Criminal Defense of Immigrants

(B)  Effective Date Issues. The current statutory bar for aggravated felons and particularly serious crimes applies to all applications for asylum made after April 1, 1997.[267]  The initial statutory aggravated felony bar[268] to asylum was passed as part of IMMACT 90, and was effective only for applications made following November 29, 1990.[269]  The first mandatory PSC bar to asylum was created by regulation, effective October 1, 1990.[270]  The Ninth Circuit held that the regulatory bar[271] could not be applied retroactively to a noncitizen who was convicted prior to the October 1, 1990 effective date of the regulation.[272] 

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 (where he/she will be subject to the retroactive bar),[273] since renewing an asylum claim in deportation proceedings is considered a new filing for purposes of determining which version of the law and regulations applies to the asylum applicant.[274]

[267] IIRAIRA § 604(c).

[268] Note that this bar only applied to aggravated felonies, without reference to “particularly serious crimes.”

[269] Immigration Act of 1990 § 515(a)(1), adding INA § 208(d), 8 U.S.C. § 1158(d).  Effective date provided at Immigration Act of 1990 § 515(b)(1).

[270] See 8 C.F.R. § 208.13(c)(2)(i)(A) (2002).  Prior to October 1, 1990, conviction of a particularly serious crime was negative discretionary factor, not a mandatory bar.  See Yang v. INS, 79 F.3d 932, 935 (9th Cir. 1996).

[271] 8 C.F.R. § 208.13(c)(2)(i)(D).

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

[273] 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).

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