Cite as "AILA InfoNet Doc. No. 02100940 (posted Oct. 9, 2002)"
Comments on the proposed St. Cyr rule is due on Tuesday, October
15, 2002. If you or your organization would like to sign on to these comments,
please e-mail Luke Hall at firstname.lastname@example.org by 5:00 p.m. EDT,
Monday, 10/14/2002. If you are signing on behalf of an organization, we would
appreciate it if you can also provide us with a brief description of your
organization. In the alternative, please feel free to cut and paste or use these
comments as is for your own comments.
October 15, 2002
Executive Office for
5107 Leesburg Pike, Suite 2400
Falls Church, VA
RE: EOIR 130I: AG Order No. 2607-2002
rule on §212(c) Relief for Aliens With
Certain Criminal Convictions Before
April 1, 1997
67 Fed. Reg. 52,627 (August 13,
Dear Mr. Adkins-Blanch:
The undersigned organizations and
individuals submit these comments in response to the proposed rule on §212(c)
relief for lawful permanent residents (LPRs) with certain criminal convictions
before April 1, 1997.
The proposed rule purports to implement the Supreme
Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001). However, it
fails to accomplish this goal substantively and procedurally.
proposed rule is flawed substantively for several reasons. First, it does not
allow LPRs who were deported prior to the Supreme Court's decision in St.
Cyr to apply for 212(c) relief. These LPRs were deprived of the opportunity
to apply for 212(c) relief solely as a result of the Department of Justice (DOJ
or Department)'s unlawful retroactive application of §440(d) of the
Anti-terrorism and Effective Death Penalty Act (AEDPA) and/or §304(b) of the
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). As a
result, thousands of U.S. citizens and LPRs were forced to part with LPR family
members without ever having the opportunity to explain why their families should
remain together. These American families continue to suffer emotionally and
financially as a result of DOJ's erroneous interpretation of the law. Despite
their ongoing hardship, the proposed rule fails to rectify past wrongs by
denying those who are eligible to apply for 212(c) relief, but were deported
prior to St. Cyr, an opportunity to apply for 212(c)
Second, the proposed rule is flawed because it prevents LPRs who
were convicted after trial from applying for 212(c) relief. The Supreme Court
has already observed in St. Cyr that immigrants who are facing a criminal
charge are "acutely aware of the immigration consequences of their convictions."
533 U.S. 289, 322. Like LPRs who entered into plea agreements, LPRs who decided
to go to trial did so in reliance of the fact that they would still be allowed
to apply for 212(c) relief even if they were found guilty at the end of the
trial. Preventing these LPRs from now applying for 212(c) relief would attach a
new legal consequence to decisions made prior to the enactment of AEDPA and
IIRIRA. Such a bar is not justified under St. Cyr or the Supreme Court's
retroactivity jurisprudence under Landgraf v. USI Film Products, 511 U.S.
244 (1994), and its progeny. This provision of the proposed rule, if allowed to
stand, will only lead to further litigation.
Finally, the proposed rule
is flawed procedurally because it fails to protect those whom it purports to
benefit. It unnecessarily sets a time limit on the filing of motions to reopen
under the rule. The proposed rule also does not automatically stay the
deportation or removal of those who are eligible to apply for 212(c) relief. As
a result, LPRs who are eligible to apply for 212(c) relief may be wrongfully
deported or removed. These procedural obstacles are particularly harmful, given
that the proposed rule does not provide a mechanism for identifying and
notifying LPRs who are eligible to apply for 212(c) relief.
rule should allow LPRs who are eligible to apply for 212(c) relief but were
deported or departed to apply for 212(c) relief.
From April 24, 1996,
when AEDPA went into effect, to June 25, 2001, when the Supreme Court issued its
decision in St. Cyr, INS deported thousands of LPRs after the EOIR
erroneously pretermitted their 212(c) applications based on DOJ's unlawful
retroactive application of AEDPA §440(d) and/or IIRIRA §304(b). Other LPRs
departed the United States without even attempting to apply for 212(c) relief,
because they had been advised by lawyers or Immigration Judges that EOIR would
simply pretermit their applications. DOJ's policies regarding 212(c) relief
resulted in hundreds of American families being unnecessarily torn apart.
