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Five months ago, Eddy Zheng would not have been in this mess. Although deportation became mandatory after 1996 for noncitizen parolees who committed aggravated felonies, a waiver was available until April for people sent to prison long before that. When the state parole board voted for Zheng's release, he would have been expected to seek such a waiver.
But this spring, the federal Board of Immigration Appeals considered the case of Leroy Nelson Blake, a New York man who had sexually abused a minor. The resulting decision, dubbed "Matter of Blake," barred future waivers for noncitizens convicted of aggravated felonies -- no matter when they pleaded. Zheng became one of the first people to be affected by the new and somewhat obscure ruling. His marriage may save him from it, but if not, he could be the test case to challenge it. His immigration attorney, Zachary Nightingale, expects the Blake decision to be appealed, whether or not by his client.
Nightingale says the Blake decision is a nightmare for hundreds if not thousands of inmates who were convicted long before 1996 and are just being paroled now. Even worse, he notes that thousands of already freed ex-convicts would be eligible for deportation should they have another brush with the law -- or if they simply apply for citizenship, or come back from a foreign vacation. Immigration crackdowns like this summer's Operation Community Shield, which targeted nearly six hundred foreign-born gang members on immigration violations, means this will probably happen sooner rather than later.
Immigration courts are civil courts, which unlike criminal courts do not have laws that prevent people from being punished by rules that did not exist when they committed their crime. "All the due process protections that we know and love about the Constitution go out the window -- they do not exist in civil law," Nightingale says. "That's why immigration can try to deport somebody for something that occurred twenty years ago."
Both the Executive Office for Immigration Review and the Department of Homeland Security's Immigration and Customs Enforcement branch refused to comment on the Blake decision. The former doesn't comment on appeals board rulings, and employees of the latter decided the topic is just too complicated to explain. The only comment DHS spokeswoman Lori Haley was able to offer regarding Zheng's case was, "Everybody has due process, and if they feel that they have evidence to support why they should be here, they have an opportunity to go before an immigration judge."
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