Aggravated Felonies

(B)  Effective Date Issues.  The current statutory bar for aggravated felons applies to all applications for asylum made after April 1, 1997, regardless of when the conviction occurred.  The regulations also bar aggravated felons who filed applications prior to April 1, 1997.[393]  The Ninth Circuit, however, has held that this regulation cannot be applied retroactively to a noncitizen who was convicted prior to October 1, 1990, the effective date of the regulation.[394]  A person who filed an application for asylum prior to IIRAIRA’s effective date has no settled expectation of being placed in deportation, as opposed to removal, proceedings.[395]  Renewing an asylum claim in deportation proceedings is considered a new filing for purposes of determining which set of regulations applies to the asylum applicant.[396]

[393] 8 C.F.R. § 208.13(c)(2)(i)(D).

[394] Kankamalage v. INS, 335 F.3d 858 (9th Cir. July 8, 2003).  See also Batanic v. INS, 12 F.3d 662 (7th Cir. 1993).

[395] Vasquez-Zavala v. Ashcroft, 324 F.3d 1105 (9th Cir. Apr. 7, 2003) (asylum applicant who filed prior to the effective date of IIRAIRA could have no “settled expectations” of being placed in deportation proceedings rather than removal proceedings).

[396] Matter of B, 20 I. & N. Dec. 427 (BIA 1991).