Because the LPRs who were deported or departed cannot now legally return to the
United States, these families continue to suffer emotionally and
Despite the harm caused by DOJ's unlawful policies regarding
212(c) relief, the proposed rule does not permit LPRs who were previously
deported or departed prior to St. Cyr from applying for 212(c) relief. We
ask the Department to reconsider this decision. Such a position flouts the
Supreme Court's decision in St. Cyr. It also perpetuates the harm that
DOJ originally caused these LPRs and their families when it deprived the LPRs of
the opportunity to apply for 212(c) relief.
- LPRs who were deported or departed did not have sufficient opportunity to
challenge DOJ's unlawful retroactive application of AEDPA §440(d) and/or IIRIRA
In the preamble to the proposed rule, DOJ claims that the deportation or
removal proceedings of LPRs who were deported or departed have been completed
and cannot now be challenged. 67 Fed. Reg. 52627, 52629. It later reiterates
this argument by asserting that not allowing LPRs who were deported or departed
to apply for 212(c) relief is "reasonable and fair because aliens who have been
deported had a sufficient opportunity to challenge the denial of their
applications for 212(c) relief in administrative and judicial proceedings."
This statement is simply not true. Their applications for 212(c)
relief were not denied on the merits. Immigration Judges pretermitted their
applications based on DOJ's erroneous interpretation of AEDPA and IIRIRA, often
in hearings that lasted no longer than five minutes. Then the Board of
Immigration Appeals (BIA or the Board) affirmed the Immigration Judges'
decisions in cursory opinions that failed to address the retroactivity arguments
of the kind that later prevailed in St. Cyr.
When the BIA
dismissed their appeals, these LPRs received no notice or instructions on where
and how to ask for federal court review of their deportation or removal orders.
They were typically unrepresented at this point. Many simply could not afford
the cost of a lawyer to prepare, file and prosecute a complex federal court case
involving complicated arguments on federal court jurisdiction and retroactivity.
Even if they wanted to file something pro se, they were often housed in
detention facilities with no access to necessary legal materials.
when LPRs overcame these obstacles and attempted to challenge the Department's
policies in the federal courts, some INS District Offices would deport them
before they could file a petition for review and/or habeas and an accompanying
motion for stay of deportation. For example, in Macias v. Greene, 28 F.
Supp. 2d 635 (D. Colo. 1998), the BIA dismissed Mr. Macias's appeal on July 13,
1998. He was turned over to INS custody on July 20, 1998, and INS deported him
on July 21, 1998. District Court then dismissed Mr. Macias's habeas petition
because Mr. Macias was no longer in INS custody.
If they were lucky
enough to have gotten into federal court, then DOJ lawyers used complicated
procedural maneuvers (such as opposing motions for stays of deportation, filing
motions to dismiss for lack of in personam jurisdiction and motions for change
of venue to parts of the United States where it was difficult, if not
impossible, to find pro bono or any immigration lawyers at all) against often
unrepresented LPRs to prevent the courts from reviewing the Department's policy
on the merits. For example:
- Duran v. Reno, 193 F.3d 82 (2nd Cir. 1999), vacated as moot, 197 F3d.
63 (2nd Cir. 1999). Pro se LPR filed a petition for writ of habeas corpus.
District Court dismissed the petition because the LPR was still in state, rather
than INS, custody at the time that he filed the petition. Mr. Duran appealed to
the Court of Appeals. Court of Appeals grants Mr. Duran's motion for appointment
of counsel to brief the custody issue. Mr. Duran comes into INS custody, and INS
deports him despite the fact that his appeal was pending in the Court of
Appeals. The Court of Appeals then dismissed Mr. Duran's appeal for lack of
jurisdiction because he had been deported.
- Kator v. Ashcroft, 2001 U.S. Dist. LEXIS 8497 (N.D. Ill. 2001). Pro
se LPR detained in Marksville, Louisiana first filed a habeas petition with the
U.S. District Court for the Western District of Louisiana. This petition was
dismissed because the Fifth Circuit had erroneously held that IIRIRA eliminates
habeas jurisdiction 28 U.S.C. §2241. Max-George v. Reno, 205 F.3d 194,
199 (5th Cir. 2000), vacated and remanded, 533 U.S. 945 (2001). Mr. Kator then
filed a habeas petition with the U.S. District Court for the Northern District
of Illinois. This petition was dismissed because the Court did not have
jurisdiction over the custodian of the detention facility where Mr. Kator was
being held. Mr. Kator accepted a guilty plea on March 15, 1996 in reliance of
the fact that he would be eligible to apply for 212(c) relief. He would have
been clearly eligible to apply for 212(c) relief under St. Cyr.
