AG Issues Proposed Rule Governing 212(c) Relief for LPRs with Certain Convictions Prior to Apr. 1, 1997

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

AG ISSUES PROPOSED RULE GOVERNING 212(c) RELIEF FOR LPRs WITH CERTAIN CONVICTIONS PRIOR TO APR. 1, 1997
Immigrants' Rights Update, Vol. 16, No. 5, September 10, 2002

The attorney general has issued a proposed rule that would establish procedures governing applications for relief under section 212(c) of the Immigration and Nationality Act.

The proposed rule, which comes as a result of the Supreme Court's ruling in INS v. St. Cyr, 533 U.S. 289 (2001), would implement a narrow interpretation of the decision. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) barred 212(c) relief for individuals who are deportable because of specified criminal offenses, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) repealed section 212(c). However, in St. Cyr, the Court ruled that the AEDPA restrictions on eligibility for 212(c) relief do not apply to individuals who pled guilty to the disqualifying conviction prior to the enactment of the AEDPA and that this relief remains available for such individuals even if they are in removal proceedings under the IIRIRA.

The proposed rule allows individuals in the same situation as the petitioners in St. Cyr to move to reopen their cases to apply for 212(c) relief. However, under the rule relief would not be available to individuals whose convictions were the result of a trial rather than a guilty plea. Nor would it be available to individuals who were already deported as a result of the attorney general's retroactive interpretation of the AEDPA, even though the interpretation was invalidated by St. Cyr.

In order to qualify for 212(c) relief under the proposed rule, an individual must meet the following criteria: he or she must (1) be a lawful permanent resident, or have been an LPR prior to receiving a final order of deportation or removal; (2) have a lawful unrelinquished domicile in the United States for at least seven years (or have had a lawful unrelinquished domicile for at least seven years prior to receiving a final order of deportation or removal); (3) be admissible (the only grounds of inadmissibility that would apply under the rule are INA sections 212(a)(3) (for security and terrorism grounds) and 212(a)(10)(C) (for international child abductors; as explained below, the proposed rule mistakenly cites section 212(a)(9)(C) instead of 212(a)(10)(C), but presumably this will be corrected); (4) be deportable or removable on a ground that is comparable to a ground of exclusion or inadmissibility; and (5) not be barred from applying for 212(c) relief under the law as it existed at the time that the individual pled guilty or nolo contendere.

The requirement described in (3) above is intended to reflect the two grounds of exclusion that could not be waived by section 212(c). However, the rule's citation to INA section 212(a)(9)(C) is mistaken, since this ground was renumbered by the IIRIRA. The ground of inadmissibility referenced as 212(a)(9)(c) in section 212(c) prior to the enactment of IIRIRA is now section 212(a)(10)(C), which refers to individuals who are inadmissible for participating in international child abduction.

The requirement described in (4) above is based on the history of section 212(c), which was originally enacted as a waiver of grounds of exclusion. But it was subsequently applied by the Board of Immigration Appeals to waive grounds of deportability, where the ground was analogous to a ground of exclusion that can be waived by section 212(c). Thus, the BIA held that 212(c) relief was not available for an individual deportable for entry without inspection, because there was no ground of exclusion corresponding to this ground of deportability. Matter of Hernandez-Casillas, 20 I. & N. Dec. 280 (Att'y. Gen. 1991).

Because section 212(c) was amended by the AEDPA, the requirement described in (5) above applies differently to individuals who were convicted prior to the enactment of the AEDPA and those convicted subsequently. For individuals who pled to a crime prior to the Apr. 24, 1996, enactment of the AEDPA, it means that if the individual was convicted of an aggravated felony, he or she must not have actually been incarcerated for five years or more, since this would disqualify the individual from 212(c) relief under pre-AEDPA law. For individuals who pled to a conviction between Apr. 24, 1996, and the Apr. 1, 1997, effective date of the IIRIRA, the individual must be eligible for relief under section 212(c) as it was modified by the AEDPA. In other words, the individual is not eligible for relief if he or she received a conviction for an aggravated felony, a controlled substance offense, a firearms offense, or two or more crimes involving moral turpitude for which the individual received a sentence of at least one year.

Individuals who did not plead guilty or nolo, but instead were convicted after trial, may not benefit from the proposed rule. The rule also bars individuals from obtaining relief if they have been deported and are outside of the United States, or if they entered the U.S. unlawfully after having been deported.

Individuals who have final orders of deportation, exclusion, or removal but who are eligible for relief under the rule would be able to file a motion to reopen their cases under the proposed rule. The motion, and the envelope containing it, would need to identify it as a "special motion to seek 212(c) relief." The normal time and number limitations on motions to reopen would not apply to this special motion, but eligible individuals may file only one such special motion. The special motion would have to be filed no later than 180 days after the effective date of a final rule implementing these proposals. The filing of a special motion does not stay the execution of a final order, and applicants who need a stay would also have to file an application for a stay.

Individuals who previously filed a motion to reopen under the "Soriano regulations" that were issued on Jan. 22, 2001, would not need to file a special motion under the proposed rule (the Soriano regulations, issued prior to the decision in St. Cyr, retreated from the attorney general's ruling in Matter of Soriano, 21 I. & N. Dec. 516 (Att'y. Gen. 1997) and allowed LPRs who were placed in deportation proceedings prior to the enactment of the AEDPA to apply for 212(c) relief. For more information on these regulations, see "EOIR Issues Final Rule to Allow Some LPRs with Pre-AEDPA Convictions to Apply for 212(c) Waivers," Immigrants' Rights Update, Feb. 28, 2001, p. 4).

Comments to the proposed rule must be submitted on or before Oct. 15, 2002, in order to be taken into account when the final rule is developed.

67 Fed. Reg. 52,627-33 (Aug. 13, 2002).