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Concerns With The DOJ's Proposed Rule To Implement The St. Cyr Ruling
by Rob Randhava, Nancy Morawetz and Shoba Sivaprasad

The Department of Justice (DOJ) has proposed a rule in the Federal Register (67 F.R. 52627) that purports to implement the decision of the U.S. Supreme Court in INS v. St. Cyr, 533 U.S. 289 (2001). The rule would allow certain lawful permanent residents (LPRs) who are facing removal on the basis of a guilty or nolo contendere plea to a criminal offense, if made prior to April 1, 1997, to apply for discretionary relief under former INA section 212(c). Comments are due by Oct. 15.

As seen in the Supreme Court's decision in St. Cyr, the DOJ was mistaken in its interpretation of the law. One would expect that when an agency's mistake has had drastic consequences, the agency would make at least a good faith effort to provide sufficient remedies. The DOJ's proposed rule in St. Cyr, however, amounts to little more than an evasion of both the letter and the spirit of the Supreme Court's ruling. It raises several serious concerns:

1. The proposed rule bars eligible LPRs from seeking 212(c) relief if they have already been automatically deported under the DOJ's incorrect reading of the law. This aspect of the rule is completely unacceptable. Under the rule, LPRs and their families who were denied their day in court are now being left out in the cold by the very same agency that robbed them of their legal rights in the first place. It has no basis in the Supreme Court's opinion in St. Cyr, and virtually guarantees extensive litigation in the future.

In its proposed rule and other materials, the DOJ attempts to justify this disparity by making the blatantly false claim that it never actually executed removal orders against those LPRs who are now eligible for 212(c) relief under St. Cyr. The DOJ also makes the outrageous - and even insulting - assertion that "aliens who have been deported [already] had a sufficient opportunity to challenge the denial of their applications for 212(c) relief in administrative and judicial proceedings." This is the very same DOJ that argued all along that no such opportunities existed, and that not even the Supreme Court of the United States had the power to second-guess it on whether new restrictions on relief applied retroactively. Instead, the DOJ aggressively opposed stays of removal and habeas corpus actions, moved detainees about frequently and to parts of the country where they could not obtain meaningful legal help and where the courts summarily dismissed habeas petitions, and often made litigation as costly as possible.

The DOJ also claims that allowing already-deported LPRs a chance to seek 212(c) relief would pose too great of an administrative burden (obviously, this argument is hard to reconcile with the claim that such deportations did not take place). Yet the DOJ makes no attempt to explain why obtaining the necessary information to adjudicate 212(c) applications filed by persons outside the country would be any more burdensome than doing so for 212(h) relief, refugee or visa applications filed by persons outside the country. Any such burden is also the DOJ's own doing, given its misinterpretation of the law; and remedying the drastic consequences of this error ought to have an especially high priority.

2. The proposed rule bars otherwise eligible LPRs from seeking 212(c) relief simply because they exercised their constitutional right to seek a trial by jury. Under the rule, an LPR must have pled guilty or nolo contendere to an underlying charge in order to apply for 212(c) relief. While it is true that the St. Cyr opinion only addressed LPRs who entered into plea agreements, the Court never suggested or even implied that a plea agreement was the only factor that might make the retroactive application of IIRIRA impermissible. The Court simply looked to the existence of a "retroactive effect," and found that one existed when a plea agreement had been made, but the mere fact that an LPR exercised his right to go to trial does not mean that no such "retroactive effect" could exist. The fact that the INS often waited years or even decades for the law to change before instituting removal proceedings, long after an LPR may have gone on with his life in reliance on the apparent unlikelihood of deportation, certainly can be viewed as having an impermissible retroactive effect as well. A retroactive effect also exists if an LPR chose to contest a charge, knowing that if he lost, the maximum allowable punishment would still not bar him from 212(c) relief. Clearly, there are several instances where an LPR may have chosen to plead guilty, if he had known that future changes to the law would affect his eligibility for 212(c). As a general matter, the proper test for retroactive effect when a law changes the consequences of past wrongful conduct is the date of the conduct itself.

3. The proposed rule contains unnecessary and burdensome procedural requirements that will prevent many eligible persons from ever getting to a decision on the merits. Under the proposed rule, individuals who already face a final order of removal must file a "Special Motion" to reopen their cases and seek 212(c) relief. Among other requirements, this motion must be filed within 180 days after the final rule has been issued, or the opportunity is lost. Also, if an application for 212(c) has previously been filed, a copy of that application or a new one in full must be included. In addition, the rules require that individuals file a stay application to prevent deportation while their motion is pending.

While these procedures may seem straightforward for applicants who are currently represented by counsel, most eligible applicants no longer have counsel or have always been pro se. Many eligible persons have final orders and are on supervised release because they cannot be returned to their country of origin or because the INS has not yet obtained their travel documents. They need time and assistance to navigate the reopening process. In addition, many persons will be filing these motions pro se, from INS detention centers. Moreover, many are in state and local jails not operated by the INS and may not even learn about the proposed rule, much less obtain all the necessary paperwork to file it within the 180-day period. Rather than create obstacles, the INS should institute a system to correct its own wrongs, by assuring that no one is deported who might benefit from these rules and that those it can reach - such as those in detention centers and those on supervised release - are given information about how to seek reopening. Essentially, with this rule the DOJ is putting new onerous burdens on individuals that they must meet before they may exercise rights which they should already have.

LPRs will also need to file a separate "stay of removal," as the filing of this "Special Motion" does not in and of itself prevent the INS from deporting them before a 212(c) decision can be reached. This is particularly outrageous, as failure to meet this additional burden will permit the deportation of LPRs who - having wrongly been denied their legal right to seek 212(c) relief - should never have had final orders of removal issued against them in the first place.

About The Authors

Rob Randhava is a policy analyst with the Leadership Conference on Civil Rights, a diverse coalition of over 180 civil & human rights organizations.

Nancy Morawetz is a professor at NYU School of Law and co-heads the school's Immigrant Rights Clinic.

Shoba Sivaprasad is a Senior Policy Associate at the National Immigration Forum, the nation's premier immigration advocacy organization.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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