Many more LPRs who would have been eligible to apply for 212(c) relief under
St. Cyr were deported due to erroneous circuit court interpretations of
the retroactive reach of AEDPA §440(d) and IIRIRA §304(b) prior to St.
Cyr. See e.g. DeSousa v. Reno, 190 F.3d 175 (3rd Cir. 1999) (Third
Circuit held that applying AEDPA §440(d) to LPRs whose convictions occurred
before April 24, 1996 was not retroactive); Max-George v. Reno, 205 F.3d
194, 199 (5th Cir. 2000), vacated and remanded, 533 U.S. 945 (2001) (Fifth
Circuit held that IIRIRA eliminated habeas jurisdiction under 28 U.S.C. §2241.);
LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998) (Seventh Circuit held
that AEDPA §440(a) eliminated habeas jurisdiction under 28 U.S.C. §2241.). See
also Thompson v. Reno, 2000 U.S. Dist. LEXIS 4436 (E.D. Pa. 2000) (Habeas
petition of a pro se LPR dismissed based on DeSousa. Mr. Thompson
immigrated to the United States in 1970 and was convicted of a criminal sale of
controlled substance in the fifth degree in May 1988. He would have been
eligible to apply for 212(c) relief under St. Cyr.). LPRs whose cases
originated in these circuits or LPRs whom the INS chose to transfer to detention
facilities in above jurisdictions had virtually no chance of remaining in the
United States while the issue made its way to the Supreme Court.
B. Congress did not intend to
prevent LPRs who were deported or departed as a result of DOJ's unlawful
interpretation of AEDPA and IIRIRA from applying for 212(c)
DOJ also asserts that "refusing to allow aliens who have been deported from
the United States to obtain relief under the regulation is consistent with
Congress's intent as demonstrated by the language in former section 212(c),"
because the former INA §212(c) refers to "[a]liens lawfully admitted for
permanent residence who proceeded abroad voluntarily and not under an order of
deportation." 67 Fed. Reg. at 52629.
However, it is misleading to point
to the language of §212(c) as evidence of Congressional intent in this context.
When Congress enacted INA §212(c), it presumed that anyone who had been deported
would have had an opportunity to apply for any relief for which s/he was
eligible. But thousands of LPRs were deprived of the opportunity to apply for
212(c) relief in their deportation or removal proceedings as a result of DOJ's
unlawful retroactive application of AEDPA §440(d) and/or IIRIRA §304(b).
Congress certainly could not have foreseen that the DOJ would erroneously deport
thousands of long-term LPRs after unlawfully preventing them from applying for
relief under §212(c). The language relied upon by the Department sheds no light
on what Congress's intent would be under these circumstances, because the
statute presupposes that those who were deported had received a full and fair
deportation hearing and appeal on the merits. This is precisely what did not
happen in this context as a result of DOJ's unlawful retroactive application of
restriction and repeal of INA §212(c).
C. DOJ's assertion that it would be
"difficult, if not impossible" to verify the identity and criminal records of
LPRs who were deported or departed as a result of DOJ's unlawful interpretation
of AEDPA and IIRIRA is not supported by evidence.
Finally, the Department posits that "[a]llowing aliens who have been deported
to seek relief under the regulation would create certain verification problems
relating to the applicant's identity and criminal history." 67 Fed. Reg. at
52629. In particular, the DOJ claims that "[a]liens who were denied 212(c)
relief pursuant to AEDPA, and who were deported many years ago, may have been
convicted of crimes abroad that would disqualify them from relief under the
regulation, but which would be difficult, if not impossible, for the INS to
discover and verify." Id. However, the Department fails to support these
assertions with any evidence.
First, it should be noted that it was not
AEDPA but the Department's unlawful interpretation of AEDPA that caused these
LPRs to be deported without first being able to apply for 212(c) relief. Second,
DOJ offers no evidence to support its speculation that those who were deported
"may have been convicted of crimes abroad" after their deportation. Even
assuming that such convictions may have occurred in some cases, the Department
does not state what percentage of LPRs who have been deported may have committed
such additional crimes.
