By: Caroline Daniel
In Jaghoori v. Holder, a published opinion released today, the Fourth Circuit granted Abdul Azim Jaghoori’s petition for review and ultimately remanded the case back to the Board of Immigration Appeals (“BIA”) for further proceedings.
Review Granted to Determine if Stop-Time Rule Applies Retroactively
Petitioner Abdul Azim Jaghoori appealed the BIA’s denial of his application for cancellation of removal. Typically, for an alien to succeed on an application for cancellation of removal, he must have resided in the United States for a continuous period of seven years. However, a statutory provision known as the “stop-time rule” provides that the commission of the crime during those seven years can “stop the clock” on that period of continuous residence.
Here, the BIA applied the stop-time rule, deeming Jaghoori ineligible for cancellation of removal based on a crime he committed within his first seven years of residence. Jaghoori appealed this decision, arguing that the stop-time rule did not apply as his offense and subsequent guilty plea took place before the stop-time rule was put into effect. Applying the “traditional presumption against retroactivity,” the Court granted Jaghoori’s review.
Petitioner’s Status as a Lawful Permanent Resident Challenged Based on Criminal Activity
Although born in Afghanistan, Jaghoori moved to the United States as a young child, and has resided here for most of his life. He obtained lawful permanent status in 1989. Since that time he has been charged and convicted of several crimes, including a credit card theft in 1995. He pled guilty to this offense, and received a 90 day suspended sentence.
In 2009 and 2010, the Department of Homeland Security brought several claims for removability against Jaghoori. Jaghoori applied for cancellation, which was denied by the BIA based on his 1995 conviction. The BIA reasoned that, although the stop-time rule was enacted after this conviction, his subsequent criminal activity (including a conviction in 2010) made him removable under the rule.
Jaghoori was not deported to Afghanistan – his minority ethnicity and religious beliefs made the country unsafe for him. The denial of his application for cancellation of removal, however, prohibits him from pursuing citizenship. He could also be deported to another country. Jaghoori appealed the denial of his application for cancellation, arguing that the stop-time rule, enacted in 1996 and taking effect in 1997, should not retroactively apply to his 1995 criminal charge.
Stop-Time Rule Should Not Apply Retroactively Where the Application Leads to a New and Serious Consequence
The Court reviewed the appeal de novo and applied a two-step analysis taken from Landgraf v. USI Film Products. Under this analysis, the Fourth Circuit looked to: (1) the congressional intent in the application of the stop-time rule, and (2) if the retroactive application of the rule would create new or different consequences for actions already past.
First, the Court determined that there was no clear congressional intent in how the stop-time rule should be applied. The Court noted that, “If Congress has made its intent clear, while acting within the limits of its power, our inquiry is concluded.” Congressional intent must be “clear” and “unambiguous.” Here, neither party took a position on Congress’ intent, and the Fourth Circuit also determined that Congress expressed no clear intent.
Accordingly, the Court proceeded to the second step in the Landgraf analysis: whether “the statute would attach new legal consequences to prior events.” In its analysis of this factor, the Court considered a recent Seventh Circuit decision involving the retroactivity to the stop-time rule. In Jeudy v. Holder, the Seventh Circuit determined that “applying the stop-time rule to Jeudy’s 1995 offense and conviction ‘would attach a new and serious consequence to Jeudy’s criminal conduct that was completed before the [stop-time rule] took effect.'”
The Fourth Circuit analogized the similar facts in Jaghoori’s case to Jeudy, and determined that retroactively applying the stop-time rule in this case would create a new and detrimental consequence, “render[ing permanent relief from removal] an impossibility.” The Court held that, “Absent a clear congressional directive, we can not assume the rule to have this effect.”
Finally, the Court noted that although the Second and Tenth Circuits had ruled in cases where the retroactive application of stop-time rule was not impermissible, these situations were factually distinguishable from Jaghoori’s case. In each of the cases, the alien had committed crimes that had rendered him “immediately deportable.” Additionally, neither alien had reached seven years of continuous residence.
Jaghoori’s Criminal Conduct Not Condoned, But Stop-Time Rule Cannot Be Used as a Penalty
The Court stated that it did not condone or excuse Jaghoori’s criminal activity in its holding. The Fourth Circuit noted that Jaghoori had faced the repercussions of his actions: he had been convicted of the crimes committed and he had been issued an order of removal. The Court explained, “We simply hold that the government cannot use the stop-time rule to add yet one more repercussion to that list.” Accordingly, the Fourth Circuit remanded the case to the BIA for “proceedings consistent with this opinion.”
Justice Niemeyer dissented, arguing that BIA’s ruling should have been upheld “because the legal consequence on Jaghoori’s immigration status only attached once Jaghoori committed a second crime 13 years after [the stop-time rule’s] enactment.”
