The Justice Department yesterday released a proposed new rule on relief from deportation in response to last year's Supreme Court ruling in the St. Cyr case.

The Justice Department's analysis of the St. Cyr. decision is as follows:

"The St. Cyr case resulted from five years of litigation involving the application of two statutes that Congress enacted in 1996. The first statute -- the Antiterrorism and Effective Death Penalty Act (AEDPA) enacted on April 24, 1996 -- barred section 212© relief for permanent resident aliens with very serious criminal convictions. The second statute -- the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA) enacted six months later -- eliminated section 212© relief altogether."

[In St. Cyr] "the Supreme Court disagreed with the government’s interpretation. The Court held that Congress did not clearly intend to apply the AEDPA amendments to aliens who were placed in deportation proceedings before the statute’s enactment, or to aliens with relief applications pending on the date of enactment. The Court further held that applying the statute to
these aliens may attach unexpected consequences to their past criminal conduct -- that is, it would deprive them of the opportunity to apply for section 212© relief for which they were eligible at the time of their convictions by plea agreement. "

"Thus, the Court concluded that, notwithstanding AEDPA and IIRIRA, aliens whose convictions were obtained through plea agreements could still apply for section 212© relief, if those aliens, notwithstanding those convictions, would have been eligible for section 212© relief under the law that was in effect at
the time of their pleas."

The newly proposed rule establishes "procedures for eligible lawful permanent residents (LPRs) with certain criminal convictions, prior to April 1, 1997, to apply for relief from deportation or removal under former section 212© of the Immigration and Nationality Act. This relief is available to eligible individuals who are currently in immigration proceedings, who may be placed in removal proceedings, or who have completed immigration proceedings and are under final orders of deportation or removal. It does not apply to those who have already been deported from the United States."

Eligible individuals who are under final orders of deportation or removal who are still in the United States must apply for this relief within 180 days after the publication of the final rule.

The rule is published in the Federal Register and can be accessed here.

The Executive Office for Immigration Review has published a six page question and answer sheet on the relief provided under the new rule.

A step in the right direction, for sure. But the proposed rule does not provide relief to people who have already been deported which means that these people would be unable to reopen their cases or return to the United States even though their deportation came about through the government's mistaken interpretation of the law. This should be changed.

We expect many groups will be submitting comments on the extreme unfairness of the lack of provision for persons already deported.

[comments now closed]