retroactive legislation:
[This] presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of
fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.
For that reason, "the principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal
human appeal." In a free, dynamic society, creativity in both commercial and artistic endeavors is fostered by a rule of law that gives people confidence about the legal
consequences of their actions."11
Based on this presumption, the Court has held that "congressional enactments . . . will not be construed to have retroactive effect unless their language requires this result." (Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208 (1988)).
Turning to the issue before it, the St. Cyr II Court noted that aliens entering into plea agreements both in state and federal courts give up numerous constitutional rights in exchange for prompt sentencing and the expectation that they would be eligible upon conviction for ¤ 212(c) relief. The Court cited as an example, Jidenowo v. INS,
224 F.3d 692, 699 (7th Cir. 2000), where the alien entered into extensive plea negotiations with the Government to make sure he received less than five years imprisonment to avoid a
statutory bar on ¤ 212(c) relief. Accordingly, Justice Stevens had no problem concluding that the new law eliminating ¤ 212(c) relief attaches a new disability to transactions already
past for aliens who had pleaded guilty to deportable offenses and with expectations that they would be eligible for such relief:
We find nothing in the new law unmistakably indicating that Congress considered the question whether to apply its repeal of ¤ 212(c) retroactively to such aliens. We therefore hold that ¤
212(c) relief remains available for aliens, like Respondent, whose convictions were obtained through plea agreements, and who notwithstanding those convictions, would have been eligible
for ¤ 212(c) relief at the time of their plea under the law then in effect.
Prior to St. Cyr II, courageous federal district and appellate judges all over the country have reined in some draconian aspects of the new law. For example, the courts have found
unconstitutional on due process and excessive bail grounds the application of the no-bond hearing statute to lawful permanent resident aliens who have been convicted of specified crimes;12 they have declared unconstitutional on equal protection grounds the amended ¤ 212(h) waiver statute which grants eligibility to non-lawful permanent resident aliens but denies it to lawful permanent residents;13 and they have found that jurisdiction exists to review claims brought by criminal aliens notwithstanding the new law.14 Tremendous credit, however, goes to Senior District Judge Jack Weinstein who, in his enviable, pioneering, scholarly one-hundred page decision in Mojica15 held that habeas corpus remains available to convicted aliens to test the legality of a removal order, and that retroactive application of the new law to bar section 212(c) relief for aliens whose criminal conduct predated its advent would raise serious constitutional concerns.
But for Mojica and lower court cases like it, the INS would have effectively succeeded in stripping thousands of permanent resident aliens of the opportunity to seek relief to which the Supreme Court four years later believed they were constitutionally entitled. Unfortunately, in spite of the commendable efforts by these district court judges, numerous permanent resident aliens, particularly those unable to be effectively represented or who were denied immediate stay of deportation due to the slow wheels of justice, were expeditiously removed by the INS from the United States. Only time will tell whether the INS' efficient but unlawful removal efforts will go unchecked.16
What makes Mojica important is not just its timing- delivered some four years ago when most urgently needed and before the Supreme Court took the mantle in St. Cyr II- but
also its intellectual underpinnings and unflinching defiance of accepted norms when others took pride in pooh-poohing its irrefutable rationale.17 Thus, notwithstanding St. Cyr II, Judge Weinstein's analysis in Mojica would continue to guide immigration practitioners on subsidiary retroactivity issues left unanswered in the former,18 having laid down the groundwork for other substantive issues to be resolved. As of August 1, 2001, Mojica has been cited close to one hundred and fifty times by the courts alone.
