Saturday, September 10, 2005

Dinnall: voluntary departure still possible for pre-1997 deportation orders being reinstated

Filed 09/01/05, No. 04-2415
Dinnall v. Atty Gen USA
Dinnall v. Gonzales
Precedential decision

Here, an immigrant did not get the letter for his 1987 court date, so he did not show up and the judge ordered him deported in his absence. In 1988, before he was told about the deportation order, he left the country, which means he self-deported. By rule, he is not allowed to return for five years after self-deporting. But he returned two days later and was not found until 1994, when the government charged him with illegally re-entering. Here's an interesting twist -- he married a U.S. citizen in 1998, which if he could get rid of the deportation order. But he couldn't.

The government sought to reinstate the 1987 deportation order, which would block his ability to get a green card based on his marriage. Reinstatement of a deportation order in this case depends on the expanded power to reinstate a deportation order that did not exist in 1987. Congress expanded the reinstatement power in 1996 laws (effective April 1997). Can the 1996 change be applied retroactively against someone who got a deportation order in 1987?

[FYI: the ways in which the power of reinstatement expanded were that (1) all removal orders could be reinstated, not just ones based on criminal convictions, (2) you can't reopen a prior removal order anymore, and (3) you can't apply for relief to avoid reinstating the deportation order.]

Reinstatement is harsh because you might be deported without having a chance to present the issue to an immigration judge and without the right to bring your own attorney to help argue your case.

The immigrant argued that the expanded version of the reinstatement power cannot be applied against someone who received a deportation order before 1997 (when the power was much weaker).

The Third Circuit ruled that it is unclear whether Congress intended the new powers to apply retroactively or not. So, it focused on whether retroactive application would have an impermissible effect. One example is in the case of St. Cyr (U.S. 2001), where eliminating section 212(c) relief for people who entered guilty pleas with the expectation they could try to avoid deportation under 212(c) relief would be impermissible because it would take away their expectations when they entered the guilty plea.

The Third Circuit agreed with the immigrant that under the old rule, he could have applid for voluntary departure, which is an agreement to leave so that no deportation order will be entered. Under the new rule, it would be impossible to seek voluntary departure. Therefore, the prohibition on seeking voluntary departure is a "new disability" that obstructed a reasonable expectation he had under the old rule.

As a result, the rule cannot be applied retroactively. The Third Circuit then addressed whether the immigrant must show that he personally relied on the old rule. Following its decision in Ponnapula, you do not need to show the particular person actually relied on the old rule (so-called actual reliance). You only need to show that the class of people in that category in general relied on that rule.


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