The U.S. Court of Appeals for the Seventh Circuit struck a blow to one major limitation that Congress imposed on cancellation of removal, the primary form of relief from removal available under the current version of the Immigration and Nationality Act. Jeudy v. Holder, No. A026-740-736, slip op. (7th Cir. September 15, 2014). Judge Hamilton wrote the panel’s decision.
This case involved a migrant who became an LPR in 1989 and who was convicted of a drug offense in 1995. There is no question that his 1995 conviction rendered him removable. The more important question is whether his conviction also precluded him from applying for cancellation of removal under INA § 240A(a).
This is where the “stop-time rule” enters. To be eligible for cancellation, an LPR must have accrued seven years of continuous residence, among other requirements. INA § 240A(a)(2). The stop-time rule, however, stops the clock when an LPR is either served a Notice to Appear for removal proceedings or—and this is the provision that is pertinent to Jeudy’s situation—on the date that an LPR commits certain removable offenses. Everyone agrees that Jeudy’s drug crime would stop the clock on his continuous residence short of the required seven years if the stop-time rule applies.
So does it? The BIA, following its longstanding precedent, concluded it did, thus Jeudy was statutorily ineligible for cancellation. Jeudy, slip op. at 2 (citing Matter of Robles-Urrea, 24 I&N Dec. 22, 27 (BIA 2006), and Matter of Perez, 22 I&N Dec. 689, 692-93 (BIA 1999) (en banc)).
The Seventh Circuit came to the opposite conclusion. Courts presume that statutes apply prospectively. For a statute to apply retroactively, “[t]he statutory language must convey a clear intent to authorize retroactivity, assuring the courts that ‘Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.’” Jeudy, slip op. at 7 (quoting Landgraf v. USI Film Products, 511 U.S. 244, 272-73 (1994)). To gauge whether Congress has done this, courts perform a two-part inquiry: “first, whether Congress expressed clear intent for retroactive application, and then whether the statute would have an impermissible retroactive effect in the given case.” Jeudy, slip op. at 8.
The Seventh Circuit first addressed whether Congress clearly expressed its intent that the stop-time rule apply retroactively. It did not, the court concluded. The stop-time rule doesn’t even include a temporal reference and there is no other indication in the INA that Congress clearly intended for it to apply retroactively. Id. at 9, 16.
The Seventh Circuit then addressed whether applying the stop-time rule retroactively would have an impermissible effect on Jeudy. It would, the court concluded because it would deny him the right to seek discretionary relief from removal. It’s true, the court acknowledged, that cancellation—the form of relief that Jeudy sought—didn’t exist until 1996 when it was created by the same public law (the Illegal Immigration Reform and Immigrant Responsibility Act) that created the stop-time rule. But this isn’t the proper focus. Instead, we should focus on the fact that cancellation is only the newest form of discretionary relief available to migrants. “That [discretionary] relief has been a fixture of immigration law in different forms since 1917.” Id. at 17. Calling it something different and imposing different eligibility criteria “does not avoid the unfairness of retroactive application of the stop-time rule to Jeudy’s eligibility for discretionary relief, which he had acquired before IIRIRA and its stop-time rule took effect.” Jeudy, slip op. at 17.
The stop-time rule, therefore, does not apply retroactively.
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