Board Resolution ~ 05/01/1999

Approving Sending of a Letter to Janet Reno Regarding the Soriano Ruling

Resolution of the Board of Directors of the National Association of Criminal Defense Lawyers Approving Sending of a Letter to Janet Reno Regarding the Soriano Ruling 

San Francisco, California

May 1, 1999

The Immigration Committee proproses to the Board the following resolution:

Whereas the Attorney General's decision in Matter of Soriano, Int. Dec. 3289 (AG 1997) to apply retroactively the ban on discretionary §212(c) relief to aggravated felonies that occurred before the passage of that ban on April 24, 1996, and indeed before there were even such creatures as "arrgavated felonies" beginning in 1988, has an unjust impact on many clients, including those clients to whom defense lawyers gave advice that was accurate at the time concerning immigration consequences of a criminal conviction, and

Whereas the Supreme Court on March 8, 1999, denied the government's petitions for certiorari in the First and Second Circuit cases which found that that ban cannot be applied retroactively, so there is now a different rule in different circuits,

and

Whereas we understand that Attorney General Janet Reno may now be re-considering her decision in Soriano,

Be it resolved that NACDL send the following letter to the Attorney General, urging her to

(1) Immediately adopt the Second Circuit standard nationwide by allowing otherwise eligible immigrants whose immigration cases were pending when AEDPA was enacted on April 24, 1996 to be considered for Section 212(c) relief; and

(2) Withdraw the Soriano ruling and reissue a decision that rejects retroactive elimination of Section 212(c) and preserves waiver eligibility in cases where the underlying criminal offense occurred before AEDPA was signed into law on April 24, 1996.

April __, 1999

Attorney General Janet Reno
Department of Justice
Tenth Street and Constitution Avenue, NW
Washington, DC 20530

Dear Madam Attorney General:

As you know, the National Association of Criminal Defense Lawyers (NACDL) is the preeminent organization in the United States advancing the mission of the nation's criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct. A professional bar association founded in 1958, NACDL's 10,000 direct members -- and 80 state and local affiliate organizations with another 28,000 members -- include private criminal defense lawyers, public defenders, active-duty U.S. military defense counsel, law professors and judges committed to preserving fairness within America's criminal justice system.

At our quarterly meeting of the officers and board of directors on May 1, 1999, we voted unanimously to urge you to reconsider your ruling in Matter of Soriano, Int. Dec. 3289 (AG 1997) and to apply Section 440(d) of the Antiterrorism and Effective Death Penalty Act (AEDPA) only prospectively to conduct and convictions that occurred after AEDPA's effective date, April 24, 1996.

As a result of the Soriano decision, many longtime legal permanent residents who pled guilty to criminal offenses prior to 1996 in plea agreements designed to preserve their eligibility for relief under Section 212(c), 8 U.S.C. § 1182(c), have now had their eligibility eliminated. Before 1996, immigrants were eligible to apply for Section 212(c) relief if their disqualifying offense did not result in serving a term of imprisonment of at least five years for one or more aggravated felony offenses. Under Section 440(d) of AEDPA, Section 212(c) was eliminated for anyone with virtually any criminal conviction -- without regard to the length of sentence imposed or served -- that constitutes a ground of deportation, including any aggravated felony, any controlled substances offense, any firearm offense, or any two crimes involving more turpitude (for which a sentence of a year or more is possible). By applying Section 440(d) retroactively to lawful permanent residents who pled guilty before 1996, immigrants who were eligible for relief under the then-existing law have had that eligibility eliminated.

As criminal defense attorneys, many of whom have extensive experience as prosecutors at the state federal level, we have personal experience with many cases in which counsel at the criminal proceeding carefully advised longtime lawful permanent residents of the immigration consequences of a criminal conviction. Among the most critical considerations in that context was whether the sentence actually imposed would render an immigrant ineligible for relief under Section 212(c). Based on that consideration, lawful permanent residents -- ofter with the agreement and understanding of prosecutors -- reached plea agreements and sentencing recommendations that insured that the immigrant remained eligible for relief under Section 212(c) at the conclusion of their sentence. Moreover, we informed sentencing judges of the parameters for Section 212(c) relief eligibility and asked judges to limit sentences in certain ways so that their intentions concerning relief from deportation would be available.

The Soriano ruling means that longtime legal residents who relied on the waiver in deciding how to proceed in their cases have now had their eligibility eliminated retroactively even though access to §212(c) relief was relied upon by judges, prosecutors and defense attorneys as they considered what constituted an appropriate punishment for a particular crime. Many who pled guilty years ago to minor offenses upon the understanding or assurance -- including advice of counsel -- that they would be eligible for a waiver now find themselves detained and facing deportation.

Three federal circuit courts of appeals have now ruled that the Soriano decision was incorrect and that Section 440(d) can not be applied retroactively. See Gonclaves v. Reno, 144 F.3d 110 (1st Cir. 1998), cert. denied, 119 S.Ct. 1140 (1999); Henderson v. Reno, 157 F.3d 106 (2nd Cir. 1998), cert. denied sub nom Reno v. Navas, 119 S.Ct. 1141 (1999), and Sandoval v. Reno, 166 F.3d 225 (3rd Cir. 1998). The Supreme Court declined to review the first two decisions and, therefore, the Soriano ruling is not binding, and indeed cannot be applied, in the First or Second Circuits.

In the face of these court rulings, we urge you to reconsider the Soriano decision and to acknowledge that Congress did not intend to eliminate Section 212(c) retroactively.

In particular, we urge you to:

(1) Immediately adopt the Second Circuit standard nationwide by allowing otherwise eligible immigrants whose immigration cases were pending when AEDPA was enacted on April 24, 1996 to be considered for Section 212(c) relief; and

(2) Withdraw the Soriano ruling and reissue a decision that rejects retroactive elimination of Section 212(c) and preserves waiver eligibility in cases where the underlying criminal offense occured before AEDPA was signed into law on April 24, 1996.

Thank you for your consideration of this letter.

Sincerely,
The National Association of Criminal Defense Lawyers

By ________________________________
Larry Pozner, President

cc: Seth Waxman, Solicitor General
Paul Virtue, General Counsel for the INS 

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