The INS and the American Consulates abroad verify
the criminal record or the lack thereof of almost a million people who immigrate
to the United States each year. Yet, the Department fails to explain why it
would be any more "difficult, if not impossible" for the INS and/or the American
Consulates to verify the criminal records of those LPRs who were deported as a
result of the DOJ's erroneous interpretation of AEDPA and/or IIRIRA. Rather, it
seems content to let those LPRs who have not committed any crimes since their
deportation and their U.S. citizen and/or LPR family members to suffer on the
presumption that an unspecified percentage of people "may have been convicted of
crimes abroad" may apply for 212(c) relief.
D. Precedent supports allowing LPRs who
were deported or departed as a result of DOJ's unlawful interpretation of AEDPA
and IIRIRA to apply for 212(c) relief.
A long history of precedent supports providing relief for noncitizens outside
the United States. In many cases, federal courts have ordered the INS, or the
INS has agreed voluntarily, to return individuals who were wrongfully deported.
In class action litigation, the INS has been ordered to allow noncitizens
outside the country to reopen deportation orders that were entered erroneously.
Thus, in Walters v. Reno, 145 F.3d 1032, 1050-51 (9th Cir. 1998), cert.
denied 526 1003 (1999), the Ninth Circuit upheld the district court's injunction
requiring the INS to "parole or make other arrangements" to allow class members
outside the United States to attend their hearings. See also Singh v.
Waters, 87 F.3d 87 F.3d 346, 347-49 (9th Cir. 1996) (INS ordered to permit
noncitizen to return to the United States after having been unlawfully deported
despite stay order); Hernandez-Ortiz v. INS, 777 F.2d 509, 512 (9th Cir.
1985) (INS agreed to arrange and pay for noncitizen to return to the United
States after having erroneously deported noncitizen); Estrada-Rosales v.
INS, 645 F.2d 819 (9th Cir. 1981) (INS ordered to readmit noncitizen back to
the United States for new deportation proceedings because the criminal
conviction presented as evidence in prior deportation proceedings was vacated
after his deportation); Mendez v. INS, 563 F.2d 956, 958-59 (9th Cir.
1977) (INS ordered to return alien deported without notice to counsel). At least
one court has ordered INS "to give petitioner a hearing on his request for a
waiver of excludability under section 212(c) of the INA and readmit him to the
United States for that purpose" in the wake of St. Cyr. Obajuluwa v.
Ashcroft, 2002 U.S. Dist. LEXIS 9551 (N.D. Tex. 2002).
who were deported or departed as a result of DOJ's unlawful retroactive
application of AEDPA §440(d) and IIRIRA §304(b) would be an ameliorative
measure. It is important to remember in this context that deportation affects
not only the people deported, but their U.S. citizen and LPR family members as
well. Allowing LPRs who were deported or departed to apply for 212(c) relief
will lead to the reunification of many American families. It will finally end
the suffering of thousands of U.S. citizen and LPR family members who were also
harmed as a result of DOJ's unlawful retroactive application of §212(c)
restriction and repeal.
Rather than encouraging further litigation and
continued suffering of these LPRs and their American families, the final rule
should allow LPRs who did not have an opportunity to apply for 212(c) relief
before they departed or were deported to now apply for 212(c) relief.
II. Final rule should allow LPRs who were convicted after trial to apply
for 212(c) Relief.
The proposed rule does not permit LPRs who were convicted after trial to
apply for 212(c). DOJ does not explain why it has chosen to treat LPRs who were
convicted after trial differently from LPRs who were convicted pursuant to plea
agreements. The preamble merely states that "[t]he Department would continue to
treat convictions entered as the result of a trial as it had prior to St.
Cyr." 67 Fed. Reg. at 52627.
This position does not comport with the
reasoning in St. Cyr or with the Supreme Court's retroactivity
jurisprudence under Landgraf v. USI Film Products, 511 U.S. 244 (1994),
and its progeny. Furthermore, nothing in the INA or §212(c) supports the
creation of a distinction between LPRs who were convicted after trial and LPRs
who were convicted after plea. Such a position will only lead to further
litigation and divert the government's resources.
In Landgraf, the
Supreme Court set forth a two-step analysis to determine whether a statute can
be applied retroactively. First, one must examine the statute to ascertain
whether Congress has clearly expressed its intent to apply the law
retroactively. 511 U.S. 244, 280. If Congress has made its intent clear, the
inquiry ends there. Id. If Congress has not clearly expressed its intent,
then the second step of the Landgraf analysis requires one to determine whether
the statute has a retroactive effect. Id.
