Criminal Defense of Immigrants


§ 12.37 (B)

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(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). 



Third Circuit

Augustin v. Attorney General, 520 F.3d 264 (3d Cir. Mar. 20, 2008) (BIA did not err in refusing to impute to a noncitizen who entered the United States as a minor the parent's years of continuous residence in order to meet the seven-year requirement for cancellation of removal), declining to follow Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005) (parent's preceding years of residence in the United States are imputed to a minor child in application for cancellation of removal) , and distinguishing Morel v. INS, 90 F.3d 833 (3d Cir. 1996), vacated on other grounds, 144 F.3d 248 (3d Cir. 1998) (imputing presence in INA 212(c) context).