Aggravated Felonies

(K)  Is This Relief Available To Persons Who Have Already Been Deported?  New Regulations: Noncitizens who would otherwise be eligible for relief under § 212(c), but have been deported from the United States, will not be allowed to seek § 212(c) relief under the new regulations, even if their deportation came about through the government’s mistaken interpretation of the law.  Under the new regulations, noncitizens are not eligible for § 212(c) relief if they: (1) have departed the United States under order of deportation or removal and are currently outside the United States, (2) have illegally re-entered the United States following an order or deportation or removal, or (3) are in the United States, but have not been previously admitted or paroled.[599] 

It may still be possible to argue in federal court, however, that the denial of § 212(c) relief prior to St. Cyr, and subsequent deportation, was unlawful at the time, since the Supreme Court has held that Congress intended in the 1996 legislation that INA § 212(c) relief should continue to be available in qualifying cases, and that the DHS should be ordered to readmit the wrongfully deported so they can apply for this relief.  The cases that have reached this issue thus far, however, have not been positive.[600]

In the illegal re-entry sentencing context, however, many cases have dismissed illegal re-entry charges or reversed illegal re-entry convictions on the basis that the order of deportation was itself illegal because the noncitizen defendants ordered removed between IIRAIRA and St. Cyr were not properly afforded an opportunity to apply for § 212(c) relief.[601]

[599] 8 C.F.R. § 1003.44(k).

[600] See United States v. Aguirre-Tello, 353 F.3d 1199 (10th Cir. Jan. 6, 2004) (deportation order not unlawful where respondent had no constitutional right to be informed of availability of discretionary § 212(c) relief, and respondent was not reasonably likely to have obtained § 212(c) relief if he had been so advised); United States v. Lopez-Ortiz, 313 F. 3d 225 (5th Cir. 2002); United States v. Garcia-Jurado, 281 F.Supp.2d 498 (E.D.N.Y. July 27, 2003).

[601] See United States v. Ortiz-Lopez, 385 F.3d 1202 (9th Cir. Oct. 6, 2004) (California conviction for possession of a controlled substance was not an aggravated felony, therefore IJ erred in failing to inform respondent that he was eligible for voluntary departure; district court therefore erred in dismissing collateral attack on illegal re-entry conviction); United States v. Ubaldo-Figueroa, 347 F.3d 718 (9th Cir. Oct. 17, 2003) (illegal re-entry conviction reversed on ground deportation order was invalid due to IJ failure to properly advise of relief or right to appeal; respondent was prejudiced since he had plausible arguments that he was eligible for former § 212(c) relief, and that retroactive application of the expanded aggravated felony definition violated due process), opinion amended and superseded on denial of rehearing, 364 F.3d 1042 (9th Cir. 2004); United States v. Saldivar-Vargas, 290 F.Supp.2d 1210 (S.D. Cal. Nov. 10, 2003) (prior removal proceeding may not be used to demonstrate that defendant had previously been removed since immigration judge failed to inform him of discretionary relief from removal pursuant to INA § 212(c), 8 U.S.C. § 1182(c)); see also United States v. Perez, 330 F.3d 97 (2d Cir. May 15, 2003) (district court order dismissing illegal re-entry indictment affirmed, on ground that the underlying deportation order was unlawful because the noncitizen was deprived of the opportunity for judicial review due to his counsel’s ineffective assistance in failing to file a timely INA § 212(c), 8 U.S.C. § 1182(c) application, violating his Fifth Amendment due process rights which prejudiced him because he showed that he was eligible for § 212(c), 8 U.S.C. § 1182(c) relief and could have made a strong showing in support of his application).  But see United States v. Copeland, 369 F.Supp.2d 275 (E.D.N.Y. May 4, 2005) (“The defendant has failed to prove that there was a reasonable probability -- a 20% chance, applying the inverse of the “clear, unequivocal and convincing” standard -- that he would have obtained section 212(c) relief [as a matter of discretion].”).