Post-Conviction Relief for Immigrants
§ 7.16 1. To Be Eligible for the Waiver of Deportability Under Former INA 212(c), the Noncitizen Must Avoid Service of 5 Actual Years or More in Custody for Aggravated Felony Conviction(s)
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An immigrant who would have been eligible for discretionary relief from removal in immigration court, pursuant to former INA § 212(c), at the time of the plea in a criminal case, remains eligible for that relief at the present time.[41] In order to qualify for this relief (at least after November 29, 1990), the immigrant must not have actually served a total of five years or more in custody as the result of one or more aggravated felony convictions.[42]
Counsel can avoid a sentence-based disqualification from eligibility for this relief by vacating or reducing sufficient aggravated-felony sentences so that the aggregate total of the remaining such sentences is less than five years.
If the plea occurred prior to April 24, 1996, the noncitizen can waive deportability on account of any criminal conviction (and a number of non-criminal grounds as well), pursuant to a waiver of deportation under former INA § 212(c). If the plea occurred on or after April 24, 1996, and prior to April 1, 1997, eligibility for § 212(c) relief was greatly restricted. If the plea occurred on or after April 1, 1997, § 212(c) relief was completely abolished.
[41] INS v. St. Cyr, 121 S.Ct. 2271 n.48 (2001), affirming St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000).
[42] The Immigration Act of 1990 (effective November 29, 1990), and the Technical Corrections Act of 1991, imposed this requirement. The person remains eligible for § 212(c) relief until the five years have actually been served. Matter of Ramirez-Somera, 20 I. & N. Dec. 564 (BIA 1992). Since eleigibility for this relief is determined as of the date of the plea, a noncitizen who pleaded guilty prior to November 29, 1990, the effective date of the Immigration Act of 1990 new rule containing this five-year actual custody bar to 212(c), would not be subject to it. Similarly, the original 1990 bar required the five years to result from a single aggravated felony, and the modified 1991 bar under which a total of five years from one or more aggravated felonies is required would not apply to pleas entered prior to the 1991 effective date.