St.Cyr II, like Chada19 almost two decades ago, has ramifications far beyond the immigration context and will for decades to come be a check on legislatures' retributive excesses on unpopular groups, for no longer could a Dick Armey act as if individuals who may have offended him in grade school ought now be vilified by the overpowering machinery of the State. But St. Cyr II's immediate effects for immigration law purposes are also far-reaching. While Enrico St. Cyr's case involved an alien who pleaded guilty to a deportable offense prior to the advent of the new law, ¤ 212(c) does not require a guilty plea as a condition precedent to seeking the relief. Thus, undoubtedly, immigration advocates will continue to press the courts to take St. Cyr II to
its most logical conclusion- to find that an alien whose relevant criminal conduct predated April 24, 1996 should be eligible for ¤ 212(c) relief, regardless of when the conviction
occurred. This compelling argument is based on the idea that it is the date of reprehensible conduct, not the guilty plea or conviction date, that triggers the availability of ¤ 212(c)
relief.20
Accordingly, subsidiary issues to be vigorously litigated in federal courts within the next decade21 include the application of St.Cyr II's retroactivity holding to aliens who: (1) were convicted after trial prior to AEDPA;22 (2) pleaded guilty to deportable crimes after April 24, 1996, when AEDPA came into effect eviscerating ¤ 212(c) relief but before September 30, 1996, when IIRIRA came into being and resurrected it narrowly as cancellation of removal; (3) pleaded guilty after IIRIRA but whose conduct preceded AEDPA;23 (4) had not met the seven year continuous residency requirement at the time AEDPA came into effect;24 (5) had served more than five years in prison prior to AEDPA;25 (6) have been deported, either administratively or through the courts, as a result of erroneous findings that they were barred from seeking ¤ 212(c) relief;26 and (7) were administratively "reinstated" after previous deportation or removal orders.27
Federal criminal courts should also brace up for ¤ 2255 motions28 from aliens who have been convicted of illegal reentry after deportation,29 where the underlying
deportation order erroneously denied them the ability to seek ¤ 212(c) relief or were denied the relief as a matter of discretion without the benefit of administrative or judicial review.30 Suppose also, for example, that post-new law, an alien was found to be an "aggravated felon" as a result of having been convicted of a state felony DUI for which the predicate misdemeanors were committed pre-new law. Would this alien be subject to removal and ineligible for ¤ 212(c) relief? Suppose further that this alien was removed from the United States but then returns. Would he then be subject to prosecution for illegal reentry after deportation under INA ¤ 276?
There are no easy answers to these questions, but one hopes the courts and practitioners would be ready to tackle them as they have adequately done to date.
Footnotes
1. 121 S.Ct. 2271, 150 L.Ed 2d 347, 2001 U.S. Lexis 4670 (2001) ("St.Cyr II").
2. See Immigration and Nationality Act of 1952, 66 Stat. 163, 8 U.S.C. 1101 et seq., as amended, hereinafter "the Act"or "INA."
3.
This author predicted in 1997 that certain vindictive and retroactive (ex post facto) aspects of the new law would not survive court scrutiny. See Ishola, Of Convictions and Removal: The Impact of New Immigration Law on Criminal Aliens, 10 Utah Bar Journal 18 (August 1997) (hereinafter "Ishola, Of Convictions and Removal.").
4.
See INA ¤ 236(c). During the same week in which St. Cyr II was rendered, the Supreme Court also decided a slightly different question in Zadvydas v. Davis, 2001 U.S. Lexis 4912 (June 28, 2001), and concluded that the INS could not in comport with the Constitution indefinitely detain the so-called "lifers," aliens with serious criminal convictions who have been ordered removed but would not be accepted by their countries of origin, thus "serving life imprisonment" in INS custody. Zadvydas overruled cases such as Ho v. Greene, 204 F.3d 1045 (10th Cir. 2000), which had upheld the INS to the contrary.
5. See former INA ¤ 212(c), repealed by AEDPA ¤ 440(d), providing, with several exceptions not relevant here, that "[a]liens lawfully admitted for permanent residence who temporarily
proceed abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion
of the Attorney General." On the other hand, INA ¤ 212(h), as amended by IIRIRA, makes the relief available to non-lawful permanent resident alien aggravated felons, but denies it to
lawful permanent resident aliens who have been convicted of an aggravated felony. See INA ¤ 212(h). But see infra note 13 and accompanying text for a case finding this distinction by
Congress infirm under the Equal Protection Clause.
6.
"Reinstatement" is a rather truncated administrative process whereby the INS- without affording an opportunity to see an immigration judge- determines whether an alien found in the United States had previously been deported and should now summarily be removed. See INA ¤ 241(a)(5).
7.
Under pre-new law, administrative efforts to expel an alien from the United States were referred to as deportation proceedings. After the new law, these proceedings are referred to as removal. See generally Ishola, Of Convictions and Removal, supra note 3, at 19.
8. St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000) ("St. Cyr I"). See also Mahedo v. Reno, 226 F.3d 3 (1st Cir. 2000). But see Morales-Ramirez v. Reno, 209 F.3d 977 (7th Cir. 2000).
9. See,e.g., Jurado-Gutierrez v. Greene, 190 F.3d 1135 (10th Cir. 1999); Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998). But see LaGueere v. Reno, 164 F.3d 1035 (7th Cir. 1998).
10. Landgraff v. USI Film Products, 511 U.S. 244, 266 (1994) (noting that retroactive statutes raise special concerns because "[t]he Legislature's unmatched powers allow it to
sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive
legislation as a means of retribution against unpopular groups or individuals."). The Landgraff analysis posits that the first step in determining whether a statute has an
impermissible retroactive effect "is to ascertain whether Congress has directed with the requisite clarity that the law be applied retrospectively." The standard for finding
such unambiguous direction is a demanding one. If there is any ambiguity then the Court will find that the statute does not apply retroactively. The second step of Landgraff is to
determine whether the statute produces an impermissible retroactive effect, i.e., takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a
new duty, or attaches a new disability, in respect to transactions or considerations already past." Landgraff, 511 U.S. at 246.