The Supreme Court has
already determined that Congress did not clearly express its intent to apply
IIRIRA's repeal of INA §212(c) retroactively. INS v. St. Cyr, 533 U.S.
289, 320 (2001). It also held that applying the repeal of §212(c) to LPRs who
entered into plea agreements prior to the effective date of IIRIRA has "an
obvious and severe retroactive effect." Id. at 325. Therefore, the only
open issue on whether the restriction and repeal of INA §212(c) should be
applied retroactively to LPRs who were convicted after trial is whether such
application also has a retroactive effect. As the following discussion clearly
demonstrates, prohibiting LPRs who were convicted after trial from applying for
212(c) relief has a serious retroactive effect.
A. LPRs who elected to go to trial
did so in reliance of the fact that they would still be eligible to apply for
212(c) relief even if they were found guilty after the
As the Supreme Court observed in St. Cyr, "[t]here is a clear
difference, for the purposes of retroactivity analysis, between facing possible
deportation and facing certain deportation." INS v. St. Cyr, 533 U.S.
289, 325 (2001). Like the LPRs in St. Cyr, LPRs who were convicted after
trial also relied on the availability of 212(c) relief in making decisions
regarding the disposition of criminal charges. To prevent these LPRs from
applying for 212(c) relief now "attaches new legal consequences to events
completed before its enactment" and therefore has an impermissible retroactive
effect. Id. at 321 (quoting Martin v. Hadix, 527 U.S. 343, 357-58
Prior to April 24, 1996, LPRs were eligible to apply for 212(c)
relief as long as they did not actually serve five years in prison. 8 U.S.C.
§1182(c) (1994). Because §212(c) and the INA does not distinguish between those
who are convicted pursuant to a plea agreement and those who are convicted after
trial, LPRs who were facing criminal charges only needed to consider the final
outcome of their conviction (length of sentence, time actually served) rather
than the mode of conviction (by plea or by trial).
These LPRs only needed
to consider whether they would be required to serve more than five years if they
were found guilty after a trial in order to ensure their continuing eligibility
to apply for 212(c) relief. If the LPR determined that s/he would serve less
than five years even if s/he were found guilty after the trial, then s/he was
free to make the decision to go to trial based on non-immigration
considerations, such as the belief in his or her innocence, the strength of the
government's case, etc.
In other words, many LPRs decided to go to trial
in reliance of the fact that they would still be eligible to apply for 212(c)
relief even if they were found guilty after the trial. Had they known that DOJ
would prevent them, years later, from applying for 212(c) relief solely on the
ground that they had elected to go to trial, many of these LPRs would have taken
a plea instead in order to preserve their eligibility to apply for 212(c)
relief. Therefore, LPRs who were convicted after trial relied on the
availability of 212(c) relief as much as LPRs in St. Cyr who were
convicted pursuant to plea agreements.
Prior to AEDPA and IIRIRA, many
LPR defendants who decided to go to trial reasonably relied on the availability
of 212(c) relief. These persons were advised by their immigration and/or
criminal lawyers that their convictions would not result in mandatory
deportation. They were told that if they could show rehabilitation and establish
a record of law-abiding behavior, then if INS ever initiated deportation
proceedings they would have a high chance of being granted a waiver. The
elimination of 212(c) relief for these individuals clearly “attaches new legal
consequences to events completed before its enactment.” St. Cyr, 533 U.S.
at 321. The new consequence – mandatory deportation – thoroughly disrupts
the “settled expectations” of these individuals and their trust in the law’s
repose. Id. at 323.
B. Not allowing LPRs who were
convicted after trial to apply for 212(c) relief would "attach new legal
consequences" to decisions made long before the repeal of §212(c) and would
"disturb settled expectations."
While many LPRs who were convicted after trial did in fact rely on the
availability of 212(c) relief, reliance is not the only method for determining
whether a statute has impermissible retroactive effect. Applying the restriction
and repeal of §212(c) to LPRs who were convicted after trial clearly has a
retroactive effect under any test for retroactive effect under Landgraf
and its progeny.
The Supreme Court has held that a statute has
retroactive effect if it "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."
