Fifth Circuit Holding On When Proceedings Commence Deprives Alien of Last Chance to Apply For 212(c) Relief
In a June 9, 2001, decision in DeLeon-Holguin v. Ashcroft, No. 00-60694, the Circuit Court ruled that it had no jurisdiction to review a removal order of the Board of Immigration Appeals because proceedings did not commence until after April 1, 1997, the effective date of the 1996 “reform” law, even though the alien was served with an Order to Show Cause back in 1995.
This is one of those cases that makes perfectly good sense, but leaves one with an uneasy feeling. I will recite the facts, and let readers form their own opinion as to whether the INS may have used a sort of “sleight of hand” to get the result it wanted. The petitioner, a national of the Dominican Republic, had been a lawful permanent resident since 1983. In August 1995 he was convicted of conspiracy to possess and distribute cocaine, and sentenced to imprisonment of 72 months. In October of 1995, INS officials served petitioner in prison with an Order to Show Cause and Notice of Hearng (OSC), informing him that he was subject to deportation for having committed an aggravated felony and a violation of federal narcotics laws. An attachment to the OSC stated that that OSC was not being filed “at this time” with the Office of the Immigration Judge. Whether this was its intention or not, this policy, in retrospect, enabled the INS to bide its time and wait for a change in the law that would benefit its goal of the expeditious removal of criminal aliens.
That day was not long in coming. The 1996 immigration “reform” law (The Illegal Immigration Reform and Immigrant Responsibility Act, IIRIRA), which became effective April 1, 1997, eliminated the 212(c) relief hat might have helped a long term legal resident with favorable equities, and eliminated federal court jurisdiction to review administrative removal decisions. The Order to Show Cause served in 1995 was never filed with the immigration judge, and it was not until 1999 that a Notice to Appear (the replacement of the Order to Show Cause ), was served on the alien and filed with the immigration court. It was that action, the circuit court held, that commenced removal proceedings, and therefore the full weight of IIRIRA was to be felt.
The holding is fully supported by INS regulations, which state that removal proceedings are commenced “when a charging document is filed with theImmigration Court by the Service.” 8 C.F.R. 3.14(a). The circuits have struggled with whether the interest in predictability and uniformity promoted by the INS regulation should overcome the “reasonable expectations” of removable aliens that a proceeding is commenced when they are served with the charging document.
The court reasons that “there is no evidence that the INS manipulated the regulations so as to deprive DeLeon of his ability to request a waiver under former 212(c).” Not all of us can be expected to agree with that conclusion.
About The Author
Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be reached by e-mail at Carl.Baldwin@immigrationnewsmonthly.com.
He has written a book on immigration law, called "Immigration Questions and Answers," 1997, Allworth Press, 10 East 23rd Street, New York, NY 10010 (212) 777-8395. The book, which contains essential background information about how the immigration law works, can be ordered in both an English Edition and a Spanish version from www.amazon.com