Richards-Diaz v. INS: 9th Circuit Rules Certain LPRs Can Apply for 212(c) Relief in Removal Proceedings...

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

RICHARDS-DIAZ V. INS: 9TH CIRCUIT RULES CERTAIN LPRS CAN APPLY FOR 212(c) RELIEF IN REMOVAL PROCEEDINGS; SUPREME COURT TO DECIDE ISSUE ON REVIEW OF 2D CIRCUIT CASE
Immigrants' Rights Update, Vol. 15, No. 1, Feb. 28, 2001

The Ninth Circuit Court of Appeals has ruled that certain lawful permanent residents can apply for waivers under former section 212(c) of the Immigration and Nationality Act, even if they are in removal (rather than deportation) proceedings. The decision comes on appeal from a district court's denial of a habeas corpus petition. Under the ruling, LPRs may apply for 212(c) relief only if they would be eligible for 212(c) waivers but for a conviction entered prior to Apr. 24, 1996, (the date of enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)) that resulted from a guilty plea, and only if they can show that the guilty plea was entered in reliance on the availability of 212(c) relief. In a related development, the U.S. Supreme Court has decided to review a Second Circuit case that found 212(c) relief to be available for LPRs with pre-AEDPA guilty pleas who are in removal proceedings.

The petitioner in the Ninth Circuit case, a Mr. Richards-Diaz, is an LPR admitted to the U.S. in 1975. In February 1996, he pled guilty to illegal transportation of a controlled substance. In June 1997, the INS initiated removal proceedings against Richards-Diaz, charging him with being removable for having been convicted of an aggravated felony. The immigration judge at his hearing found him removable and not eligible for any relief, and on appeal the Board of Immigration Appeals upheld this decision.

Richards-Diaz then filed a petition for habeas corpus with the district court in order to obtain a review of the BIA decision. The district court found that it had jurisdiction over the petition but denied it on the merits. The court concluded that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which repealed section 212(c) and substituted cancellation of removal as a form of relief for long-term LPRs, was not impermissibly retroactive. Richards-Diaz appealed that decision.

On appeal, the court first affirmed the district court's jurisdiction over the petition, citing Flores-Miramontes v. INS, 212 F.3d 1133 (9th Cir. 2000) (holding that the IIRIRA permanent rules for judicial review did not repeal habeas jurisdiction to review removal orders) (see "9th Circuit: Jurisdiction to Review Removal Orders Based on Criminal Convictions Lies with Habeas, Not Petition for Review," Immigrants' Rights Update, June 6, 2000, p. 7).

Turning to the merits, the court rejected the argument that IIRIRA's repeal of section 212(c) in general is impermissibly retroactive. The court concluded that Congress clearly intended IIRIRA's repeal of 212(c) to apply to all immigrants except those in transitional deportation or exclusion proceedings.

However, the Ninth Circuit also recognized the same limited exception that the court previously made for individuals in deportation proceedings initiated after the Apr. 24, 1996, effective date of the AEDPA. In Magana-Pizano v. INS, 200 F.3d 603, 613 (9th Cir. 1999), the court allowed that such individuals can apply for 212(c) waivers despite the AEDPA's restrictions if they can make "a specific factual showing that a plea was entered in reliance on the availability of a discretionary waiver under section 212(c)." Quoting this exception, the court concluded that LPRs in removal proceedings also can apply for 212(c) if they can make this showing. Because the district court did not address this issue, the court remanded the case for an evidentiary hearing to determine whether Richards-Diaz qualifies for this exception.

The 9th Circuit decision differs from the decision of the Second Circuit in St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000), cert. granted, 531 U.S. __ (Jan. 12, 2001). In St. Cyr, the court found that the AEDPA restrictions on 212(c) relief, and the IIRIRA repeal of section 212(c), do not apply to individuals who plead guilty or nolo contendere prior to the enactment of AEDPA. The court did not require a showing of individual reliance. This issue will now be resolved by the U.S. Supreme Court, which decided on Jan. 12, 2001, to review St. Cyr.

Richards-Diaz v. INS, 233 F.3d 1160 (9th Cir. 2000).