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USDOJ Issues Final Rule On 212(c) Relief

by Christina B. LaBrie, Esq.

On September 28, 2004, the US Department of Justice issued the final rule on applications for waivers under INA § 212(c). See 69 Fed. Reg. 57826-57835 (September 28, 2004). The new rule goes into effect on October 28, 2004. The long-awaited final regulations create procedures and clarify certain problematic issues, taking into consideration the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001). 1

I. Background on INA § 212(c)

Former INA § 212(c) provided an avenue for relief from removal for certain permanent residents with criminal conviction. INA § 212(c) was eliminated by § 304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)2 and replaced with cancellation of removal under INA § 240A(a). The important distinction between INA § 212(c) and the new provision is that cancellation of removal under INA § 240A(a) is not available to permanent residents who have been convicted of an aggravated felony, as defined in INA § 101(a)(43). After years of litigation and inconsistent application of the law, the Supreme Court in St. Cyr, supra, held that relief under INA § 212(c) remained available to permanent residents who pleaded guilty prior to the enactment of IIRIRA. Prior to the Supreme Court’s decision, many applications for relief under INA § 212(c) were denied simply because the Immigration Judge or the Board of Immigration Appeals believed that such relief was no longer available. Of course, a large number of applicants who were denied 212(c) relief on that basis were subsequently deported from the United States.

In order to be granted relief under INA § 212(c), an applicant must show that he or she has had a “lawful unrelinquished domicile of seven consecutive years,” and must not have been convicted of a aggravated felony for which the term of imprisonment was at least five years.3 The Immigration Judge must weigh the positive factors against the negative factors to determine if relief should be granted in the exercise of discretion. See Matter of Marin, 16 I&N Dec. 581 (BIA 1978); Matter of Wadud, 19 I&N Dec. 182 (BIA 1984).

II. The New Rule

The new 212(c) rule contains a few important limitations on relief. First, it does not permit permanent residents who were deported prior to St. Cyr to apply for 212(c) relief, even where the application was denied based on erroneous interpretations of AEDPA and IIRIRA. The introduction to the new rule states that the USDOJ believes permanent residents who were deported “had a sufficient opportunity to challenge the denial of their applications for 212(c) relief…” 69 Fed. Reg. 57827. This statement is clearly untrue, as many applications were denied based on the mistaken belief that 212(c) relief had been eliminated for all applicants. The merits of these applications were never considered and thus these individuals should have been given the opportunity to reapply even after deportation.

Second, the new regulations clearly state that 212(c) relief is only available to permanent residents who were convicted pursuant to plea agreements. See 8 C.F.R. § 1212.3(h). In explaining this distinction, the USDOJ claims that according to St. Cyr, “only the reliance interests of those aliens pleading guilty to crimes when section 212(c) was available were sufficiently strong to warrant continued eligibility for such relief.” 69 Fed. Reg. 57828. However, the Supreme Court in St. Cyr did not address continued eligibility for 212(c) relief for permanent residents convicted at trial. A permanent resident convicted at trial may have decided to take the risk of going to trial because 212(c) relief was available even if the result was a conviction. Therefore, there is no logical reason to determine that a permanent resident who pleads guilty relied more heavily on the availability of 212(c) relief than a permanent resident who goes to trial.

Third, the new rule imposes a 180-day deadline on filing motions to reopen to seek 212(c) relief. Those subject to a final order of deportation or removal must file a special motion to seek 212(c) relief by April 26, 2005. See 8 C.F.R. § 1003.44(h). The motion is not subject to the time and number limitations on motions to reopen that may be filed on grounds unrelated to 212(c). See 8 C.F.R. § 1003.44(g)(4). Motions currently pending with the Board of Immigration Appeals or the Immigration Court will be considered under the new regulations and the motion may be supplemented. See 8 C.F.R. § 1003.44(g)(2), (1). It should be noted that this time limitation only applies to final orders of deportation or removal; permanent residents currently in immigration proceedings or those placed in immigration proceedings in the future are not foreclosed from applying for 212(c) relief after April 26, 2005.

The government has frequently argued that where a permanent resident has been found to be deportable based on a criminal conviction, there must be a corresponding ground of inadmissibility to apply for relief under 212(c). Language in the new rule specifically implements this argument. See 8 C.F.R. § 1212.3(f)(5). This issue arises frequently in cases involving firearms convictions, deportable offenses for which there is no corresponding ground of inadmissibility.

