Eighth Circuit slaps BIA on 212(c), St. Cyr, retroactivity, statutory counterpart analysis: Lovan II

"By conceding that In re L and In re G-A- were not overruled prior to the repeal of § 212(c), and then ignoring the rule established by those decisions, the BIA majority completely disregarded the Supreme Court’s controlling decision in St. Cyr.  Determination of impermissible retroactive effect “demands a commonsense, functional judgment” about the legal landscape at the time of repeal. 533 U.S. at 321.  Had Lovan traveled to Laos and returned after his 1991 conviction but before repeal, he would have been considered excludable based on a prior conviction for a “crime involving moral turpitude.” See § 212(a)(2)(A)(i)(I) (1994); In re Olquin-Rufino, 23 I.&N. Dec. 896, 897 (B.I.A. 2006). If immigration officials had overlooked this criminal history and admitted him, he would have been eligible for § 212(c) relief nunc pro tunc under In re G-A- as construed in Hernandez-Casillas. If that relief was granted, he could not have been deported “based upon the same criminal conviction,”without regard to the statutory counterpart analysis that was applied to aliens who did not travel in cases like Wadud. In re G-A-, 7 I.&N. Dec. at 275. Rather than analyze the issue of retroactive effect in this manner, the BIA majority simply declared that it was free to apply the statutory counterpart doctrine as it has evolved in post-repeal cases. This “was an error of law in applying St. Cyr”; accordingly, “the agency should proceed to determine whether [Lovan] warrants a § 212 waiver.” Lovan I, 574 F.3d at 996. For these reasons, we grant the petition for review and direct the Attorney General to exercise his § 212(c) discretion and decide whether Lovan warrants a waiver of deportation."

Lovan v. Holder, ("Lovan II,") Oct. 13, 2011.

Hats off to Prof. Barbara A. Schwartz, Clinical Professor of Law, University of Iowa College of Law!