ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Citizenship books & videos

Supreme Court Hears Cases on Deportation under 1996 Immigration Law
by Greg Siskind and Amy Ballentine

On April 23, 2001, the Supreme Court heard arguments in two cases dealing with the ability of the INS to deport people under the 1996 Illegal Immigration Reform and Immigration Responsibility Act. They involve Enrico St. Cyr, a permanent resident from Haiti who was placed in deportation proceedings after a 1996 drug conviction, and Deboris Calcano-Martinez, 32, a native of the Dominican Republic, who was also convicted in 1996 of selling drugs.

The 1996 law prevents people in deportation proceedings, even permanent residents, from seeking a waiver of deportation if they have been convicted of an aggravated felony, which is defined to include crimes carrying a sentence of at least one year in prison, as well as most drug offenses. As well as eliminating the waiver, the 1996 law also eliminated the right of immigrants to file a writ of habeas corpus with a federal court, which allows them to test the legality of their detention. The only review they are allowed is by a federal appellate court, and even then the court can only determine whether the person is in face not a US citizen and was convicted of the alleged offense.

St. Cyrís lawyer, Lucas Guttentag, the director of the Immigrants' Rights Project for the American Civil Liberties Union, argued that the INS erred in applying the 1996 law to people whose convictions were finalized before the law went into effect. St. Cyr pled guilty to charges of selling drugs several months before the law took effect, and at the time of the plea, it was likely that he would receive a waiver of deportation. Such waivers, while discretionary, were routinely granted to permanent residents with strong ties to the US.

The INS says that while it would like to see the retroactivity of the law eliminated, it must enforce the law as Congress wrote it, and that means deporting people who now fall under its purview, regardless of when they were convicted. Several courts, however, have disagreed with the INS position that the law should be applied retroactively, saying that because Congress did not make this issue clear, retroactivity is not proper.

Hard-line supporters of the 1996 law, such as Rep. Lamar Smith (R-TX), one of the primary authors of the law, say that it is being used as intended, and that immigrants convicted of crimes should be deported. During arguments before the court, attorneys for the government echoed this sentiment, saying that immigrants should not be able to delay their deportation through lengthy legal proceedings. Government attorneys also said that Congress believed discretionary waivers of deportation were granted too often. Others, however, including former INS Commissioner Doris Meissner, believe that the law is too harsh, and would support reforming it to exclude people convicted before 1996. A bill to eliminate the retroactivity was approved by the House of Representatives last year, but was not voted on by the Senate. A number of similar bills have been introduced this year.

Advocates say that in many cases, deportation amounts to exile, especially for those who have spent most of their lives in the US.

During oral arguments, the Justices asked a number of questions that may reveal how they will vote on the issue. Justices Anthony Kennedy and Stephen Breyer were concerned with the complexity of the 1996 law, and both expressed concern about the fact that many immigrants pled guilty seemingly relying on the possibility of a waiver. As Kennedy said, eliminating the waiver in cases where the plea was entered before 1996 changes a legal consequence of the plea. The government maintained, and Justice Antonin Scalia agreed, that because the waiver was discretionary and not a right, the retroactivity issue was not important.

An immigration law expert present at the arguments had a number of observations. She believes that the final decision may be 6 to 3, ruling that some form of judicial review remains even after the 1996 law. Scalia, Chief Justice William Rhenquist and Clarence Thomas were those who seemed to believe that Congress could and did eliminate all forms of judicial review. Kennedy appeared to be trying to develop an interpretation not put forth by lower courts that would preserve review. On the retroactivity issue, Scalia believed that Congress made clear the new law was to be applied to all crimes regardless of when committed, and that the law was not retroactive. Justice John Paul Stevens took the opposite position, saying that the new law does create new legal consequences and was retroactive. Breyer also appeared to be concerned by the harsh impact the law has on long time residents with old, often minor offenses, saying that it could amount to an ex post facto law.

The Supreme Court is expected to issue a decision this summer.


About The Authors

Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM PublishGregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defenderís office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com


Share this page with a friend Share this page


Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: