EOIR Issues Final Rule to Allow Some LPRs with Pre-AEDPA Convictions to Apply for 212(c) Waivers

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

EOIR ISSUES FINAL RULE TO ALLOW SOME LPRs WITH PRE-AEDPA CONVICTIONS TO APPLY FOR 212(c) WAIVERS
Immigrants' Rights Update, Vol. 15, No. 1, Feb. 28, 2001

The Executive Office for Immigration Review has issued a final rule that allows some lawful permanent residents whose deportation proceedings were initiated prior to the Apr. 24, 1996, enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to apply for waivers under section 212(c) of the Immigration and Nationality Act. Under the rule, the EOIR will not apply the restrictions set forth in AEDPA section 440(d) (which prohibits granting 212(c) relief to individuals who are deportable because of certain criminal convictions) to individuals in deportation proceedings initiated prior to the AEDPA's enactment. Individuals with final orders who are eligible to apply for 212(c) relief under this rule and who do not currently have a motion to reopen to apply for 212(c) relief pending before the Board of Immigration Appeals or an immigration judge must file a special motion to reopen by July 23, 2001.

The final rule in most respects is the same as the proposed rule that former Attorney General Janet Reno issued in August 2000 (see "AG Proposes to Allow Some LPRs with Pre-AEDPA Convictions to Apply for 212(c) Waivers," Immigrants' Rights Update, Aug. 31, 2000, p. 1). In issuing the proposed rule, the AG acknowledged that most of the U.S. circuit courts of appeal have found that section 440(d) does not apply to immigrants in pre-AEDPA proceedings. In the interest of "the uniform administration of the immigration laws," she decided "to acquiesce on a nationwide basis" to the appellate rulings that section 440(d) does not apply to individuals whose deportation proceedings were initiated before Apr. 24, 1996. At the same time that the proposed rule was issued, the INS placed a moratorium on deporting individuals who could benefit from the rule.

Section 212(c) of the INA provides relief from deportation to LPRs who have lawfully resided in the United States for at least seven years. However, section 440(d) of the AEDPA makes this relief unavailable to individuals who are deportable because of a controlled substance offense, a firearms offense, an "aggravated felony," or two crimes of moral turpitude (if each of the crimes of moral turpitude meets a specified standard). In Matter of Soriano, 21 I. & N. Dec. 516 (Att'y. Gen. 1997), the AG ruled that the restrictions contained in section 440(d) apply to all applicants for 212(c) relief, regardless of when they applied for it or were placed in deportation proceedings. However, as noted above, all but one of the U.S. circuit courts of appeal that have reviewed this decision found that it impermissibly applies AEDPA retroactively. See Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998), cert. denied, 526 U.S. 1004 (1999); Henderson v. INS, 157 F.3d 106 (2d Cir. 1998), cert. denied, 526 U.S. 1004 (1999); Sandoval v. INS, 166 F.3d 225 (3d Cir. 1999); Tasios v. Reno, 204 F.3d 544 (4th Cir. 2000); Pak v. Reno, 196 F.3d 666 (6th Cir. 1999); Shah v. Reno, 184 F.3d 719 (8th Cir. 1999) Magaña-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999); and Mayers v. INS, 175 F.3d 1289 (11th Cir. 1999). Only the Seventh Circuit has upheld the attorney general's Soriano decision. See LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998), cert. denied, 120 S.Ct. 1157 (2000).

The final rule allows LPRs in deportation proceedings to apply for 212(c) relief if they are eligible for it but for AEDPA section 440(d) and their Orders to Show Cause were filed with the immigration court before Apr. 24, 1996. LPRs with final deportation orders also may apply for 212(c) relief by filing a special motion to reopen, if they meet the following requirements:

their OSCs were filed with the immigration court before Apr. 24, 1996;
they are subject to a final order of deportation;
they would now be eligible for 212(c) relief if their proceedings were reopened (i.e., they must have lived in the U.S. for seven years as either a lawful permanent resident or lawful temporary resident before they became subject to an administratively final order of deportation) and section 212(c) as it existed on Apr. 23, 1996, applied to them; and
either (a) they applied for and were denied 212(c) relief by the BIA on the basis of the attorney general's Soriano decision, or its rationale, "and not any other basis"; or (b) they applied for and were denied 212(c) relief by the immigration court and did not appeal the denial, or withdrew an appeal, and would have been eligible for 212(c) relief at the time they received final deportation orders but for the Soriano decision or its rationale; or (c) they did not apply for 212(c) relief but would have been eligible for it at the time their deportation orders became final, but for the Soriano decision or its rationale.

The relief offered by the new rule is limited in several ways. It is not available to individuals who have already been deported or who are outside the U.S., nor to individuals who were deported and subsequently returned to the U.S. illegally. The final rule narrowly interprets the commencement of deportation proceedings. Rather than considering proceedings commenced with the issuance or service of an OSC, the rule requires that the OSC have been filed with the immigration court before Apr. 24, 1996. And under the rule, individuals who were denied 212(c) relief by the BIA on any basis other than the Soriano decision or the rationale underlying it will not be eligible for relief. Thus, individuals whose 212(c) applications were denied on the merits would not be able to apply for 212(c) relief under the final rule. The rule also does not allow LPRs who were placed in deportation proceedings after the AEDPA's enactment to apply for relief, even though several circuits have ruled that in some circumstances the AEDPA restrictions cannot be applied to immigrants whose proceedings were initiated after the statute's enactment. See Mattis v. Reno, 212 F.3d 31 (1st Cir. 2000); Tasios v. Reno, 204 F.3d 544 (4th Cir. 2000); and Magana-Pizano v. Reno, 200 F.3d 603 (9th Cir. 1999).

In order to take advantage of this relief, eligible individuals with final orders must file a special motion to reopen by July 23, 2001. In cases where individuals already have a motion to reopen to apply for 212(c) relief pending before the BIA or the immigration court, that application will be deemed to be a special motion to reopen under the rule. The special motion to reopen is not subject to the normal time and number restrictions on motions to reopen, but only one special motion may be filed. There is no fee for this special motion to reopen. However, where reopening is granted and the individual has not previously applied for 212(c) relief, he or she will have to pay the fee (currently $170) for filing the application, Form I-191, or request a fee waiver. Reopening under the final rule only allows the applicant to apply for 212(c) relief; the EOIR will not consider applications for any other relief unless the individual independently qualifies for reopening on another basis.

To submit a special motion to reopen under the final rule, eligible individuals must apply either to the immigration court or the BIA, whichever forum last held jurisdiction over the case. The front page of the motion and the envelope containing it should include the notation "Special 212(c) Motion." If the individual previously applied for 212(c) relief, he or she may either submit a copy of that application or a new application and supporting documents. Individuals who have not previously applied for 212(c) relief must submit new applications and supporting documents. Since filing a motion to reopen does not in itself stay the execution of a deportation order, individuals who need stays must also file Form I-246 (Application for Stay of Removal) and follow the procedures of the regulations to request a stay.

The new rule has an effective date of Jan. 22, 2001. This date is not affected by President George W. Bush's executive order delaying the effective date of certain recently issued regulations.

66 Fed. Reg. 6,436-46 (Jan. 22, 2001); 66 Fed. Reg. 8,149 (Jan. 29, 2001) (correction to Jan. 22 notice).