Examining Who is Eligible to Seek Relief Under Former Section 212(c)

 

Introduction

The former section 212(c) of the Immigration and Nationality Act (INA) provided a waiver for certain lawful permanent residents (LPRs) who were rendered deportable by a criminal conviction. The former section 212(c) was repealed by Congress, effective April 1, 1997, and was replaced generally by the narrower cancellation of removal for LPRs [see article]. However, the Supreme Court of the United States held in 2001 that the repeal of former section 212(c) does not apply retroactively. Accordingly, the former section 212(c) remains available to certain LPRs who are subject to removal based on criminal convictions or guilty pleas prior to the repeal of the former section 212(c).

Former Section 212(c)

In this article, we will examine the text and history of the former section 212(c). We will explain who may still benefit from section 212(c) today, the rules for seeking section 212(c) relief, and relevant administrative precedent and caselaw concerning the scope of former section 212(c). Please see our full article on the adjudicative principles for former section 212(c) relief to learn how applications for relief for those who are not barred from seeking it are considered [see article].

Understanding Former 212(c)

Former section 212(c) of the INA read as follows:

Aliens lawfully admitted for permanent residence who temporarily proceed abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General …

In I.N.S. v. St. Cyr, 533 U.S. 289, 294-295 (2001) [PDF version], the Supreme Court noted that this provision, which was codified as part of the Immigration and Nationality Act of 1952, “replaced and roughly paralleled [section] 3 of the 1917 Act.”

Section 212(c) is a waiver provision. As the Supreme Court noted in St. Cyr, the text of the provision “was literally applicable only to exclusion proceedings…” “Exclusion proceedings” were part of the pre-1997 statutory scheme. Under the statutory scheme in effect before 1997, whether an alien would be subject to “exclusion” or “deportation” depended on whether he had made an “entry.” The current statutory scheme replaced the concept of “entry” with that of “admission” (roughly, “lawful entry” under old terminology) and replaced “exclusion” and “deportation” proceedings with “removal proceedings.” Please see the relevant section of our article on section 212(f) of the INA to learn more about all of these concepts (note that this section is only relevant to the instant article insofar as it discusses the terms in this paragraph, section 212(f) itself is a distinct issue) [see section].

In 1976, the United States Court of Appeals for the Second Circuit held in Francis v. Immigration and Naturalization Service, 532 F.2d 268 (2d. Cir 1976) [PDF version], that former section 212(c) applied to qualifying aliens (meaning LPRs with an unrelinquished domicile in the United States of seven consecutive years) in deportation proceedings as well. The Board of Immigration Appeals (BIA) adopted the holding in Francis as precedent later that same year in the Matter of Silva, 16 I&N Dec. 26, 30 (BIA 1976) [PDF version].

Timeline of Changes to Former Section 212(c)

Before examining the continuing applicability of former section 212(c), it is important to understand how the provision was changed — and eventually eliminated entirely — through legislation. The revisions to former section 212(c) are detailed in the section of the Immigration Judge Benchbook titled “Waiver of Inadmissibility under former INA Section 212(c)” (“IJ Benchbook”) [PDF version].

On November 29, 1990, Congress amended former section 212(c) through the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (“IMMACT90”). This amendment prohibited an alien who had been convicted of an aggravated felony and who had served a term of imprisonment of at least five years from being granted relief under former section 212(c).

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214. (“AEDPA”) took effect. Section 440(d) of the AEDPA excluded aliens convicted of the following offenses from former section 212(c) relief:

  1. Aggravated felonies;
  2. Controlled substance offenses;
  3. Firearm offenses;
  4. Certain miscellaneous crimes such as espionage; and
  5. Multiple crimes involving moral turpitude.

Finally, on April 1, 1997, former section 212(c) was repealed in full by section 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”).

These dates are important in understanding how former section 212(c) does — and does not — apply today.

Supreme Court Rules Repeal of Waiver Provision Does Not Have Retroactive Effect

In the aftermath of the repeal of former section 212(c), circuit courts split on whether former section 212(c) relief remained available to LPRs with convictions prior to the effective date of the repeal of the provision. The question was significant because former section 212(c) applied to a broader range of offenses than the provisions that replaced it.

