AG Issues Regulations Governing 212(c) Relief For LPRs With Convictions Based On Plea Agreements Made Prior To Apr. 1, 1997

IMMIGRATION LAW & POLICY

Removal Issues
Concerning Criminal Convictions

AG issues regulations governing 212(c) relief for LPRs with convictions based on plea agreements made prior to Apr. 1, 1997
Immigrants' Rights Update, Vol. 18, No. 7, November 8, 2004

The U.S. attorney general has issued a final rule that establishes procedures governing applications for relief under section 212(c) of the Immigration and Nationality Act. The rule implements a narrow interpretation of the Supreme Court’s ruling in INS v. St. Cyr, 533 U.S. 289 (2001), by allowing individuals in the same situation as the petitioners in St. Cyr to move to reopen their cases to apply for 212(c) relief. The final rule adopts the rule that was proposed in Aug. 2002, with no significant change (see “AG Issues Proposed Rule Governing 212(c) Relief for LPRs With Certain Convictions Prior to Apr. 1, 1997,” Immigrants’ Rights Update, Sept. 10, 2002, p. 7). The effective date of the final rule is Oct. 28, 2004.

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of specified criminal offenses, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) repealed section 212(c).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 agreed to plead 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 final rule allows such individuals to file a special motion to reopen not subject to the normal time and number restrictions for motions to reopen, but the special motion to reopen must be filed by Apr. 26, 2005. The special motion does not automatically stay removal, so a request for a stay of removal should be filed in conjunction with the motion.

Under the rule, 212(c) relief is not available to individuals whose convictions were the result of a trial rather than a guilty plea. Relief is also not available to individuals who were already deported as a result of the AG’s retroactive interpretation of the AEDPA, nor to those who returned to the U.S. illegally after having received a final order of deportation or exclusion.

In order to qualify for 212(c) relief under the 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); (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 (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 have final orders of deportation, exclusion, or removal but who are eligible for relief under the rule may file a motion to reopen their cases under the rule, but must do so on or before April 26, 2005. The motion must be identified as a “special motion to seek 212(c) relief” and must be accompanied by form I‑191 and required attachments. 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.

69 FR 57826–35 (Sept. 28, 2004).