Crimes of Moral Turpitude

 

(B)

Other CMT Issues.  The import of this history is that the question of whether INA § 212(c) relief is available to a noncitizen will depend upon 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, at least when the noncitizen is charged with a conviction-based ground of removal.[1] 

 

            The Ninth Circuit has held that the repeal of § 212(c) is not impermissibly retroactive when applied to a conduct-based ground of removal, since, even if the conduct pre-dated the repeal of § 212(c), there can be no “settled expectations” of receiving § 212(c) relief formed by the entry of a guilty plea.[2]  The court found that even where there was a plea to a criminal offense, the plea itself held no special significance, since it was the conduct that triggered removability.[3]

 

The seven years lawful unrelinquished domicile period ends upon entry of a final order of removal.[502]  A parent’s domicile in the United States is imputed to the parent’s unemancipated minor child for purposes of this requirement.[503]  A noncitizen who entered a plea of guilty less than seven years after adjusting status to lawful permanent resident should still be considered eligible to apply for INA § 212(c) relief, even though, unlike the petitioner in INS v. St. Cyr, s/he had not by the date of plea as yet accrued the full “lawful unrelinquished domicile of seven consecutive years.”  At least one Circuit court follows this rule.[504]  The new regulations codify the rule that the noncitizen must have “seven consecutive years of lawful unrelinquished domicile in the United States prior to the date of the final administrative order of deportation or removal.”[505]

 

Noncitizens in removal proceedings are allowed to make multiple applications for relief, in combination, in order to avoid removal.  A common example is an application for adjustment of status in combination with an application for a waiver of inadmissibility under INA § 212(h), in order to avoid deportation.[506]  The same may be done with an application for a § 212(c) waiver.[507]  However, a noncitizen cannot apply for § 212(c) relief in conjunction with an application for cancellation of removal if the noncitizen has suffered a conviction for an aggravated felony.[508]

 

            The First, Second, Fourth, Fifth, Seventh, Ninth and Eleventh Circuit courts have held that defendants who chose to go to trial rather than enter a plea of guilty cannot make the same argument made in St. Cyr, that they relied upon the availability of 212(c) relief at the time they decided whether to go to trial.[509]  The Second, Third, Fifth, Sixth and Tenth Circuits do allow noncitizens convicted by jury to apply for 212(c) relief, although most courts require some showing of reliance.[510]  The regulations make § 212(c) relief available only to noncitizens who entered a plea of guilty or no contest, and not to noncitizens who proceeded to trial.[511]

 

The new regulations impose a number of requirements upon noncitizens seeking to reopen proceedings to apply for § 212(c) relief.  The most important of these is a deadline of April 26, 2005 to make a special motion to reopen to apply for § 212(c) relief.[512]  This deadline should not bar noncitizens not already subject to an order of removal from applying for § 212(c) relief after that date.

[513] 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).  See also 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).

[514] Kelava v. Gonzales, 410 F.3d 625 (9th Cir. Jan. 12, 2006) (repeal of § 212(c) relief not retroactively applied to noncitizen deportable under INA § 237(a)(4)(B), 8 U.S.C. § 1227(a)(4)(B) [terrorist activity], even though conviction pre-dated repeal, since the terrorist ground of deportation is conduct based and therefore there can be no settled expectations upset by entering a plea).

[515] Id.

[502] See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 24.28(G) (4th Ed. 2007)

[503] Lepe-Guitron v. INS, 16 F.3d 1021, 1025-1026 (9th Cir. 1994) (because a child’s domicile follows that of his or her parents, the parents’ domicile in the United States is imputed to the parents’ unemancipated minor child for purposes of the seven years “lawful unrelinquished domicile” required for discretionary waiver under the now-repealed INA § 212(c), 8 U.S.C. § 1182(c)); accord, Rosario v. INS, 962 F.2d 220, 224 (2d Cir. 1992) (even if child is outside of the United States).

[504] Alvarez-Hernandez v. Acosta, 401 F.3d 327 (5th Cir. Feb. 17, 2005) (noncitizen need not have accrued seven years of unrelinquished domicile at the time of plea in order to be eligible for INA § 212(c), 8 U.S.C. § 1182(c) relief under INS v. St. Cyr; following rule that seven years for domicile for § 212(c) stops at time of application for § 212(c)).  See also Gonzalez-Garcia v. Gonzales, 431 F.3d 234 (5th Cir. Nov. 16, 2005).

[505] 8 C.F.R. § 1003.44(b)(3) (emphasis added).

