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As one deportation horror story after another has made headlines in recent months, a consensus has quietly emerged that the strict immigration laws that give rise to such stories need to be fixed. The Justice Department, key members of Congress and most courts now agree that the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) should not be applied with broad retroactivity. On Sept. 1, the first federal appeals court to assess the retroactivity issue under the AEDPA’s successor law, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), reached a similar conclusion. “The momentum has shifted tremendously,” says Professor Nancy Morawetz of New York University Law School. “The public and the press has been at the forefront of all this,” says Carol Wolchok, director of the ABA Center for Immigration Law and Representation. “Immigrants, when they have no legal recourse, have been going to the press and finding their neighbors are sympathetic.” Take Alan Webber, who came to the United States from Australia in 1980 with his twin brother. He built his own auto repair business in Corona, Calif., paid taxes for 18 years, married, and raised a son, now 9 years old. Unlike his twin, he never bothered to become a citizen. Also unlike his brother, Webber collected guns in a locked room in his house as an investment. In the midst of a bitter divorce and custody dispute, his wife called in the sheriff, who found among Webber’s 200 guns one that had been manufactured without a serial number and several that had not yet been registered. Webber’s gun violations might not seem egregious, but after pleading guilty in 1997 (and serving 10 months in prison), he was sent back to Australia. His offense — like almost any criminal offense under stringent 1996 amendments to federal immigration law — is sufficient to make a noncitizen automatically deportable. In fact, automatically deportable offenses include actions as simple as hair-pulling or turnstile-jumping. Even an expunged low-level drug conviction can be enough. FELONIES AND MISDEMEANORS An “aggravated felon” is deportable, which may sound reasonable. But in late August, the U.S. 2nd Circuit Court of Appeals held that the term “aggravated felony” can cover misdemeanors. Consider the “crime” of Vincente (whose lawyer asked that his real name not be used). He came to New York from the Dominican Republic in 1981 as a young man. In 1985, he called his mother in the Dominican Republic because he was homesick; in 1986, he called because she was sick. Both times, he used a pay phone that had been rigged to provide ripped-off long-distance service by a local “entrepreneur,” who charged what was then a sub-market rate (about $10 for half an hour). Vincente paid a $200 fine for his second offense in this scam and thought that was the end of it — until he visited his mother last year and tried to re-enter the U.S. Because of his “criminal record,” Vincente, a store clerk with three children — all U.S. citizens — now faces deportation. “When you tell people about this, they tend not to believe it,” says Morawetz of such cases. “They say, ‘What country is it you’re talking about?’ There’s something deeply un-American about these laws.” The legislative, administrative and judicial solutions now being discussed as fixes to such injustices would address them to different degrees. A Sept. 1 ruling gives Vincente the right to an equitable hearing. Webber and others affected prospectively by the two 1996 laws get no relief. The AEDPA was passed hastily on the one-year anniversary of the Oklahoma City bombing — April 24, 1996 — to enhance the nation’s ability to deport criminal aliens. “The law was passed because the INS wasn’t deporting recidivist criminals,” says Dan Stein, of the Federation for American Immigration Reform (FAIR), referring to the Immigration and Naturalization Service’s efforts. The deportation rate has since risen 72 percent. Before April 1996, only aggravated felons who served five years in prison were automatically deportable; other alien convicts could argue case by case that they didn’t deserve the boot. The AEDPA and IIRIRA all but eliminated discretion for immigration judges and, in different ways, expanded the universe of deportable offenses. The AEDPA applies to cases before 1997, at which point the IIRIRA, passed in September 1996, takes effect. The Justice Department took a hard line on retroactivity. It argued from coast to coast that the AEDPA (and its automatic rules) broadly applied to pre-enactment cases. Perhaps because the AEDPA is transitional, the U.S. Supreme Court has never granted certiorari, despite rulings in nearly every circuit. Here’s the circuit scorecard: Eight circuits held that the AEDPA did not apply retroactively in the situation in which an alien had applied for discretionary relief before enactment. Only the 7th Circuit held that the law applied retroactively in this context. Three other circuits ruled that the law applied retroactively to those who had pre-enactment convictions, if they were placed in proceedings after enactment. Four circuits (including, as of Aug. 23, the 7th Circuit) held that the AEDPA cannot “mousetrap” an alien — i.e., apply retroactively to an alien who had pled guilty before enactment, in the expectation that he would not be deported. Immigrant advocates see vindication in the 7th Circuit’s shifting position. But Lisa Palumbo, supervisor of the Legal Services Center for Immigrants, fears that the August case, Jideonwo v. INS, was too little, too late. “I