(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.)

RELIEF " INA 212(c) WAIVER " COMPARABLE GROUNDS
Judulang v. Holder, ___ U.S. ___, 132 S.Ct. 476 (Dec. 12, 2011) (the comparable grounds test applied by the BIA in Matter of Blake is arbitrary and capricious under the Administrative Procedure Act, 5 U. S. C. 706(2)(A); noncitizens in deportation proceedings are eligible for relief under INA 212(c) if otherwise qualifying conviction triggers some waivable ground of inadmissibility).

RELIEF " WAIVERS " 212(c) RELIEF " TRIAL BAR " JUDULANG
In Judulang, the Court rejected a rule that categorically excluded a group of deportable LPRs on grounds that bore no relationship to the aliens fitness to remain in the country. Judulang v. Holder, 565 U.S. """", """", 132 S.Ct. 476, 485, 181 L.Ed.2d 449 (2011). Op. at 12. Categorical exclusion of trial conviction cases also bears no relationship to fitness to remain. Indeed, the agency has never claimed that it bore such a relationship. Instead, trial conviction cases have been excluded from relief on the ground that St. Cyr does not require that they be included. See, e.g., Canto v. Holder, 593 F.3d 638 (7th Cir. 2010). That logic is almost identical to the logic that led to the Blake decision. The agency had been ordered by a court to provide 212(c) to some deportable immigrants and did not extend 212(c) to others whom it deemed not covered by St. Cyr. But as the Court found in Judulang, agency practice cannot allow for distinctions that are arbitrary just because they grew out of an accommodation of case law. Instead, access to a critical form of relief must be based on a connection to the broader purpose of the statute and fitness to remain. Moreover, just as the comparable grounds test lacked any connection to the text of the statute, the exclusion of trial convictions finds no basis whatsoever in the wording of 212(c).

BIA

RELIEF " WAIVERS " 212(C) RELIEF " TRIAL
Matter of Abdelghany, 26 I. & N. Dec. 254 (BIA 2014) (a lawful permanent resident otherwise eligible for relief under former INA 212(c) is eligible without regard to whether the conviction resulted from a plea agreement or a trial, and without regard to whether he or she was removable or deportable under the law in effect when the conviction was entered).

RELIEF " WAIVERS " 212(C) RELIEF " TRIAL
Matter of Abdelghany, 26 I. & N. Dec. 254 (BIA 2014) (a lawful permanent resident otherwise eligible for relief under former INA 212(c) is eligible without regard to whether the conviction resulted from a plea agreement or a trial, and without regard to whether he or she was removable or deportable under the law in effect when the conviction was entered).

RELIEF " WAIVERS " 212(C) RELIEF
Matter of Abdelghany, 26 I. & N. Dec. 254 (BIA 2014) (an LPR with 7 years domicile in the United States who is removable due to a conviction between November 29, 1990 and April 24, 1996, is eligible for former INA 212(c) relief, inadmissible under INA 212(a)(3)(A), (B), (C), (E), or 212(a)(10)(C), 8 U.S.C. 1182(a)(3)(A), (B), (C), (E), or (10)(C) (2012); or served five years jail, in aggregate because of one or more aggravated felony convictions).

WAIVERS - 212(C) WAIVERS - DATE OF PLEA AGREEMENT, NOT DATE OF SENTENCE, GOVERNS ELIGIBILITY FOR 212(C) RELIEF
Matter of Moreno-Escobosa, 25 I. & N. Dec. 114 (BIA Oct. 30, 2009) (the date of a plea agreement, rather than the date of sentencing, is controlling in determining whether a person is eligible for a waiver under former INA 212(c), 8 U.S.C. 1182(c)).

WAIVERS - 212(C) WAIVERS - ABEBE DOES NOT INVALIDATE REGULATION ALLOWING 212(C) WAIVERS OF GROUNDS OF DEPORTATION
Matter of Moreno-Escobosa, 25 I. & N. Dec. 114 (BIA Oct. 30, 2009) (Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009), does not invalidate 8 C.F.R. 1212.3, so as to preclude a person who seeks to waive a deportation ground from establishing eligibility for a waiver under former INA 212(c)).

First Circuit

RELIEF - WAIVERS - 212(C) RELIEF - NUNC PRO TUNC
Nadal-Ginard v. Holder, ___ F.3d ___, 2009 WL 456411 (1st Cir. Feb. 25, 2009 ( (affirming BIA denial of request to allow INA 212(c) waiver nunc pro tunc; distinguishing Matter of L, 1 I. & N. Dec. 1 (A.G. 1940) on the basis that: (1) crime in this case was much more serious, and BIA was not unreasonable to deny "equitable relief" of nunc pro tunc grant of 212(c); and (2) by leaving the country in 2004 the appellant took "an action that he knew or should have known would render him excludable or deportable without the statutory right to apply for discretionary relief."). See also, Fernandes Pereira v. Gonzales, 417 F.3d 38, 43 & n. 4 (1st Cir.2005) (describing a request to apply for 212(c) relief nunc pro tunc as an "equitable argument"); see also Fernandes Pereira v. Gonzales, 436 F.3d 11, 11 (1st Cir.2006) (Lipez, J., dissenting) (describing nunc pro tunc relief as "equitable relief").