Landgraf v. USI Film Products, 511 U.S. 244, 269 (1994). In performing
the Landgraf analysis in St. Cyr, the Supreme Court observed that
one should make a “commonsense, functional judgment about whether the new
provision attaches new legal consequences to events completed before its
enactment,” 533 U.S. at 321, and whether doing so would offend “familiar
considerations of fair notice, reasonable reliance, and settled expectations.”
Id. Thus, the Court in St. Cyr did not inquire into whether the
particular defendant in the particular case specifically relied on the
availability of 212(c) relief.
Reliance is but one means of ascertaining
whether a statute has retroactive effect. The Supreme Court has found
impermissible retroactive effect without considering whether a party did rely –
or even could have relied – on the prior law. See e.g. Hughes Aircraft Co. v.
United States ex rel. Schumer, 520 U.S. 939 (1997) (conducting retroactivity
analysis without any discussion of the defendant’s reliance on prior law either
in engaging in its primary conduct, which was submission of a false claim to the
government, or its secondary conduct, which was disclosure of that information
to the government).
In fact, the best standard for determining
retroactive effect under Landgraf and its progeny is the date of conduct.
For this purpose, it does not matter that the conduct was illegal or wrongful.
The Supreme Court has observed that "[e]ven when the conduct in question is
morally reprehensible, a degree of unfairness is inherent whenever the law
imposes additional burdens based on conduct that occurred in the past."
Landgraf, 511 U.S. 244, 283 .n.35. Rather, the test for retroactive
effect is whether the new law created new legal consequences for past conduct.
In Landgraf, the Supreme Court held that compensatory and punitive
damages for sexual harassment in Title VII cases could not be applied
retroactively because these penalties were not in effect on the date that the
harassment occurred. 511 U.S. 244, 283-84. See also Rivers v. Roadway
Express, Inc., 511 U.S. 298 (1994) (unlawful racial discrimination);
Hughes Aircraft, 520 U.S. 939 (1997) (false claim to the government).
C. Congress did not intend to discriminate between LPRs who pled guilty
and LPRs who were convicted after trial.
Finally, nothing in the INA supports limiting St. Cyr’s finding of
retroactive effect to LPRs who pled guilty. Retroactivity analysis serves as a
proxy for congressional intent. Landgraf, 511 U.S. at 272. See also Kaiser
Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 858 n.3 (1990)
(Scalia, J., concurring) (the “application of the presumption [against statutory
retroactivity], like the presumption itself, seeks to ascertain the probable
legislative intent”); Landgraf, 511 U.S. at 273 (Congress passes statutes
against the “predictable background rule” of the presumption against
retroactivity). There is no basis to conclude that Congress sought to
distinguish between LPRs convicted pursuant to plea agreements and LPRs
convicted at trial. The plain language of the statute is, in fact, to the
In IIRIRA, Congress legislated with respect to “convictions” –
not “trials” or “pleas.” The definition adopted by Congress explicitly includes
both judgments after trial and also guilty pleas. See INA
§101(a)(48)(A)(i). See also INA §237(a)(2) (defining deportable
offenses with reference to convictions), INA §240A(a) (cancellation of removal
not available to an immigrant “convicted” of an aggravated felony). This
legislative decision in IIRIRA is consistent with congressional decisions in
pre-IIRIRA law, in which Congress also had legislated with respect to
“convictions,” without making a distinction as to how the conviction was
obtained. See e.g., former INA §212(c) (212(c) relief available to
all lawful permanent residents except those “convicted” of an aggravated felony
and sentenced to more than five years’ imprisonment). Had Congress determined
that it was desirable for some reason to draw a distinction between noncitizens
who pled and those who did not, the new law would have reflected this policy
choice. See Landgraf, 511 U.S. at 273 (clear statement requirement
forces Congress to take responsibility “for fundamental policy judgments
concerning the proper temporal reach of statutes”).
Under the proposed
rule, an LPR who pled guilty to a particular deportable offense would have the
right to apply for 212(c) relief, whereas an LPR who was convicted at trial of
the identical charge on the same day would face mandatory deportation. It
is inconceivable that Congress intended this result, and DOJ should not
interpret AEDPA and IIRIRA to bring about such an unjust result.
relevant are the "Soriano" regulations. Current 8 C.F.R. §3.44 allows certain
LPRs who were ordered deported on the basis of AEDPA §440(d) to reopen their
prior deportation cases. These regulations equally benefit LPRs who were
convicted at trial and LPRs who pled guilty. See also Small v.
