Aggravated Felonies

            (H)  Is INA § 212(c) Relief Available Where the Conviction Did Not Render the Noncitizen Deportable on the Date of the Conviction?  Some convictions are currently considered aggravated felonies, even though they did not render a noncitizen deportable at the time of the conviction.  Arguably, noncitizens with such convictions could not have relied on the availability of § 212(c) relief at the time of their convictions because they did not actually need the relief at that time.  In the Ninth Circuit, at least, noncitizens convicted of such crimes are still eligible to apply for § 212(c) relief.

            In Leon-Paz,[572] the Ninth Circuit court found that noncitizens convicted of offenses prior to AEDPA could have relied upon § 212(c) because, in the event the offenses later became an aggravated felony, they would still have been eligible for § 212(c) relief as long as they were not subject to the five-year bar.[573] 

            The Ninth Circuit had previously held that noncitizens convicted of such crimes were statutorily not eligible for § 212(c) relief if convicted between April 24, 1996 and April 1, 1997, since § 212(c) was not available to any aggravated felons after the passage of AEDPA.[574]  However, in Cordes v. Gonzales, the Ninth Circuit found that to apply a different rule to this group of people would violate due process, and therefore anyone convicted of an offense that became deportable as an aggravated felony only after IIRAIRA can apply for § 212(c) relief if otherwise eligible.[575]

            New Regulations: The new regulations do not appear to make any distinction between noncitizens who were not deportable at the time of their conviction and those who were.  Rather, the regulations focus only on whether the noncitizen would currently be eligible for (and require) § 212(c) relief under the version of the law that was in effect at the time the plea agreement was made.[576]

[572] United States v. Leon-Paz, 340 F.3d 1003 (9th Cir. Aug. 22, 2003).

[573] Ibid.

[574] United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. 2002).

[575] Cordes v. Gonzales, 421 F.3d 889 (9th Cir. Aug. 24, 2005) (despite being in the same position as Velasco-Medina, “we sustain Cordes’s equal protection challenge because the current judicially defined limits to the availability of section 212(c) relief post-IIRIRA, as applied by the Bureau of Immigration and Customs Enforcement, create an irrational result, namely affording discretionary relief from removal to legal permanent residents who have committed worse crimes than similarly situated permanent residents like Cordes.”).

[576] See, e.g., 8 C.F.R. § § 1003.44(a) (“who are eligible to apply”), 1033.44(b)(4) (“is otherwise eligible to apply”) (emphases added).