Aggravated Felonies

 

(B)  Due Process Argument Against Retroactive Application of the Aggravated Felony Definition.   There is an argument that due process may be violated by retroactive application of the aggravated felony definition to convictions that did not fall within the definition on the date of conviction.[1]  A number of courts have rejected this argument,[2] but it remains viable elsewhere.

 

            In the context of an illegal re-entry case, the Ninth Circuit laid the foundations for possible subsequent challenges to the retroactive application of the aggravated felony definition. While the original panel decision was changed to a concurring opinion on denial of rehearing en banc, it provides a restatement of the law regarding collateral attacks of underlying immigration proceedings by noncitizens convicted of illegal re-entry, and reemphasized a recent Ninth Circuit case on eligibility for an INA § 212(c) waiver for noncitizens who were not deportable for their offenses at the time of the conviction. These arguments against the retroactive application of the aggravated felony definition were as follows.

 

            Isidro Ubaldo-Figueroa was convicted of illegal re-entry following removal as an aggravated felon.  The district court rejected his attack on the underlying removal order on the grounds that he failed to present a plausible challenge to his removal order, and therefore failed to demonstrate that he was prejudiced by the Immigration Judge’s failure to advise him of his right to appeal to the BIA, or of his potential eligibility for relief under former INA § 212(c).  The Ninth Circuit reversed, finding that he met all the requirements under 8 U.S.C. § 1326 for attacking the validity of the underlying removal order (the case very clearly explains these), and had a plausible claim that retroactive application of the aggravated felony definition was unconstitutional.[3]

 

            In the process of making this finding, the court of appeals outlined a very convincing argument that IIRAIRA § 304,[4] which explicitly made all portions of the aggravated felony definition retroactive to at least 1952 (when the Immigration and Nationality Act was first enacted), violates due process. This argument even includes extensive supporting case law and arguments to distinguish cases to the contrary.  Counsel can bring these same arguments before the Ninth Circuit directly.

 

            The Supreme Court, in INS v. St. Cyr,[5] held that the repeal of § 212(c) relief by IIRAIRA § 309(a) is not retroactive, and those noncitizens who pleaded guilty before the April 1, 1997 effective date of IIRAIRA can still apply for § 212(c) relief.  In holding as it did, the Supreme Court relied, in part, upon its earlier decision, Landgraf v. USA Film Products,[6] which provided the following framework for determining whether a law should apply to cases where the underlying conduct occurred prior to enactment:

 

[W]hen a case implicates a federal statute enacted after the events giving rise to the suit, a court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach. If Congress has done so, there is no need to resort to judicial default rules.[7]

 

While St. Cyr found that there was no clear statement by Congress of the temporal reach of § 212(c), the court found that, “IIR[A]IRA’s amendment of the definition of ‘aggravated felony’. . . clearly states that it applies with respect to ‘convictions entered on, before, or after’ the statute’s enactment date.”[8]  Because Congress explicitly stated its intent to apply the aggravated felony definition retroactively, any retroactivity analysis must stop at the first step in the Landgraf analysis. Though they would otherwise apply, the arguments against retroactivity that resulted in the St. Cyr holding cannot be applied because this first test has been met.  This conclusion is supported by Max-George v. Reno.[9] 

 

            According to the Ninth Circuit, however, there is still a plausible due process argument that the expressly imposed retroactivity of the aggravated felony definition is unconstitutional,[10] because: “The Due Process clause of the Fifth Amendment forbids Congress from enacting legislation expressly made retroactive when the ‘retroactive application [application of the statute] is so harsh and oppressive as to transgress the constitutional limitation.’”[11]

 

            For a retroactive statute to comport with due process: (1) the statute must have been enacted for a legitimate legislative purpose; (2) the retroactive application of the statute must be a rational means to accomplish the purpose of the statute; and (3) the period of retroactivity must be “confined to short and limited periods required by the practicalities of national legislation.”[12]  The rationality test applied to retroactive legislation requires a level of rationality “beyond that applied to other legislation.”[13]

 

            The court notes that the United States Supreme Court generally looks to whether: (1) Congress applied the law retroactively in order to remedy a defect in previous legislation, or spread the costs of a current social problem; (2) Congress provided a specific rationale for applying the statute retroactively; and (3) the severity of consequences of the retroactive application, including the effect on a party’s interest in finality.[14]

 

            Looking to IIRAIRA § 321, the court first notes that there is absolutely no limitation on the temporal reach of the application, which “irrationally sweeps in and disrupts the lives of thousands of immigrants and their families because of their conduct far into the past.”[15]  This lack of temporal limitation fails to give finality and repose to the legal consequences of past conduct, and disrupts the expectations of those who chose to plead guilty to offenses that were not grounds for removal at the time of the plea.

