Anthony Toia v. Adele J. Fasano, District Director, Immigration and Naturalization Service John Ashcroft, United States Attorney General

The question before us is whether the provision of the Immigration Act of 1990, barring aggravated felons from applying for Immigration and Nationality Act § 212(c) relief, applies to aliens who pleaded guilty prior to the enactment of the Immigration Act of 1990. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and hold that it does not.

I

Petitioner Anthony Toia is a resident alien who came to the United States as a child and has lived here ever since. In 1989, Toia entered a guilty plea for conspiracy to possess a controlled substance with intent to distribute. At the time of this plea agreement, Toia was eligible to apply for § 212(c) relief. Immigration and Nationality Act § 212(c), 8 U.S.C. § 1182 (c) (repealed 1996) (“ § 212(c)”). In 1989, § 212(e) allowed the Attorney General to grant discretionary waivers of relief from deportation for aliens who were lawful permanent residents of the United States and who had accrued seven consecutive years of lawful unrelinquished domicile in the United States. Id. Toia was sentenced to a term of ten years of incarceration.

In 1990, Congress rendered ineligible for § 212(c) relief any alien who had been convicted of an aggravated…