Criminal Defense of Immigrants

(C)  Challenge to Retroactive Application.  Counsel can attempt to challenge the application of the current firearms ground to pre-1994 convictions in light of INS v. St. Cyr,[115] in which the Supreme Court refused to infer that Congress wished to disturb the settled expectations of a knowledgeable defendant at the time of plea by applying an expanded definition of a ground of deportation retroactively, absent an affirmative indication of congressional intent to do so. 

While one federal district court applied St. Cyr to find the 1994 definition should not be applied retroactively,[116] this case was overturned by the Second Circuit, which found that (as with the aggravated felony definition), Congress had explicitly made the 1994 definition retroactive.[117]

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

[116] Drax v. Ashcroft, 178 F.Supp.2d 296, 307-308 (E.D.N.Y. 2001) (1994 amendments adding attempt and conspiracy as firearms offenses could not be applied retroactively, under the Supreme Court’s analysis in INS v. St. Cyr).

[117] Drax v. Reno, 338 F.3d 98 (2d Cir. Aug. 4, 2003) (relying on the expressly retroactive language in the Technical Corrections of 1994, Second Circuit found the amendments to the firearm ground of deportation adding attempt and conspiracy were expressly retroactive and applied to convictions occurring prior to the amendment).