An alien who has committed an aggravated felony is not eligible for any relief under the existing provisions of the Immigration and Nationality Act. Such an aggravated alien, if he is trying to enter or reenter the United States, is considered ineligible for admission and for an immigrant visa. Similarly, if he is already in the United States, he is considered a deportable/removable alien and invariably be placed in removal proceedings, without any possibility of relief, and most likely will be detained under the mandatory detention provisions of § 236(c) the INA.

It is widely known that Congress has wrecked havoc by defining “aggravated felony” in section 101(a)(43) of the Immigration and Nationality Act, and including almost the whole of the alphabet soup (A through U) by including the whole gamut of criminal activities, even to the detriment of many time-honored and venerated values enshrined in the Act. It is also common knowledge, at least among immigration attorneys, that an alien who has committed an aggravated felony is not eligible for any relief. This reality hits rather too hard on an alien when he or she is subjected to a removal proceeding based upon an act that may have been committed and he/she may have already served time and dues to the society many years ago. The stark and often sad reality that it has truly wrecked havoc on many aliens and their families dawns on them and their attorneys only when the war bugle is sounded and the alien is frisked away from anywhere without a warning. That is exactly what happened to an alien who happened to come to me in desperation when no one was willing to help.  Let me begin from the beginning.

An alien may be a long time lawful permanent resident of the United States. He/She may have been married to a U.S. citizen and may even have native-born citizen children.  It is even possible that the alien may have been fully rehabilitated, and may even be performing some critical work as a useful and contributing member of the society. Yet, the aggravated felony provision swipes so widely and drastically as to encompass situations that may, in an overall perspective, may not be viewed as deserving of the most drastic and unfeeling result (deportation or removal) that is now unavoidably commanded by the Immigration and Nationality Act.  And, immigration attorneys while encountering such aliens and their families have to advise them that unfortunately Congress has created provisions that shut the door to any relief, regardless of any humanitarian and equitable factors that may otherwise be present and may even cry out for help.

Yet, often the situation may not be entirely hopeless for some aliens.  The question is who may be the lucky ones? From what I have experienced in the last few months, I can say that only those aliens are lucky who have lawyers who have the ability and inclination to dig deep, to find something useful they can use to save their clients.

I wish to bring two interesting examples to the notice of the interested readers, for they relate to lawful permanent resident aliens who were convicted of felonies, and later charged as inadmissible or removable aliens for committing aggravated felonies.  This brief note relates to a case of a young, 19-year old alien who had pleaded guilty to selling a few tablets of LSD and was convicted on his guilty plea some 10 years ago in January 1997. He was undeniably convicted of an aggravated felony, but he was not sentenced to any jail term. Instead, he was placed on probation for five years, and then released from probation after about three years.  Many years passed and when he took a short trip overseas and tried to reenter the U.S. in January 2006, an immigration inspector at the airport examined his record and found out about his 1997 felony conviction.  He was then placed in removal proceedings as an inadmissible alien for having committed an aggravated felony. The question is whether the alien is eligible for any relief.[1]

Many immigration attorneys were consulted, but all of them failed to notice that despite the current “shut the door” provisions in the Act, a closer and in-depth examination of the facts could possibly lead to a relief that is otherwise non-existent. Surprisingly, they guided themselves by reading the current provisions of the INA and advising the client that there was no relief available. Indeed, one even said in so many words that by pleading guilty and agreeing to a felony charge under state law, which is also a felony under Federal law, he signed his own “deportation warrant.”  However, as I will point out in this article, it so turned out that the situation for the alien was not entirely hopeless.

Yes, it could not be denied that the alien committed an aggravated felony.  It is also clear that various relief provisions in the INA, such as § 212(h), which provides for a waiver of inadmissibility for certain convicted aliens, and § 240A(a), which provides for what is now known as cancellation of removal (formerly known as “suspension of deportation”) for certain lawful permanent residents, are not applicable to aggravated felons. Congress has completely shut the doors of relief for such aliens. So, if you only read the existing provisions in the Act, a quick and easy answer is that the alien is not eligible for any relief.  Indeed, the immigration judge and the alien’s former counsel both had advised the young alien that no relief was available to him.

It was at that time, out of desperation and panic, the alien and his family members attempted to get second and third opinions. I was one of the attorneys approached to do some in-depth research and give an opinion about the possibility of any relief.  That is when I was informed that three other attorneys had declared that they could not help him at all.  Initially, I too was inclined to join the group, but then I kept remembering that there was a provision in the INA that enabled an alien to claim relief not only from inadmissibility but also from deportability, even if the alien had committed and was convicted of a crime relating to a controlled substance. The memory nudge I was getting related to § 212(c) of the Act.

