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A 1996 statute dealing with the deportation of felons cannot be applied retroactively to an alien who in 1993 refused a plea bargain and went to trial on the understanding that even a conviction would leave him eligible to remain in the country. With that ruling, issued on June 28 in Ponnapula v. Ashcroft, No. 03-1255, the 3d U.S. Circuit Court of Appeals broke with six of its sister circuits. The 1st, 2d 4th, 7th, 9th and 11th circuits have held that an alien convicted prior to 1996 is entitled to the benefit of pre-1996 immigration law only if the conviction rested upon a plea agreement. In a sense, the 3d Circuit broke with itself, since the Ponnapula panel admitted that two previous 3d Circuit panels took the same line as the six opposing circuits. One of those statements was dicta and the other was in an unpublished, and therefore nonprecedential, opinion, the Ponnapula panel said. The question still remains: Why the change in course? Ponnapula’s plight Part of the answer is surely the predicament of plaintiff Murali Ponnapula. Ponnapula, a native of India, has been in the U.S. for more than seven years, has a wife and children who are naturalized citizens and was months away from taking the oath of citizenship himself when he was indicted in 1993. Ponnapula was indicted for grand larceny and falsifying business records for his part in a scheme by which his brother fraudulently obtained a $1.9 million loan from an Indian bank. According to the 3d Circuit opinion, the brother named Ponnapula as the president of a shell corporation without his knowledge and forged his signature on the loan application. Ponnapula was not entirely blameless, however. He did sign some documents at his brother’s behest, though probably without realizing what he was doing, the opinion suggests. Ponnapula’s lawyer advised him that if convicted he could probably still remain in the country, because his maximum sentence would be three years. Under immigration law as it existed at the time, the federal government could, and often did, give special dispensations to convicted felons so long as their sentences were less than five years. Ponnapula turned down a plea agreement that would have resulted in a misdemeanor conviction and decided to take his chances with the jury. He probably had good reason to accept that gamble. Though convicted by the jury, the presiding judge set aside the conviction for lack of evidence, only to see it reinstated on appeal. A judge ruling on Ponnapula’s post-conviction petition described him as the “small fry” or “the schnook” in the scheme, but said his hands were tied. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which denied discretionary relief to all aliens convicted of aggravated felonies, even those with sentences of less than five years. In 2001′s INS v. St. Cyr, 533 U.S. 289, the Supreme Court held that the act did not apply retroactively to an alien who plea-bargained against the backdrop of pre-1996 immigration law. The six circuits have generally treated St. Cyr as stating the maximum extent of an alien’s protection against retroactivity, declining to apply it when there was no plea bargain. The 3d Circuit countered that its sister circuits neglected St. Cyr‘s holding that there is a presumption against retroactivity, and the fact that a defendant may rely on immigration law when calculating the costs of going to trial no less than when plea-bargaining. Young’s e-mail address is [email protected].

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