6th Circuit: In determining whether to apply pre-1996 or post-1996 definition of aggravated felony, removal proceedings begin when non-citizen is served with NTA, not when NTA filed with court

This week the Sixth Circuit held that removal proceedings begin on the day that a non-citizen is served with a Notice to Appear or Order to Show Cause not on the day that the NTA is filed with the Immigration Court. Kentucky Rev. Statute § 507.050, and assault in the second degree under extreme emotional disturbance, Kentucky Rev. Statute §§ 508.020, 508.040. Saqr v. Holder, No. 07-3794, slip op. at 2. On January 7, 2004, Saqr was sentenced to four years imprisonment on each count to be served consecutively. Saqr v. Holder, No. 07-3794, slip op. at 2.

The dates on which the former INS performed particular actions is critical in this case. On February 11, 1994, the INS served Saqr with an Order to Show Cause. Saqr v. Holder, No. 07-3794, slip op. at 2. The OSC charged that Saqr committed a crime involving moral turpitude. Saqr v. Holder, No. 07-3794, slip op. at 2. On that date, the INS also issued a warrant for Saqr’s arrest (though he was in prison). Saqr v. Holder, No. 07-3794, slip op. at 2. The INS did not file this OSC with the Immigration Court nor did it cancel the arrest warrant. Saqr v. Holder, No. 07-3794, slip op. at 3.

Saqr was released from prison and into INS custody in early July 1998. Saqr v. Holder, No. 07-3794, slip op. at 3. On August 18, 1998, the INS served him with an NTA. Saqr v. Holder, No. 07-3794, slip op. at 3. This NTA also charged him with having committed a CIMT. Saqr v. Holder, No. 07-3794, slip op. at 3. On September 9, 1998, the INS amended the NTA to include a charge that Saqr committed an aggravated felony. Saqr v. Holder, No. 07-3794, slip op. at 3. The INS filed the NTA with the Immigration Court on September 9, 1998. Saqr v. Holder, No. 07-3794, slip op. at 3.

While all this was happening in Saqr’s case, Congress amended the INA so as to expand the definition of aggravated felony. Prior to September 30, 1996, the crime of violence category of aggravated felony required a term of imprisonment of “at least 5 years.” Saqr v. Holder, No. 07-3794, slip op. at 8 (quoting INA § 101(a)(43)(F) (1994)). Congress changed the definition of crime of violence in 1996 so that now a crime of violence constitutes an aggravated felony if the term of imprisonment is “at least one year.” Saqr v. Holder, No. 07-3794, slip op. at 9 (quoting INA § 101(a)(43)(F) (1996)). This definition remains in effect today. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 specified that the new definition “shall apply to actions taken on or after the date of the enactment of this Act,” September 30, 1996. Saqr v. Holder, No. 07-3794, slip op. at 9 (quoting Pub. L. 104-208, 110 Stat. 3009-628).

As such, the Sixth Circuit had to decide what constitutes “actions taken” under IIRIRA. DHS argued that an action “commences” on the date a charging document is filed with the Immigration Court. Saqr v. Holder, No. 07-3794, slip op. at 9. The Sixth Circuit disagreed.

Instead, the Sixth Circuit held that the BIA erred in applying the post-1996 definition of aggravated felony because removal proceedings against Saqr actually began prior to the 1996 enactment of the expanded definition of aggravated felony. Saqr v. Holder, No. 07-3794, slip op. at 8-9. According to the Court, “it is difficult to conceive how “action taken” is limited to the time jurisdiction vests in the Immigration Court.” Saqr v. Holder, No. 07-3794, slip op. at 10. The Court added that “the issuance of an arrest warrant by INS which has not been cancelled is more than adequate to constitute an ‘action taken’ for purposes of triggering application of the pre-IIRIRA definition of aggravated felony.” Saqr v. Holder, No. 07-3794, slip op. at 10 (relying on Alanis-Bustamante v. Reno, 201 F.3d 1303, 1310 (11th Cir. 2000) and Wallace v. Reno, 194 F.3d 279, 287 (1st Cir. 1999)). “Accordingly, this Court is persuaded by the Eleventh and First Circuits that removal proceedings begin when an alien is served with a Notice to Appear.” Saqr v. Holder, No. 07-3794, slip op. at 11.

Because Saqr was sentenced to a term of imprisonment of four years, his convictions did not constitute an aggravated felony under the pre-1996 definition. Saqr v. Holder, No. 07-3794, slip op. at 11-12.

Though his case is limited to a discussion of the crime of violence category of aggravated felony presumably it applies to all aggravated felonies because IIRIRA applies to the entire range of aggravated felonies.