My oldest case, a matter which I have been litigating in immigration court, the BIA and the 9th Circuit Court of Appeals, for the past 16 years (since 1997), was decided by the 9th Circuit yesterday in a "For Publication" opinion -Lawrence v. Holder, Attorney General, No 07-74829. The representation of aliens determined by the immigration court to be "aggravated felons" (Ag Felons) is among the most difficult and nuanced endeavors for an immigration attorney. Ag felons are stripped of many forms of immigration relief and often find themselves with an extremely narrow set of options (and sometimes no option at all) for remaining in the United States.
In this case, I attempted on behalf of the alien, a native and citizen of Panama, to bring immigration law back to its own accepted and time-tested definition of the term "admission" or "admitted" as "the lawful entry of the alien into the United States after inspection and authorization by an immigration officer" as set forth in 8 U.S.C. §1101(a)(13)(A). This concept was important since the alien had served more than a 5 year sentence and 212(c) relief, which was the sole relief being requested by the alien, is generally unavailable "to an alien who has been convicted of one or more aggravated felonies and has srved for such felony or felonies a term of imprisonment of at least five years." INA §212(c).
However, this 5 year imprisonment bar did not go into effect until November 29, 1990 with the passage of IMMACT, on November 29, 1990. IMMACT 511(b) specifically provided that the 5 year imprisonment bar "shall apply to admissions occurring after the date of the enactment of this Act" Id, which was Nov. 29, 1990. Since the alien in this particular case had last been "admitted" by lawfully entering the United States after inspection and authorization by an immigration officer, on June 16, 1987 as a Lawful Permanent Resident (LPR), I argued that the 5 year imprisonment bar did not apply to the alien, and he was in fact eligible for what we call "retroactive 212(c) relief" under INS v. St. Cyr, 533 U.S. 289(2001).
The Government's and BIA's position was that the word "admission" in this particular regard, meant the aliens actual application for 212(c) relief (not his authorized entry), and since the alien had applied for 212(c) relief on March 2, 2004, his "admission" for the purpose of 212(c) relief was an admission after November 29, 1990. This was not argued in an absence of some legal authority, including In Re A-A-, 20 I&N Dec. 492 (BIA 1992) which held as much. Yet, in spite of this, it was clear to me that the government's and BIA's argument and even A-A- flew in the face of the accepted and well settled definition of the term "admission." This new concept of "admission" appeared to me to have been a hastily crafted and opportunistic maneuver to reduce the class of ag felons who might qualify for 212(c). Only lawyers, could change as easily understood a word as "admission" from its regular ussage of essentially being allowed entrance, to "an application for entrance or admission." Clearly the 212(c) application is not an admission but rather an application for admission wherein such admission might in fact be denied. Essentially, the term "admission" appears to be whatever the government wishes it to be at any given time, to suit any given agenda it may have at the time. In my view this appeared tantamount to changing the rules in the middle of the game to favor a particular agenda.
It should be clear that in Lawrence v. Holder, the Court, in siding with the government's definition of "admission," simply finds that their determination is "based on a permissible construction of the statute." citing Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). The court further pointed to the fact that other sister Circuit Courts of Appeal had taken the government's side with regard to this particular issue.
And so our role in this matter comes to an end. The case may be of use to attorneys and judges in the future who are faced with these particular issues.
By: Duane Hamilton
