The Legal Intelligencer reported last week that the U.S. Court of Appeals for the Third Circuit departed from the reasoning of six other federal appeals courts and prohibited one retroactive effect of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).  Before IIRIRA took effect, deportable aliens who had lived in the U.S. for at least seven years could request discretionary relief from deportation.  IIRIRA repealed this provision and replaced it with “cancellation of removal,” which is unavailable to any alien convicted of an “aggravated felony.”

In Ponnapula v. Ashcroft, the Third Circuit held that IIRIRA could not apply to any alien who relied on the possibility of the then available relief when foregoing a misdemeanor plea agreement in favor of standing trial.  The Court justified its decision as a logical application of the U.S. Supreme Court’s 2001 decision in INS v. St. Cyr, which held IIRIRA inapplicable to aliens who entered guilty pleas before the law’s enactment.  Other appellate courts have restricted the St. Cyr holding to plea agreements, but the Third Circuit criticized their interpretation that an alien had to show “actual reliance” on a repealed statute for it to produce “an impermissible retroactive effect.”  It cited the Supreme Court’s 1994 decision in Landgraf v. USI Film Products, which held that a statute was impermissibly retroactive when its application “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” 

The Third Circuit found that IIRIRA impermissibly retroactively applied in Ponnapula’s case because he relied on his lawyer’s advice that, if convicted, he would most likely receive a sentence where he would still be eligible for immigration relief.  Ponnapula, a native of India, was charged with grand larceny in the first degree.  He was offered a misdemeanor plea with a probationary sentence but opted for trial because of his small role in the offense and the scant evidence against him.  A trial judge overturned Ponnapula’s conviction because of his limited role in the crime, but an appellate court reinstated it.  Because of his “aggravated felony” conviction and IIRIRA, Ponnapula could not apply for the expected relief for which he otherwise qualified.  Indeed, he would have likely prevailed in showing the necessary hardship to obtain the relief.  His wife, children, and other family members are naturalized U.S. citizens.  Ponnapula was also in the process of becoming a U.S. citizen before his indictment for this offense.  If deported, his family would be obliged to return to India.  His children have no ties there and cannot speak their parents’ native language.

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Zaidi v. Ashcroft

Docket No. 03-60288

(5th Cir. Filed June 21, 2004).

Raza Zaidi petitioned the U.S. Court of Appeals for the Fifth Circuit for review of a Final Administrative Removal Order, based on his conviction for sexual battery.  The Court confronted the issue of whether such a conviction qualifies as an “aggravated felony,” a basis for deportation that precludes judicial review. 

Zaidi, a 27-year-old native and citizen of Pakistan, was admitted into the U.S. as a non-immigrant student in August of 2000.  In June of 2002, he pled no contest to two counts of sexual battery in Oklahoma.  The charges arose when an intoxicated Zaidi touched two women inappropriately through their clothes while the women were either unconscious or asleep in a college dorm room.  He received a suspended sentence of two years for each count, to run concurrently.

The Court first dismissed Zaidi’s assertion that he could not be removed to Pakistan because the federal government originally characterized his crime within an inapplicable “aggravated felony” category.  The Court held that so long as an alien’s crime actually constitutes an “aggravated felony,” it lacks jurisdiction to review the deportation order.  The government’s improper citation did not matter because Zaidi could not show that it had prejudiced him. 

Because Zaidi’s deportation order did not specify which definition of “aggravated felony” applied, the Court determined whether Zaidi’s conviction qualified.  Federal law defines an “aggravated felony” as “a crime of violence” (not including a purely political offense) punishable by at least one year imprisonment.  A “crime of violence” involves the use, attempt, or threat of physical force against another’s person or property and also includes any felony that inherently poses a substantial risk of physical force.  The Court concluded that even though Zaidi did not use violent force to commit his crime, the nonconsensual nature of sexual battery presents a substantial risk that physical force will be used.  In light of its finding that Zaidi committed an “aggravated felony,” the Court dismissed his petition for lack of jurisdiction.

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Gerardo Rafael Velezmoro v. Ashcroft

U.S. Ninth Circuit Court of Appeals

2004 U.S. App. LEXIS 6072

Gerardo Rafael Velezmoro (“Velezmoro”), a citizen of Peru, petitioned for a review of the Board of Immigration Appeals’ (“BIA”) decision denying his motion to reopen deportation proceedings.  The BIA denied the motion because Velezmoro did not leave the U.S. within the 5-year voluntary departure period imposed by the Immigration Judge (“IJ”).  The Ninth Circuit Court of Appeals granted the petition and remanded to the BIA.

In 1994, the Immigration and Naturalization Service (“INS”) had initiated deportation proceedings against Velezmoro because he had entered the U.S. without inspection.  Velezmoro subsequently applied for asylum and a stay of deportation.  The IJ denied asylum, but granted voluntary departure.  The BIA affirmed the decision and extended the voluntary departure until May 23, 1998.  Velezmoro did not leave the U.S. by that date and moved to reopen his deportation proceedings and for adjustment of status after a recent marriage to a U.S. citizen.  The BIA rejected this motion by finding that he was ineligible for relief because he did not depart as required by the BIA’s grant of voluntary departure.

The BIA had denied the motion for adjustment of status because the former section 242B of the Immigration and Nationality Act provided that an individual is ineligible for adjustment of status if he or she remains in the U.S. after a grant of voluntary departure.  The period of ineligibility lasts only for a period of 5 years after the scheduled departure date.  The BIA’s decision to deny the motion came within that five-year period, however, the case came before the Ninth Circuit after the 5 years had elapsed.  Under these circumstances, the Ninth Circuit remanded to the BIA to decide whether Velezmoro continues to bar Velezmoro from applying for adjustment of status.