Cite as “Posted on AILA InfoNet, Doc. No. 01062801 ( June 28, 2001 ).”

INS v. St. Cyr, No. 00-767 (U.S. June 25, 2001)

Calcano-Martinez v. INS, No. 00-1011 (U.S. June 25, 2001)

This Practice Advisory was written by lawyers at the American Immigration Law Foundation, the American Civil Liberties Union Immigrants' Rights Project, and the National Immigration Project of the National Lawyers Guild, and members of the American Immigration Lawyers Association who have worked on these cases. This information is accurate and authoritative but does not substitute for individual legal advice provided by a lawyer familiar with the facts of an individual case.

As explained in more detail below, for additional information pr advice, please send your inquiry to stcyr@ailf.org, along with your telephone and fax numbers. Someone will contact you.

Q. What did the Supreme Court decide?

A. The Supreme Court issued a sweeping decision that rejected the government's court-stripping and retroactivity arguments in their entirety. The decision resolved two issues: (1) the jurisdiction of the federal courts in cases where an immigrant is subject to a final order of removal based on one of the criminal convictions listed in INA §242(a)(2)(C) and; (2) the continuing availability of the waiver of deportation known as "§212(c) relief" for immigrants in removal proceedings.

On jurisdiction, the Supreme Court held that noncitizens who are subject to a final order of removal based on one of the criminal convictions listed in INA §242(a)(2)(C) can still go to federal court to raise a pure question of law challenging their order of removal. In those cases where the Illegal Immigration Reform and Immigrant Responsibility Act of [September] 1996 (IIRAIRA) prohibits review in the court of appeals by a "petition for review," the noncitizen can bring a legal challenge to the final order of removal via a writ of habeas corpus in federal district court under 28 USC §2241.

On the availability of §212(c) relief, the Court held that people who had pleaded guilty to a deportable offense at a time when they may have been eligible for §212(c) relief -- arguably, whether the plea was before the enactment of the Antiterrorism and Effective Death Penalty Act of [April 24] 1996 (AEDPA) or afterwards -- remain eligible for the §212(c) waiver. This is so even if they are placed in removal proceedings later. As long as they were eligible for the waiver at the time of their guilty plea under the law as it existed at that time, they remain eligible for the waiver regardless of when the INS started deportation or removal proceedings.

Q. So this means that if my client was eligible for a §212(c) waiver at the time of his or her guilty plea but only later was placed in removal proceedings, he or she can still apply for the waiver?

A. Yes. Those are the facts in St. Cyr's case and that is what the Supreme Court held.

Q. Does my client have to prove he or she actually relied on the availability of §212(c) relief at the time he or she pleaded guilty?

A. No. Proving actual reliance on the availability of §212(c) relief is not required. Some circuit courts had imposed a "reliance" requirement, but the Supreme Court decision did not require such a showing. Also, the Supreme Court affirmed the Second Circuit's ruling in St. Cyr, which itself did not require the noncitizen to prove reliance.

Q. Do these decisions resolve all the pending issues regarding jurisdiction and retroactivity surrounding AEDPA and IIRAIRA?

A. Not by any means. Many other issues have been decided by lower courts, and there remain significant jurisdictional and substantive issues to be resolved by the lower courts and, of course, possibly by the Supreme Court in later decisions.

Q. Did the Supreme Court decide whether noncitizens are entitled to bring other claims in habeas corpus actions, such as factual errors or abuse of discretion?

A. Other kinds of claims may or may not be reviewable and require more detailed analysis and explanation than this advisory can provide. If your client's case raises a "pure question of law," it may be directly governed by St. Cyr and Calcano. If your client has other claims, contact us at the e-mail address listed below for further information and advice.

Q. Do St. Cyr and Calcano mean that a noncitizen who is deportable based on a criminal conviction should not file a petition for review?

A. No. The petition for review in the court of appeals is always the first avenue to pursue. Some claims, even for "criminal aliens," must be raised in the courts of appeals through a petition for review. If you have any doubt, file a petition for review in the appropriate court of appeals to preserve your clients' rights.

You must be sure to comply with the 30-day filing deadline that governs petitions for review. You have only 30 days from the date of the BIA's order (not the date it was mailed by the BIA or received) to file the petition for review. This filing date is jurisdictional, meaning that if you miss the deadline, you cannot file it later.

The petition for review is only one paragraph, simply indicating that you are seeking review of the BIA's decision (see sample at the end of this advisory). You can indicate on it that you are filing it as a protective measure, in case it should be later determined that the court of appeals was the proper forum for your client's particular case.

Q. What are some of the circumstances where I should still file a petition for review in the court of appeals?

A. In any case that does not concern a "criminal alien," you must file a petition for review in the court of appeals. In "criminal alien" cases, the courts of appeals generally have held that claims regarding alienage, deportability, or whether the conviction is an aggravated felony, for example, should be raised in a petition for review in the court of appeals. You must consult the law of your circuit, but if you have any doubt about what to do, file a protective petition for review in the court of appeals within 30 days of the BIA's order. If the petition for review is ultimately dismissed for lack of jurisdiction, you can file a habeas corpus petition in the district court later.

