Magana-Pizano v. INS and Relief from Removal
by Jonathan D. Montag
On December 27, 1999, the Ninth Circuit Court of Appeals filed its decision in Magana-Pizano v. I.N.S., --- F.3d ---, 1999 WL 1249703 (9th Cir., Dec 27, 1999) (NO. 97-15678). Media reports have described the case as a great breakthrough for criminal aliens. While the case is important, it is of only limited benefit to most aliens facing removal for criminal activities.
The Magana-Pizano Court held that changes in the immigration laws in 1996 and 1997 purporting to eliminate the right to appeal decisions of the Board of Immigration Appeals did not strip United States District Courts of the authority to consider appeals under habeas corpus jurisdiction.
Further, the District Court addressed the issue of whether permanent residents who were in deportation proceedings that were pending on April 24, 1996, the day of the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), could request the pardon available for most crimes before the AEDPA was passed and made unavailable for most crimes after it passed. The Magana-Pizano Court held that aliens with cases pending on April 24, 1996, can seek relief. The pardon is referred to as 212(c), so-called because was found at Section 212(c) of the Immigration and Nationality Act. The Court also held that an alien is also eligible for a pardon if the alien was convicted based on a guilty plea before April 24, 1996, and the alien is in deportation proceedings (i.e., proceedings that commenced before April 1, 1997) and the guilty plea was made with the expectation of the opportunity to seek a 212(c) pardon.
The Court's reasoning for making the decisions it made was that to deny aliens a 212(c) pardon would give an impermissible retroactive effect to the AEDPA. The Court held that a retroactive effect is not permissible unless Congress explicitly commanded that there be a retroactive effect and that Congress did not explicitly command that the changes in the AEDPA be retroactive.
The Court's decision regarding the availability of habeas corpus jurisdiction applies to all aliens who seek to appeal deportation, exclusion, or removal orders who were ordered deported, excluded, or removed because of criminal actions.
The Court's decision regarding 212(c) pardons directly applies to the following persons:
1. Aliens who either were placed in deportation proceedings before April 24, 1996, and were denied the opportunity to seek a 212(c) pardon or were denied a pardon by an Immigration Judge or the Board of Immigration Appeals because of the passage of the AEDPA;
2. Aliens who pled guilty to crimes before April 24, 1996, and can show that they pled guilty because of the availability of 212(c) relief, and were placed in deportation proceedings between April 24, 1996, and March 31, 1997.
The Magana-Pizano decision may be of benefit to aliens who were placed in removal proceedings (rather than deportation proceeding) after the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) came into effect on April 1, 1997, if they had a conviction before April 24, 1996, and pled guilty based on an expectation that they would be eligible for relief when they pled guilty. There may be a possibility of 212(c) relief because many legal analysts have found that the IIRAIRA, which eliminated 212(c) relief in its entirety and substituted for it a different form of relief, Cancellation of Removal for Certain Permanent Residents, did not explicitly command that the elimination of 212(c) relief was to apply retroactively. Immigration Courts and the BIA have not accepted this argument, but federal courts may very well adopt it as it is based on the same reasoning as Magana-Pizano. In a dissenting opinion in a Board of Immigration Appeals decision, Matter of Beckford, Int. Dec. 3425 (BIA January 19, 2000), a Board of Immigration Appeals member has explained that such availability may exist.
The Magana-Pizano v. INS decision can be found at:
Matter of Beckford can be found at: