970 F. Supp. at 176 ("The importance of immigration consequences
of pleas in criminal cases cannot be underestimated. Deportation
to a country where a legal permanent resident of the United
States has not lived since childhood; or where the immigrant has
no family or means of support; or where he or she would be
permanently separated from a spouse, children and other loved
ones, is surely a consequence of serious proportions that any
immigrant would want to consider in entering a plea.").
A right to discretionary relief is a substantive right, and
the elimination of even the possibility of obtaining relief thus
has a retroactive effect. See Warden, Lewisburg Penitentiary v.
Marrero, 417 U.S. 653, 663, 94 S.Ct. 2532, 41 L.Ed.2d 383
(1974) (indicating that a statute taking away parole eligibility
for offenses for which parole was available under the law in
existence at the time the offenses were committed could be found
to be constitutionally impermissible as an ex post facto law).
Prior to the enactment of the clock stopping provision, the
seven years of continuous lawful residence required for an INA §
212(c) waiver did not end until a deportation order became
administratively final. See Lok v. INS, 681 F.2d 107 (2d Cir.
1982). Hence, under the immigration laws in effect prior to
IIRIRA, petitioner did not become statutorily ineligible for INA
§ 212(c) relief when she entered a guilty plea to petit larceny
on October 5, 1987. After petitioner accrued seven continuous
years of lawful residence, she had a reasonable expectation that
INA § 212(c) relief was available to her. It is an impermissible
retroactive application of the clock stopping provision to strip
petitioner of that reasonable expectation.
Courts owe deference to administrative tribunals in their
interpretations of statutes that they are charged with
implementing. See Chevron, U.S.A., Inc. v. Natural Resources
Defense Council Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81
L.Ed.2d 694 (1984). When an administrative agency's
interpretation is unreasonable, however, a court is not
constrained by the deference principle. See Bell v. Reno,
218 F.3d 86, 90 (2d Cir. 2000), cert. denied, 531 U.S. 1081, 121
S.Ct. 784, 148 L.Ed.2d 680 (2001). Because the clock stopping
provision has an impermissible effect when applied
retroactively, the BIA's interpretation of it in Perez is
unreasonable and deference is not owed to it.
Absent clear intent from Congress that the clock stopping
provision applies retroactively to cancellation proceedings
commenced after the effective date of IIRIRA where the crime was
committed before the statute became law, and considering the
unfairness that would result from applying the clock stopping
provision retroactively in the circumstances of this case, I
hold that petitioner is eligible to apply for cancellation of
removal pursuant to INA § 240A, 8 U.S.C. § 1229b. Accordingly,
this case is remanded to the INS for consideration of
petitioner's application for cancellation of removal and other
proceedings not inconsistent with this decision.
As to petitioner's equal protection claim, I do not reach it.
The Government states that petitioner was not barred from
applying for a discretionary waiver pursuant to INA § 212(h),
8 U.S.C. § 1182(h), but notes that she never submitted such an
application. The Government thus argues that petitioner failed
to exhaust her administrative remedies in this respect. As the
case is being remanded in any event, on remand petitioner may
submit an application pursuant to § 212(h) as well.
The Clerk of the Court shall enter judgment granting the
petition and remanding the case to INS to permit petitioner to
file applications for cancellation of removal pursuant to INA §
240A and a waiver of removal pursuant to INA § 212(h). The Clerk
of the Court shall close this case, but the Court retains
jurisdiction in the event further proceedings in this Court