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An immigration law enacted in 1996 cannot be applied retroactively to crimes committed before the act went into effect, according to a first-impression ruling by a federal judge in Manhattan. The decision by Southern District of New York Judge Denny Chin applies to the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which changed the requirements for aliens seeking relief from deportation. Under the Immigration and Nationality Act, an alien is subject to deportation after committing two crimes of moral turpitude not arising out of a single scheme. Prior to 1996, an alien could seek relief from deportation if he or she had established seven years of lawful residence in the United States. The enactment of IIRIRA added a “clock-stopping” provision to the seven-year requirement, which halted an alien’s time-accrual period once he or she was served with a notice to appear for an offense. In effect, the first offense would restart the clock, meaning seven years would have to pass before the second offense was committed. The question before Judge Chin in Henry v. Ashcroft, 01 Civ. 3377, was whether the new rule should prevent Jenny Lee Henry, a native of Guyana facing deportation, from applying for relief. Henry was convicted of petty larceny in 1987 and pleaded guilty to similar charges in January and March 2000. She has five children ages 3 to 11, all born in the United States. She came to the United States in 1984 and has not traveled abroad since. Henry had conceded that she was subject to deportation, and filed an application for cancellation of removal. Her application was denied by an immigration judge, who ordered her to be deported to Guyana in December 2000. Henry appealed to the Board of Immigration Appeals, which denied her motion. She then took her case to the Southern District of New York, claiming the IIRIRA was given an improper retroactive effect in her case. The government argued that Congress clearly intended for the clock-stopping provision to apply retroactively. Judge Chin ruled in favor of Henry and remanded the case to the Immigration and Naturalization Service, where she can file her relief application. The judge wrote that in this instance, “[IIRIRA] attaches new legal consequences to events completed before its enactment, and it impairs important rights possessed by the petitioner at the time she acted and significantly increases her liability for that past conduct.” He said that he could not discern a clear intent from Congress to apply the provision retroactively, and dismissed arguments that the provision’s transitional rules called for a retroactive application of the new law. According to his reading of an opinion from the 2nd U.S. Circuit Court of Appeals, Rojas-Reyes, 235 F.3d 115, those rules address deportation cases pending when IIRIRA took effect. Henry’s case is different, he wrote, because her deportation proceeding was started after the effective date of IIRIRA for a crime committed before the law was passed — a situation not addressed by any of the transitional rules or the clock-stopping provision. “This result may seem counterintuitive,” the judge wrote. “Logic would suggest that if the clock-stopping provision applies to crimes committed before IIRIRA was passed where deportation proceedings were pending, it should apply as well to crimes committed before IIRIRA was passed where cancellation proceedings were not commenced until later. But the fact is that Congress did not specifically address the category of cases before the court.” Judge Chin also noted that when considering a guilty plea, foremost in an alien’s mind is the possibility that he or she might receive relief from deportation. “An alien who decided to plead guilty to a crime that rendered her deportable might very well have done so with the expectation that if she rehabilitated herself and showed that she was deserving of a second chance, she would have the opportunity to seek relief from deportation,” he wrote. Robert T. Greig of Cleary, Gottlieb, Steen & Hamilton in New York represented Henry. Megan L. Brackney from the U.S. Attorney’s Office in Manhattan represented the government. Neither attorney could be reached for comment.

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