In I.N.S. v. St. Cyr, 533 U.S. 289, 293 & n.1 (2001), the Supreme Court noted that there was a split among circuit courts on the question of whether the continuing availability of former section 212(c) relief was reviewable by the judiciary.

St. Cyr concerned an LPR who had been convicted of what is now an aggravated felony. His conviction occurred before the effective date of the repeal of former section 212(c). His immigration proceedings commenced after the repeal of former section 212(c). Under former section 212(c), he was eligible for a waiver of deportation. However, under the post IIRIRA law, he was ineligible for relief from removal. Thus, the question of whether he was eligible for former section 212(c) relief was potentially decisive as to whether he would be permitted to remain in the United States as an LPR.

By a 5-4 margin, the Supreme Court held in St. Cyr that the AEDPA and IIRIRA do not apply retroactively. This means that an alien convicted of an offense before the effective date of those provisions would be eligible for the waiver that existed at the time of the conviction.

Eligibility for Relief Under Former Section 212(c) Today

The rules regarding the availability of former section 212(c) relief today are rather complicated. Determining whether an alien is eligible for former section 212(c) relief is not as simple as determining whether his or her conviction or guilty plea occurred after the effective date of the termination of former section 212(c). This is because, as we have detailed, the provisions of former section 212(c) were modified multiple times prior to being replaced on April 1, 1997. Thus, the eligibility requirements differ depending on when an alien's conviction following a trial or after an agreement to plead guilty occurred.

Today, an application for relief with the DHS under former section 212(c) is filed on the Form I-191, Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (those seeking relief before an Immigration Judge must use the Form EOIR-42). Regulations regarding the current status of former section 212(c) are found in 8 C.F.R. 1212.3.

First, there are two general requirements that apply to all applicants for relief under former section 212(c).

First, former section 212(c) only applies to LPRs. The Form I-191 instructions explain that, under 8 C.F.R. 1.2, LPR status ends upon a court's issuance of a final order of removal, deportation, or exclusion. If an alien becomes subject to a final order of removal, deportation, or exclusion before having lived in the United States for seven consecutive years as an LPR and/or as a lawful temporary resident, he or she will not be eligible for relief under former section 212(c). This includes those who leave under grants of voluntary departure before having been lived in the United States for seven consecutive years.

Furthermore, an alien seeking to benefit from former section 212(c) must have procured LPR status lawfully. If he or she gained LPR status on the basis of fraud or misrepresentation of a material fact, or if he or she was otherwise ineligible for LPR status at the time he or she gained it, the alien will be ineligible for former section 212(c) relief. In the Matter of Villalobos, 26 I&N Dec. 719 (BIA 2016) [see article], the Board held that an alien who had been ineligible to adjust status from temporary resident to permanent resident based on inadmissibility was ineligible to seek relief under former section 212(c).

Finally, the applicant must have had a lawful unrelinquished domicile for seven consecutive years immediately prior to the filing of the Form I-191. The only periods of time that are counted toward this requirement are time spent in:

  • LPR status;
  • Lawful temporary resident status under section 210 of the INA; and
  • Lawful temporary resident status under section 245A of the INA.

Time spent in any other status, lawful or otherwise, does not count toward this seven-year domicile requirement.

Please see our article on adjudicating former section 212(c) applications to learn more [see article].

Different Versions of the Statute

In the Matter of Abdelghany, 26 I&N Dec. 254, 272 (BIA 2014) [PDF version], the Board detailed the rules of how section 212(c) applies depending on when a conviction occurred or a guilty plea was or entered.

First, regardless of when a conviction occurred, an alien who is subject to inadmissibility under section 212(a)(3)(A), (B), (C), or (E) of the INA is not eligible for relief under former section 212(c). These provisions relate to inadmissibility for security and related grounds. In Kelava v. Gonzales, 434 F.3d 1120, 1124 (9th Cir. 2006) [PDF version], the Ninth Circuit upheld the retroactive bar for terrorist charges. Additionally, an alien who is inadmissible under section 212(a)(10)(C) of the INA for international child abduction is ineligible for relief under former section 212(c). Likewise, an alien who “[f]ailed, after proper notice, to appear for [] deportation, exclusion, or removal proceedings, failed to comply with a voluntary departure order, or otherwise violated immigration laws relating to deportation proceedings” is ineligible for relief under former section 212(c) (see Form I-191 instructions).

