Criminal Defense of Immigrants

 

(D)  The Date of Conviction.  In determining that the repeal of § 212(c) was improperly applied to St. Cyr, the Supreme Court focused upon the date on which St. Cyr either entered a plea agreement or pleaded guilty,[394] rather than the date the illegal act was committed, or the dates St. Cyr was placed in immigration proceedings or made his application for § 212(c) relief.  Therefore, the first step in determining whether a noncitizen is eligible for relief is to determine whether the noncitizen would have been eligible for relief under the version of § 212(c) that existed at the time of either the plea agreement or plea entry:[395]

 

·         Prior to November 19, 1990, no aggravated felony conviction was a bar to relief under § 212(c).[396]

 

·         Between November 19, 1990, and December 12, 1991, a single aggravated felony conviction barred § 212(c) relief only if the noncitizen actually served five years in custody as a result of the conviction, but not otherwise.

 

·         Between December 12, 1991 and April 24, 1996, one or more aggravated felony convictions barred § 212(c) relief only if the noncitizen actually served five years in the aggregate, as a result of the aggravated felony convictions.

 

·         Between April 24, 1996 and April 1, 1997, a noncitizen was ineligible for § 212(c) relief if convicted of an aggravated felony,[397] a controlled substance offense,[398] a firearms offense,[399] miscellaneous security-related crimes,[400] or two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct for each of which a sentence of one year or more may be imposed.[401]  Depending on various factors, a person subject to exclusion or inadmissibility may be able to avoid the AEDPA bars, but this may not be the case with persons in deportation proceedings seeking 212(c) relief in conjunction with an application for adjustment of status.[402]

 

·         § 212(c) relief was repealed entirely on April 1, 1997, and is unavailable to waive convictions entered after that date.[403]

 

This analysis is complicated by the fact that the aggravated felony definition is applied retroactively, so if a noncitizen is currently considered an aggravated felon, the conviction must be treated as if it had been an aggravated felony at the time of the conviction.[404]  Finally, all case law and regulations determining § 212(c) eligibility, up to the current date, must also be considered.

 

                New Regulations: Under the new regulations, the key date is not the date that the court itself officially acknowledged the plea of guilty, but rather the date that the criminal defendant and the prosecutor entered into an agreement that the criminal defendant would enter a plea of guilty.[405]  The problems with choosing this date are that it may occur some time before the actual plea was entered, and it is much more difficult to provide evidence of this date.  The regulations place the burden on the applicant to provide evidence showing the date the “plea agreement” was made.[406] 

 

[394] See also Alvarez-Hernandez v. Acosta, 401 F.3d 327, 331 n.19 (5th Cir. Feb. 17, 2005) (“We find that the date of a plea of guilty, and not the date that judgment of conviction is ultimately entered, is determinative of whether the retroactive application of the IIRIRA bar to an alien’s claim for § 212(c) relief is impermissible under St. Cyr. Accordingly, because he pleaded guilty before the effective date of the IIRIRA, Alvarez is not precluded from seeking § 212(c) relief.”).

[395] Tasios v. Reno, 204 F.3d 544 (4th Cir. Feb. 28, 2000); but see Perez v. Elwood, 294 F.3d 552 (3d Cir. June 28, 2002) (“conviction” occurred not when jury returned verdict before IIRAIRA’s effective date, but rather, when the district court imposed sentence, after IIRAIRA’s effective date, and thus, IIRAIRA’s repeal of waiver of deportation provision applied to noncitizen and barred him from eligibility for such relief). One federal district court in New York has questioned whether principles of international law require that the date of the offense, rather than the plea, control for non-retroactivity purposes.  Beharry v. Reno, 183 F.Supp.2d 584 (E.D.N.Y. 2002), reversed, 329 F.3d 51 (2d Cir. May 1, 2003).  The same court also suggested that circuit court decisions allowing INA § 212(c), 8 U.S.C. § 1182(c) relief only where the conviction pre-dated the 1996 Act were wrongly decided under principles of ex post facto analysis, stating that “it defies common experience to characterize deportation of an alien such as petitioner as anything other than punishment for his crimes.” Id.  But see Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. Jan. 22, 2004) (retroactive application of 212(c) repeal does not violate ex post facto clause, since ex post facto does not apply to civil removal proceedings); Flores-Leon v. INS, 272 F.3d 433, 440 (7th Cir. 2001).