Q. What if no petition for review was filed within 30 days, but a petition for habeas corpus was filed?

A. If in fact the case should have been brought in the court of appeals through a petition for review, the district court may be willing to transfer it to the court of appeals. Your argument for transfer will be particularly strong if you filed the habeas corpus petition within 30 days of the BIA's order.

Q. What are some of the situations where a petition for review definitely should be filed in the relevant court of appeals?

A. Here are some of the situations where a petition for review in the court of appeals should be filed. The INS may argue the court lacks jurisdiction. St. Cyr and Calcano may be helpful in some of these areas but others remain to be determined:

Cases involving asylum, withholding of removal or protection under the Convention Against Torture;

Cases where the noncitizen is alleged to be deportable for conviction of a crime, and is challenging whether he or she is deportable on that basis. An example would be arguing that a conviction is not a "crime of violence" under INA §101(a)(43)(F) and hence not an "aggravated felony";

Denials of "discretionary" relief, such as suspension of deportation, cancellation of removal, etc. The limit on review of "discretionary" decisions is being tested in the courts now.

Q. What should I do in my client's individual case?

A. Of course, this depends upon where your client's case is in the pipeline. If your client filed a habeas corpus action asserting a right to apply for §212(c) relief in removal proceedings, the Supreme Court has affirmed the court's jurisdiction.

If your client has a pending case at the court of appeals and briefs already have been filed, you may want to file a "28J" letter. This is a letter to the court authorized by Rule 28(j) of the Federal Rules of Appellate Procedure. This rule permits parties to submit additional authority after they have filed their briefs. You may submit only a letter, and very briefly, in one sentence or two, explain why the Supreme Court's decisions in St. Cyr and Calcano affect your client's case.

If your client's habeas corpus petition is pending at the district court or petition for review is pending at the court of appeals and all the issues were resolved by the Supreme Court's decisions in St. Cyr and Calcano, you may want to file a motion to remand to the BIA or to the immigration judge for a hearing on the merits of your client's §212(c) application.

If your client has a pending deportation or removal case at the BIA and the legal issue was resolved by the Supreme Court, you may want to file a motion to remand to the immigration judge for a hearing on the merits of your client's §212(c) application.

If your client is subject to a final order of deportation or removal and clearly falls under the Supreme Court's ruling, but does not have a federal case pending--perhaps because no petition for review or habeas corpus was filed--you may want to file a motion with the BIA or the IJ (whoever last had the case) to reopen sua sponte so that your client can apply for §212(c) relief.

You also may want to file a request for a stay of deportation or removal. You may also want to prepare to file a habeas corpus petition if that should become necessary. You also should try to be prepared for the government moving to dismiss your client's case or taking some other action based on St. Cyr and Calcano.

Q. Where can I obtain a copy of the Supreme Court's decisions?

A. Both cases are available in full text on AILA's InfoNet.

Also, they are available on the U.S. Supreme Court's Web site (www.supremecourtus.gov/opinions/00slipopinion.html), and from Cornell University's Web site (supct.law.cornell.edu/supct/supct.June.2001.html)

Q. How can I obtain materials and more advice about what to do in my client's case?

A. A sample petition for review follows at the end of this advisory. There are sample petitions for habeas corpus on AILA's InfoNet in the Brief Bank

We will be hosting a teleconference soon to review the impact of the decisions and answer specific questions. We will publicize this widely--stay tuned.

Also, we will be issuing additional practice advisories soon with more detailed analysis and advice. These advisories will address how St. Cyr and Calcano affect more complicated situations, such as people who already have been deported; the stop-time rule under IIRAIRA; reinstatement of removal; defenses to criminal reentry charges; and the history of §212(c) changes.

In addition, there are several organizations working on these issues who can give you advice. We have established a special e-mail address for questions related to these cases. If you use this address, your question will be forwarded to the appropriate person for advice. Please send a summary of the facts and procedural posture of the case, along with your telephone and fax numbers, to stcyr@ailf.org. Be sure to flag any imminent deadlines or urgencies. Someone will respond to your inquiry, so please do not make repeated calls to different organizations and people.

Remember, please email your questions to stcyr@ailf.org and please include your telephone and fax numbers.

UNITED STATES COURT OF APPEALS

FOR THE _______CIRCUIT

PETITION FOR REVIEW

The above named petitioner hereby petitions for the review of a final order of

[deportation] [removal] entered by the Board of Immigration Appeals on ______________.

[date of BIA decision]. A copy of the BIA’s decision is attached.

_________________________________

[signature of attorney or petitioner ]

Dated: _________________

[ATTACH CERTIFICATE OF SERVICE. THIS DOCUMENT SHOULD BE SERVED ON THE ATTORNEY GENERAL, THE OFFICE OF IMMIGRATION LITIGATION, AND THE LOCAL INS DISTRICT COUNSEL’S OFFICE, IF ANY, AND POSSIBLY THE LOCAL INS REMOVAL OFFICERS. ]