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SYLWIA JANKOWSKI, Petitioner, v. INS, Respondent. UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT 2001 U.S.
Dist. LEXIS 5316 April 12, 2001, Decided.

Here, petitioner, a lawful permanent resident alien (LPR),
was convicted of an aggravated felony and was found to be
removable. Petitioner filed a petition for writ of habeas
corpus and a motion to stay deportation, challenging the
application of @ 212(h) of the Immigration and Nationality
Act (INA), 8 U.S.C.S. @ 1182(h), under the equal
protection component of the Due Process Clause of the
Fifth Amendment.

The operation of INA @ 212(h) denied petitioner the
opportunity to apply for a discretionary waiver of removal
due to her status as a LPR convicted of an aggravated
felony. The court granted petitioner's habeas petition,
which challenged the constitutionality of INA @ 212(h).
The court determined that it had jurisdiction over
petitioner's equal protection claim. Because a statutory
exhaustion requirement did not apply to the petitioner's
claim, petitioner's claim was excepted from any exhaustion
requirement on the basis that petitioner raised a
constitutional issue for which administrative remedies
offer no adequate relief and which would be futile to
raise before the immigration judge or the Board of
Immigration Appeals. The court also determined that INA @
212(h) violated the equal protection component of the
Fifth Amendment. There was no rational basis for @
212(h)'s disparity of treatment between similarly-situated
non-LPRs and LPRs.

212(h) Unconstitutional: On January 4th, 2002 Judge Ann Aldrich of the
U.S. Dist. Ct., N.D. Ohio, E.D., granted a habeas petition and declared
INA Sec. 212(h) unconstitutional. Roman v. Ashcroft, Case No. 1:01CV1236.

 

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