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Queens Chronicle

Haitian Immigrant’s Battle With The Immigration & Naturalization Service

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Posted: Thursday, May 17, 2001 12:00 am | Updated: 3:52 pm, Mon Jul 11, 2011.

Every day, for the past two years, when Enrico St. Cyr wakes up, he is greeted by the same gray walls staring back at him. It’s hard for him to distinguish between day and night for there are no windows on any of the four walls which surround him—only a slit which lets a mere whiff of fresh air into the space.

If the 26-year-old wants to see out, he must climb up to the slit, place his eyes against the darkened hole, and peer hard. Should he try to venture outside, several armed guards are sure to descend upon him, almost as swiftly as a pack of dogs hunting their prey. St. Cyr knows this, so he languishes instead in his bunk, dreaming of the day he will be able to leave behind this place that has held him captive since 1999. He tries hard to focus on the words of his attorney: “soon, real soon.” The words soon become like a lullaby to him and he drifts into an uncomfortable sleep; his dreams filled with images of his family in Boston and the day he would once again be free to be with them.

Welcome to a day in the life of Haitian immigrant Enrico St. Cyr. St. Cyr is one of over 120 immigrants currently detained by the Immigration and Naturalization Service at the Connecticut Correction Facility. But St. Cyr has refused to stay locked up silently. He is currently battling the INS in the courts. His continued stance has forced even the Supreme Court of the Land to take notice. Late last month, lawyers for this immigrant presented their arguments for his release to the court.

The court will now decide how much judicial review to allow for immigrants ordered deported after a criminal conviction. The court also heard the cases involving Fazila Khan, a Guyanese immigrant; Sergio Madrid and Deboris Calcano-Martinez, two Latino immigrants. All three are drug offenders but each have been paroled despite the deportation notices hanging over their heads.

St. Cyr as well as his Guyanese and Latino counterparts, got additional representation by Lee Gelernt, Christopher J. Meade and Aihiland Arul, lawyers from the American Civil Liberties Union. His attorney, Michael Moore, of Springfield, Massachusetts also presented on his behalf.

Speaking to this writer recently, Moore says he is optimistic. “I don’t think two levels of the judiciary can be so wrong,” said Moore, but he warned that a ruling in favor of his client would not necessarily ensure release from detention.

Still, the “stubbornness” of his client keeps him going. “St. Cyr could choose to be deported and be free tomorrow but he stays locked up and keeps fighting,” Moore said.

Maybe it’s the ongoing battle between this lone immigrant and the INS that caught the eye of the national organization, the ACLU. Attorney Arul, of the group, noted that they decided to jump on the case because it represents only one instance in which “thousands of immigrant families are torn apart by the recent laws.”

“It’s a matter of fairness…when the Attorney General is getting to decide the law and not the courts of the land,” said Arul. “Where is the democracy in all this?”

Because of the ongoing litigation, he, however, declined to comment on record about the case, especially about the possibility of a ruling in his client’s favor, and more especially about what such a ruling could mean for thousands of other immigrants who are deemed deportable or have been deported.

The INS is represented by David McConnell, David W. Ogden, Stephen C. Robinson, James K. Filan, Jr., and Quynh Vu. They could not be reached for comment.

Enrico St. Cyr’s story dates back to 1996, before the new immigration laws took effect. Court records show that St. Cyr was admitted to the United States as a lawful permanent resident on June 17, 1986. His parents and sister, who lived here prior to his coming, are U.S. citizens and his brother is a lawful permanent resident.

On March 8, 1996, prior to the enactment date of the Illegal Immigration Reform and Immigrant Responsibility Act and the Anti-terrorism and Effective Death Penalty Act, St. Cyr pled guilty to the sale of a controlled substance, in violation of the state of Connecticut’s laws. At the time that St. Cyr pled guilty to the charge, the drug conviction rendered him deportable under the immigration laws but he was still eligible for a waiver.

On April 10, 1997, the INS issued St. Cyr a Notice to Appear, charging him as removable under the new law, because he had been convicted of an aggravated felony. On January 12, 1998, an immigration judge found that St. Cyr was removable under Section 237 of the Immigration Naturalization Act. In the time between St. Cyr’s conviction and his receipt of a Notice to Appear, Congress enacted the AEDPA and IIRIRA. These laws significantly limited the cases where discretionary relief from deportation could be sought and rendered an immigrant who was removable because of an aggravated felony conviction, statutorily ineligible to apply for relief from deportation.