[396] Toia v. Fasano, 334 F.3d 917 (9th Cir. June 30, 2003) (INA § 212(c) relief bar to aggravated felons who had actually served five years or more in custody does not apply to noncitizens who pleaded guilty prior to enactment of the bar on Nov. 29, 1990).

[397] Cruz-Bucheli v. Gonzales, 463 F.3d 105 (1st Cir. Sept. 22, 2006) (per curiam); United States v. Zuniga-Guerrero, 460 F.3d 733 (6th Cir. Aug. 23, 2006) (AEDPA version of INA § 212(c) not impermissibly retroactive when applied to a noncitizen who committed offense prior to AEDPA, but pleaded guilty after AEDPA become effective); Evangelista v. Ashcroft, 359 F.3d 145 (2d Cir. Feb. 23, 2004) (same); Khan v. Ashcroft, 352 F.3d 521 (2d Cir. Dec. 9, 2003) (AEDPA bar for aggravated felons not impermissibly retroactive as applied to persons who pleaded guilty after AEDPA’s effective date, April 24, 1996, even though the crime occurred before that date); Paulino-Jiminez v. INS, 279 F.Supp.2d 313 (S.D.N.Y. Aug. 28, 2003) (AEDPA amendments inapplicable to noncitizens convicted prior to AEDPA); Toledo-Hernandez v. United States, 280 F.Supp.2d 112 (S.D.N.Y. Aug. 27, 2003) (same).

[398] Other than a single offense involving possession for one’s own use of thirty grams or less of marijuana.  See INA § 237(a)(2)(B), 8 U.S.C. § 1227(a)(2)(B). 

[399] See INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C).

[400] See INA § 237(a)(2)(D), 8 U.S.C. § 1227(a)(2)(D).

[401] But see Matter of Fortiz, 21 I. & N. Dec. 1199 (BIA 1998) (noncitizen placed in proceedings before April 24, 1996 was only barred from INA § 212(c) relief if convicted of two or more crimes of moral turpitude for each of which a sentence of one year or more was imposed, applying pre-AEDPA version of INA § 241(a)(2)(A)(i)(II), 8 U.S.C. § 1231(a)(2)(A)(i)(II)).

[402] See Ruiz-Almanzar v. Ridge, 485 F.3d 193 (2d Cir. May 8, 2007); Matter of Fuentes-Campos, 21 I. & N. Dec. 905 (BIA May 14, 1997) (AEDPA bars apply only to noncitizens subject to deportability); Matter of Gonzalez-Camarillo, 21 I. & N. Dec. 937 (BIA 1997) (AEDPA bars apply to noncitizen applying for adjustment of status in conjunction with INA § 212(c) waiver of inadmissibility).  See also United States v. Estrada-Torres, 179 F.3d 776 (9th Cir. June 7, 1999) (AEDPA bars apply to both inadmissible and deportable noncitizens); Servin-Espinoza v. Ashcroft, 309 F.3d 1193 (9th Cir. 2002) (allowing noncitizens in exclusion proceedings, otherwise subject to AEDPA bars, to apply for INA § 212(c) relief, but not those in deportation proceedings seeking to adjust status with INA § 212(c) relief between May 14, 1997, and June 7, 1999, violated due process).  Footnote 1 of Servin-Espinosa, supra, at 1195, cites cases from the First, Second, Fifth, Sixth, Seventh, and Tenth Circuits affirming Matter of Furentes-Campos.

[403] IIRAIRA’s effective date for the purpose of the repeal of INA § 212(c), 8 U.S.C. § 1182(c), contained in IIRAIRA § 304(b), is April 1, 1997.  IIRAIRA § 309(a).  (IIRAIRA § 304(c)(2) provides that the effective date of IIRAIRA § 304(c)(1) is the effective date of AEDPA, but this does not apply to the repeal of INA § 212(c), 8 U.S.C. § 1182, the effective date of which is contained in IIRAIRA § 304(b), not IIRAIRA § 304(c)(1).).

[404] 8 C.F.R. § 1212.3(f) (2004).  But see United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. Apr. 7, 2004) (in concurrence, describing plausible due process argument against retroactivity of an expanded aggravated felony definition).

[405] But see Perez v. Elwood, 294 F.3d 552 (3d Cir. June 28, 2002) (finding conviction occurred on date official judgment was entered by court; noncitizen was ineligible for § 212(c) relief since, although jury trial occurred before April 1, 1997, judgment was entered after April 1, 1997).

[406] 8 C.F.R. § 1003.44(b) (2004).