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Lovan v. Holder

United States Court of Appeals for the Eighth Circuit

February 11, 2009, Submitted; July 31, 2009, Filed

No. 08-2177


 [*992]  LOKEN, Chief Judge.

Chanh Lovan, a citizen of Laos, petitions for review of the final order of the Board of Immigration Appeals (BIA) removing him from the United States because he was convicted in 1991 of what is now an "aggravated felony." See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43). Lovan argues (1) he is eligible for relief under former § 212(c) of the Immigration and Naturalization Act (INA); (2) retroactively classifying his conviction as an "aggravated felony" violated due process; (3) he is eligible for withholding of removal under 8 U.S.C. § 1231(b)(3)  [**2] and 8 C.F.R. § 1208.16; (4) he is entitled to relief under the United Nations Convention Against Torture (CAT). We agree in part with the first contention and therefore remand.

I. Background

The relevant facts can be briefly summarized, but the applicable immigration laws and precedents are complex. Lovan entered the United States as a refugee in 1981 and became a lawful permanent resident four years later. He was convicted by an Arkansas jury in 1991 of sexually abusing an eight-year-old child. Sentenced to three years in prison, Lovan was discharged for good behavior after serving thirteen months. He converted to Christianity while in prison and remains a practicing Christian. His wife and children are U.S. citizens.

At the time of Lovan's conviction, an alien convicted of an aggravated felony was deportable, but his sex crime did not fall within the statutory definition of aggravated felony. See 8 U.S.C. § 1251(a)(4)(B) (1988), now recodified at 8 U.S.C. § 1227(a)(2)(A)(iii); 8 U.S.C. § 1101(a)(43) (1988), as amended by Immigration Act of 1990, Pub. L. No. 101-649, § 501, 104 Stat. 4978, 5048. ] In 1996, Congress amended the definition of aggravated felony to include "sexual abuse of  [**3] a minor." Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, div. C, § 321(a), 110 Stat. 3009-546, 3009-627 (1996), codified at 8 U.S.C. § 1101(a)(43)(A). The amendment was expressly made applicable to convictions prior to its enactment. § 321(b), 110 Stat. at 3009-628.

In February 2002, Lovan visited Laos to attend his mother's funeral and to visit his ailing father, traveling under a Permit to Reenter the United States issued by the Immigration and Naturalization Service (INS). He returned and was re-admitted by an immigration official in March 2002. The following October, Lovan applied for naturalization. The INS then filed a notice to appear alleging that he was deportable because of an aggravated felony conviction.

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574 F.3d 990 *; 2009 U.S. App. LEXIS 16919 **

Chanh Lovan, Petitioner, v. Eric C. Holder, Jr., Attorney General, Respondents.

Subsequent History: Related proceeding at Lovan v. Holder, 2011 U.S. App. LEXIS 20717 (8th Cir., Oct. 13, 2011)

Prior History:  [**1] Petition for Review of an Order of the Board of Immigration Appeals.


aliens, deportation, permanent resident, aggravated felony, eligible, convicted, removal, argues, Immigration, excludable, sexual abuse, discretionary, decisions, serious crime, inadmissibility, withholding, ineligible, repeal, statutory counterpart, petition for review, retroactive effect

Governments, Legislation, Effect & Operation, Retrospective Operation, Immigration Law, Grounds for Deportation & Removal, Criminal Activity, Aggravated Felonies, Judicial Proceedings, Judicial Review, Scope of Review, Deportation & Removal, Administrative Appeals, US Board of Immigration Appeals, Relief From Deportation & Removal, Deportation & Removal Waivers, General Overview, Jurisdiction, Inadmissibility, Grounds for Inadmissibility, Waiver of Grounds for Inadmissibility, Criminal Activity, Constitutional Foundations, Equal Protection, Crimes Involving Moral Turpitude, Asylum, Refugees & Related Relief, Restriction on Removal, Exceptions to Removal Restriction, Judicial Review, Enumerated Statutory Crimes, Administrative Proceedings, Authority of Immigration Judges, Discretionary Actions, Convention Against Torture, Asylum