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DECISIONS Young’s e-mail address is gyoungnlj.com. granting a petition for review, the 9th U.S. Circuit Court of Appeals held on July 8 that an immigration regulation may not be retroactively applied to disqualify automatically an alien for asylum. Kankamalage v. INS, No. A29-545-842. In 1988, Jayantha Kankamalage, a Sri Lankan citizen, pleaded guilty to robbery and was sentenced to two years in prison. He was released and turned over to the Immigration and Naturalization Service (INS) after serving one year of his sentence. After the INS initiated deportation proceedings against him for overstaying his nonimmigrant visitor visa, Kankamalage applied for asylum and the withholding of deportation. In a 1991 hearing, the immigration judge denied relief on both claims. The Board of Immigration Appeals (BIA) dismissed his appeal. On remand from the 9th Circuit, the BIA again dismissed the appeal, finding this time that Kankamalage was ineligible for asylum under C.F.R. § 208.13(c)(2)(i)(A), a regulation promulgated in 1990 that applies to aliens convicted of a “particularly serious crime.” Prior to 1990, a conviction for a particularly serious crime did not bar a grant of asylum, but the INS was allowed to exercise its discretion and weigh a number of equitable factors. C.F.R. § 208.13(c)(2)(i)(A) provides that “[a]n immigration judge or asylum officer shall not grant asylum to any applicant . . . if the alien[, h]aving been convicted by a final judgment of a particularly serious crime in the United States, constitutes a danger to the community.” At the time of Kankamalage’s conviction, the regulation had not taken effect, and he was qualified to apply for discretionary relief from deportation. The 9th Circuit concluded that applying the regulation to Kankamalage “attaches a new disability, in respect to transactions or considerations already past.”

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