[506] See Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993).

[507] See Matter of Azurin, 23 I. & N. Dec. 695 (BIA Mar. 9, 2005) (application for adjustment of status combined with § 212(c) waiver allowed to waive non-analogous aggravated felony offense to avoid aggravated felony ground of deportation).

[508] Peralta-Taveras v. Gonzales, 488 F.3d 580 (2d Cir. May 22, 2007); Garcia-Jimenez v. Gonzalez, 472 F.3d 679 (9th Cir. Jan. 2007) (one cannot obtain cancellation of removal for permanent residents if relief is granted under former INA § 212(c) at any time, even during the same proceedings) [Note: it appears from the facts in this case that the Ninth Circuit failed to follow its own precedent decision, Sinotes-Cruz v. Gonzalez, 468 F.3d 1190 (9th Cir. Nov. 2006) (permanent stop-time rule for cancellation of removal cannot be applied retroactively to convictions occurring prior to the effective date of IIRAIRA, therefore allowing a person to apply for cancellation despite a conviction of a crime of moral turpitude that occurred during the first seven years of physical presence)]; Munoz-Yepez v. Gonzales, 465 F.3d 347 (8th Cir. Aug. 30, 2006) (noncitizen convicted of 1994 aggravated felony and 2004 domestic violence offense cannot apply for relief under both former INA § 212(c) and cancellation of removal under INA § 240A).

[509] Mbea v. Gonzales, 482 F.3d 276, (4th Cir. Mar. 22, 2007); Alexandre v. U.S. Attorney Gen., 452 F.3d 1204 (11th Cir. Jun. 20, 2006) (St. Cyr foreclosed § 212(c) relief for persons convicted by jury trial); Swaby v. Ashcroft, 357 F.3d 156 (2d Cir. Feb. 3, 2004); Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. Jan. 22, 2004); Rankine v. Reno, 319 F.3d 93 (2d Cir. 2003); Dias v. INS, 311 F.3d 456, 458 (1st Cir. 2002); Anathanasios Theodoropoulos v. INS, 313 F.3d 732 (2d Cir. Dec. 18, 2002), as amended (Dec. 20, 2002); Chambers v. Reno, 307 F.3d 284 (4th Cir. Oct. 15, 2002) (repeal of INA § 212(c), 8 U.S.C. § 1182(c) relief properly applied retroactively to noncitizen convicted at trial of aggravated felony prior to enactment of IIRAIRA, since it did not alter the defendant’s guilty plea calculations); Armendariz-Montoya v. Sonchik, 291 F.3d 1116 (9th Cir. May 30, 2002) (INA § 212(c), 8 U.S.C. § 1182(c) relief was unavailable to a noncitizen convicted by jury trial), citing United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (this decision did not so hold; rather, it held that the noncitizen, who had been convicted by jury trial, did not come within the exception as delineated by Magana-Pizano; moreover, Herrera-Blanco was decided before St. Cyr, and did not properly address, nor focus upon, the retroactivity issues discussed by the Supreme Court); Brooks v. Ashcroft, 283 F.3d 1268 (11th Cir. 2002); Lara-Ruiz v. INS, 241 F.3d 934, 945 (7th Cir. 2001).

[510] Atkinson v. Att’y Gen. of the United States, 479 F.3d 222 (3d Cir. Mar. 8, 2007) (the repeal of former INA § 212(c) is impermissibly retroactive as applied to noncitizens who were convicted by jury, as the Supreme Court law on retroactivity does not require quid pro quo reliance upon the existence of 212(c)); Carranza-de Salinas v. Gonzales, 477 F.3d 200  (5th Cir. Jan. 23, 2007); Hem v. Maurer, 458 F.3d 1185 (10th Cir. Aug. 18, 2006); Restrepo v. McElroy, 369 F.3d 627 (2d Cir. Apr. 1, 2004); Thaqi v. Jennifer, 377 F.3d 500 (6th Cir. Jul. 23, 2004).  See also, Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. Oct. 19, 2004).

[511] 8 C.F.R. § 1212.3(h).

[512] 8 C.F.R. § 1003.44(h).  Johnson v. Gonzales, 478 F.3d 795 (7th Cir. Feb. 28, 2007) (BIA properly barred motion to reopen to apply for INA § 212(c) relief as untimely, since it was filed after April, 26, 2005; Attorney General did not act ultra vires in passing 8 C.F.R. § 1003.44(h), which placed deadline in bringing motions to reopen in light of St. Cyr.)