Relief in Removal Hearings: Part V: Relief under former INA Section 212(c).
Former INA section 212(c) permitted the Attorney General to admit into the United States, in his discretion, certain lawful permanent residents who had an unrelinquished domicile of seven consecutive years. The seven years can be accumulated up to the point that the administrative order becomes final. Since the Francis, decision the BIA has applied INA section 212(c) to deportation cases arising in the Second Circuit and in the Silva decision, the Board decided to apply it nationwide. For section 212(c) relief to be available in deportation proceedings there had to be a ground of deportation that was comparable to a ground of exclusion. In 1991 the Board found that an alien deportable for a drug-related aggravated felony which could also form the basis for excludability under the drug-related section is not precluded from establishing eligibility for relief. In the more recent cases the Board has taken a conservative approach when defining an inadmissibility "statutory counterpart" to a deportation statute that constituted an aggravated felony charge. In removal proceedings the Immigration Judge, balances the positive and negative factors in arriving at his decision whether or not to exercise his discretion favorable and grant relief. A showing of heightened equities is required if the alien has an extensive criminal record. A showing of rehabilitation is one factor to be considered. For some lawful permanent resident aliens with convictions entered prior to April 1, 1997, INA section 212(c) is the statute of choice for relief. Aliens with certain convictions are ineligible to apply for relief under section 212(c) if they pled or entered into a plea agreement on or after November 29, 1990 and prior to April 24, 1996 or between April 24, 1996 and prior to April 1, 1997. The regulations state that relief shall be denied if, among other things, "the alien is charged and found to be deportable or removable on the basis of a crime that is an aggravated felony, as defined in 101(a)(43) of the Act (as in effect at the time the application for 212(c) relief is adjudicated)." There are two exceptions to this rule. One exception is set out for aliens with plea agreements entered into on or after November 29, 1990 but prior to April 24, 1996. These aliens are only barred from relief if they served a five year term of imprisonment. Aliens who entered into plea agreements before November 29, 1990 that resulted in convictions for aggravated felonies, whether or not they served a five year term of imprisonment, are also not ineligible for relief. For plea agreements entered into between April 24, 1996 and April 1, 1997, aliens with convictions for an aggravated felony, controlled substance offenses, certain firearms offenses, "miscellaneous crimes" and two crimes involving moral turpitude for which a sentence of imprisonment for one year or more has been imposed for each conviction, are ineligible for relief. The regulations make clear that for aliens who were in deportation proceedings that were commenced before the immigration court prior to April 24, 1996, section 440(d) of AEDPA does not apply and the paragraph immediately above is inapplicable The issue of combining a waiver application under former INA section 212(c) has not been settled by a precedent BIA decision, although unpublished decisions have been reviewed by various U.S. Courts of Appeal with approval. In Garcia-Jimenez v. Gonzales, the Court of Appeals for the Ninth Circuit held that INA section 240A(c)(6) makes clear that an alien who has received 212(c) relief at any time is barred from a grant of INA section 240A(a) cancellation of removal and rejects the argument that these two forms of relief may be afforded simultaneously. The Ninth Circuit again held an aggravated felony conviction which was waived for purposes of inadmissibility or removability still bars an alien from receiving cancellation. The court therein found that even if an alien was able to waive his 1978 aggravated felony conviction for possession of marijuana for sale under INA section 212(c), it would nonetheless remain an aggravated felony for purposes of precluding his application for cancellation of removal based on 2004 conviction. The Second Circuit held "regardless of the availability of a ? 212(c) waiver, [petitioner's] 1996 aggravated felony convictions remain and preclude his application for cancellation of removal under section 240A(a)." The Fifth Circuit held in Amouzadeh v. Winfrey, that a grant of relief under former INA section 212(c) for a prior drug-related conviction still bars relief under INA section 240(A) for a separate crime involving moral turpitude because relief under section 212(c) does not waive an aggravated felony conviction for purposes of the cancellation statute. Another Fifth Circuit case involved a claim of ineffective assistance of counsel because the alien's first counsel admitted the allegation relating to the making of a false claim to U.S. citizenship, although he denied the charge. The court therein stated that "[t]herefore, if Mai received a waiver of inadmissibility for his burglary conviction under section 212(c), he would automatically be rendered ineligible for cancellation of removal under section 240A(a) for the false claim of citizenship charge and would still be inadmissible." He was ineligible to waiver the burglary offense through cancellation of removal because of the stop-time rule. The Seventh and Eighth Circuits have followed the Second, Fifth and Ninth Circuits