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FEDERAL COURT UPDATE
Magana-Pizano v. INS, Ninth Circuit 
This case was before the Ninth Circuit on remand from the Supreme Court.  Last year the Ninth Circuit ruled that with section 242(g) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) Congress had repealed the federal courts’ habeas corpus jurisdiction, but found that if no other opportunity for review was available, a petition for habeas corpus could be heard.  After this decision, the Supreme Court decided American-Arab Anti-Discrimination Committee v. Reno, which, contrary to the Ninth Circuit’s position, held that section 242(g) applied only to three types of decisions – the commencement of deportation proceedings, the adjudication of cases, and the execution of removal orders.  In light of this decision, the Supreme Court ordered the Ninth Circuit to rehear Magana’s case. 
On rehearing, the Ninth Circuit ruled that section 242(g) did not eliminate the remedy of habeas corpus.  The general habeas corpus statute is found in 28 U.S.C. sec. 2241, and grants to federal district courts the power to grant a writ of habeas corpus to anyone whose custody violates the laws or Constitution of the US.  
Magana was in deportation proceedings because in 1995 he pled no contest to being under the influence of cocaine, a misdemeanor offense.  At the time of his plea, he was eligible for relief from deportation under section 212(c) of the Immigration and Nationality Act.  However, by the time he was in proceedings, this form of relief was no longer available to him because of section 440(d) of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), which eliminated 212(c) relief for, among other people, aliens who had been convicted of drug offenses.  Magana’s argument in his habeas corpus petition was that section 440(d) could not be applied to him, because as he was already in deportation proceedings when the AEDPA was enacted, application to him would be impermissibly retroactive.  
Deciding Magana’s case required the Ninth Circuit to determine the effective date of section 440(d).  Section 440(d) was made effective upon enactment to cases involving aliens suspected of terrorism.  The law did not address the effective date with regard to other aliens affected by it.  This, combined with the removal of a provision that would have made 440(d) fully retroactive in all cases by a House and Senate conference committee, led the Ninth Circuit to the conclusion that 440(d) could not be applied to deportation cases pending when the AEDPA became law. 
The Ninth Circuit also addressed whether AEDPA could be applied to cases in which the conviction occurred before its enactment, but deportation proceedings were not initiated until after.  In this circumstance, the issue became whether retroactive application of 440(d) impaired rights already established, or otherwise attached new legal consequences to past events.  The court found that ordinarily, denying the discretionary relief of section 212(c) because of a criminal conviction was not impermissibly retroactive.  However, the court found the situation was not the same when the alien decided to plead guilty or no contest.  Prior to 1996, an alien could feel secure in pleading guilty knowing that he would be eligible for discretionary relief.  Because of this possibility, the Ninth Circuit ruled that in cases where an alien can show they entered a plea of not guilty or no contest in reliance on the possibility of discretionary relief, AEDPA section 440(d) should not apply.  
  
Plewa v. INS, Northern District of Illinois 
The plaintiff, a lawful permanent resident of the US since 1976, applied for naturalization in 1994.  She sought the assistance of the Polish Welfare Association in submitting the application.  Question 15b on the application asks whether the application has “ever been arrested, cited, charged, indicted, convicted, fined or imprisoned for breaking or violating any law or ordinance excluding traffic regulations?”  Plewa told the immigration counselor who was assisting her that she had been arrested, but that the charges were dismissed.  The counselor told Plewa that she did not need to answer yes to question 15b. 
At the naturalization interview Plewa continued to deny that she had ever been arrested.  The INS, of course, had obtained evidence of the arrest through its background check.  The INS denied Plewa’s naturalization application, finding that because she gave false testimony about her arrest, she could not demonstrate good moral character.  Plewa made a second application, in which she admitted her arrest, but it was also denied.  She then brought this lawsuit, seeking a de novo review of the INS’ denial. 
To the court, the issue was “whether testimony that is false due to a misunderstanding and incorrect advice is sufficient to deny citizenship for lack of good moral character.”  The court found it was not, and required both false testimony plus an intent to deceive for the purpose of obtaining an immigration benefit.  Plewa, the court found, did not intend to deceive the INS, but rather believed that she could properly withhold information about her arrest.  The court then examined other evidence to determine whether Plewa could demonstrate good moral character, a standard the court found she easily met.  She is the spouse of a US citizen and mother of two US citizens.  She and her husband are business owners and active members of their church and community.  Therefore, the court granted Plewa’s request for naturalization.  
  
US v. Ko, Southern District of New York 
In this case the District Court judge took the unusual step of reducing a criminal sentence after it was served in order to prevent the defendant from being deported. 
Ko, a permanent resident since 1980, was indicted in 1993 on charges of conspiracy and bribery of a corrupt IRS official.  Ko admitted his guilt and fully cooperated in the government’s investigation of his co-defendants.  When Ko was sentenced the government recommended that based on his cooperation that he be sentenced to less than would ordinarily be called for by the US Sentencing Guidelines.  The judge agreed, and sentenced him to a year and a day.  The judge added the additional day because only people who are sentenced to over one year are eligible for good time credit.  Ko earned this credit and was released from prison after 10 months.  
At the time of sentencing, there were no immigration ramifications for Ko.  This of course, changed in 1996, and by the time he was released from prison he was considered an aggravated felon and was subject to deportation.  Ko sought to avoid deportation in an unusual way – he sought a writ of coram nobis.  A writ of coram nobis is a remedy available to those who are no longer in custody, and thus not eligible for habeas corpus, but whose case must be revisited in order to prevent a manifest injustice.  
The judge found a writ of coram nobis should issue in this case to reduce Ko’s sentence from a year and a day to 10 months, meaning that he is no longer an aggravated felon and cannot be deported.  The same judge who sentenced Ko heard the coram nobis petition.  This judge found that if he “could have foreseen the changes in the immigration law that have turned a then-beneficent sentence of a year and a day into a vehicle for Ko’s deportation, I would have sentenced him to less than one year.”