11. Landgraff, 511 U.S. at 265-66 (quoting Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855 (1990) (Scalia, J., concurring)).
12. See Martinez v. Greene, 28 F.Supp. 2d 1275 (D.Colo. 1998) (Judge Babcock declaring INA ¤ 236(c) unconstitutional on its face); Insixiegnmy v. Kirkpatrick (D.Utah 1999) (Judge
Campbell declaring INA ¤ 236(c) unconstitutional as applied to a lawful permanent resident); Makoni v. Branch (D.Utah 2001) (Judge Kimball declaring section 236(c) unconstitutional as
applied to lawful permanent residents) (appeal pending as of August 1, 2001). But see Kwon v. Comfort, 2001 U.S. Dist. Lexis 7649 (D.Colo. 2001) (finding section 236(c) constitutional).
13. See Jankowski v. INS, 138 F. Supp. 2d 269 (D.Conn. 2001).
14. See,e.g., Ho v. Greene, 204 F.3d 1045, 1052 n.4 (10th Cir. 2000) (holding that INA 236(e) does not bar habeas challenge to indefinite detention by so-called "lifers,"
aliens with serious criminal convictions who could not be removed because their countries of origin would not accept them), overruled on other grounds, Zadvydas v. Davis, 2001 U.S. Lexis
4912 (June 28, 2001); Insixiegnmy v. Kirkpatrick (D.Utah 1999) (finding that jurisdiction exists to challenge INS detention of criminal alien without the possibility of a hearing before a
neutral immigration judge). However, the courts are split on whether the new law abolished circuit review of criminal aliens' removal order. Compare Yang v. INS, 109 F.3d 1185, 1192-93
(7th Cir. 1997) (jurisdiction exists to determine whether an alien is deportable on the grounds alleged by the INS), with Berehe v. INS, 114 F.3d 159, 161 (10th Cir. 1997) (no
jurisdiction even to review whether the person is deportable on the grounds specified by the INS). It appears that the Supreme Court in Calcano-Martinez, 121 S.Ct. 2268, 2001 U.S. Lexis
4671, settles the score, at least with respect to reviewability of criminal aliens' substantive claims, by holding that Congress in ¤ 242(a)(1) unmistakably strips the federal courts of
appeal of jurisdiction, but that habeas review remains available in the district courts).
15. Mojica v. Reno, 970 F. Supp.130 (E.D.N.Y. 1997) (holding that petitioner Mojica was in proceedings when AEDPA was enacted based on his detention and parole at the port of entry
and that AEDPA should not be interpreted retroactively to bar ¤ 212(c) relief for aliens convicted prior to its enactment), aff'd Henderson v. Reno, 157 F.3d 106 (2d Cir. 1998), cert.
denied, 119 S.Ct. 1141 (1999).
16. See,e.g., Fuller v. INS, 144 F. Supp.2d 72 (asserting habeas jurisdiction after alien was erroneously "deported" due to court's clerical error, and remanding matter to
BIA to review alien's ¤ 212(c) claim; Court also hinted at possibility of ordering alien's return under the All Writs Act, 28 U.S.C. ¤ 1651(a) should circumstances warrant it). The All
Writs Act provides: "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdiction and
agreeable to the usages and principles of law." 28 U.S.C. ¤ 1651(a).
17. See,e.g., Richardson v. Reno, 180 F.3d 1311 (11th Cir. 1999) (an unusually arrogant and restrictive interpretation of the jurisdiction-stripping provisions in INA ¤ 242, which
makes the Eleventh Circuit the Rodney Dangerfield of immigration law, having twice now been rebuffed by the United States Supreme Court for missing the mark on what issues Congress
intended to divest the courts of jurisdiction), overruled on other grounds, St. Cyr II, 121 S.Ct. 2271.
18. See infra text accompanying notes 21 et seq.
19. INS v. Chada, 462 U.S. 919 (1983) (eliminating the concept of Congressional veto of executive decisions as unconstitutional under Art. 1, ¤ 7 of the Constitution, which requires
that legislation be approved by both Congressional Houses and presented to the President for approval). It has been stated elsewhere that Chada was responsible for invalidating over 200
federal statutes. See Ailenikoff and Martin, Immigration Policy and Process 537 (West 1987); see also Elliot, INS v. Chada: The Administrative Constitution, The Constitution, and the
Legislative Veto, 1983 S.Ct. Rev. 125, 156-60.
