Criminal Defense of Immigrants


§ 10.75 2. INA §212(c) Waiver 5-Year Bar

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An immigrant who would have been eligible for discretionary relief from removal in immigration court at the time of the entry of the plea agreement in a criminal case, pursuant to former INA § 212(c), remains eligible for that relief at the present time.[313]  In order to qualify for this relief, certain noncitizens must not have actually served a total of five years or more in custody as the result of one or more aggravated felony convictions.[314]   See § 24.28(E), infra.


                Counsel can avoid a sentence-based disqualification for this relief by obtaining aggravated-felony sentences ordered by the court(s) such that the aggregate total of all of them is less than five years.

[313] INS v. St. Cyr, 533 U.S. 289, n.48, 121 S.Ct. 2271 (2001), affirming St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000).

[314] The Immigration Act of 1990 (effective November 29, 1990), and the Technical Corrections Act of 1991 (effective December 12, 1991), imposed this requirement.  The person remains eligible for INA § 212(c) relief until the five years have actually been served.  Matter of Ramirez-Somera, 20 I. & N. Dec. 564 (BIA 1992).