Wednesday, July 9, 2003
‘Serious Crime’ Asylum Bar Not Retroactive, Appellate Court Rules
By DAVID WATSON, Staff Writer
A regulation barring asylum for persons convicted of a “particularly serious crime” does not apply where the conviction was sustained prior to the regulation’s effective date, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Language in the regulation making it applicable to asylum applications filed before a given date did not mean it applied to older convictions as well, Judge Barry G. Silverman wrote for the court panel.
Silverman, whose opinion was joined by Senior Judges James R. Browning and Betty B. Fletcher, rejected a government contention that the regulation, first adopted in 1990 and amended in 1995, was unambiguously retroactive. That contention was based on language in the regulation making it applicable to all asylum applications filed before April 1, 1997.
If the regulation could not be applied to aliens convicted prior to that date, the Immigration and Naturalization Service argued, the provisions making it applicable to asylum applications filed before that date would be meaningless.
“This is incorrect,” Silverman explained. “Due to the pace at which many asylum cases are resolved, it is entirely possible that an asylum application filed before April 1, 1997 may not be resolved until many years later. If the applicant is convicted of a particularly serious crime while the application is pending, the regulation could apply to the applicant.”
Citing INS v. St. Cyr (2001) 533 U.S. 289, Silverman observed:
“The standard for finding that a statute or regulation unambiguously directs retroactive application is a demanding one....The language must be ‘so clear that it could sustain only one interpretation.’”
The regulation, 8 C.F.R. Sec. 208.13(c)(2)(i)(A), “expressly states that it applies to asylum applications filed before April 1, 1997,” the judge pointed out. “However, the regulation does not clearly express that the regulation also applies to convictions rendered before the effective date of the regulation.”
Silverman said the petitioner, Jayantha Edirsinghe Kankamalage, was correct in maintaining that retroactive application of the provision would subject him to a “new disability, in respect to transactions or considerations already past”-something not permitted under St. Cyr.
Kankamalage, a Sri Lankan, had entered the U.S. in 1982, overstayed his visa, and pled guilty to robbery in 1988, serving a year in prison. Deportation proceedings against him were initiated in 1989.
In 1991 an immigration judge found that Kankamalage was statutorily eligible for asylum, having shown a well-founded fear of future persecution in Sri Lanka, but denied relief based on his conviction and prior drug use.
Silverman distinguished the Ninth Circuit’s 2000 decision in United States v. Velasco-Medina, 305 F.3d 839. Velasco-Medina, he noted, became deportable when his 1996 conviction burglary conviction became an “aggravated felony” because of a 1997 change in the definition of that term.
Kankamalage’s situation, Silverman explained, was analogous to that of the immigrant considered by the U.S. Supreme Court in St. Cyr.
“Kankamalage’s situation is more like St. Cyr’s than Velasco-Medina’s,” Silverman explained. “At the time he pleaded guilty, Kankamalage, unlike Velasco-Medina, +was+ deportable, just as St. Cyr was. And his guilty plea left him qualified to apply for discretionary relief, just as St. Cyr’s did. A subsequent change in the law then rendered Kankamalage, like St. Cyr, ineligible for such relief.”
The judge noted that on remand, Board of Immigration Appeals would not be “prohibited from taking into account Kankamalage’s robbery conviction when it decides whether or not to grant asylum as a matter of discretion.”
“We hold only that the conviction does not automatically disqualify Kankamalage from discretionary consideration.”
San Francisco attorney Robert Jobe, who represented Kankamalage, told the MetNews yesterday that the court’s decision could benefit not only immigrants who, like his client, pled guilty before 1990, but also others convicted before January of 1995, when its current retroactivity provisions went into effect.
Jobe said he remained hopeful that Kankamalage would be granted asylum on remand.
“This poor guy has been fighting this case for more than a decade,” the attorney commented.
Noting that the conviction is now over 15 years old, Jobe explained:
“I can’t imagine that in the exercise of discretion, and continuing to believe his life is in danger, his application would not be granted.”
The case is Kankamalage v. Immigration and Naturalization Service, 02-71415.
Copyright 2003, Metropolitan News Company