Retroactivity and immigrant crimes since St. Cyr: emerging signs of judicial restraint.

• Author: van Wyke, Vashti D.

INTRODUCTION

Prior to 1996 if a permanent resident was convicted of a crime that subjected her to deportation, she was often eligible to apply for a waiver of deportation, known as 212(c) relief. (1) A waiver of deportation was granted under 212(c) if the immigrant could show substantial equitable ties with the United States, including a U.S. citizen spouse or children, U.S. business ownership, and employment in the United States. (2) These 212(c) waivers were routinely granted in more than fifty percent of cases. (3)

In 1996, however, Congress overhauled immigration law through two bills--the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (4) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). (5) A central goal of the bills was to facilitate the deportation of immigrants convicted of crimes. To do this, AEDPA restricted and IIRIRA entirely eliminated the 212(c) waiver mechanism, meaning that permanent residents convicted of a greatly expanded list of crimes would be automatically deported, regardless of how deeply connected they were with the United States.

While prospective elimination of 212(c) relief was politically controversial, it did not raise significant legal or constitutional questions. However, the Justice Department's subsequent interpretation of IIRIRA as eliminating 212(c) relief retroactively (6) for immigrants who committed their crimes or were convicted of their crimes while 212(c) relief was still available created a clear conflict with the Supreme Court's retroactivity jurisprudence, embodied in Landgraf v. USI Film Products. (7) After six years of litigation and the wrongful deportation of many permanent residents deported without recourse to a 212(c) waiver, the Supreme Court corrected the Justice Department's error, and the ratification of that error by many lower courts, in the landmark INS v. St. Cyr decision. (8) In St. Cyr, the Supreme Court held that (1) the retroactivity framework of Landgraf functioned identically in immigration cases as in other cases; and (2) because Congress did not explicitly state that IIRIRA's repeal of 212(c) relief applied retroactively, the bill could not be used to deprive immigrants of 212(c) relief in a retroactive manner. (9)

While St. Cyr should have put an end to the controversy over 212(c) relief, lower courts have continued to permit the deportation of permanent residents without recourse to 212(c) relief, even though they committed their crimes, proceeded to trial after rejecting a plea bargain, or were convicted of their crimes prior to passage of IIRIRA. (10) Lower courts have justified this retroactive application by narrowly limiting St. Cyr to its facts--the context of an accepted plea bargain--and by giving only superficial consideration to Supreme Court precedent in determining the relevant prior act for retroactivity analysis. However, two recent decisions, Ponnapula v. Ashcroft (11) and Olatunji v. Ashcroft, (12) from the U.S. Courts of Appeals for the Third and Fourth Circuits respectively, suggest that lower courts may finally begin to follow the fundamental dictate of St. Cyr, which is to fully apply the Landgraf retroactivity analysis to cases involving immigrants.

The persistent failure of most lower courts to faithfully apply retroactivity analysis to 212(c) cases is important in at least two respects. First, on the level of individual justice, the failure means that permanent residents who actually qualify to apply for 212(c) waivers are still being summarily deported, leaving behind U.S. citizen spouses and children, businesses, employment, and community ties.

Second, on the level of coherent jurisprudence, the failure means that the Supreme Court's retroactivity framework has been bifurcated-there is one set of retroactivity rules primarily applied to corporate defendants, and a second, much harsher set of retroactivity rules applied to immigrants convicted of crimes. (13) Particular concern is raised by the fact that harsher rules are being applied to a small, unpopular, and politically weak group of people. After all, one of the primary arguments against retroactive laws, voiced originally by the Framers of the Constitution, (14) is that such laws can be used by the government to target unpopular and weak groups, by heaping consequence upon consequence well after those individuals have acted. Just such a result has materialized in the case of immigrants and 212(c) relief. Conforming the lower courts' 212(c) decisions to the Supreme Court's basic retroactivity framework will go far in preventing this invidious result.

