_ On December 12, 2011, the Supreme Court issued a unanimous decision in Judulang v. Holder, 565 U.S. _____, overturning the Board of Immigration Appeals policy of restricting § 212(c) relief for many lawful permanent residents with old criminal convictions. Under this relief, aliens placed in removal proceedings because of their criminal offenses could seek a waiver of those convictions thereby avoiding removal.

In 2005, the federal government attempted to remove Joel Judulang, a lawful permanent resident since 1974, for a 1989 voluntary manslaughter conviction.  Judulang argued that voluntary manslaughter was not comparable to any basis for a “waiver of excludability” contemplated in former Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c).

The Ninth Circuit Court of Appeals affirmed the Bureau of Immigration Appeals decision to side with the Obama administration removing Judulang.  The United States Supreme Court sharply and soundly rebuked the administration and the lower court holdings.  Obama appointee, Justice Kagan, wrote, “[t]he legal background of this case is complex, but the principle guiding our decision is anything but. When an administrative agency sets policy, it must provide a reasoned explanation for its action. That is not a high bar, but it is an unwavering one. Here, the BIA has failed to meet it.”

Eligibility for this statutory waiver requires that the alien must (1) have at least seven (7) years unrelinquished residence in the United States, (2) have resided for at least five (5) years in the United States as a lawful permanent resident, (3) have not served more than five (5) years in prison after being finally convicted of an offense.

Some lawful permanent residents with final removal orders may want to consider filing motions to reconsider within 30 days of the Court’s decision.  Legal permanent residents found deportable were eligible for § 212(c) relief only if they could show that the grounds for deportation were substantially equivalent to a specified ground of inadmissibility.  

Kagan crammed the Commander on the basics—to use the law, the law must exist.  Command by fiat will not fly in this representative republic.  One would think a former law professor would know that. 

The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Personal Injury, Social Security/Disability, Immigration, Family, Criminal Defense, and Probate matters.  Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com; yourfloridalawyers.com.

     President Barack Obama bungled an effort to save the life of child rapist/murderer, Humberto Leal Garcia, Jr., a Mexican national.  The President injected himself into an international controversy over Garcia's death sentence but failed to protect Garcia from his own injection.  Garcia, with the support of Barack Obama, petitioned for a writ of habeas corpus and applied for a stay of execution on the ground that his murder conviction was obtained in violation of the Vienna Convention (Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261) by failing to notify him of his right to consular assistance.  The International Court of Justice (ICJ) agreed and the President of the United States (together with the Mexican national) sought to stay the execution so that Congress could consider whether to enact legislation implementing the ICJ decision.  The President of the United States issued a “Memorandum” supporting proposed legislation purporting to implement the ICJ decision.  President Barak Obama objected to the death sentence for Garcia who was convicted of raping a 16-year old girl in 1994 then killing her by strangulation and by beating her with a 35-pound chunk of asphalt. 

    In Garcia v Texas, 564 U.S. ____ (2011), the United States Supreme Court determined that a stay of execution was not warranted because neither the ICJ decision nor the President’s Memorandum purporting to implement that decision constituted directly enforceable federal law.  Additionally, the Due Process Clause did not prohibit Texas from carrying out a lawful judgment and executing the Mexican national simply because currently nonexistent legislation might someday authorize a collateral attack on the Texas judgment.  Seven years had passed since the ICJ ruling and three years since the Supreme Court’s previous decision, therefore, a stay of execution based on the last-minute introduction of a bill in a single house of Congress was not justified.  Finally, United States refused to argue that the Mexican national was prejudiced by the Vienna Convention violation. 

    The Supreme Court ruled that the Court had no authority to stay Garcia’s death execution simply because the President issued a memorandum filled with free-ranging assertions of foreign policy consequences and lacking any persuasive legal claims whatsoever.  Garcia was executed on July 7, 2011 by lethal injection.  The Supremes made it clear to Obama, you don’t mess with Texas. 

    The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Personal Injury, Social Security/Disability, Immigration, Family, Criminal Defense, and Probate matters.  Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com.