Ashcroft, 2002 U.S. Dist. LEXIS 12305 (S.D.N.Y. July 8, 2002) (LPR in
deportation proceedings before the enactment of AEDPA and IIRIRA is eligible for
212(c) relief, even though he was convicted at trial). The Department fails to
explain why it has deviated from the statute and its own regulation by
improperly distinguishing between LPRs who were convicted after plea agreements
and LPRs who were convicted after trial.
Many LPRs affected by this
provision of the proposed rule were convicted of crimes many years ago, even
decades ago. They have reformed and established lives here, married U.S.
citizens, raised children, purchased homes, and established businesses believing
that, if deportation proceedings were commenced, they had a very real chance for
relief. To subject these persons to mandatory deportation solely on the ground
that they had exercised their constitutional right to go to trial would attach
“new legal consequences” to their actions and “disrupt settled expectations.”
Such retroactive application of §440(d) of AEDPA or §304(b) of IIRIRA is unfair
III. The proposed rule places unnecessary procedural obstacles in the way
of LPRs eligible to apply for 212(c) relief pursuant to St. Cyr.
The practical problems involved in reaching LPRs who would be eligible to
apply for 212(c) relief were last discussed in the context of the Soriano
regulations. See Section 212(c) Relief for Certain Aliens in Deportation
Proceedings Before April 24, 1996, 66 Fed. Reg. 6436, 6441-42 (Jan. 22, 2001).
The Department refused to identify and individually notify all those who would
be eligible to apply for 212(c) relief under the Soriano regulations,
citing the difficulty in "identify[ing] the class of potentially eligible
individuals with any accuracy" and "the administrative burden involved in such a
notification initiative." 66 Fed. Reg. at 6441. The proposed rule implementing
St. Cyr also does not provide for identification and notification to
individuals who would be eligible to apply for 212(c) relief under the
This lack of individual identification and notification of
eligibility for 212(c) relief makes it even more critical for DOJ to remove
unnecessary procedural obstacles in the final rule that would prevent those who
are eligible from applying for relief under this rule.
A. Final rule
should delete the 180 day deadline on motions to reopen.
there is no mechanism for identifying and notifying LPRs who would be eligible
to apply for 212(c) relief under this rule, the 180 day deadline on filing
motions to reopen is unreasonably short. Without notice, the 180 days will
likely pass before LPRs become aware of the new rule.
Even for those LPRs
who find out about the rule within the 180 days, the deadline does not provide
them with enough time to retain counsel and/or assemble the necessary supporting
documents and prepare the I-191 application for 212(c) relief. These obstacles
are further compounded if the eligible individuals are in detention, especially
if they are detained in remote locations. Obviously, these barriers to timely
filing of the motion to reopen are even more prohibitive if the persons are
outside the United States.
Rather than setting a deadline, the final rule
should take the approach that the BIA adopted in implementing another major
change in the law. In 1996, IIRIRA changed the definition of "refugee" to
include persons who were persecuted for opposing a coercive population control
program. See INA §101(a)(42)(B). This change in the law superceded the Board
precedent on this issue. See Matter of Chang, 20 I&N Dec. 38
(BIA 1989). In light of this development, the Board held that it would exercise
its sua sponte authority under 8 C.F.R. §3.2(a) to reopen cases involving
persecution based on China's "one couple, one child" policy because it involved
a "fundamental change in asylum law." Matter of X-G-W-, Int. Dec. 3352
(BIA 1998). BIA continued to reopen all such cases for the next four years,
until it withdrew from this policy in Matter of G-C-L-, 23 I&N Dec.
359 (BIA 2002). Furthermore, the Board withdrew only after giving notice of 90
days from the date of the decision. Id. at 362. In doing so, BIA observed
More than 5 years have passed since the enactment of section 601(a)(1) of the
IIRIRA, and the interest of finality in immigration proceedings now take
precedence. Individuals with final orders of exclusion or deportation have had a
very reasonable period of time in which to seek relief. Accordingly, we now find
it appropriate to discontinue the policy we announced in Matter of X-G-W-,
supra. However, to allay any concerns regarding notice to potential applicants
for relief who may have relied on our precedent decision, we will continue to
apply the policy stated in Matter of X-G-W- to motions to reopen filed within 90
days of the date of this decision.
