Circuit Watcher

07-1688-ag Singh v. Mukasey
Before: WINTER and WESLEY , Circuit Judges, and COGAN , District Judge.¹
Petition for review of a final decision of the Board of Immigration Appeals (“BIA”) dismissing the petitioner’s appeal from an Immigration Judge’s (“IJ”) order of removal. The IJ found the petitioner statutorily ineligible for a waiver application under former Immigration and Nationality Act of 1952 § 212(c) because he pled guilty to an aggravated felony after the enactment of the Immigration Act of 1990 (“IMMACT”), and subsequently served a sentence of more than five years confinement. We hold that § 511(a) of IMMACT’s exclusion of “an alien who has been convicted of an aggravated felony and has served a term of imprisonment of at least 5 years” from eligibility for discretionary relief from deportation is not impermissibly retroactive as to an alien who pled guilty to a disqualifying felony after the Act’s enactment, even though he confessed guilt to police prior to the enactment. We also hold that § 404(d) of the Antiterrorism and Effective Death Penalty Act of 1996’s (“AEDPA”) exclusion of all aliens convicted of “aggravated felonies” from eligibility for discretionary relief from deportation is not impermissibly retroactive as to an alien whose conviction pre-dated AEDPA but who was statutorily barred from discretionary relief by the time he sought such relief even under pre-AEDPA law because he had already served more than five years imprisonment. Petition for review denied. … (Original Opinion, as filed Mar. 13, 2008) As amended, Mar. 14, 2008: Singh v. Mukasey.

1. The Honorable Brian M. Cogan, United States District Court for the Eastern District of New York, sitting by designation. [↩]