The U.S. Court of Appeals for the Second Circuit on Wednesday discarded its own 2003 precedent and held that noncitizen felons can seek relief from deportation.
Chief Judge Robert Katzmann (See Profile) said that in light of a 2012 U.S. Supreme Court holding, the court has no choice but to join several other circuits and grant noncitizen offenders convicted at trial the chance to seek a deportation waiver. The Second Circuit specifically repudiated sections of Rankine v. Reno, 319 F.3d 93 (2003) which denied individuals convicted of aggravated felonies the opportunity to challenge deportation.
The ruling potentially allows scores of immigrants who committed aggravated felonies to avoid deportation.
United States v. Gill, 12-2207-cr, centers on a repealed section of the Immigration and Nationality Act—§212 (c). Prior to its repeal in 1996, many noncitizens convicted of aggravated felonies could seek a deportation waiver.
The case decided Wednesday involves Ricardo Alvin Gill, a native and citizen of Barbados who came to the United States on a visa in 1972, when he was 5 years old, and became a lawful permanent resident in early 1984. Shortly thereafter, Gill began using crack cocaine and started committing theft-related crimes to support his habit, according to the decision.
After Gill pleaded guilty in 1989 to attempted drug and burglary charges, immigration authorities sought his deportation. While Gill’s request for a waiver was pending, he was convicted in the Bronx of another aggravated felony, attempted first-degree robbery and sentenced to state prison. After serving his sentence, Gill was deported in 2004.
Six years later, Gill was found in Buffalo, where he had a family and steady job and, except for illegally returning to the United States, no new criminal history.
When Gill was indicted for illegal entry, he sought to reopen his previous deportation proceedings under INS v. St. Cyr, 533 U.S. 289 (2001), which held that §212 c) relief was available to noncitizens “whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible” for a waiver.
Since the Second Circuit had, in Rankine, held that noncitizens who were convicted at trial before §212 was repealed were ineligible for relief because it could not be shown that they had relied to their detriment “on the availability of discretionary relief when exercising the right to trial,” Western District Judge William Skretny (See Profile) rejected Gill’s petition.
But on Tuesday, the Second Circuit largely abandoned Rankine in light of Vartelas v. Holder, 132 S Ct. 1479 (2012), which dealt with the retroactivity of criminal statutes. Vertelas held that the law in effect at the time of the conviction, not subsequent statutes, control.
Katzmann said Vartelas “implicitly overruled Rankine” in key respects.
“We now hold that deeming noncitizens like Gill ineligible for §212(c) relief merely because they were convicted after trial would have an impermissible retroactive effect because it would impermissibly attach new legal consequences to convictions that pre-date the repeal of §212(c),” Katzmann wrote in an opinion shared by circuit judges Ralph Winter (See Profile) and Guido Calabresi (See Profile). “We agree with Gill and join several of our sister circuits in holding that, under Vartelas, noncitizens in Gill’s position are not rendered ineligible for §212(c) relief on the basis of convictions that pre-date the repeal of §212(c) simply because the conviction was trial-based.”
The court remanded for further fact finding.
Michael Stachowski of Buffalo argued for Gill on Nov. 26. The prosecution was represented by Assistant U.S. Attorney Joseph Karaszewski.
Karaszewski said the decision speaks for itself, adding that the Department of Justice will review the case and determine whether to seek further review from the Second Circuit or the U.S. Supreme Court.
Stachowski was not immediately available for comment.