Aggravated Felonies

 

(A)  Brief History of INA § 212(c).  Prior to November 29, 1990, a waiver of inadmissibility under INA § 212(c) was generally available to noncitizens who:

 

(1)  had been lawfully admitted for permanent residence;[489]

(2)  had temporarily proceeded abroad voluntarily and not under an order of deportation; and

(3)  were returning to a lawful unrelinquished domicile of seven consecutive years in the United States.[490]

 

In addition to these eligibility requirements, the noncitizen was also required to establish that s/he merited the favorable exercise of discretion in order to obtain the waiver.[491]  Prior to its repeal, § 212(c) relief was granted, as a matter of discretion, about half the time.[492]

 

This relief was also available to lawful permanent residents who had not departed the United States, but were in deportation proceedings,[493] but only to noncitizens found deportable under a charge of deportability for which there was a comparable ground of excludability.[494]  Most commonly, this meant that noncitizens deportable for firearms convictions were not eligible for relief under § 212(c).[495]  The only exception to this rule was where the noncitizen was deportable as an aggravated felon,[496] in which case § 212(c) relief was possible even though there was no aggravated felony gound of inadmissibility in INA § 212(c)(2).

 

A conviction that is waived under INA § 212(c) will no longer constitute a ground of deportation, although the DHS may join a conviction for a crime of moral turpitude that has been waived with another that has not, to establish deportability for conviction of two CMT offenses.[497] 

 

After the passage of the Immigration Act of 1990,[498] § 212(c) relief was no longer available to a noncitizen convicted of an aggravated felony and who had actually served five years in prison.  This was soon amended to bar a noncitizen convicted of one or more aggravated felonies for which s/he actually served an aggregate of five years in prison.[499]

 

Additional limitations on eligibility for § 212(c) relief were imposed by AEDPA on April 24, 1996.[500]  Section 440(d) of AEDPA eliminated availability of § 212(c) relief to noncitizens who were “deportable by reason of having committed any criminal offense covered in § 241(a)(2)(A)(iii), (B), (C), or (D) or any offense covered by § 241(a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their commission, otherwise covered by § 241(a)(i) (A).”  Therefore, after April 24, 1996, § 212(c) was available to waive only:

 

·        excludability for a single crime of moral turpitude;

·        deportability for conviction of one crime involving moral turpitude, committed within five years of admission; or

·        deportability for convictions of two or more crimes of moral turpitude where only one or none carried a potential maximum sentence of one year or more.[501] 

·        any other ground of deportation — other than those specifically barred by the AEDPA amendment to § 212(c) — for which there is a parallel ground of inadmissibility.  See § 2.44(C), infra.

 

Effective on April 1, 1997, § 212(c) of the Act was repealed in its entirety, and replaced by cancellation of removal for lawful permanent residents under INA § 240A(a).  Initially, both the federal and immigration courts interpreted this legislation as eliminating § 212(c) relief retroactively as applied to criminal convictions predating the Congressional action.  Noncitizens who were in deportation proceedings prior to April 26, 1996 were eventually allowed to apply for § 212(c) relief as it existed prior to AEDPA and IIRAIRA.[502]

[489] See INA § 212(c), 8 U.S.C. § 1182(c) (1990).  See also Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. Dec. 7, 2005) (where DHS erroneously granted LPR status to noncitizen who had prior aggravated felony conviction, noncitizen was ineligible for § 212(c) relief in removal proceedings).

[490] See § 2.44(F), infra.

[491] Matter of Marin, 16 I. & N. Dec. 581 (BIA 1978).  See generally Immigrant Legal Resource Center, Winning a 212(c) Case (1995); National Immigration Project of the National Lawyers Guild, Immigration Law and Defense § 8.5 (2003); K. Brady, California Criminal Law and Immigration, Appendix 11-A following Chapter 11 (2004). 

[492] United States v. Torres, 383 F.3d 92, 97, n.5 (3d Cir. Sept. 7, 2004) (“According to statistics maintained by the Executive Office of Immigration Review, 212(c) relief was granted in more than half the cases to which it applied.  See Julie K. Rannik, The Anti-Terrorism and Effective Death Penalty Act of 1996: A Death Sentence for the 212(c) Waiver, 28 U. Miami Inter-Am. L.Rev. 123, 150 n.80 (1996); see also St. Cyr, 533 U.S. at 296 n. 5.”).

