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Immigration – removal — retroactivity

By: WISCONSIN LAW JOURNAL STAFF//August 1, 2013//

Immigration – removal — retroactivity

By: WISCONSIN LAW JOURNAL STAFF//August 1, 2013//

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United States Court of Appeals For the Seventh Circuit

Civil

Immigration – removal — retroactivity

Where an alien’s convictions are more than 35 years old, statutes cannot be applied retroactively to make them aggravated felonies.

“We conclude that the statutes are wholly unclear on the point whether Section 7344 survives both the 1990 Act and IIRIRA. As we have just pointed out, judges addressing this issue have taken four distinct and often contradictory approaches: (1) deference to Lettman (Eleventh and Fourth Circuits plus Ninth Circuit dissent); (2) no deference to Lettman, but reliance on Section 602(d) of the 1990 Act (Second Circuit); (3) the IIRIRA amendments to 8 U.S.C. § 1101(a)(43) (dissenting judge in this case); and (4) no retroactive consequences of expanded definition for removability (Ninth Circuit majority). This level of ambiguity cannot overcome the presumptions against implied repeal and retroactivity. As the Supreme Court reminded us in Vartelas, because ‘[s]everal provisions of the Constitution . . . embrace the Doctrine’ against retroactivity, we need a clear statement of intent from Congress before we will take such an important step. 132 S. Ct. at 1486. Because Zivkovic’s aggravated felony convictions were more than a decade old before the 1988 statute took effect, they cannot be used as a ground for removal (although they can be used for many other purposes under the statute). Before closing, we state the obvious: we are only construing the law as it now stands. Congress has broad powers in this area, and it may change the rules in the future, either prospectively or, with the necessary clear statement, retrospectively.”

Petition Granted.

12-2143 Zivkovic v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Wood, J.

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