Second, an alien who was convicted of an aggravated felony or of multiple aggravated felonies on or after November 29, 1990, but before April 24, 1996, and who served an aggregate term of imprisonment of at least five on the basis of the conviction(s) is ineligible for relief under former section 212(c). There are two important points to understand here. Firstly, this does not apply to aggravated felony convictions entered prior to November 29, 1990. For example, an aggravated felony conviction entered in 1989 that resulted in an aggregate term of imprisonment of at least five years would not bar former section 212(c) relief. Secondly, an aggravated felony conviction between November 29, 1990, and April 24, 1996, only bars former section 212(c) relief if it resulted in an aggregate term of imprisonment of at least five years. An aggravated felony conviction, or multiple aggravated felony convictions, does not present a bar without the corresponding term of imprisonment.

Finally, stricter rules apply for an alien seeking former section 212(c) relief to waive deportability based on conviction or guilty plea entered or agreed upon or after April 24, 1996, and before April 1, 1997. If an alien pled guilty to, or was convicted of, one of the following offenses during the applicable time period, he or she will be ineligible for former section 212(c) relief (see Form I-191 instructions for list):

  1. One or more aggravated felonies;
  2. Offense involving a controlled substance under 21 U.S.C. 802;
  3. Certain offenses involving firearms or destructive devices;
  4. Two or more crimes involving moral turpitude if each crime was an offense for which a sentence of one year or longer may be imposed; or
  5. Conviction or conspiracy to commit: (A) Sabotage, espionage, treason, or sedition, if a sentence for at least five years' imprisonment may be imposed; (B) Any violation of 18 U.S.C. 871 or 960; (C) Any violation of the Military Selective Service Act; (D) Any violation of the Trading with the Enemy Act; or (E) Any violation of section 215 or 278 of the INA.

An alien who is removable based on a conviction or guilty plea on or after April 1, 1997, is categorically ineligible for relief under former section 212(c) with a limited exception that we discuss in the following subsection.

Exclusion or Deportation Proceedings Commenced Before April 1, 1997

As held in the Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997) [PDF version], an alien placed in exclusion proceedings prior to April 24, 1996, remains eligible for former section 212(c) relief irrespective of the AEDPA amendments. In this case, the Board recognized the distinction between “exclusion” and “deportation” proceedings, and it held that the AEDPA amendments applied only to the latter. This decision was recognized as good law by the Board in Abdelghany 26 I&N Dec. at 260 & n.11.

In the same footnote of Abdelghany, the Board noted that the AEDPA and IIRIRA amendments are inapplicable to any alien in deportation proceedings that were commenced before April 24, 1996. This is also codified in regulations at 8 C.F.R. 1212.3(g). Furthermore, the Board explained that the repeal of section 212(c) does not apply to any alien in deportation (as opposed to removal) proceedings, even if the proceedings began after April 24, 1996. This applies even where “a conviction providing a basis (or an additional basis) for deportability was entered on or after April 1, 1997.” Thus, provided an alien was placed in or is placed in deportation proceedings, a subsequent conviction forming the basis of deportability charges will not render the alien ineligible for former section 212(c) relief so long as the alien is otherwise eligible.

For an illustration of how this works in practice, let us look to the decision of the United States Court of Appeals for the Ninth Circuit in Pascua v. Holder, 641 F.3d 316 (9th Cir. 2011) [PDF version]. This case concerned an alien who in 1996 was placed in deportation proceedings based on 1995 convictions. The alien was convicted of additional crimes in 2005 while her 1996 deportation case remained before an Immigration Judge. On the basis of these 2005 convictions, the Department of Homeland Security (DHS) added charges of deportability. The Ninth Circuit held that section 209(c) covered the entire case, including those charges added after the effective date of the IIRIRA. This means that an alien in ongoing deportation proceedings may, in general, seek former section 212(c) relief for deportability grounds added during the proceedings that are based on post-IIRIRA convictions. For further reference, please also see the Second Circuit decision in Garcia-Padron v. Holder, 558 F.3d 196 (2d Cir. 2009) [PDF version].