[493] See Ashby v. INS, 961 F.2d 555, 557 n.2 (5th Cir. 1992); Mantell v. United States Dep’t of Justice, 798 F.2d 124, 125 n.2 (5th Cir. 1986); Francis v. INS, 532 F.2d 268 (2d Cir. 1976); Matter of Silva, 16 I. & N. Dec. 26, 30 (BIA 1976).

[494] The deportation grounds and exclusion grounds must be “analogous,” Matter of Wadud, 19 I. & N. Dec. 182, 185 (BIA 1984); “substantially identical,” Cabasug v. INS, 847 F.2d 1321, 1326 (9th Cir. 1988); “comparable,” Matter of Montenegro, 20 I. & N. Dec. 602, 603 (BIA 1992); or “equivalent,” Matter of Hernandez-Casillas, 20 I. & N. Dec. 262, 287 (BIA 1990; A.G. 1991), aff’d, 983 F.2d 231 (5th Cir. 1993).  Grounds are not analogous if one of them has a “vastly greater scope” than the other, even though the wider ground may include the narrower ground.   See Matter of Jimenez-Santillano, 21 I. & N. Dec. 567 (BIA 1996) (INA § 241(a)(3)(B)(iii), 8 U.S.C. § 1231(a)(3)(B)(iii) [conviction for document fraud or misuse under 18 U.S.C. § 1546], and INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i) [fraud or willful misrepresentation of a material fact before an immigration official], are not analogous since the ground under INA § 241, 8 U.S.C. § 1231 is broader than the ground in INA § 212, 8 U.S.C. § 1182).

[495] See Matter of Esposito, 21 I. & N. Dec. 1, 6 (BIA 1995) (deportable firearms offense cannot be waived by § 212(c), even if offense is one of two convictions which may render noncitizen inadmissible under INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B) for multiple convictions with five-year aggregate sentence); Matter of Montenegro, 20 I. & N. Dec. 602 (BIA 1992) (assault with a firearm); Matter of Rodriguez-Cortes, 20 I. & N. Dec. 587 (BIA 1992) (assault with a firearm); Matter of Granados, 16 I. & N. Dec 726 (BIA 1979) (possession of sawed-off shotgun).  See also Drax v. Reno, 338 F.3d 98 (2d Cir. Aug. 4, 2003) (Immigration and Nationality Technical Corrections Act of 1994 (“INTA”) § 203(c), making attempted firearms offenses deportable, applies retroactively, and therefore barred petitioner from directly applying for § 212(c) relief); Adefemi v. Ashcroft, 335 F.3d 1269 (11th Cir. June 30, 2003), vacated and opinion withdrawn by 358 F.3d 828 (11th Cir. 2004), on rehearing en banc, 386 F.3d 1022 (11th Cir. 2004), cert. denied, 125 S.Ct. 2245 (2005).

[496] Matter of Meza, 20 I. & N. Dec. 257 (BIA 1991) (noncitizen charged as an aggravated felon under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), held eligible for § 212(c) relief, even though § 212(c) does not contain specific provision for aggravated felonies).

[497] Molina-Amecua v. INS, 6 F.3d 646 (9th Cir. 1993); Molenda v. INS, 998 F.2d 291, 294-95 (5th Cir. 1993) (same); Comas v. McDonough, 2005 WL 670540 (D. Mass. Mar. 23, 2005) (unpublished); Matter of Balderas, 20 I. & N. Dec. 389 (BIA 1990).

[498] Pub. L. No. 101-649, 104 Stat. 4978 (Nov. 29, 1990).

[499] See § 2.44(E), infra.

[500] Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996).

[501] Cf. Alberto-Gonzalez v. INS, 215 F.3d 906 (9th Cir. 2000) (holding the multiple CMT ground of deportation had not been established since a one-year sentence had not been imposed on each of the two convictions, as required under the law in effect when the deportation proceedings were begun).

[502] 8 C.F.R. § 1212.3(g) (added Jan. 22, 2001); Matter of Soriano, 21 I. & N. Dec. 516 (BIA 1996, AG 1997).  Noncitizens who conceded deportability before AEDPA’s effective date, expecting they could seek waivers under § 212(c), are also still eligible to apply for the relief.  Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. Jan. 22, 2004); see also LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998).  One court has found that proceedings commenced prior to AEDPA where the INS served the OSC on the noncitizen, but failed to file the OSC until after AEDPA and IIRAIRA. Cunningham v. U.S. Att’y Gen., 335 F.3d 1262 (11th Cir. June 27, 2003).