WASHINGTON – A Maryland man who faced deportation to his native Nigeria should be allowed to stay where he is, a divided panel of the 4th U.S. Circuit Court of Appeals ruled Tuesday.
The appeals court said in a published decision that the government could not use a 1996 law to deport Clifford K. Olatunji for a crime he committed in 1994, calling that an impermissibly retroactive application of the law.
But in a dissent, 10th Circuit Chief Judge Bobby R. Baldock, sitting by designation, said the opinion by the majority of the three-judge panel “has the potential to significantly upset immigration law.”
Olatunji has been in the United States since 1984, according to court documents, and gained permanent legal resident status in 1993. He was arrested a year later and charged with illegally selling insurance policies and stealing government property.
In a deal with prosecutors, he pleaded guilty to one count of theft of government property and was sentenced to two months in a halfway house and two years probation, fined $259 and ordered to pay back $2,296.
That plea came back to haunt Olatunji in 1998, when he tried to re-enter the country after a nine-day trip to London. Officials refused his admission under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, which requires deportation of immigrants convicted of a crime.
Olatunji appeared before an immigration judge and was ordered to return to Nigeria, then appealed unsuccessfully to the Board of Immigration Appeals and the U.S. District Court in Maryland. He has remained in this country pending the outcome of his case.
Olatunji argued to the appeals court that a Supreme Court ruling in place at the time of his guilty plea, known as the Fleuti case, was generally understood to mean that resident aliens could go overseas for a short time and then come back to the United States.
Elizabeth Wydra, an attorney representing Olatunji, said that immigrants would have considered a plea deal rather than risk going to trial in 1994 because, under Fleuti, a conviction would have barred them from foreign travel. The 1996 immigration law changed all that, she said.
“The presumption before IIRIRA was that they would be able to get back into the country,” said Wydra, of the Appellate Litigation Clinic at Georgetown University Law Center.
Refusing Olatunji re-entry under the 1996 act is illegal because the law was passed years after he decided to enter his guilty plea, his attorneys argued.
“The key point is that it’s imposing new legal consequences on the past action,” Wydra said.
But the government argued that, in order for Olatunji to show that the law was applied retroactively, he would have to prove that his 1994 decision to plead guilty relied on an assumption that he would not be deported if he did not insist on a trial.
“The question is whether or not there has to be any sort of proof of reliance,” Wydra said. “In any sort of plea bargain, there is a sort of quid pro quo.”
But the court said that Olatunji need not prove that he relied on a previous interpretation of the law.
“Because reliance . . . is not required to establish impermissible retroactivity, we hold that this retroactive effect was impermissible,” wrote Judge J. Michael Luttig.
Baldock said he expects the government will challenge that ruling, but officials with the Justice Department and with the Bureau of Immigration and Customs Enforcement did not return calls seeking comment Wednesday.
“Any alien who pled guilty to an offense listed in IIRIRA . . . before 1996 and was denied admission may now file a successful habeas petition,” Baldock wrote.
The majority opinion “defies common sense; most aliens are, of course, going to argue they would have made a different choice had they known the law was going to change,” he wrote. “‘Would have,’ ‘could have,’ or ‘should have’ does not make a statute impermissibly retroactive.”
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