Interestingly, there is no such provision as § 212(c) in the current version of the Act, for the former § 212(c) had been deleted from the statute by the IIRIRA of 1996. So, all the current versions of the Act, including the one (“The Whole Act—INA”) that is compiled and edited by this author, carry only a footnote for § 212(c).[2]  To summarize the six- or seven-year congressional amendments to § 212(c), from 1990 to 1996, each version of the change applied with increasing severity and ultimately it became extinct with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, effective April 1, 1997.

While conducting research, I also found that the U.S. Supreme Court had ruled, in not too distant a past, in INS v. St. Cyr, 533 U. S. 289, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001)

that notwithstanding the statutory amendments by the AEDPA of 1996 and IIRIRA of 1996, and thereby withdrawing the Attorney General’s authority to waive deportation under § 212(c) for aliens convicted of aggravated felonies, the district court still retained habeas jurisdiction under 28 USC § 2241, because the AEDPA and IIRIRA did not contain a clear and unambiguous congressional intention to bar habeas jurisdiction to decide pure questions of law.  Initially, however, the agency had applied AEDPA and IIRIRA retroactively, and when the lower courts sanctioned such retroactive application, the issue finally ended up in the High Court, and the Apex Court resolved the issue by holding that the amendments to § 212(c) did not apply retroactively and that § 212(c) relief still remained available for aliens whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea.

What was initially just a ruling of the Court that was issued in 2001, became a regulation for both the USCIS and EOIR.  See 8 CFR § 212.3(g) and § 1212.3(g) and (h), published on September 28, 2004.  However, it took the agency almost three years to codify it as a published regulation after the St. Cyr decision. Most importantly, the current regulation at 8 CFR § 1212.3(h) declares the “availability of section 212(c) relief for aliens who pleaded guilty or nolo contendere to certain crimes. See § 1212.3(h)(2), which in turn declares that “Regardless of whether an alien is in exclusion, deportation, or removal proceedings, an eligible alien may apply for relief under former section 212(c) of the Act, as amended by section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, with respect to a conviction if the alien pleaded guilty or nolo contendere and the alien’s plea agreement was made on or after April 24, 1996 and before April 1, 1997.

Despite these important developments that occurred in 2001 and 2004, it seems many lawyers were not aware, probably many are still not aware, that our young alien in the example noted above, kept getting advice in 2006 and 2007 that no relief was available to him only because there was no relief provision in the INA that could be used to save him from what was otherwise a certain “death” penalty or “banishment” in the form of a deportation order and eventual deportation.  However, just a careful scrutiny of his facts would have revealed what is indeed no less than a “treasure trove” for the young alien.[3]  He was convicted in January 1997 on the basis of his guilty plea and that he did not serve any jail term. Thus, he clearly falls within the regulatory provision that in all probability will save him from a most dreadful result.

There was indeed another twist in his saga. At a hearing in early January this year, the USICE suddenly woke up to the fact that he had committed an aggravated felony, which meant that his detention was mandatory under INA § 236(c). So, despite the fact that he was undergoing removal hearings in the immigration court for more than a year, and while we were all in the middle of a hearing before an immigration judge, I was advised by the TA that ICE would take the alien in custody directly from the Immigration Court, which was indeed a terrible surprise for the alien and his family, not to mention this author. Sure enough, he was frisked away that evening and kept in a detention center in New Jersey. It was indeed an intense battle for the next two weeks in a different setting in a different immigration court before a different immigration judge that handled expedited removal proceedings.

Fortunately, however, the new judge probably read the legal memorandum that pointed out, with sufficient details and clarity, the availability of § 212(c) relief, who then ordered to release the alien on bail.[4] Then the administrative machinery moved in the reverse gear and the case was re-transferred back to the same court that was handling the case initially. And, now it is moving forward at a snail space with two court-ordered adjournments, on its own, with the next date some 8 months later in the early Spring of 2008.  In short, now it is not a matter of priority for the Government.

The moral of the story, if one can discern one, is that a lawyer has to be like a diver who dives deep enough to find a pearl that is hidden in the murky waters―which is how one can describe without demur the maze of the current immigration laws and regulations. Indeed, the complex labyrinth of administrative precedent, federal judicial case law, and USCIS/EOIR regulations, is murky enough to require a close and in-depth look to find some useful material for each client. While it is easy enough to fail to look and give up, our ethical duty requires us to be true and forceful advocate to defend our clients’ interests, without succumbing to an otherwise natural habit pattern of not doing enough even when a client’s virtual life is at stake. 

© Copyright 2007 by Pravinchandra J. Patel.  All rights reserved.

Editor's note: An addendum to this Article was published in Immigration Daily on October 16, 2007.