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attorneypleadeportationnaturalizationliens
attorneypleadeportationnaturalizationliens

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Lovan v. Holder

Facts

Chanh Lovan, a citizen of Laos and a lawful permanent resident of the United States, was convicted of sexually abusing a child in 1991 and served thirteen months in prison. He traveled to Laos in 2002 under a permit issued by the Immigration and Naturalization Service (INS), returning to the United States one month later. He re-entered without challenge, but INS commenced removal proceedings when he applied for naturalization later that year, alleging that he is deportable due to the 1991 conviction because Congress in 1996 added sexual abuse of a minor to the list of aggravated felonies that are statutory grounds for deportation.

Chanh Lovan, a citizen of Laos and a lawful permanent resident of the United States, was convicted of sexually abusing a child in 1991 and served thirteen months in prison. He traveled to Laos in 2002 under a permit issued by the Immigration and Naturalization Service (INS), returning to the United States one month later. He re-entered without challenge, but INS commenced removal proceedings when he applied for naturalization later that year, alleging that he is deportable due to the 1991 conviction because Congress in 1996 added sexual abuse of a minor to the list of aggravated felonies that are statutory grounds for deportation.

Issue

Whether Lovan is eligible for a waiver of deportation under former 212(c) of the Immigration and Nationality Act, given the circumstances of his re-entry and the statutory counterpart doctrine.

Whether Lovan is eligible for a waiver of deportation under former 212(c) of the Immigration and Nationality Act, given the circumstances of his re-entry and the statutory counterpart doctrine.

Rule

Relief under former 212(c) was available to aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years.

Relief under former 212(c) was available to aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years.

Analysis

The court applied the Supreme Court's retroactive-effect analysis in INS v. St. Cyr, concluding that Lovan's eligibility for 212(c) relief should be determined based on whether he would have been eligible for such relief at the time of his plea under the law then in effect. The BIA's application of the statutory counterpart doctrine was found to be a legal error, as it failed to consider the implications of Lovan's re-entry prior to the repeal of 212(c).

The court applied the Supreme Court's retroactive-effect analysis in INS v. St. Cyr, concluding that Lovan's eligibility for 212(c) relief should be determined based on whether he would have been eligible for such relief at the time of his plea under the law then in effect.

Conclusion

The court granted Lovan's petition and directed the Attorney General to determine whether a waiver of deportation was warranted.

The court granted Lovan's petition and directed the Attorney General to determine whether a waiver of deportation was warranted.

Who won?

Chanh Lovan prevailed in the case because the court found that the BIA had erred in its application of the statutory counterpart doctrine and failed to properly analyze the retroactive effect of the repeal of 212(c).

Chanh Lovan prevailed in the case because the court found that the BIA had erred in its application of the statutory counterpart doctrine and failed to properly analyze the retroactive effect of the repeal of 212(c).

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