The Supreme Court's decision in St. Cyr is no less a
fundamental change in the law than what occurred in X-G-W-. St.
Cyr settled the question of whether the restriction and repeal of INA
§212(c) by AEDPA and IIRIRA can be applied retroactively, after five years of
extensive litigation before all levels of administrative tribunals and the
federal courts. It is important to note that the Supreme Court did not specify
the temporal reach of the St. Cyr decision. Moreover, individuals who
would benefit under this provision constitute a finite group of LPRs who were
eligible to apply for 212(c) relief but were ordered deported or removed between
April 24, 1996 and the effective date of the final rule. Under these
circumstances, codifying the approach used by the Board in X-G-W- in
implementing St. Cyr would "strike a reasonable balance between the
litigative difficulties for aliens filing motions and the administrative need
for a finite and workable program." 66 Fed. Reg. at 6442.
final rule should delete the 180 day deadline under proposed 8 C.F.R. §3.44(h).
Instead, the final rule should set no time limit on the filing of the motion to
reopen under this rule, except to provide that the Department may issue
regulations in the future to set a deadline on motions to reopen filed under
B. Final rule should provide an automatic stay of
The proposed rule contains no provision for an automatic
stay of deportation. Failing to provide for an automatic stay is entirely
contrary to the proposed rule's stated intent: to permit LPRs to apply for
§212(c) relief if they were eligible to do so under St. Cyr. Absent an
automatic stay provision, the INS can deport LPRs who have filed motions to
reopen. The INS can deport them even if they have a prima facie claim to
eligibility for a §212(c) waiver.
Even if deported LPRs could pursue their §212(c) applications from outside
the United States, the omission of an automatic stay would be unreasonably
harsh, because LPRs would be taken away from their families, jobs, and
communities while their motions to reopen and/or applications for relief were
pending. The omission of an automatic stay is even more troubling in the context
of the proposed rule, which expressly excludes LPRs outside the United States
and LPRs who were deported and reentered the United States unlawfully. By
analogy, the pre-1996 INA provided an automatic stay in former §106(c) precisely
because noncitizens who departed the United States could no longer pursue review
in court. Here, where the proposed rule similarly excludes LPRs who departed, an
automatic stay provision is similarly essential.
The omission of an automatic stay is also troubling because the filing of a
motion to reopen may identify noncitizens to the INS and thus expose them to
removal. In the period before a final rule issues, the INS should not deport any
noncitizens who may be covered not only by the proposed rule, but also by any
broader coverage that may result from revisions under consideration.
Accordingly, the final rule should include a provision, to read as follows:
The deportation of any person who has filed a motion to reopen pursuant to 8
C.F.R. §3.44 shall be stayed. This stay shall remain in effect until a final
decision has been made on the noncitizen’s eligibility for relief under this
rule and application for relief under §212(c). Detained noncitizens who have
their cases reopened may appear before an immigration judge to consider their
release on bond and reconsideration of bond previously
IV. Error in proposed 8 C.F.R. §212.3(f)(3)
Proposed 8 C.F.R.
§212.3(f)(3) states that an LPR will not be eligible for 212(c) relief if s/he
is excludable or inadmissible under INA §212(a)(9)(C) (unlawfully present after
previous immigration violation). However, this is an error. While the
now-repealed INA §212(c) did list INA §212(a)(9)(C) as a ground of exclusion
that is not waivable under §212(c), the ground of excludability/inadmissibility
that it refers to is international child abduction. The DOJ failed to take into
account that IIRIRA moved this ground of excludability/inadmissibility from
§212(a)(9)(C) to §212(a)(10)(C) in 1996. In order to implement the former INA
§212(c) correctly, the final rule should be corrected to indicate that it is
LPRs who are excluable or inadmissible under INA §212(a)(10)(C), rather than
§212(a)(9)(C), who are not eligible for 212(c) relief.
For the reasons
discussed in these comments, the final rule should be amended 1) to allow LPRs
who were deported or departed prior to the Supreme Court's decision in St. Cyr
to apply for 212(c) relief; 2) to allow LPRs who are otherwise eligible to apply
for 212(c) relief but were convicted after trial to apply for 212(c) relief; 3)
to eliminate the 180 day deadline on motions to reopen under the rule, and 4) to
automatically stay the deportation or removal of those who have filed motions to
reopen under this rule.
American Immigration Law Foundation
Immigration Lawyers Association