Beyond "Because I Said So": Reconciling Civil Retroactivity Analysis in Immigration Cases with a Protective Lenity Principle

By Aschenbrenner, Kate | The Review of Litigation, Winter 2013 | Go to article overview

Beyond "Because I Said So": Reconciling Civil Retroactivity Analysis in Immigration Cases with a Protective Lenity Principle


Aschenbrenner, Kate, The Review of Litigation


I. INTRODUCTION .......... 148

II. RETROACTIVITY .......... 152

A. Theory .......... 152

B. Civil Retroactivity in General .......... 154

C. In the Immigration Context .......... 157

1. IN A § 2 1 2(c) Relief- INS v. St. Cyr and the Aftermath .......... 159

2. Other Subjects .......... 164

III. ENTRY, THE FLEUTI DOCTRINE, AND SEEKING ADMISSION UNDER INA § 101(a)(13) .......... 166

A. Entry and the Fleuti Doctrine .......... 166

B. Illegal Immigration Reform and Immigrant Responsibility Act .......... 169

1. Seeking Admission Under INA § 101(a)(13) .......... 169

2. Other Structural Changes .......... 173

3. IIRIRA's Effective Date .......... 174

IV. RETROACTIVITY AND ADMISSION UNDER INA § 101(a)(13)...175

A. Initial Consideration of INA § 101(a)(13) .......... 175

B. Consideration of the Retroactive Application of INA §101(a)(13) .......... 177

1. Circuits Finding that INA § 1 0 1 (a)( 1 3) Cannot Be Retroactively Applied .......... 178

2. Circuits Allowing INA § 101(a)(13) to Be Applied Retroactively .......... 180

3. Other Courts .......... 183

V. SUPREME COURT CONSIDERATION IN VARTELAS V. HOLDER - AN OPPORTUNITY TO RESOLVE THE CONFLICT? .......... 184

A. Imposing a Guiding Principle - Protect the Noncitizen.. 184

1. Immigration Is Different .......... 186

a. Immigration Is Civil, not Criminal .......... 186

b. Despite Being Civil in Nature, Immigration Proceedings Have Particularly Serious Consequences .......... 188

2. A Principle of Lenity .......... 189

a. Some Guiding Principle Is Necessary .......... 189

b. A Principle of Lenity for Noncitizens Is Justified Under the Supreme Court 's Existing Retroactivity Jurisprudence .......... 192

c. The Supreme Court Should Adopt a Canon of Construing Ambiguities in Favor of Noncitizens .......... 194

B. The Supreme Court 's Decision in Varíelas .......... 195

VI. CONCLUSION .......... 199

I. INTRODUCTION

Jayson Charles entered the United States for the first time as a legal permanent resident from Trinidad and Tobago in 1975. ' In 1981, he pled guilty to a charge of grand larceny under then New York Statute § 155.30(1), was convicted, and was sentenced to five years of probation. This is Mr. Charles's only criminal conviction. Prior to 1996, Mr. Charles's conviction for grand larceny posed no real risk at all to his immigration status. He was not deportable; his crime did not constitute an aggravated felony at the time2 and, although it was likely a crime involving moral turpitude, the criminal conduct occurred more than 5 years after his admission into the United States.3 So long as any trips he took outside of the United States were "brief, casual, and innocent," he was also not excludable on his return.4 While he would have been excludable based on his conviction for a crime involving moral turpitude had he been "seeking admission" into the United States in the first instance, he was deemed not subject to the grounds of exclusion because he was returning as a legal permanent resident.5

For almost thirty years after his criminal conviction (almost thirty-five after his arrival as a legal permanent resident), Mr. Charles built his life in the United States. He had four United States citizen children, established a long-term relationship with the United States citizen mother of the youngest two children, and worked hard to support his family. The immigration laws changed in 1 996, 6 deeming legal permanent residents who had committed crimes involving moral turpitude to be "seeking admission" no matter how brief and innocent their departure from the United States,7 but Mr. Charles's life did not. Mr. Charles continued to live and work and care for his family in the United States, and even took two short trips to see his elderly and ailing mother in Trinidad and Tobago without incident.

It was not until Mr. …

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Beyond "Because I Said So": Reconciling Civil Retroactivity Analysis in Immigration Cases with a Protective Lenity Principle
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