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COURT RULES THAT 1996 IMMIGRATION LAW CANNOT BE APPLIED RETROACTIVELY

In Goncalves v. Reno the First Circuit decided the issue of whether the Antiterrorism and Effective Death Penalty Act of 1994 (AEDPA) 440(d), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), eliminates eligibility for INA 212(c) relief retroactively for aliens convicted of crimes involving moral turpitude. The plaintiff in this case was Goncalves, a man who had been a permanent resident alien of the United States (U.S.) for 25 years. He became subject to deportation because he committed crimes involving moral turpitude, such as theft, possession of marijuana, receiving stolen property, etc.

In 1994, Goncalves filed for discretionary relief from deportation under INA 212(c). In 1996, while his application was still pending, Congress passed AEDPA, and it was later amended by IIRAIRA. The government claimed that since the provisions in AEDPA were intended to apply retroactively, Goncalves should be deported, and his application should be dropped. After an Immigration Judge denied his 212(c) application, Goncalves appealed. Finally, after examining the legislative histories of the AEDPA and the IIRIRA, the First Circuit Court of Appeals found that Congress did not intend the provision in the AEDPA to apply retroactively to this situation. This means that Goncalves is now entitled to a deportation hearing before the BIA.

In an unrelated case from the Fourth Circuit, U.S. v. Gajendragadkar, the court overturned the defendant's guilty plea due to ineffective assistance of counsel. The defendant, a physician, had originally pleaded guilty to over-billing his medical patients because counsel assured him that it would not cause him to be deported under the current immigration laws at that time. Counsel also advised the defendant that even if Congress amended the laws the Ex Post Facto Clause would protect him. That advice was wrong. Defendant pleaded guilty, and Congress changed the immigration laws to apply retroactively causing defendant to face deportation. The court's decision in this case overturns the guilty plea, allowing defendant to stand trial. If he's found not guilty, then he avoids deportation.

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