Where Proceedings Based on Pre-AEDPA/IIRIRA Conviction Commence After April 1, 1997

If an alien is placed in removal proceedings based on a pre AEDPA/IIRIRA conviction — in other words, on or before April 1, 1997 — he or she may seek relief under the former section 212(c), if otherwise eligible. However, different rules apply depending on whether deportation proceedings were commenced prior to April 1, 1997, or removal proceedings were instituted after April 1, 1997.

Under section 240A(c)(6), an alien who previously received relief under former section 212(c) is ineligible for cancellation of removal. For an alien placed in removal proceedings, only removal charges based on convictions or pleas before April 1, 1997, may be subject to a former section 212(c) waiver. Accordingly, if an alien in removal proceedings also has removability charges based on post IIRIRA convictions, he or she may not seek relief under former section 212(c) for those charges. The Eighth Circuit reached this conclusion in Munoz-Yepez v. Gonzalez, 465 F.3d 347 (8th Cir. 2006) [PDF version], and Ninth Circuit ruled similarly in Garcia-Jimenez v. Gonzales, 488 F.3d 1082 (9th Cir. 2007) [PDF version].

Timing of Guilty Plea

Under 8 C.F.R. 1003.44 and 1213(f), an alien may be eligible for relief under former section 212(c) if he or she agreed to plead guilty before an effective date even if the plea was not entered after the effective date. In the Matter of Moreno-Escobosa, 25 I&N Dec. 114 (BIA 2009) [PDF version], the Board held that the date of the plea agreement was dispositive (as opposed to the date of sentencing). Thus, the key question is when a guilty plea was agreed to rather than when it was entered.

Effect of Vacatur and Re-Pleading

In Lawrence v. Gonzalez, 446 F.3d 221 (1st Cir. 2006) [PDF version], the First Circuit held that the pertinent date for former section 212(c) purposes for an alien who had been initially convicted of an offense in 1995, but had that conviction vacated so he could plead guilty to the same charges in 1998, was the latter date (the alien had done this in order to plead to an offense that was not an aggravated felony for purpose of initially seeking a section 212(h) waiver as the beneficiary of a family-sponsored petition). It is worth noting, however, that there is not extensive case-law on this issue.

Aggravated Felonies Under IMMACT90 Amendments

An alien convicted of an aggravated felony or aggravated felonies on or after November 29, 1990, but before April 24, 1996, will be barred from eligibility for former section 212(c) relief if the conviction or convictions resulted in an aggregate term of imprisonment of five years or more. In the Matter of Ramierez-Somera, 20 I&N Dec. 564 (BIA 1992) [PDF version], the Board made clear that the five-year requirement refers to the term of imprisonment actually served rather than the term of imprisonment the alien was sentenced to.

Multiple circuits have held that the five year period continues during proceedings. For example, the Third Circuit held that the five years' imprisonment requirement was reached in a case while it was before the BIA in Lupera-Espionza v. Attorney General of the U.S., 716 F.3d 781 (3d Cir. 2013) [PDF version]. The Sixth Circuit held in Elia v. Gonzales, 431 F.3d 268, 275-76 (6th Cir. 2005) [PDF version] that there are no due process concerns associated with the failure to give an alien a hearing within five years of being incarcerated so that he could seek relief under section 212(c).

The Seventh Circuit issued an interesting decision regarding former section 212(c) eligibility in Esquivel v. Mukasey, 543 F.3d 919 (7th Cir. 2008) [PDF version]. In this case, an alien had procured a former section 212(c) waiver in 1989 for an attempted murder conviction that was entered in 1981, prior to November 29, 1990. The date of the conviction was significant, for his conviction was an aggravated felony and he served a term of imprisonment in excess of five years. Subsequent to the effective date IMMACT90, he was sentenced to two theft offenses. The alien sought a former section 212(c) waiver for the two theft offenses. The Seventh Circuit held that the alien was in fact ineligible for a second section 212(c) waiver on the basis of his aggravated felony conviction for which he served a term of imprisonment of at least five years. The Seventh Circuit reasoned that the initial 212(c) waiver did not render the attempted murder conviction moot for purpose of seeking a subsequent section 212(c) waiver under different rules.

