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An amendment to the nation’s immigration laws found unconstitutional by a lower court judge does not violate the equal protection component of the due process clause, the 2nd U.S. Circuit Court of Appeals has ruled. Finding that Congress may make distinctions between lawful permanent residents and non-lawful residents on so-called hardship waivers for findings of inadmissibility or orders of deportation, the 2nd Circuit reversed the ruling of U.S. District Judge Janet C. Hall of the District of Connecticut. The circuit court’s decision in Jankowski-Burczyk v. Immigration and Naturalization Service, 01-2353, dealt with an appeal by the Immigration and Naturalization Service from Judge Hall’s ruling that Sylwia Jankowski-Burczyk, as a lawful permanent resident (LPR) of the United States, was being treated differently than non-lawful permanent residents. Jankowski-Burczyk had entered a plea of guilty to bank larceny in 1999, and an immigration judge had found that she was ineligible for discretionary relief from deportation. The ruling came despite the fact that Jankowski-Burczyk had been a lawful permanent resident since 1985, had a son who is a citizen of the United States and parents who were also lawful permanent residents — a circumstance that would have made her eligible for a hardship waiver prior to the passage of Illegal Immigration Reform and Immigrant Responsibility Act in 1996. But the act’s amendment to � 212(h) of the Immigration and Nationality Act, codified at 8 U.S.C. 1182(h), made LPRs who had committed aggravated felonies, such as bank larceny, ineligible for a form of relief that non-LPRs would be eligible to seek. Judge Hall granted Jankowski-Burczyk’s petition for a writ of habeas corpus, finding that the treatment of “similarly situated non-LPRs and LPRs,” was irrational and therefore a violation of equal protection. But on the appeal of the INS to the 2nd Circuit, Judge Dennis Jacobs said that initial question is “whether LPRs and non-LPRs are similarly situated to begin with.” Jacobs said that “There is no dispute that LPRs and non-LPRs are distinct classifications that support disparate treatment under the INA, and that the INA treats them differently in a host of ways, of which Section 212(h) is just one and far from the most important.” “Congress may enact a regulatory measure as to one classification without a counterpart measure as to the other, and without a rationale for the resulting lack of symmetry,” he said. Jacobs noted that lawful permanent residents have several advantages over non-lawful permanent residents, and “thus, one premise of the district court’s opinion is that the non-LPR must be systematically disadvantaged relative to the LPR throughout the statute.” But that kind of systematic disadvantage is not required in “other statutory contexts,” Jacobs said. “There is, for example, a rational basis for distinguishing between persons who are in jail and those of us who are not, a distinction heavily to the disadvantage of the convict,” he said. “Yet Congress may underwrite free mail-order college education for convicts without affording the same opportunity to persons outside prisons who may likewise lack funds to pay for it. This is called an irony, not a failure of equal protection.” Even assuming that that lawful permanent residents and non-lawful permanent residents could be considered similarly situated, he said, “we have little difficulty concluding that the difference of treatment between the LPRs and the non-LPRs in amended Section 212(h) is rationally related to a legitimate government purpose.” ” … Congress could rationally have concluded that LPRs are less deserving of a Section 212(h) discretionary waiver because LPRs otherwise enjoy greater privileges and opportunities, which they have abused by committing an aggravated felony,” he said. “ The disparity may thus be rationally related to the legitimate government purpose of limiting the discretionary waiver to persons who have not abused the system.” And Congress may have believed that “LPR aggravated felons were a higher risk of recidivism,” he said. Moreover, in passing the 1996 amendment, he said, “Congress may well have considered that it had already suitably solved the problem presented by non-LPR aggravated felons,” when it authorized the attorney general in 1994 to use an expedited removal procedure for that class of aliens. “Finally, the category of non-LPRs is not limited to aliens who have entered the United States without inspection,” he said. “Non-LPRs include many persons who could rationally be granted special deference and courtesy under the immigration laws, including ambassadors … students … scholars … specialists … and leaders in fields of specialized knowledge … ” and a host of others, including “ asylum seekers, people granted asylum, and refugees.” “In granting Section 212(h) discretion to the Attorney General, Congress may rationally have considered that the Attorney General would exercise the discretion to grant waivers rationally for reasons of state, policy, courtesy, or comity, not to aliens of the criminal class,” he said. Judge Amalya Kearse and Southern District Judge Barbara S. Jones, sitting by designation, joined in the opinion. District of Connecticut Assistant U.S. Attorneys James K. Filan Jr., John A. Danaher III and Jeffrey A. Meyer represented the government. Carroll L. Lucht of the Jerome N. Frank Legal Services Organization, with law student interns David Shahoulian and Alice Clapman, argued for Jankwoski-Burczyk.

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