Carranza-de Salinas v. Gonzales, 477 F.3d 200 (5th Cir. Jan. 23, 2007) (noncitizen convicted after jury trial is eligible for relief under former INA 212(c), if the noncitizen can affirmatively establish actual, subjective reliance, i.e., that s/he waited to apply for 212(c) defensively, before an IJ, rather than file affirmatively with the DD); accord, Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004); Wilson v. Gonzales, 471 F.3d 111 (2d Cir. 2006) ("Restrepo reliance" - or reliance on an affirmative 212(c) possibility-- requires an "individualized showing of reliance" that includes a belief that waiting would improve the chances of obtaining the waiver based on a stronger case of rehabilitation or other equities); see Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004) (allowing all convicted after jury trial to apply for 212(c) relief). The Carranza argument can be raised in any circuit, and may be especially promising in the Fourth Circuit. See Olatunji v. Ashcroft, 387 F.3d 383, 389-91 (4th Cir. 2004).



Counsel can argue that those who were convicted by jury and were incarcerated while eligible for INA 212(c) relief and then had eligibility for 212(c) taken away, form a group that qualify for 212(c) relief without an individualized inquiry. The theory is that since the advice of attorneys and the BIA itself (cites are in Carranza-de Salinas) caused them to delay applying for 212(c) relief until after they were released from prison, so they could better document their rehabilitation, those people, as a group, should be considered to have the requisite reliance to satisfy St Cyr. After all, the people who pleaded guilty were treated as a group in St Cyr and did not have to show individual reliance. Practice manuals and other materials from that time support this generally accepted strategy not to file for 212(c) relief while incarcerated, in addition to the Board decisions which document that that was the generally accepted approach, establish that this group categorically relied on the continued availability of 212(c) relief. The recent Wilson decision in the second circuit may pose difficulties, but this argument can still be made to fit within its language.



Thanks to Lisa Brodyaga and Claudia Slovinsky.