In late June 2001 the United States Supreme Court issued rulings in two cases, Immigration and Naturalization Service v St. Cyr, 00-767 and Zadvydas v. Davis, 99-7791. Coming as they did, nearly 4 ½ years after Congress passed sweeping and harsh immigration reforms in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and on the heels of decisions upholding INS prosecution of certain immigrants the St. Cyr and Zadvydas decisions may herald a welcome – and overdue – period of compassion and a positive reform in immigration law.

As background, on September 30, 1996, when Congress passed the IIRIRA, Congress revoked section 212 (c) of the Immigration and Nationality Act. Section 212 (c) provided relief from deportation for aliens – including criminal aliens – who had residing continuously in the United States for a minimum of seven years. Section 212 (c) gave immigration judges discretion to terminate deportation proceedings against such aliens and grant them residence in the United States. In 1996, Congress replaced section 212 (c) with Section 248 of the IIRIRA. This new section of the INA gave aliens in removal proceedings the ability to apply for “Cancellation of removal” under extremely restricted criteria.

First, an alien who was already a legal permanent resident could apply for cancellation of removal only if the alien could show that he or she had been a permanent resident for at least 5 years, had resided continuously in the United States for at least 7 years, and had not been convicted of any aggravated felony. This clearly went beyond the criteria for prior INA section 212 (c) relief, which was available even to aggravated felons.

Likewise, in enacting cancellation of removal for non-permanent aliens, Congress imposed even harsher criteria including physical presence in the United States for at least 10 years, and requires a showing that the removal would result in “exceptional and extremely unusual hardship to the alien’s permanent resident or citizen spouse, parent or child.”

Just how hard it is to meet the “exceptional and extremely unusual hardship” standard was illustrated in the Board of Immigration Appeals decision In Re Francisco Javier Monreal -Aguiniaga (A 93 093 210, May 4, 2001). Monreal -Aguiniaga was ordered removed from the United States by an immigration judge. This decision was upheld by the Board of Immigration Appeals despite Mr. Aguiniaga’s residency in the United States since 1980 when he entered illegally as a child of 14 and three U.S. citizen children born in the United States. Having three U.S. citizen children and a spotless record was not sufficient for the BIA to terminate proceedings and grant permanent residency to Mr. Monreal -Aguiniaga because he did not meet the extremely high standard of “exceptional and extremely unusual hardship” imposed by the IIRIRA.

Cancellation of removal is a useful defense for Permanent Residents’ (LPR’S) only if the LPR has been a resident for at least 5 years and has not been convicted of an aggravated felony. For non-LPR’s, the standard of “exceptional & extremely unusual hardship” appears to be practically impossible to meet, given the decision in Monreal-Aguiniaga, above.

The Supreme Court’s decision reinstating section 212 (c) relief applies only to those aliens who are currently in proceedings for removal because of crimes committed prior to passage of the IIRIRA. Aliens who were convicted of crimes after the passage of the IIRIRA cannot seek 212 (c) relief. And, unfortunately, the thousands of aliens removed from the United States after the passage of the IIRIRA who were denied access to an immigration Judge’s discretion under section 212 (c) are now outside of the country and unable to return. Therefore, the St. Cyr decision will benefit aliens who are either currently in proceedings and for whom a final order of deportation has not yet been issued, or who may have appealed their removal to the BIA, or against whom the INS has not yet commenced proceedings for removal. Therefore, the universe of affected aliens who may be able to benefit from the St. Cyr decision has shrunk considerably since the St. Cyr decision came over 4 ½ years after the enactment of the IIRIRA.

The second decision of significance is Zadvydas v. Davis. That decision directly addresses and could remedy the plight of INS detainees known as “lifers”. Lifers are aliens held in detention subject to a final order of removal. The reason that they have not been removed from the United States is that there is no foreign country ready, willing and able to accept these detainees. Again, pursuant to immigration law, these detainees must be held in INS custody until such time as they are removed. Most of these detainees are either criminals or aggravated felons. Keep in mind also that some of these aggravated felons are convicted for relatively minor offenses. These offenses may not be classified as aggravated felonies under state law, but are defined as aggravated felonies under immigration law. As aggravated felons, these aliens are subject to mandatory detention and are ineligible to seek cancellation of removal, discussed above.

Lifers are held indefinitely in INS detention facilities or federal or state facilities until arrangements for their removal can be made with the foreign country willing to accept them. This obviously presents a terrible plight for individuals who are stateless or have no place to go or whose countries do not have diplomatic relations with the United States. These aliens may have already served their time in a state or federal penitentiary for the crime they have committed. They are once again placed in detention, this time indefinitely, not as punishment for their crime but to secure their presence in order to effectuate their removal from the United States.

In Zadvydas, the Supreme Court held that the INS could not indefinitely detain criminal aliens after a final order of deportation if these aliens could not be shown to have a reasonable likelihood of removal in the immediate foreseeable future. Under that decision, the INS may detain such an aggravated felon for up to six months following a final order of removal. If during that first six months the alien is not removed, then the INS has the burden of showing why the alien should continue to be detained. If the INS can not meet this burden, the alien must be released. This is welcome news indeed for some criminal aliens, especially those who have families to support. In a recent memo released following the Zadvydas decision, Attorney General John Ashcroft indicated his displeasure at the ruling. Given this negative political climate it is assumed that the INS will probably fight the release of any “lifer” as much as possible.

Neither of the above issues is by any means settled by the Supreme Court decisions. Even though the decisions grant substantial relief in the case of aliens eligible for section 212 (c) discretionary approval, there are still many issues that will arise as to eligibility, retroactive application of the Supreme Court decision and the effective date of various amendments adding deportability provisions to the INA.

Likewise, the Service still has to work out criteria to demonstrate why an alien should continue to be held in INS custody following the initial six month period of detention of removal.

Nevertheless, the St. Cyr and Zadvydas decisions are welcome news indeed and perhaps a glimmer of hope that the anti-immigrant pendulum is showing signs of swinging toward a more reasonable, just, and centrist philosophy.

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(Author’s note: How the tragic events of September 11, 2001 will affect the application of the St. Cyr and Zadvydas decisions is unclear. Congress has already deliberated and passed anti-terrorist legislation which significant negative implications for legal permanent resident immigrants and non-immigrants alike. I would speculate that the events of September 11, 2001 will be the catalyst for a harsher and more restrictive and less forgiving immigration policy.)

Copyright, Farhad Sethna, 2001. All Rights Reserved.