Written by attorney Brian David Lerner

Relief under 212(c) in Removal or Deportation Hearings

Under former INA § 212(c), lawful permanent residents (LPRs) facing certain grounds of exclusion and deportation were eligible to seek relief from deportation if they could establish seven years of lawful domicile in the United States. Noncitizens who were convicted of aggravated felonies and who had served more than five years in prison were excluded from relief unless the convictions were entered prior to November 29, 1990. In determining whether a noncitizen is eligible for relief, the immigration judge can only consider the amount of time that a noncitizen has served in prison at the time of the hearing and not how much time the noncitizen will serve. A noncitizen remains eligible for relief even if he is an aggravated felon who served a five-year sentence if his plea agreement was entered before November 29, 1990, the date when the five-year incarceration bar took effect under the Immigration Act of 1990. If the time period for the eligibility of 212(c) are appropriate, then you can apply for this relief in removal proceedings, even though you might be served with the Notice to Appear, years after the sentence on the crime was completed. Section 440 of the Antiterrorism and Effective Death Penalty Act of 1996 amended former INA § 212(c) to prohibit relief to noncitizens deportable for having committed an aggravated felony, a controlled-substance offense, a firearms offense, a listed miscellaneous crime, or multiple crimes involving moral turpitude. As a result, relief remained available only to a noncitizen who had committed a single crime involving moral turpitude. Section 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 repealed INA § 212(c) and replaced it with INA § 240A(a) , cancellation of removal for lawful permanent residents. The repeal and enactment took effect April 1, 1997. Legacy INS and the Board of Immigration Appeals took the position that the provisions contained in the AEDPA and the IIRAIRA as related to former INA 212(c) relief applied retroactively rendering any noncitizen with a qualifying deportable conviction ineligible for relief regardless of the date of conviction. The Supreme Court settled this issue, addressing retroactivity, settled expectations and the availability of INA § 212(c) relief in light of the amendments under the AEDPA and the repeal under the IIRAIRA in its decision in I.N.S. v. St. Cyr. The Court held that the provisions contained in the AEDPA and the IIRAIRA could not be applied retroactively and found that relief remains available to lawful permanent residents who had pleaded guilty to offenses that rendered them deportable, excludable, or removable prior to April 24, 1996, and who would have been eligible at the time of their pleas for INA § 212(c) relief. Under subsequent regulations promulgated by the Executive Office for Immigration Review, the availability of relief was broadened to include certain lawful permanent residents who pleaded guilty, no contest, or nolo contendere before April 1, 1997. The Second Circuit has found that a noncitizen with convictions that both pre-dated and post-dated the IIRAIRA remains eligible for relief under former INA § 212(c) where his deportation proceedings commenced prior to the implementation of the IIRAIRA.

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