NEWS FROM THE COURTS

Bejjani V. INS, Sixth Circuit

In this case, the court ruled that the INS could not retroactively apply a law providing for the reinstatement of deportation orders.

Peirrot Bejjani, a native of Lebanon, entered the US in 1983 as a permanent resident.  In 1987, he pled guilty to possession of heroin with the intent to distribute, and was sentenced to two years in prison and three on probation.  In 1989, the INS placed Bejjani in deportation proceedings.  Bejjani admitted the allegations against him, and applied for withholding of deportation.  The immigration judge denied his application, and the Board of Immigration Appeals affirmed.  Bejjani then left the US in 1996, and after 17 days, reentered.  The INS claims he did so by presenting his invalid green card, but Bejjani claimed to have been inspected and admitted.

In 1999, the INS issued a warrant for Bejjani’s removal.  Bejjani filed a petition for a writ of habeas corpus, seeking to have the judge order the INS to reconsider his application for withholding of deportation.  This application was dismissed.  While this was occurring, the INS also reinstated the deportation order.  Bejjani contested this, arguing that the provision of law allowing for reinstatement applied only to reentries that occurred after its effective date, April 1, 1997.  The INS argued that the relevant date was not the date of his reentry, but the date when the INS began proceedings to reinstate the deportation order.  The agency also argued that the court should defer to it in this matter.

The Sixth Circuit ruled that the issue of the temporal reach of a statute was not an area where it was required to grant deference, because the INS has no special expertise in this area.  Addressing the issue for itself, the court found that Congress clearly intended for the reinstatement provision to apply only to reentries after it became effective.  The provision that was replaced had retroactive language that was not retained in the new version, even though Congress had explicitly considered doing so.  This, combined with the presumption that unless Congress specifies that a law is to be applied retroactively, the law is to be applied only prospectively, led the court to rule that the new reinstatement law could not be applied to cases where the reentry occurred before the effective date of the reinstatement law.  Therefore, the court ruled, Bejjani’s previous deportation order could not be reinstated. 

The opinion is available online at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=6th&navby=case&no=01a0401p