9th Circuit Finds 1990 Act's Bar To 212(C) Relief For Certain Aggravated Felons Not Applicable To Those Who Pled Guilty Before The Bar's Enactment

IMMIGRATION LAW & POLICY

Removal Issues
Concerning Criminal Convictions

9th Circuit finds 1990 Act’s bar to 212(c) relief for certain aggravated felons not applicable to those who pled guilty before the bar’s enactment
Immigrants' Rights Update, Vol. 17, No. 4, July 15, 2003

The U.S. Court of Appeals for the Ninth Circuit has ruled that a provision of the Immigration Act of 1990 that eliminated the availability of 212(c) waivers for immigrants who were convicted of an aggravated felony and served a term of imprisonment of at least five years does not apply to persons whose conviction was the result of a guilty plea prior to the enactment of the restriction. The ruling finds that the court’s earlier decision to the contrary, in Samaniego-Meraz v. INS, 53 F.3d 254 (9th Cir. 1995), has effectively been overruled by the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001).

Former section 212(c) of the Immigration and Nationality Act provided a waiver of certain grounds of inadmissibility or deportability for lawful permanent residents who had accrued at least seven years of lawful unrelinquished domicile in the United States. The 1990 act amended the section to bar relief for individuals who had been convicted of an aggravated felony and who were incarcerated as a result for a period of at least five years. Subsequently, the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA) further limited 212(c) relief by barring it to individuals convicted of a wide range of offenses, and then the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) eliminated section 212(c) altogether. However, in St. Cyr the Supreme Court found that 212(c) relief remains available to immigrants who pled guilty prior to the IIRIRA’s enactment and who would have been eligible for the relief had the law not been subsequently changed. In reaching this conclusion, the Court found that eliminating 212(c) relief for immigrants who would have been eligible for the relief at the time they pled guilty has an impermissibly retroactive effect. While St. Cyr did not address the retroactivity of the 1990 act’s restriction on 212(c) relief, the Ninth Circuit has now found that the Supreme Court’s decision compels it to overrule Samaniego.

In Samaniego, the Ninth Circuit examined the 1990 act and found that the statute did not clearly provide whether the bar to relief for aggravated felons who were incarcerated for over five years applied to pre-act convictions. However, the court also concluded that applying the bar to aggravated felons convicted prior to 1990 did not create an impermissibly retroactive effect. The Ninth Circuit has now found that this latter conclusion cannot be reconciled with St. Cyr. Accordingly, the court ruled that immigrants “who pleaded guilty prior to the enactment of IMMACT [i.e., the 1990 act] and who otherwise would have been eligible for § 212(c) relief but for the aggravated felon bar, may still apply for § 212(c) relief.”

Toia v. Fasano, No. 02-55436 (9th Cir. June 30, 2003).