This Comment argues that, since St. Cyr, the lower courts have not followed the Supreme Court's mandate to fully apply the Landgraf framework to 212(c) cases in two important ways. First, they have failed to recognize that retroactivity analysis is fundamentally concerned with statutory construction (i.e., whether the language of the statute indicates its temporal scope and the class to which the statute applies), coupled with a presumption against retroactivity. Instead, they have incorrectly introduced an individual reliance requirement into the Landgraf test. Thus, even where the law would not apply to a broad class of people because of the presumption against retroactivity, lower courts have found that individual members of that class have not "earned" the right to be protected from retroactive application because they did not actually rely on the prior state of the law.

Despite the lower courts' misinterpretation of St. Cyr, the recent circuit court decisions in Ponnapula v. Ashcroft and Olatunji v. Ashcroft have made significant strides toward full application of Landgraf to immigration cases by holding that reliance is not a requirement for a finding of impermissible retroactive effect. (15) Given the holdings of St. Cyr and Landgraf this is clearly the correct conclusion and should be followed by the remaining circuits. Nonetheless, a split among the circuits has developed on this question, with the Third (16) and Fourth (17) holding that individual reliance is not a requirement for a finding of impermissible retroactivity, and the Second (18) and Ninth (19) Circuits holding that an individualized assessment is appropriate. Given this split and the question's importance for retroactivity jurisprudence more broadly, the Supreme Court should step in to resolve the question.

Second, the lower courts have failed to follow the Landgraf line of cases on the question of which past conduct is protected from retroactive application of new laws. Currently, in the 212(c) context, no circuit views the immigrant's commission of the crime as the essential conduct for analysis. This means that if a permanent resident committed her crime in 1990, for example, while 212(c) relief was still available, but was not convicted until after 1996, she would not be deemed eligible to apply for a waiver of deportation. This consensus has developed despite the fact that under a complete Landgraf analysis, and particularly when considering the decisional rules offered in Martin v. Hadix, (20) the commission of the crime is the only logical point of analysis to determine an impermissible retroactive effect. Under current Supreme Court jurisprudence, if an immigrant committed a crime while 212(c) relief was still available, she should be deemed eligible to apply for a waiver of deportation; to hold otherwise would create an impermissible retroactive effect.

1. LEGAL BACKGROUND

   1. Statutory Evolution of 212(c) Relief

      For at least a century, federal immigration control laws have provided for the deportation of noncitizens, including permanent residents, who have been convicted of certain crimes. (21) Before the 1996 changes to federal immigration law, deportation was not mandatory or automatic; immigration statutes in force prior to 1996 each contained a mechanism for discretionary waivers of deportation if the immigrant possessed certain qualifications or other equities warranted a waiver. (22) The Immigration Act of 1917 included a discretionary waiver process through the Secretary of Labor, (23) while the more modern statutes gave that power to the Attorney General through the 212(c) mechanism. (24)

      Before 1990, permanent residents (25) who were convicted of a deportable offense and had lived continuously in the United States for seven years were permitted to apply for a waiver of deportation from the Attorney General. (26) Changes to 212(c) in 1990 further restricted eligibility for such waivers. (27) These changes meant that immigrants were not permitted to apply for 212(c) relief if they had been convicted of an "aggravated felony" as defined by 8 U.S.C. [section] 1101(a)(43) (1994) (28) and, in addition, had actually served at least five years in prison. (29)

      Prior to IIRIRA's passage, the 212(c) relief mechanism worked in the following manner: If an immigrant who had lived continuously in the United States for seven years was convicted of a deportable offense, she could then be ordered deported by the Immigration and Naturalization Service (INS). (30) After receiving an order to appear to answer the deportation charge, she was eligible to apply for 212(c) relief from the Attorney General if she had not been convicted of an aggravated felony, or had been convicted of an aggravated felony but had served less than five years in prison. (31) The immigrant would then make her case for the waiver at an administrative hearing before an Immigration Judge (IJ). There was a "strong likelihood that such relief would be granted" by the IJ. (32) One study showed that 212(c) relief was granted in 51.5% of final decisions in cases between 1989 and 1995, (33) and more than 10,000 immigrants received waiver grants during that same period. (34)

      The IJ's decision whether to grant 212(c) relief was guided by a longstanding Board of Immigration Appeals (BIA) standard. (35) Factors to be...