Volume 72, Number 6

December 1997

Changing the Rules: Arguing Against Retroactive Application of Deportation Statutes

Anjali Parekh Prakash

By failing to prescribe its temporal reach, section 440(d) of the Anti-Terrorism Effective Death Penalty Act (AEDPA) has created confusion for the courts. Does the provision apply to individuals who committed a crime, making them subject to deportation before AEDPA was passed? To individuals who were convicted prior to AEDPA? To those in deportation proceedings when AEDPA was passed? To those who had already applied for section 212(c) waivers when AEDPA was passed?

Using section 440(d) as a case study to analyze these retroactivity issues, this Note opposes the Attorney General’s interpretation and instead proposes an antiretroactivity presumption applicable not only to the present confusion, but also to ambiguities in future deportation-relief restrictions, such as the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), passed by Congress on September 30, 1996, which further alters relief to permanent residents and raises its own retroactivity issues. This antiretroactivity presumption springs from, among other sources, the reliance interests of immigrants–these interests arise out of the legal duty imposed on courts and defense counsel to advise noncitizens about the immigration consequences of being convicted of a crime. In addition to these reliance interests, due process considerations also weigh in favor of applying an antiretroactivity principle to deportation-relief restrictions.