Zivkovic v. Holder, No. 12-2143 (7th Cir. 2013)
Annotate this CaseZivkovic, a Serbian, was admitted to the U.S. as a lawful permanent resident in 1966. In 1976, he pleaded guilty to burglary and received a sentence of two to six years. In 1978, he was convicted of attempted rape and was sentenced to four to 12 years. In 2010, he was convicted of criminal trespass to a residence with a person present and of aggravated battery, where the aggravating factor was the victim’s age. In 2004 Zivkovic was charged as removable as an alien convicted of an aggravated felony as defined in 8 U.S.C. 1101(a)(43)(G); for attempt or conspiracy to commit a crime defined in 8 U.S.C. 1101(a)(43)(A) (murder, rape, or sexual abuse of a minor); and under 8 U.S.C. 1227(a)(2)(A)(ii), as an alien convicted of two crimes. The BIA ordered removal because he had committed three aggravated felonies and was not eligible for special relief under 8 U.S.C. 1182(c). The Seventh Circuit granted Zivkovic’s petition, reasoning that two of his convictions are more than 35 years old and that the law has not remained static. The statutes are ambiguous and presumptions against retroactivity and implied repeal require remand. The court noted that even one of the convictions would guarantee near-automatic removal, 8 U.S.C. 1227(a)(2)(A)(iii).
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