20. See,e.g., Pottinger v. Reno, 51 F. Supp. 2d 349 (E.D.N.Y. 1999); cf. Kaiser Aluminum v. Bonjorno, 494 U.S. 827, 855 (1990) (The "principle that the legal effect of conduct
should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal human appeal.") (Scalia, J., concurring) (emphasis added). But see
Landgraff, 520 U.S. 939, 947-48 (focusing on both relevant primary and secondary conduct).
21. To say these issues may not be resolved for a decade is certainly not an exaggeration, for it took the United States Supreme Court almost five years to resolve only a few of
numerous AEDPA and IIRIRA issues. For another example of relentless decade-long pursuit of justice by immigration advocates, see LULAC v. INS, 956 F2d 914 (9th Cir. 1992) (which in the
year 2001 is still attempting to resolve protracted litigation involving the 1986 amnesty laws), vacated sub nom, Reno v. Catholic Social Services, 113 S.Ct. 2485 (1993) .
22. ¤212(c) on its face makes no distinction between an alien who "rolls over" for the Government and enters a guilty plea, as opposed to one who steadfastly maintains her
innocence and takes the Government to trial but only to be found guilty. They are both "convicted" for criminal law and immigration purposes, see, e.g., INA ¤ 101(a)(48)
(defining "conviction"), and there is no compelling Government interest to distinguish between an alien who copped a plea and one who went to trial, except that the Government
wishes to reward the former for making its job easier. See,e.g., Francis v. INS, 532 F.2d 268 (2d Cir. 1976) (finding exclusion-based ¤ 212(c) relief applicable on equal protection
grounds to similarly situated aliens in deportation proceedings); Jankowski v. INS, 138 F.Supp. 2d 269 (finding constitutional error on equal protection grounds the distinction between
aggravated felon non-lawful permanent resident aliens and aggravated felon lawful permanent resident aliens for ¤ 212(h) waiver purposes. But see generally Lawrence v. INS, 2001 U.S.
Dist. Lexis 10058 (S.D.N.Y. 2001) (alien convicted after trial not eligible for ¤ 212(c) relief pursuant to St.Cyr II); Lara-Ruiz v. INS, 241 F.3d 934, 945 (7th Cir. 2001) (same, pre-St.
Cyr II decision); United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (same); Bensusan v. Reno, 225 F.3d 653 (table), 2000 WL 1058978 (4th Cir. 2000) (same). A case raising
a similar issue is pending in the Utah federal district court. See Parra-Hermosillo v. Branch (D.Utah 2001)(Judge Jenkins).
23. See,e.g., Domond v. U.S.INS, 244 F.3d 81, 84-86 (2d Cir. 2001) (elimination of ¤ 212(c) relief may be applied retroactively where crime occurred before its effective date but
conviction upon plea came after effective date).
24. See Asad v. Reno, 242 F.3d 702 (6th Cir. 2000).
25. Copes v. McElroy, 2001 U.S. Dist. Lexis 10255 (E.D.N.Y. 2001).
26. See,e.g., United States v. Andrade-Partida, 110 F. Supp.2d 1260 (N.D. Cal.2000) (granting alien criminal defendant's motion to dismiss indictment on the grounds that exhaustion
requirements of ¤ 276(d) cannot bar collateral review of deportation matter where alien was not informed of his right to appeal underlying deportation order); Fuller v. INS, 144 F.
Supp.2d 72 (asserting habeas jurisdiction after alien was erroneously "deported" due to court's clerical error).
27. The United States Court of Appeals for the Ninth Circuit recently expressed serious constitutional due process doubt as to the validity of the reinstatement statute and its
application by the INS. However, the court declined to find the statute unconstitutional, but concluded that it does not apply to aliens who reentered the United States before IIRIRA's
effective date. See Castro-Cortez v. INS, 239 F.3d 1037 (9th Cir. 2001).
28. See 28 U.S.C. ¤ 2255 (authorizing suits by prisoners in federal custody to challenge sentence imposed in violation of the Constitution or laws of the United States).
29. See INA ¤ 276, 8 U.S.C. ¤ 1326; see also Almendarez-Torres v. U.S., 119 S.Ct. 1215 (1999) (upholding the strict liability nature of the statute).
30. See Andrade-Partida, 110 F. Supp.2d at 1260 (granting alien criminal defendant Ôs motion to dismiss on the grounds that exhaustion requirements of ¤ 276(d) cannot bar collateral
review of deportation matter where alien was not informed of his right to appeal); United States v. Fermin-Rodriguez, 5 F. Supp. 2d 157 (S.D.N.Y. 1998) (where alien unlawfully removed
despite automatic stay while case on appeal, he was not deported within the meaning of the statute); but compare United States v. Muro-Inclan, 249 F.3d 1180 (9th Cir. 2001) (stating that
defendant may have been denied the opportunity to seek ¤ 212(c) relief, but found that defendant did not show that he was prejudiced by that denial).
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