At his hearing, St. Cyr’s lawyer Michael Moore sought to prevent his client’s removal by applying for a discretionary waiver of deportation under the former law. The immigration judge denied the application. Moore then appealed St. Cyr’s removal order to the Board of Immigration Appeals but because of the changes made by Congress to the immigration laws, the BIA dismissed the Haitian national’s appeal on November 10, 1998.

On April 27, 1999, St. Cyr filed a “habeas corpus” petition in the United States District Court for the District of Connecticut. In this case, such a petition, according to Moore, usually seeks to test the legality of a government action before a court of the nation. In his habeas writ, Moore argued that portions of the AEDPA and IIRIRA laws should not be applied retrospectively to bar his client’s eligibility for relief, because both his criminal conduct and his conviction occurred prior to the law coming into effect.

The INS, however, argued that the 1996 amendments to the INA divested the district court of jurisdiction to hear St. Cyr’s “habeas” petition. The federal agency further argued that AEDPA was applicable to St. Cyr’s case because removal proceedings had been commenced against him after the effective date of the AEDPA. Specifically, the INS argued that applying Section 440 to aliens ordered deportable because of a criminal conviction that was entered prior to the AEDPA’s effective date, was not an unjustified retrospective application of the law.

ýut the court agreed with St. Cyr’s attorney. On August 23, 1999, a Connecticut district court rejected the INS’ arguments and held that it had jurisdiction to hear the habeas petition. The court ruled that the 1996 amendments to the INA did not explicitly divest a district court of its habeas jurisdiction over final removal orders. It concluded that the scope of its review included St. Cyr’s claim that the BIA had misapplied the immigration laws.

The district court further held that AEDPA is inapplicable to a criminal alien placed in removal proceedings after the AEDPA’s enactment if the relevant convictions, criminal proceedings, or underlying criminal conduct occurred prior to enactment. The court reasoned that Congress did not intend AEDPA to be applied retroactively because it would unfairly attach new legal consequences to pre-AEDPA criminal conduct. It concluded that St. Cyr’s removal proceedings should be governed by the laws that were in effect at the time he committed the crime.

St. Cyr went on to win his appeal before the 2nd U.S. Circuit Court of Appeals which also ruled in his favor because his crime occurred before the new law took effect. The INS, understandably, appealed on the grounds that the underlying St. Cyr’s proceedings, made applicable by IIRIRA, renders ‘aliens’ subject to removal proceedings if they were “convicted of an aggravated felony at any time after admission.” They argued further that the use of past-tense language to qualify the timing of a deportable conviction shows that Congress clearly intended that an alien, such as St. Cyr, who committed his crime and was convicted prior to IIRIRA’s April 1, 1997 effective date, would become subject to removal proceedings in which a waiver relief is no longer available. But the Court rejected the argument that Congress’s use of a past-tense verb clearly indicated Congress’s intent that the provision apply to pending cases.

While the St. Cyr case may sound heartwrenching, it is interesting to note that he is only one of over 7,000 others, scattered across the country, all of whom have adopted the title: “criminal alien.” They are all awaiting deportation to their native lands, but many have opted to challenge the U.S. Immigration laws legally, hoping beyond hope to secure a waiver from the U.S. Attorney General, or like St. Cyr, win in the courts. Several remain locked up because their home countries simply refuse to take them back.

Others take the easy route out—they agree to be escorted onto an airline bound for their homeland. They leave behind families—wives, children, parents—all of whom are forced to fill the shoes of the main bread winner in the battle for survival.

Most of the immigrants deported were once legal residents who may have committed a minor misdemeanor—shoplifting, failure to pay traffic tickets, child support or alimony, or—the most common of all—either sold or were caught with a narcotic substance. At the time of their conviction, they made one mistake—they agreed to take a plea bargain of guilt, which at the time resulted in a shorter, less stricter penalty. Deportation hardly ever crossed their minds and for the few who thought about it, they were told they would be eligible to apply for Section 212 (c); in layman’s terms, a waiver of deportation from the attorney general. Little did they realize that following 1996, that waiver would be lost and their lives thrown into chaos.

St. Cyr is now a man waiting; hoping and praying that the Supreme Court agrees with him and grants him a waiver. At least he has hope. For thousands of others, that hope is only a figment of the imagination.

Welcome to the discussion.