A Nicaraguan national in the 1980s had a much better chance (80 percent)of being granted asylum than a Salvadoran or Guatemalan national (5 percent).  Critics blamed geopolitical biases for the disparate treatment.  The INS’s hostility to Salvadoran and Guatemalan refugees, they argued, was attributable to the U.S. government’s coddling of right-wing regimes in those countries.  Conversely, the INS’s receptivity to Nicaraguan refugees was related to the U.S. government’s animus toward that country’s left-wing regime.

The result was American Baptist Churches v. Thornburgh, a 1985 class-action suit against the INS brought on behalf of Salvadoran and Guatemalan refugees.  The case was resolved with a 1991 settlement agreement (the “ABC agreement”) that stayed the deportation of eligible class members and granted them de novo INS asylum adjudications.

The Case of Erwin Tobar-Barrera

Erwin Tobar-Barrera, a Guatemalan national then awaiting deportation, registered for benefits under the ABC agreement.  He was released from detention and his case was administratively closed as he awaited his de novoadjudication.

Tobar-Barrera’s case remained inactive for almost 16 years.

Then, in 2007, DHS notified him that he was ineligible for the ABC benefits he applied for in 1991.  He was told that a 1986 conviction for manslaughter rendered him ineligible under the ABC agreement, which excludes “aggravated felons” from relief.

Tobar-Barrera was then ordered removed and taken into ICE custody.  But his fortunes turned recently, when U.S. District Court Judge Richard Bennett held that USCIS was wrong in determining that he was an aggravated felon as defined under the ABC agreement.  So it seems Tobar-Barrera will get that de novo asylum adjudication after all – two decades later.

Bennett’s memorandum opinion, which involved an interpretive issue of first impression in the Fourth Circuit, is discussed in more detail below.

Aggravated Felonies: They Ain’t What They Used to Be

To qualify for a de novo asylum adjudication under the ABC consent agreement, a Guatemalan class member: (1) must have applied for the de novo adjudication before 1992; and (2) must not have a conviction that classifies as an “aggravated felony.”

But the term “aggravated felony” refers to a broad (and ever-expanding) category of crimes, and what is considered an aggravated felony today was not necessarily considered an aggravated felony in 1991.  Of particular consequence to Tobar-Barrera’s case is the fact that manslaughter was not considered an aggravated felony until passage of the Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), as Bennett’s decision noted:

[I]t is undisputed that when Tobar-Barrera registered for ABC benefits in 1991, his conviction did not constitute an aggravated felony under the INA.  On the other hand, Tobar-Barrera’s conviction clearly fits the IIRIRA’s expanded definition of ‘aggravated felony.’  Therefore, the determinative issue in this case is whether the pre or post-IIRIRA definition … should be applied to Tobar-Barrera under the terms of the ABC agreement.

Which Definition of Aggravated Felony Applies?

The government argued that the definition for ‘aggravated felony’ should have been derived from the INA in its current form, as it has since been amended by the IIRIRA.  Conversely, Tobar-Barrera argued that the definition of ‘aggravated felony’ set forth in the IIRIRA wasunconstitutionally retroactive as applied to him.

In deciding the case in Tobar-Barrera’s favor, Judge Bennett did not reach the constitutional question of retroactivity.  Instead, he found that the issue could be resolved by interpreting the language of the ABC settlement agreement and the language of the IIRIRA.

A Contract Case: Interpreting the ABC Agreement

Judge Bennett began his reasoning by noting that “a consent judgment, though it is a judicial decree, is principally an agreement between the parties.”  Therefore, “as is the case in interpreting contracts, a court must look to the plain meaning of the language used in the agreement when interpreting a consent decree.”

Because the case was decided by resort to contract principles, Judge Bennett adhered to the central goal of contract interpretation – to discern the intent of the parties to the contract – in determining whether the government and the class action litigants intended the definition of “aggravated felony” to take in later iterations of that definition.

The crucial provision in the ABC agreement was paragraph 2, which provides in pertinent part:

2. CLASS MEMBERS ELIGIBLE FOR DE NOVO ASYLUM ADJUDICATION. The following class members, if they have not been convicted of an aggravated felony as that term is defined in the [INA], as amended, will be afforded a de novo [adjudication] …

The government claim that the agreement contemplated subsequent revisions to the INA was based on the inclusion of the phrase “as amended” in paragraph 2, which, in their view, incorporated all subsequent revisions to the INA (including those revisions that made involuntary manslaughter an aggravated felony in 1996).   Judge Bennett disagreed, writing:

However, this Court reaches the opposite conclusion and finds that “as amended” refers to the meaning of “aggravated felony” as it was defined by the INA in its amended form at the time the ABC agreement was executed. This interpretation is reinforced by the language in the same paragraph requiring that the de novo asylum regulations be conducted “under the regulations in effect on October 1, 1990.” The two phrases together support the view that the parties intended for asylum officers to apply — in all future asylum adjudications under the agreement — the definitions and procedures that existed at the time the consent decree was issued.  If the parties intended to incorporate future revisions of the term, they could have included the phrases, “as may be amended hereafter” or “as amended from time to time.” The parties were well aware of how to incorporate by reference subsequent revisions to a term or law; such specific language was utilized in paragraph 18(e), which provides that “Applications for employment authorization . . . will be governed by the provisions of the regulations that became effective on October 1, 1990, or as subsequently amended.” (emphasis added).

Even If the Consent Agreement Contemplated IIRIRA’s Expansion, Applying IIRIRA to Tobar-Barrera’s Case Was Still Improper

“Even if this Court was to assume that paragraph 2 of the ABC agreement incorporated later definitions of ‘aggravated felony,’” Bennett wrote, “the USCIS’s application of [the] IIRIRA definition of aggravated felony to Tobar-Barrera’s case would still be improper.” He continued:

As noted above, § 321(a) of the IIRIRA expanded the definition of “aggravated felony” and § 321(b) unambiguously states that the definition refers to convictions predating the IIRIRA’s enactment in 1996. Nevertheless, subpart (c) of this section limits the definition, by stating that it may only apply after a certain effective date:

The meaning of this phrase “actions taken” was never explained by Congress and it is an interpretive issue of first impression in the Fourth Circuit.  However, this Court is persuaded by the view espoused by the Sixth Circuit, as recently enunciated in Saqr v. Holder … holding that the post-IIRIRA definition did not apply because the relevant “action taken” occurred when Saqr’s removal proceedings were initiated. Because Saqr’s proceedings were initiated before the IIRIRA’s enactment in 1996, the pre-IIRIRA’s definition of “aggravated felony” applied to his case.

(c) EFFECTIVE DATE — The amendments made by this section shall apply to actions taken on or after the date of the enactment of this Act [September 30, 1996], regardless of when the conviction occurred. . . .

This Court concludes that because there was no “action taken” in Tobar-Barrera’s case after September 30, 1996, the post-IIRIRA definition of “aggravated felony” was improperly applied by the USCIS.

Conclusion and Remedy

Based on the foregoing, Judge Bennett entered a declaratory judgment in favor of Tobar-Barrera, finding that the USCIS failed to comply with paragraph 2 of the ABC agreement when it determined that he was ineligible for a de novo asylum adjudication.  The Court invoked its “broad discretionary powers” to compel the government to provide Tobar-Barrera with a de novo asylum adjudication within 30 days.  Judge Bennett stated that this equitable relief comported with the “special blend of what is necessary … fair … and workable” under the unique circumstances of the case, writing that “Tobar-Barrera has waited over nineteen years to receive the benefits he is owed under the ABC agreement.” (emphasis in original).