Criminal Defense of Immigrants

(B)  Family Unity.  IIRAIRA bars a juvenile from eligibility for family unity benefits if s/he is adjudicated as a juvenile delinquent on the basis of certain offenses, regardless of the age of the minor on the date s/he committed the offense, and to benefits “granted or extended after” Sepember 30, 1996.[261]  Counsel can argue that the new rule applies only to acts of juvenile delinquency committed on or after September 30, 1996, because there is a general presumption against retroactive application of the laws.[262]  By expressly providing that certain juvenile dispositions disqualify a minor for family unity benefits, Congress apparently did not intend for the bar to apply to relief other than family unity benefits.  Although the statute does not expressly require that a juvenile court actually find that the person committed such an act, immigration counsel can argue in immigration court that a juvenile court finding is required before the act can be considered delinquent.

[261] The bar applies to a person who: “has committed an act of juvenile delinquency which if committed by an adult would be classified as— (A) a felony crime of violence that has an element [of] the use or attempted use of physical force against another individual, or
(B) a felony offense that by its nature involves a substantial risk that physical force against another individual may be used in the course of committing the offense.” Illegal Immigration Reform and Immigrant Responsibility Act of 1996, §   383, amending Immigration Act of 1990, § 2301(e) (8 U.S.C § 1255a note).

[262] See INS v. St. Cyr, 533 U.S. 289 (2001) (legislation abolishing INA § 212(c) relief is not retroactively applicable to guilty pleas entered prior to its effective date).