NEWS FROM THE COURTS

Groccia v. Reno, First Circuit

In this case, the court upheld the decision that Groccia was not eligible to apply for suspension of deportation.

Angelo Groccia, a native of Italy, entered the US in 1955 as a permanent resident.  On February 1, 1996, he pled guilty to two counts of cocaine distribution.  The INS issued an order for him to appear for a deportation hearing on July 5, 1996, but the order was never filed with an Immigration Court.  On August 11, 1997, the INS issued another order for Groccia to appear for deportation and this time filed it with an Immigration Court.  A hearing was held and Groccia was ordered deported and denied all forms of discretionary relief.  Groccia filed a petition for a writ of habeas corpus with the district court, which accepted the case but denied it on the merits.  Groccia then appealed to the First Circuit.

Before April 1996, when the Anti-terrorism and Effective Death Penalty Act was enacted, permanent residents who had not been convicted of aggravated felonies could seek suspension of deportation.  The AEDPA made many people ineligible for suspension by expanding the definition of aggravated felonies.  Almost all drug offenses became aggravated felonies, which, because the INS applied the definition retroactively, made Groccia ineligible for suspension.  However, many federal courts have disagreed with the INS interpretation and allow people to seek suspension of deportation under the rules that existed before the AEDPA.  Later in 1996, the passage of the Illegal Immigration Reform and Immigrant Responsibility Act eliminated suspension of deportation and replaced it with cancellation of removal, a form of relief for which Groccia was not eligible.  Whether the AEDPA or the IIRAIRA applied to Groccia depends on when he was put into deportation proceedings, when he was first served with the order, or when it was finally filed with the Immigration Court.

Groccia argued that the AEDPA should apply to him because the IIRAIRA was not in effect when he was served, and that the retroactive application of the expanded definition of aggravated felonies could not constitutionally be applied to him.  Therefore, he would be able to apply for suspension of deportation.  The INS argued that the court had no jurisdiction to hear Groccia’s case.  It also argued that the IIRIARA applied to Groccia because the deportation hearing order was not filed until after it went into effect. 

The First Circuit dismissed the jurisdictional argument, finding that none of the recent changes to immigration law eliminated traditional federal court habeas corpus jurisdiction.  More difficult was the question of whether Groccia could apply for suspension of deportation.  The court assumed but did not decide that he was placed in proceedings when he was served with the order, before the enactment of the IIRAIRA.  Under established First Circuit case law, to be eligible for suspension in this situation, Groccia must established that he actually relied on the availability of suspension of deportation in deciding to plead guilty.  The court found that in light of Groccia’s failure to state that he relied on the possibility of suspension at any level in the proceedings before, there was no proof that he did rely on it.  Therefore, it affirmed the district court and denied him the opportunity to seek suspension of deportation.

The opinion is available online at http://www.ilw.com/lawyers/immigdaily/cases/2000,1220-Groccia.pdf
 
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In re Oparah, Board of Immigration Appeals

In this case, the Board denied a motion to reopen as time barred, and a motion to remand as both time and number barred.

On September 26, 1996, an Immigration Judge entered a final order of deportation against Vienna Oparah that she did not appeal.  On March 11, 1997, she filed a motion to reopen the case so that she could apply for adjustment of status based on her marriage to a US citizen.  On May 1, 1997, the Immigration Judge denied the motion on the ground that because it was not filed within 90 days of the deportation order, it was untimely and could not be heard.  Oparah appealed, and during the pendency of the appeal, filed a motion to remand so that she could pursue permanent residency before the Immigration Judge. 

INS regulations require motions to reopen to be filed within 90 days of the Immigration Judge’s ruling, unless the failure to file within that period is covered by one of the regulatory exceptions.  Finding that there was no applicable exception in this case, the BIA upheld the decision of the Immigration Judge to deny the motion to reopen.

Motions to remand, which are requests that a higher tribunal return a case to a lower court, are in some situations essentially a motion to reopen.  The BIA found that to be the case here.  As with the motion to reopen, it was filed more than 90 days after the entry of the deportation order, and the failure was not a recognized exception to the 90-day requirement.  Moreover, a person is allowed only one motion to reopen, and the BIA found that this motion to remand, which was essentially a motion to reopen, was also barred by the rule that limits an applicant to one motion to reopen.

The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/3441.pdf.