Saturday, March 11, 2006

Hernandez: OK to Delete Retroactively Any Options Requiring More Than One Second of Presence

Hernandez v. Gonzales
Feb. 14, 2006

In a sour Valentine's Day present, the Third Circuit ruled that it was perfectly fine for Congress to take away retroactively what used to be the well-established option called suspension of deportation.

Many are surprised to hear that Congress is allowed to yank away a well-established option retroactively. That would never be allowed in criminal court. Well, welcome to the absurd and unfair world of immigration law.

In 1984, an immigrant pled guilty to a crime knowing that he can utilize suspension of removal if he was ever threatened with deportation more than ten years after 1984. It was not as simple as that -- for example, if he committed crimes within the ten years after 1984, he would not qualify, but because he did not get into any trouble, I won't deal with those and other requirements. He was a model non-citizen who even married a United States citizen in 1997.

Little did he know in 1984 that Congress would take a wrong-headed move in 1996 and delete the option of suspension of deportation, replacing it with a narrower option called cancellation of removal that extremely few people qualify for. The immigrant argued that it was illegal for Congress to delete the option retroactively. Sometimes, certain attempts by Congress to delete options retroactively are deemed illegal, such as the 212(c) relief that Congress illegally tried to delete retroactively in 1996.

In this case, the immigrant in fact lived in the US without any problems for the required 10 years after his 1984 guilty plea and completed the ten years before Congress tried to delete the option in 1996. You'd think he'd have a strong case because his rights "vested" by 1994!

But no, the Third Circuit ruled that it will not care if an immigrant vests his option at any point after the instant he pleads guilty. It only cares about whether at the instant he pled guilty, he had the option available. Don't ask me why it is drawing this distinction because I can't explain it to you.

I guess in the Third Circuit's mind, Congress can delete any option retroactively so long as the option did not already vest at the moment the person pled guilty. (P.s. 212(c) relief is arguably different because you can vest the option before you plead guilty to a crime.)

To the Third Circuit, an option that is available to an immigrant in the US is drastically different from an option that is only available to an immigrant who can prove he stayed in the US for more than five seconds after pleading guilty. Pretty zany. Again, welcome to immigration law. Please enjoy your stay.


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