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FEDERAL COURT UPDATE
LaGuerre v. Reno 
The Supreme Court denied certiorari in this case, meaning it will not hear the case and will allow the decision of the Seventh Circuit to stand.  The Seventh Circuit ruled that section 440(a) of the Antiterrorism and Effective Death Penalty Act (AEDPA), which amended the INA to eliminate discretionary review of deportation orders for certain drug offenses, removed habeas corpus review of detention from the power of the district courts.  Under this decision, the only review of deportation orders lies with the courts of appeals, not the district courts, and may be used only to challenge the validity of the detention order, not to request discretionary relief.  Because the petitioner brought his case in the district court, requesting discretionary relief, it was not within the power of the district court to hear. 
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Song v. INS, Central District of California 
In this case, the court ruled that the distinction made in the Immigration and Nationality Act (INA) between legal and undocumented immigrants in applying for a waiver of removal violated equal protection.  Therefore, the judge stayed the order of deportation to allow Song to apply for a waiver. 
Song came to the US as a lawful immigrant at age 7 in 1981.  In 1996, he was convicted of forgery and possession of stolen property.  He was sentenced to one year in prison and two years on probation.  In 1998 he was convicted of being a felon in possession of a firearm and sentenced to 16 months in prison.  Following his release from prison, the INS took him into custody and initiated deportation proceedings against him.  Song admitted his deportability, but sought to apply for a discretionary waiver, which allows long-term residents to avoid deportation.  In 1996, this waiver was made unavailable to those convicted of aggravated felonies.  Because Song’s offenses were aggravated felonies as redefined in 1996, the Immigration Judge denied his application. 
Song filed an application for a writ of habeas corpus and made two arguments.  First, he argued that the expanded definition of aggravated felony should not be retroactively applied to him.  Second, he argued that the INS violated equal protection by allowing undocumented immigrants to pursue such a waiver but not allowing legal immigrants to seek it. 
The INS first argued that the district court did not have jurisdiction over the case.  Section 242(a)(2)(C) of the INA eliminates judicial review of cases in which a person has been ordered deported because of a firearm related offense or an aggravated felony conviction.  The court found that this provision would keep the case from being heard by an appellate court.  Under Ninth Circuit precedent, which this court must apply, when no other form of judicial review is available, an action in habeas corpus must be made available.  Therefore, the court has jurisdiction. 
The court rejected Song’s first argument, that the expanded definition of aggravated felony could not be retroactively applied to him.  Ninth Circuit precedent requires a showing that as a criminal defendant the immigrant relied on immigration statutes as then written.  According to the court, Song could not make this showing. 
The court responded more favorably to Song’s second argument, claiming that the statute violates equal protection.  Section 212(h) of the INA grants the Attorney General the discretion to waive deportation of a person if it would cause extreme hardship to a citizen or permanent resident spouse, parent or child.  It also specifically excludes lawful permanent residents who have been convicted of aggravated felonies from seeking such relief.  The Board of Immigration Appeals has ruled that the effect of this statute is to allow undocumented immigrants to seek such a waiver but to forbid it to legal immigrants.  
The concept of equal protection of the laws is based in the Fourteenth Amendment to the Constitution, and applies to all people who are subject to the jurisdiction of the US, regardless of their immigration status.  Equal protection means that when the government makes distinctions in the treatment of different classes of people, such distinctions may be analyzed by a court.  If the distinctions are based on a “suspect classification,” such as race, religious beliefs, or nationality, they will be upheld only if the government shows a compelling need for them.  Otherwise, the differences in treatment will be upheld so long as there is a rational reason for it. 
The distinction in this case, between legal permanent residents and undocumented immigrants, will be upheld if there is any rational basis for it.  The government argued that the reason for the difference is that Congress intended undocumented immigrants to have a chance to prove they should be admitted to the US, whereas a permanent resident already had that chance. 
The court found this attempt to justify the difference in treatment was not rational.  The distinction, according to the court, actually makes it preferable to be an illegal immigrant.  Also, it provides the chance for a waiver to people who have committed two crimes – illegal entry and the aggravated felony, while denying it to people who have only committed one.  In short, according to the court “this distinction simply defies logic, and as such, violates the equal protection clause of the Constitution.