CA7 on Retroactivity, Aggravated Felony: Zivkovic v. Holder

"Milija Zivkovic, a Serbian who has been in the United States since 1966, has petitioned for review of an order of the Board of Immigration Appeals ordering him removed from the United States. The Board found that Zivkovic was removable because he had committed three aggravated felonies and that he was not eligible for the special relief provided by Section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c). Before this court, Zivkovic argues that none of the three felony convictions on which the Board relied can support its removal order. Even if one or more was properly counted, he continues, the Board erred when it rejected his eligibility for Section 212(c) relief. Finally, he complains that the Immigration Judge (IJ) should not have consulted certain conviction records that had been submitted for purposes of his bond proceeding when the IJ was considering his immigration petition.  Resolution of Zivkovic’s petition might have been straightforward, but for the fact that two of his convictions are 35+ years old, and the immigration laws have not remained static over that time. Zivkovic realizes that he must knock out all three of the aggravated felonies before his argument about Section 212(c) makes any difference, because a conviction on one alone would be enough to guarantee near-automatic removal. See Immigration and Nationality Act § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). But he believes that he can do so. Our assessment of his argument requires us to delve deeply into the history of the governing provisions of the immigration laws, and in addition to consider what level of deference we owe to the Board’s effort to disentangle both the meaning of those statutes and Congress’s intent over the years to make various changes retroactive. We conclude that the statutes are ambiguous and that the twin presumptions against retroactivity and implied repeal require us to grant Zivkovic’s petition and to remand for further proceedings. ... Because Zivkovic’s aggravated felony convictions were more than a decade old before the 1988 statute took effect, they cannot be used as a ground for removal (although they can be used for many other purposes under the statute)." Zivkovic v. Holder, July 31, 2013.  [Hats off to Maria Baldini-Poterman, Eric Berndt, and Charles Roth!]