In addition to these limitations, the new rule contains no provision for an automatic stay of removal upon the filing of a motion to reopen seeking 212(c) relief. This is troubling because the filing of the motion to reopen could alert the DHS of the outstanding final order of removal and the applicant would have no automatic protection from removal prior to the consideration of the 212(c) application. Furthermore, if the individual is deported, he or she will not be able to pursue 212(c) relief from abroad, as explained above.

Two issues have been clarified by the new 212(c) rule. First, a permanent resident must have entered into a “plea agreement” prior to April 1, 1997 in order to be eligible for 212(c) relief. There is no requirement that the conviction be formally entered prior to that date, only that the applicant have made the plea agreement with the prosecution. Of course, it is often difficult to prove the date of a plea agreement. Most applicants will be able to rely on the date of entry of the plea agreement in court to prove that the plea agreement was made prior to April 1, 1997. However, for those with convictions entered after that date could still be eligible for 212(c) relief if they can prove that the plea agreement was made on an earlier date. The date of the plea agreement also determines which version of 212(c) applies to the case. The three versions, with eligibility limitations based on the type of conviction, are as follows:

1. Plea agreements entered into prior to November 29, 1990 – No limitations

2. Plea agreements entered into on or after November 29, 1990 and before April 24, 1996 – 212(c) relief not available for aggravated felony convictions for which a term of imprisonment of at least five years was served

3. Plea agreements entered into on or after April 24, 1996 and prior to April 1, 1997 – 212(c) relief only available for a single conviction involving moral turpitude, or two crimes involving moral turpitude with the second occurring more than five years after the date of admission.

The second issue clarified is the seven year period of lawful domicile. The requisite period of lawful domicile terminates upon the entry of the final administrative order of deportation, not at the time of the plea agreement or conviction. 8 C.F.R. 1003.44(b)(3). This aspect of the new rule is contrary to the argument previously put forth by the government in many 212(c) cases. The new rule will be beneficial to many 212(c) applicants, but does not address those cases which were previously denied based on the government’s argument that the seven years must have accrued at the time of the conviction.

The new rule retains the so-called “Soriano rule,” which was published in the Federal Register on January 22, 2001. See 66 Fed. Reg. 6436 (January 22, 2001). Under the Soriano rule, applicants whose deportation proceedings commenced prior to April 24, 1996 may apply for 212(c) relief irrespective of whether their convictions resulted from plea agreements or criminal trials. The deadline to file motions to reopen under the Soriano rule for those with final orders of deportation, July 23, 2001, is not extended under the new rule. However, the Soriano rule will continue to apply to pending cases.

More than two year have passed since the proposed 212(c) regulations were published. The much-anticipated final rule makes few changes to the proposed regulations and notably omits suggested improvements. The failure of the new rule to provide relief for those deported under erroneous interpretation of the law unfortunately denies a fair hearing to many deserving applicants. In addition, the short time-frame established for filing motions to reopen ensures that many eligible individuals will not seek 212(c) relief. As the USDOJ will not notify eligible individuals of the new rule and the deadline, it is important to spread the word throughout immigrant communities.

1 As a result of the structural changes that created the Department of Homeland Security, the USDOJ regulations only address applications for 212(c) relief made in Immigration Court proceedings. However, applications for 212(c) relief can be made affirmatively to the District Director under 8 C.F.R. § 212.3(a). If denied, the applicants would likely be placed in removal proceedings where the application for relief can be renewed.

2 The availability of § 212(c) relief was limited by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), but was not eliminated entirely until the passage of IIRIRA.

3 The aggravated felony limitation was added by Section 511 of the Immigration Act of 1990.

This article originally appeared on

About The Author

Christina B. LaBrie, Esq. is an associate attorney at Cyrus D. Mehta & Associates, PLLC. She received her J.D. from the New York University School of Law in 2000. Prior to joining the firm, she practiced immigration law, representing primarily asylum applicants before Immigration Courts, the Board of Immigration Appeals and federal courts.fore Immigration Courts, the Board of Immigration Appeals and federal courts. She is Secretary of the Committee on Immigration and Nationality Law at the Association of the Bar of the City of New York.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.