 

            Second, the court notes that Congress gave no rationale, in IIRAIRA itself or in the legislative history, of the rationale behind the sweeping retroactive application of the statute. The court rejects the government argument that the purpose of the statute was simply to increase the group of criminal noncitizens subject to removal because, “[i]t is arbitrary to assume that all [criminal noncitizens] threaten our society because they committed a crime at some time in the past.”[16]  Nor was the statute designed to remedy a prior legal defect, or spread the costs of a social problem.[17]

 

            Finally, the court focuses on the harshness of the consequence of removal itself, and charges that the retroactive application of the aggravated felony definition appears to have been an attack upon a politically weak and unpopular group.[18]

 

            The court distinguishes two immigration cases in which a retroactive statute was challenged on due process grounds and found constitutional. The first, Harisiades v. Shaughnessy,[19] dealt with a perceived national security threat and the addition of a statute making members of the communist party deportable. As the focus of the aggravated felony statute is crime, not national security, this statute is not so “vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government,” as to render Congress’s acts immune from judicial interference.[20]  The second, United States v. Yacoubian,[21] found permissible a statute retroactively making deportable noncitizens convicted of firearm and destructive device offenses. The court distinguished Yacoubian on the basis that the statute dealt with “a narrow class of dangerous crimes . . . [and] the statute’s legislative history was available to assist us in determining the rationale for the retroactive reach of the statute.”[22]

 

            Practitioners may want to bring these arguments directly before the court of appeals. An ideal case might be a long-time permanent resident convicted of a misdemeanor crime of violence or theft offense and sentenced to 365 days in custody between April 24, 1996 and April 1, 1997 (and thus an aggravated felon ineligible for former § 212(c) relief under United States v. Velasco-Medina.[23] Although the immigration courts and the BIA cannot consider constitutional arguments, this challenge to the retroactive application of the aggravated felony statute could be brought before the IJ or BIA to preserve the issues for appeal.

 

[1] United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. Apr. 7, 2004) (concurring opinion) (The concurring opinion was originally part of the majority decision, United States v. Ubaldo-Figueroa, 347 F.3d 718 (9th Cir. 2003); however, this argument was relegated to a concurring opinion upon denial of a request for rehearing en banc).  But see Sena v. Gonzales, 428 F.3d 50 (1st Cir. Nov. 2, 2005) (no due process violation through retroactive application of IIRAIRA expanded definition of “aggravated felony” to one who, at time he pleaded guilty to encouraging an alien to reside illegally in the United States, could not have been deported for that offense because it did not qualify as “aggravated felony”).  See generally Morawetz, Determining the Retroactive Effect of Laws Altering the Consequences of Criminal Convictions, 21 Law and History Review, Issue 1 (Spring 2003) http://www.historycooperative.org/journals/lhr/21.1/ngai.html

[2] Sena v. Gonzales, 428 F.3d 50 (1st Cir. Nov. 2, 2005) (no due process violation through retroactive application of IIRAIRA expanded definition of “aggravated felony” to one who, at time he pleaded guilty to encouraging an alien to reside illegally in the United States, could not have been deported for that offense because it did not qualify as “aggravated felony”); Cordes v. Gonzales, 421 F.3d 889 (9th Cir. Aug. 24, 2005) (retroactive application of aggravated felony definition is supported by a rational basis and does not violate the Due Process Clause of the Constitution).

[3] United States v. Ubaldo-Figueroa, 347 F.3d 718 (9th Cir. Oct. 17, 2003), opinion amended and superseded on denial of rehearing, 364 F.3d 1042 (9th Cir. 2004).

[4] Pub.L. No. 104-208, 110 Stat. 3009-546.

[5] INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001).

[6] Landgraf v. USA Film Prod., 511 U.S. 244 (1994).

[7] Id., 511 U.S. at 245.

[8] St. Cyr, supra, at 2289.

[9] Max-George v. Reno, 205 F.3d 194, 200 (5th Cir. 2000), cert. granted, judgment vacated and remanded on other grounds, 121 S.Ct. 2585 (2001) (holding retroactive application of aggravated felony definition not unconstitutional).

[10] Ubaldo-Figueroa, 347 F.3d 718, at *7-11.

[11] Id. at *7 (quoting United States v. Carlton, 512 U.S. 26, 30 (1994)).

[12] Ibid. (quoting United States v. Carlton, 512 U.S. at 32).

[13] Ibid. (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 223 (1988)).

[14] Id. at *8.

[15] Id. at *9.

[16] Ibid.

[17] Id. at 10 (distinguishing Carlton [defect] and Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 19 (1976) [social cost]).

[18] Id. at *10-11.

[19] Harisiades v. Shaughnessy, 342 U.S. 580 (1952).

[20] Id. at *11 (quoting Harisiades, 342 U.S. at 590).

[21] United States v. Yacoubian, 24 F.3d 1 (9th Cir. 1994).

[22] Ubaldo-Figueroa, at *11, n. 19.

[23] United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. 2002).