Aggravated Felonies

            (B)  The Resurrection of 212(c) Relief.  On June 25, 2001, the Supreme Court held that the repeal of § 212(c) could not be applied retroactively to the appellant who was presumed to rely upon the availability of § 212(c) relief, when s/he entered a plea agreement or plea of guilty prior to April 1, 1997, and had already accrued seven years of unrelinquished domicile in the United States.[503]  St. Cyr makes § 212(c) relief available to noncitizens in removal proceedings, as well as to those in deportation or exclusion proceedings.  

The St. Cyr decision revived § 212(c) relief for a large number of noncitizens, while creating many new legal issues to be resolved.  Whether a noncitizen is currently eligible for § 212(c) relief turns both on the date the noncitizen was convicted and on the body of case law that has developed in the circuit in which the case arises.  While the Ninth Circuit has held that failure of the Immigration Judge to notify a noncitizen of the availability of § 212(c) relief, after its repeal, but before the St. Cyr decision, was a violation of due process, all other circuits to reach the issue disagree.[504]

[503] INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2275 (2001).

[504] Compare United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1051 (9th Cir. 2004), with United States v. Torres, 383 F.3d 92 (3d Cir. Sept. 7, 2004) (IJ’s failure to inform noncitizen of eligibility for discretionary relief did not render removal proceeding unconstitutional; illegal re-entry charge sustained); United States v. Aguire-Tello, 353 F.3d 1199, 1207-10 (10th Cir. 2004) (en banc); United States v. Wilson, 316 F.3d 506, 509-511 (4th Cir. 2003); United States v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003); United States v. Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir. 2002); United States v. Roque-Espinoza, 338 F.3d 724, 728 (7th Cir. 2003).