Criminal Defense of Immigrants

(E)  Ninth Circuit on Retroactivity.  In February, 2006, the Ninth Circuit applied the retroactivity analysis in INS v. St. Cyr[309] to find that the repeal of former suspension of deportation could not be retroactively applied to a noncitizen convicted of a crime of moral turpitude, but who was otherwise eligible for suspension, until AEDPA and IIRAIRA made the conviction into an aggravated felony and replaced suspension of deportation with cancellation of removal.[310]  At a minimum, this case may allow a non-LPR with a pre-April 1, 1997 conviction (or pre-November 29, 1990, in the case of an aggravated felon), to apply for suspension of deportation even though he/she would be ineligible for non-LPR cancellation of removal because of the criminal conviction.[311]  Certain lawful permanent residents otherwise barred from LPR-cancellation of removal and INA § 212(c) relief may also be able to apply for suspension under this decision.[312]

[309] INS v. St. Cyr, 533 U.S. 289 (2001) (repeal of INA § 212(c) impermissibly retroactive to certain noncitizens).

[310] Lopez-Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. Feb. 16, 2006).

[311] See § 24.5, supra.

[312] See K. Brady, Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws § 11.4 (2007) for in-depth analysis of Lopez-Castellanos.