29
deported. Prior to the 1996 legislative reforms, the only bar to 212c eligibility was if the
alien had committed aggravated felony and served a five year sentence for it. Then
AEDPA passed on April 24, 1996 and barred 212c relief for any aggravated felony
regardless of the sentence imposed. AEDPA also added some crimes to a list of what
crimes constituted an aggravated felony, including any controlled substance violation;
this move vastly expanding the group of aliens who are now ineligible for 212c relief and
it repealed the provision that had previously provided for habeas corpus review for aliens
in deportation proceedings.
29
Specifically, the Act stated, “Any final order of
deportation against an alien who is deportable by reason of [certain enumerated criminal
grounds] shall not be subject to review by any court.” (cited in Taylor, 2003, note 13)
This language eliminated the statutory grounds for habeas corpus relief for all aliens in
deportation proceedings and denied judicial review for those with certain criminal
convictions. (Cole, 1998, 429)
Several months later, Congress passed the IIRIRA that erased the long held
distinction between exclusion and deportation, rolling the two into what is now called
“removal” proceedings. IIRIRA also completely repealed section 212c of the INA and
replaced it with a procedure called “cancellation of removal.” In addition, IIRIRA created
a set of transitional rules for cases initiated before April 1, 1997 and another set of
“permanent” rules for those cases initiated on or after that date. As the following
examples will demonstrate, the more multi-layers and complex the rules were, the more
wiggle room the Circuits had in deciding how to implement the law. The permanent
29
Some of the findings in this suggest that the conflation of exclusion and deportation into one
proceeding will place many aliens at a distinct disadvantage. As I have demonstrated earlier in
this chapter, the Circuit Courts of Appeals and especially the Supreme Court are far more likely
to be deferential to Congress in exclusion cases and less so on deportation ones.
Convention