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Apr. 26, 2005, is the deadline for motions to reopen
deportation or removal proceedings under the regulations established by
the attorney general to implement the Supreme Court's ruling in INS
v. St. Cyr, 533 U.S. 289 (2001). The regulations allow individuals
in the same situation as the petitioners in St. Cyr to move to
reopen their cases to apply for 212(c) relief (see "AG Issues
Regulations Governing 212(c) Relief for LPRs with Convictions Based on
Plea Agreements Made Prior to Apr. 1, 1997,"
Immigrants' Rights Update,
Nov. 8, 2004, p. 3).
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1996 (IIRIRA) repealed section 212(c). The attorney general, in
Matter of Soriano,21 I. & N. Dec. 516 (BIA 1996, AG 1997), found
that the AEDPA restrictions applied even to individuals whose
disqualifying convictions occurred prior to the law's enactment.
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 regulations allow 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, and so a request for a stay of
removal should be filed in conjunction with the motion.
In order to qualify for
212(c) relief under the regulations, 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 sections 212(a)(3) (for security and
terrorism grounds) and 212(a)(10)(C) of the Immigration and Nationality
Act; (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.
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 AEDPA's enactment 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. However, a conviction based on a plea agreement
made prior to Nov. 29, 1990, does not disqualify an individual, because
prior to that date this basis for disqualification for 212(c) relief did
not exist. 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.
The regulations do not
afford relief to individuals who departed the U.S. and are currently
outside the country, or who returned to the country illegally after
having been ordered deported or removed, or who are present in the U.S.
without having been admitted or paroled.
Individuals who have final
orders of deportation, exclusion, or removal but who are eligible for
relief under the regulations may file a motion to reopen their cases
under the rule, but must do so on or before Apr. 26, 2005. The motion
must be identified as a "special motion to seek 212(c) relief" and 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 also have to file an application for a stay.
69 FR
57826-35 (Sept. 28, 2004).
--By
Linton Joaquin, NILC
executive director
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