Milija Zivkovic v. Eric Holder, Jr.
724 F.3d 894
7th Cir.2013Background
- Zivkovic is a Serbian lawful permanent resident in the U.S. since 1966.
- He pled guilty to burglary in 1976 and to attempted rape in 1978, each with multi-year sentences.
- In 2010 he was convicted of residential trespass with a person present and aggravated battery; the former in Illinois in 2010 and the latter with a victim over 60.
- DHS charged removability on aggravated felonies and potential Section 212(c) relief, raising a later retroactivity question.
- The IJ held the 2010 trespass as a crime of violence and counted 1976 and 1978 offenses as aggravated felonies under IIRIRA, denying 212(c) relief.
- The BIA affirmed, and the Seventh Circuit granted the petition, remanding for further proceedings after addressing retroactivity and the proper scope of the aggravated-felony definitions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre-1996 convictions can support removal as aggravated felonies. | Zivkovic relies on retroactivity principles to limit consequences of older convictions. | Board treated pre-1996 convictions as aggravating felonies under the current definitions. | Remand warranted; retroactivity ambiguity precludes automatic application. |
| Whether the 2010 residential trespass qualifies as a crime of violence under 18 U.S.C. § 16(b). | Residential trespass involves substantial risk of force, supporting violence status. | BIA treated it as violence by analogy to burglary; error in categorization. | BIA erred; trespass does not meet the substantial-risk standard under § 16(b). |
| Whether Section 212(c) relief is available given retroactivity and reliance considerations. | St. Cyr retroactivity could preserve relief where reliance exists. | No 212(c) relief due to the new aggravated-felony framework and timing. | Section 212(c) relief unavailable under these circumstances; focus shifts to validity of convictions. |
| What is the proper framework for retroactivity and deference in this context? | Chevron deference applies to retroactivity interpretations. | Statutory retroactivity should be analyzed under Landgraf/Varíelas with limited agency deference. | Statutory ambiguity prevents Chevron retroactivity deference; framework favors treating enactments prospectively unless clear intent. |
| Should the case be returned for further proceedings rather than a final removal decision? | If any conviction cannot support removal, relief may be warranted. | Proceedings should proceed to determine removability and potential moral-turpitude grounds. | Petition granted and remanded to Board for further proceedings consistent with the opinion. |
Key Cases Cited
- St. Cyr v. INS, 533 U.S. 289 (U.S. 2001) (retroactivity of 212(c) and reliance considerations)
- Vartelas v. Holder, 132 S. Ct. 1479 (U.S. 2012) (retroactivity framework; Landgraf guidance applied to immigration law)
- Aguirre-Aguirre v. INS, 526 U.S. 415 (U.S. 1999) (agency interpretation of statute; deference principles)
- Leocal v. Ashcroft, 543 U.S. 1 (U.S. 2004) (categorical approach to crime of violence for § 16(b))
- Gardner v. United States, 397 F.3d 1021 (7th Cir. 2005) (residential entry as crime of violence analogue; elements-based analysis)
- James v. United States, 550 U.S. 192 (U.S. 2007) (ACCA comparison on ‘substantial risk’ standard)
- Ledezma-Galicia v. Holder, 686 F.3d 1059 (9th Cir. 2010) (retroactivity/consequences of aggravated felony definitions)