don’t know that many people who are left,” she says. On July 18, the Department of Justice proposed a regulation backing off its position in the interest of uniformity. The new rule, for which the comment period just closed, would allow discretionary relief from deportation for aliens who were “in proceedings” as of the AEDPA’s enactment. In addition, the INS, under pressure from Congress, says that it is developing new guidelines on prosecutorial discretion. A bipartisan House bill, H.R. 5062, expected to be fast-tracked in October, would restore relief to those who were not deportable before 1996 and would welcome back aliens already deported under the retroactive rule. “All these proposals have idiosyncrasies,” notes Wolchock. The commentators’ foremost complaint about the proposed regulation is that those already penalized are stuck on the other side of the border without a paddle. “Here the DOJ litigated from one end of country to the other and lost almost everywhere,” says Jeanne Butterfield, director of the American Immigration Lawyers Association, “and finally it concedes defeat and makes no provision for the people deported.” PROSECUTORIAL DISCRETION Prosecutorial discretion by INS agents is a limited solution favored by FAIR, which advocates lower levels of immigration, and by a broad bipartisan coalition of legislators. Morawetz says that INS agents, pushed by Congress to hike deportation numbers, can’t be trusted with discretion. Indeed, she found training materials from the INS office in Atlanta encouraging prosecutors to seek one-year suspended sentences, which would lead to mandatory deportation. Says Butterfield, “Congress took away discretion from 150 well-trained immigration judges, who could hear evidence, and wants to give discretion to tens of thousands of agents in the field. It’s ludicrous. They’re talking out of both sides of their mouths.” The bipartisan bill now pending is supported by influential members of the House Judiciary Committee, ranging from Barney Frank, D-Mass., to Lamar Smith, R-Texas, Henry Hyde, R-Ill., and Bill McCollum, R-Fla. Frank says that Hyde became aware of the hardship created by the 1996 laws because he works closely with Catholic charities that counsel Latin American immigrants. Capitol Hill insiders agree that McCollum softened his immigration stance in response to the media criticism he endured during his statewide Senate race. “The bill doesn’t go nearly as far as I’d like,” says Frank, “but I’m resigned to the fact that as long as Republicans are in power, we can only deal with retroactivity.” Even as to the problem of retroactivity, immigrant advocates gripe, the bill is a very limited solution. Notably, minor drug offenses would still give rise to automatic deportation because they were always defined as aggravated felonies and the bill would not restore the requirement that aliens serve five years in prison before they are barred from relief. Butterfield says drug offenses constitute the majority of deportable offenses. All of the case law until now, and the proposed regulation, deal with the transitional rules under the AEDPA and therefore with a finite population. How finite is a matter of debate. Dan Stein of FAIR says the press and the immigration lobby have been focusing on a small number of extraordinary cases. “There are maybe 25 hardship cases,” he says. Immigrant advocates say that on the contrary, thousands of families have been unjustly torn apart. The INS counts 800 cases in the courts on the issue of retroactivity, which only includes those who had the resources to fight deportation and have not yet been deported. A representative of the AILA says estimates of the transitional population range from 3,000 to 12,000. Before 1996, approximately 50 percent of petitions for discretionary relief were granted by immigration judges. What’s certain is that the population that the INS seeks to deport under the IIRIRA, the law that remains in effect, will be much larger. The 2nd Circuit’s Sept. 1 decision, St. Cyr v. INS, deals for the first time with that group. Former INS General Counsel David Martin says that case, or a case like it, is therefore more likely to garner Supreme Court review. Lucas Guttentag, the director of the American Civil Liberties Union’s Immigrants’ Rights Project and the victor in St. Cyr, hails the decision for reaffirming that, notwithstanding the Justice Department’s arguments, the 1996 immigration laws are subject to judicial review and that mousetrapping an immigrant who pled guilty in reliance on the pre-1996 laws would be impermissible. That decision gives Vincente, the hapless Dominican who paid dearly for his phone calls home, the right to seek a waiver of deportation. It does nothing for the Alan Webbers of the world, who are affected prospectively. This group can do little in the courts but challenge the definition of “aggravated felon” case by case. The 2nd Circuit’s decision a few days earlier in U.S. v. Pacheco, holding that Congress intended an “Alice in Wonderland” definition of “felon,” showed this to be a tough strategy. “There’s much about the 1996 law that Congress clearly intended,” says Butterfield. “Once we get to the pure statute, the courts are going to have very little leeway, which is why we’re propelled back into the legislative arena.” “It’s very wrong to think the problem with this law is just about retroactivity,” says Morawetz. “The kid who’s pleading today to a minor charge in criminal court is a problem, too. It happens every day.”

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