Monday, September 15, 2014
Ind. Decisions - Interesting 7th Circuit immigration ruling, circuit split
In Jean Jeudy v. Eric Holder, Jr., a 19-page opinion, Judge Hamilton writes:
Jean Jeudy petitions for review of an order of removal issued by the Board of Immigration Appeals (BIA). The BIA found that Jeudy was removable based on a 1995 drug offense and a 2000 voting offense. It also determined that he had not accrued the seven years of continuous residence in the United States required for a per-son in Jeudy’s situation to request discretionary cancellation of removal under 8 U.S.C. § 1229b(a). Jeudy has been a law-ful permanent resident since 1989, and he reached seven years of continuous residence in 1996. The BIA, however, applied the “stop-time rule” of § 1229b(d)(1), which took ef-fect in 1997 as part of the Illegal Immigration Reform and Immigrant Responsibility Act. The new stop-time rule was applied to cut off Jeudy’s period of continuous presence as of the time of his 1995 drug offense. Jeudy’s petition for review challenges only this application of the stop-time rule to deny his eligibility to request cancellation of removal.
The BIA has determined that the stop-time rule applies retroactively to reach offenses that were committed before the rule’s effective date. See In re Robles-Urrea, 24 I. & N. Dec. 22, 27 (BIA 2006); In re Perez, 22 I. & N. Dec. 689, 692–93 (BIA 1999) (en banc). Jeudy counters that (a) the stop-time rule cannot be applied retroactively because Congress did not provide any clear statement of intent to that effect, as re-quired by Landgraf v. USI Film Products, 511 U.S. 244 (1994), and INS v. St. Cyr, 533 U.S. 289 (2001), and (b) applying the rule here would have an impermissible retroactive effect. This issue, which our court has not yet addressed, has divid-ed our colleagues in other circuits. See, e.g., Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1200–01 (9th Cir. 2006) (stop-time rule for offenses may not be applied retroactively); Peralta v. Gonzales, 441 F.3d 23, 29–31 (1st Cir. 2006) (opposing view).
We grant Jeudy’s petition. The statutory stop-time rule does not convey a clear intent on the part of Congress to govern retroactively, and the stop-time rule would have an impermissible retroactive effect if it were applied to Jeudy’s 1995 drug offense to render him ineligible for discretionary relief after he had already accumulated the seven years of continuous residence needed to be eligible.
Posted by Marcia Oddi on September 15, 2014 04:20 PM
Posted to Ind. (7th Cir.) Decisions