Seventh Circuit on IIRAIRA Retroactivity: Siddiqui vi Holder

"Mohsin H. Siddiqui, a native of Pakistan, appeals the denial of his legalization applications by the Administrative Appeals Office (“AAO”), the appellate body of the U.S. Citizenship and Immigration Services (“USCIS”). Siddiqui disputes the AAO’s finding that he failed to prove his continuous residence in the United States and the AAO’s retroactive application of the definition of “conviction,” found in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009, to his 1991 felony. We are unable to affirm the AAO’s conclusion regarding Siddiqui’s failure to establish continuous residence because the AAO’s decisions lack individualized analysis and do not identify particular deficiencies in the substantial evidence submitted by Siddiqui. Further, we conclude that the AAO erred in applying IIRIRA’s definition to Siddiqui’s offense because Congress did not clearly express its intent to apply the definition retroactively to individuals such as Siddiqui, whose legalization applications would have been adjudicated prior to the enactment of IIRIRA if the government had not unlawfully refused in late 1980s to accept applications from applicants who had briefly left the country. We therefore vacate the removal order and remand so that the AAO can properly address the evidence in support of Siddiqui’s claim of continuous residence." - Siddiqui v. Holder, Jan. 12, 2012.  [Hats off to Devin Theriot-Orr of Seattle!]