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Keywords

statutepleadue processvisadeportation
statutepleadue processvisadeportation

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Karageorgious v. Ashcroft

Facts

Petitioners, a father and son, are natives and citizens of Greece. They entered the United States in March 1984 and were authorized by visa to remain as nonimmigrant visitors for pleasure until September 1984. They remained in the United States without authorization after their visas expired. On March 28, 1997, Dimitrios Karageorgiou filed an application for suspension of deportation for himself and his minor child, Athanassios, in anticipation of the April 1, 1997 effective date of IIRIRA, which reclassified deportation proceedings as removal proceedings and repealed the discretionary relief of suspension of deportation. The INS later served them with a Notice to Appear, charging them as removable, and removal proceedings commenced in July 1998.

Petitioners, a father and son, are natives and citizens of Greece. They entered the United States in March 1984 and were authorized by visa to remain as nonimmigrant visitors for pleasure until September 1984. They remained in the United States without authorization after their visas expired.

Issue

Whether the petitioners' due process rights were violated by the IIRIRA's elimination of suspension of deportation and whether they were statutorily eligible for suspension of deportation.

Whether the petitioners' due process rights were violated by the IIRIRA's elimination of suspension of deportation and whether they were statutorily eligible for suspension of deportation.

Rule

The court applied the principle that a statute has retroactive effect when it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. The court also noted that an application for suspension of deportation may only be made during the course of a deportation proceeding in which an IJ finds the applicant to be deportable.

A statute has retroactive effect when it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.

Analysis

The court found that the repeal of suspension of deportation did not apply retroactively to the petitioners because it did not attach any new legal consequences to their pre-IIRIRA conduct. The court reasoned that the petitioners had no right to remain living illegally in the United States and therefore did not relinquish any rights or acquire new obligations when they filed their suspension petitions. Additionally, the court concluded that the petitioners were not in deportation proceedings at the time they filed their applications, making them ineligible for suspension of deportation.

The repeal of suspension of deportation does not apply retroactively to these petitioners because it does not attach any new legal consequences to petitioners' pre-IIRIRA conduct.

Conclusion

The court denied the petitioners' applications for suspension of deportation, affirming the IJ's decision and the BIA's ruling.

For the reasons stated herein, we hereby deny the petition.

Who won?

The government prevailed in the case because the court upheld the IJ's ruling that the petitioners were not eligible for suspension of deportation and that their due process rights were not violated.

The government prevailed in the case because the court upheld the IJ's ruling that the petitioners were not eligible for suspension of deportation and that their due process rights were not violated.

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