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The 7th U.S. Circuit Court of Appeals has joined three other federal appellate courts in ruling that a 1996 law cannot be applied retroactively to a Nigerian man who pleaded guilty to a drug charge in order to avoid being deported. Charles Jideonwo, a Nigerian native who gained permanent resident status after his marriage to an American, made a challenge to a section of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) after an Immigration Judge in 1998 ordered him deported. The Bureau of Immigration Appeals upheld that decision last year. The opinion released Wednesday by the 7th Circuit remands the case back to the immigration judge. Jideonwo, who lives in suburban Hazel Crest, Ill., pleaded guilty in 1994 to one count of conspiracy to possess with intent to deliver heroin. He entered the plea agreement with the conditions that he be eligible for a deportation waiver and serve a prison sentence of less than five years. The AEDPA, enacted two years later, contains a provision prohibiting waivers of deportation for persons convicted of aggravated felonies. There has been a split at the federal appellate level as to whether that provision can apply retroactively and under what circumstances. “The difference in the circuits is a reading of AEDPA, and the Seventh Circuit did not find any expressed intent (of retroactivity),” said Susan Compernolle, of Rubman and Compernolle in Chicago, the attorney who represented Jideonwo. How immigration cases with issues such as the one raised by Jideonwo were handled changed with the passage of the AEDPA. “We in the immigration bar think Congress made a mistake in taking away the discretion of immigration judges on a case by case basis on who should stay and who should not,” Compernolle said. “We think (Jideonwo) has a good case but he has to convince the judge of that.” In an opinion written by Chief Judge Joel Flaum, the court found that Jideonwo had relied on Section 212(c) of the Immigration and Naturalization Act in negotiating a plea agreement with the government, and that section 440(d) of AEDPA should not prohibit him from seeking a waiver of deportation. Charles Jideonwo v. Immigration and Naturalization Service, No. 99-3243. Judge Ann C. Williams and Daniel A. Manion joined in the opinion. Since 1999, three other federal appellate courts have ruled against the retroactive application of section 440(d): the 1st Circuit in Mattis v. Reno, 212 F.3d 31, 38-40; the 4th Circuit in Tasios v. Reno, 204 F.3d 544, 549; and the 9th Circuit in Magana-Pizano v. INS, 200 F.3d 603, 613. At least two other federal appellate courts, in the 3rd and 10th Circuits, have rendered opposing opinions stating that Section 440(d) did prohibit deportation waivers for those who began proceedings after AEDPA was enacted, even if their criminal offenses occurred before the Act became law. In the case of Jideonwo, the court relied on a concern raised in the decision of Antonio Reyes-Hernandez v. Immigration and Naturalization Service, No. 95-3677 in that it did not want to mousetrap Jideonwo because he had relied on Section 212(c) when making his plea agreement. “We, therefore, conclude that where specific facts demonstrate that an alien pled guilty to an aggravated felony before the enactment of AEDPA and relied, at least in part, on the availability of Section 212(c) relief in making his decision to so plead, AEDPA’s Section 440(d) cannot be applied retroactively to bar that alien from receiving a discretionary waiver under INA Section 212(c),” Flaum wrote. The split in the circuits is being addressed in proposed rules to be followed by the U.S. Department of Justice in handling the issue raised in Jideonwo and other cases. The rule would allow certain aliens in deportation proceedings that began before enactment of AEDPA to seek a deportation waiver under Section 212(c. But Compernolle said she was not sure whether even that helps all alien immigrants who want to stay in the country. “In general this decision and the proposed rules do not necessarily solve the problem of Congress removing the discriminatory waiver from the law,” Compernolle said. “It’s a problem that needs to be addressed by Congress.” Samuel Der-Yeghiayan, the District Counsel for the Immigration and Naturalization Service in Chicago, and Assistant Attorney General Margaret J. Perry of the Civil Division, Immigration Litigation for the U.S. Department of Justice represented the INS in the appeal.

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