AILF and AILA Comments on Proposed St. Cyr Rule

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 lhall@ailf.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

Charles Adkins-Blanch
General Counsel
Executive Office for Immigration Review
5107 Leesburg Pike, Suite 2400
Falls Church, VA 22041
 

RE: EOIR 130I: AG Order No. 2607-2002
Proposed rule on §212(c) Relief for Aliens With
Certain Criminal Convictions Before April 1, 1997
67 Fed. Reg. 52,627 (August 13, 2002)

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.

The 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) relief.

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.

I. Final 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 financially.

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.

1. 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 §304(b).

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." Id.

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.

If and 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) relief.

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).

Allowing LPRs 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 trial.

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 (1999)).

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 contrary.

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.

Also 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 and improper.

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 rule.

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.

Given that 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 that:

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.

Id.

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.

Therefore, the 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 this rule.

B. Final rule should provide an automatic stay of deportation.

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 set.

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.


Respectfully submitted,


J. Traci Hong
Staff Attorney
American Immigration Law Foundation
American Immigration Lawyers Association