It is unclear whether the five year term of imprisonment must be served in one term, or if multiple shorter terms of imprisonment may meet the threshold. The United States District Court for the Southern District of New York held in Toledo-Hernandez v. Ashcroft, 280 F.Supp.2d 112 (SDNY 2003) [PDF version] that a former section 212(c) waiver was available to an alien who served five years in the aggregate for two aggravated felony convictions, but less than five years for each one.

In Singh v. Mukasey, 520 F.3d 119 (2d Cir. 2008) [PDF version], the Second Circuit held that an individual who confessed to a crime prior to the effective date of IMMACT90 but pled guilty after was barred from section 212(c) (where the crime was an aggravated felony for which he served a term of imprisonment of at least five years).

Courts have split on whether nunc pro tunc relief is available to individuals who only served five years imprisonment after a legally erroneous denial of former section 212(c) relief. In Edwards v. INS, 393 F.3d 299 (2d Cir. 2004) [PDF version], the Second Circuit granted nunc pro tunc relief to an alien who accrued five years' imprisonment after a legally erroneous denial of section 212(c) relief. The First Circuit declined to follow Edwards in Fernandes-Pereira v. Gonzales, 417 F.3d 38 (1st Cir. 2005) [PDF version]. In Romero-Rodriguez v. Gonzales, 488 F.3d 672 (5th Cir. 2007) [PDF version], the Fifth Circuit held that the Board, but not the courts, have the authority to grant nunc pro tunc relief where five years' imprisonment was accrued by an alien who reopened proceedings after his initial application for section 212(c) relief was denied based on a legal error.

Comparable Grounds Rule Struck Down

8 C.F.R. 1213(f)(5) provides that an alien is barred from former section 212(c) relief if he or she is “deportable under former section 241 of the [INA] or removable under section 237 of the [INA] on a ground which does not have a statutory counterpart in section 212 of the [INA]. This approach was adopted by the Board in the Matter of Blake, 23 I&N Dec. 722 (BIA 2005) [PDF version] prior to the codification of 8 C.F.R. 1213(f)(5). The Board issued a related decision later that same year in the Matter of Brieva, 23 I&N Dec. 766 (BIA 2005) [PDF version].

Circuit courts split regarding the “comparable-grounds rule” rule set forth in regulations and in the Matter of Blake. The issue was resolved in 2011 by the Supreme Court in Judulang v. Holder, 132 S.Ct 476 (2011) [PDF version]. A unanimous Supreme Court struck down the comparable-grounds rule as “arbitrary and capricious” under the Administrative Procedures Act (APA). The Board studied both St. Cyr and Judulang as well as the Supreme Court's decision in Vartelas v. Holder, 566 U.S. 257 (2012) [PDF version] in crafting its decision in the Matter of Abdelghany. Relying on Vartelas, the Board held in Abdelghany that whether an alien was relying upon section 212(c) is not dispositive as to whether he or she is eligible (in finding that regulations that distinguished between guilty pleas and convictions were invalid).

Special Provisions to Reopen

Under regulations found in 8 CFR 1003.44(h), certain aliens were permitted to file special motions to reopen for purpose of seeking former section 212(c) relief before April 26, 2005. Although some of these cases may be ongoing, no special motions to reopen may be filed after April 26, 2005.

Conclusion

The continuing applicability of former section 212(c) is a complicated and heavily litigated area of immigration law. Although certain issues remain unclear, the Board and the various Federal courts are in accord on most of the pertinent issues involving former section 212(c). An alien facing removal charges should consult with an experienced immigration attorney for a full evaluation of his or her situation and possible eligibility for relief.

Please see our full article on how section 212(c) is adjudicated for aliens who are not barred from relief under the provision to learn more [see article].

RESOURCES AND MATERIALS:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1364-74, Print. Treatises & Primers.