Criminal Defense of Immigrants

(B)  Lawful Permanent Residents.  Lawful permanent residents face additional requirements for § 212(h) relief.  Section 212(h) relief will not be granted to a noncitizen who has previously been admitted to the United States as a lawful permanent resident if, since the date of admission as a permanent resident:

          (1)     the person has been convicted of an aggravated felony, or

(2)     the person “has not lawfully resided continuously” in the U.S. for at least seven years immediately preceding the date of “initiation of proceedings to remove the alien.” 

These additional bars were added by IIRAIRA § 348, and were effective upon enactment on September 30, 1996.[490]  Lawful permanent residents have made equal protection challenges to the additional restrictions imposed upon them, and some of these claims have won support in federal district courts.[491]  However, circuit courts of appeals are increasingly rejecting the constitutional claims.[492]

[490] IIRAIRA § 348(b) states that the effective date is “the date of the enactment of this Act and shall apply in the case of any alien who is in exclusion or deportation proceedings as of such date unless a final administrative order in such proceedings has been entered as of such date . . . .”

[491] Song v. INS, 82 F.Supp.2d 1121 (C.D. Cal. 2000) (finding equal protection violation); Jankowski v. INS, 138 F. Supp. 2d 269 (D.Conn. 2001); Catten v. INS, 178 F.3d 110 (3d Cir. 1999) (citing Song with approval); but see Alvarez-Garcia v. Ashcroft, 378 F.3d 1094 (9th Cir. Aug. 10, 2004) (equal protection does not require granting immigration judges same jurisdiction to adjudicate adjustment petitions in pre-IIRAIRA exclusion proceedings that immigration judges have in deportation proceedings).  See also Beharry v. Reno, 183 F.Supp.2d 584 (E.D.N.Y. 2002) (finding that the least restrictive means to bring the INA into compliance with customary international law is to extend INA § 212(h), 8 U.S.C. § 1182(h) relief to all eligible aggravated felons subject to removal, with the possible exception of those convicted of murder, torture, or who are a security threat to the United States), reversed, 329 F.3d 51 (2d Cir. May 1, 2003).

[492] Malagon deFuentes v. Gonzales, 462 F.3d 498 (5th Cir. Aug. 28, 2006) (no equal protection violation to impose additional eligibility requirements on LPRs seeking admission that are not required of non-LPRs); Camacho-Salinas v. U.S. Att’y Gen., 460 F.3d 1343 (11th Cir. Aug. 21, 2006); Dieppe v. Quarantillo, 337 F.3d 326 (3d Cir. July 28, 2003); Lukowski v. INS, 279 F.3d 644, (8th Cir. 2002); Taniguchi v. Schultz, 303 F.3d 950, 957-58 (9th Cir. 2002); Finau v. INS, 277 F.3d 1150 (9th Cir. 2002); De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 640 (3d Cir. 2002); Jankowski-Burczyk v. INS, 291 F.3d 172, 178 (2d Cir. 2002); Moore v. Ashcroft, 251 F.3d 919 (11th Cir. 2001); Lara-Ruiz v. INS, 241 F.3d 934, 947 (7th Cir. 2001); Umanzor v. INS, 178 F.3d 1286 (4th Cir. 1999).