Jayantha Edirsinghe Kankamalage v. Immigration and Naturalization Service

In 1988, when petitioner Jayantha Kan-kamalage pleaded guilty to robbery, a conviction for that offense did not categorically disqualify him from consideration for asylum. In 1990, a new regulation was promulgated that changed that; he became categorically ineligible for a discretionary grant of asylum. In accordance with INS v. St Cyr, 533 U.S. 289 , 121 S.Ct. 2271 , 150 L.Ed.2d 347 (2001), we hold that the 1990 regulation cannot be appbed retroactively to categorically exclude Kan-kamalage from consideration for asylum.

I. Background

Kankamalage, a citizen of Sri Lanka, entered the United States in 1982. He pleaded guilty to robbery in 1988 and was sentenced to two years in prison. After serving one year in prison, Kankamalage was released and turned over to the INS. The INS initiated deportation proceedings against him in March 1989 with an Order to Show Cause charging that Kankamalage overstayed his nonimmigrant visitor visa, and therefore, was subject to deportation under former INA § 241(a)(2), 8 U.S.C. § 1251 (a)(2). Kankamalage bled an application for asylum and withholding of deportation.

In a November 1991 hearing before the Immigration Judge, Kankamalage…