RELIEF - WAIVERS - 212(C) RELIEF - JURY TRIAL
Nadal-Ginard v. Holder, ___ F.3d ___, 2009 WL 456411 (1st Cir. Feb. 25, 2009 (INA 212(c) nor impermissibly retroactive under St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347, where defendant chose to go to trial), following Dias v. INS, 311 F.3d 456 (1st Cir.2002).

RELIEF - 212(C) RELIEF - BLAKE COMPARABLE GROUNDS
Gonzalez-Mesias v. Mukasey, 529 F.3d 62 (1st Cir. Jun.18, 2008) (212(c) relief unavailable to waive aggravated felony sexual abuse of a minor or crime of violence; court indicated that BIA would not follow Blake v. Carbone outside the second circuit), following Dalombo Fontes v. Gonzales, 483 F.3d 115 (1st Cir. 2007) ; Kim v. Gonzales, 468 F.3d 58 (1st Cir. 2006), disagreeing with Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007).

Second Circuit

RELIEF - NATURALIZATION - INA 212(c) WAIVER
Ljutica v. Holder, 588 F.3d 119 (2d Cir. Dec. 3, 2009) (grant of a waiver under INA 212(c) does not prevent the waived conviction from barring naturalization as an aggravated felony).

RELIEF - WAIVERS - 212(C) RELIEF - OSC
Garcia-Padron v. Holder, ___ F.3d ___, 2009 WL 468202 (2d Cir. Feb. 26, 2009) (noncitizen in pre-IIRAIRA proceeding after service of OSC is eligible to waive post-IIRAIRA convictions under INA 212(c), despite pre-conviction repeal and even though proceedings had been administratively closed and then reopened; interpreting IIRAIRA 309(c)).

Third Circuit

RELIEF " WAIVERS " INA 212(h) WAIVER " CONDITIONAL PERMANENT RESIDENT
Paek v. Attorney General of the US, ___ F.3d ___, 2015 WL 4393910 (3d Cir. Jul. 20, 2015) (INA 212(h) waiving unavailable to noncitizen who committed aggravated felony after admission as a Conditional LPR, since an alien admitted as a lawful permanent resident on a conditional basis qualifies as "an alien lawfully admitted for permanent residence" for purposes of the aggravated felony bar to INA 212(h) relief).

RELIEF " 212(c) RELIEF
Duhaney v. Attorney General, 621 F.3d 340 (3d Cir. Sept. 14, 2010), cert. denied (2011) (the government was not precluded, by res judicata, from charging respondent with removal in new proceedings based upon (1) convictions that existed at the time of the original proceedings, and that were known to the government, but that the government chose not to allege at the original proceedings, or (2) a conviction previously waived under INA 212(c) that became an aggravated felony after the termination of the original proceedings).

RELIEF - WAIVERS - 212(c) RELIEF - APPLICANT NOT LAWFULLY ADMITTED AS LPR IF LATER DETERMINED TO HAVE BEEN INELIGIBLE AT THE TIME OF OBTAINING THAT STATUS
Gallimore v. Attorney General, 619 F.3d 216, 224-225 (3d Cir. Aug. 20, 2010) (an alien whose status has been adjusted to lawful permanent resident but who is later determined in an immigration proceeding to have originally been ineligible for that status has not been "lawfully admitted for permanent residence" for purposes of eligibility for a waiver under former INA 212(c)); following De La Rosa v. DHS, 489 F.3d 551, 554 (2d Cir. 2007).

Fifth Circuit

RELIEF " WAIVERS " INA 212(C) RELIEF " RETROACTIVITY
Carranza-De Salinas v. Holder, 700 F.3d 768, *772 (5th Cir. Nov. 6, 2012) (noncitizen convicted by jury trial of an aggravated felony prior to the repeal of former INA 212(c) is eligible to apply for the relief under St. Cyr., even though she was found guilty by a jury; [I]n light of Vartelas, Carranza may invoke the presumption against the retroactive application of statutes. Because she has demonstrated the kind of reliance described by the Court in Vartelas, namely a likelihood of reliance on prior law, see 132 S.Ct. at 1491, she is entitled to argue that IIRIRA's repeal of 212(c) relief may not be retroactively applied to her.).

RELIEF " WAIVERS " INA 212(c)
Enriquez-Gutierrez v. Holder, 612 F.3d 400 (5th Cir. Jul. 16, 2010) (noncitizen cannot be found removable for an offense that was waived in prior immigration proceedings by grant of INA 212(c) relief; government failed to establish that respondent had stipulated in the original proceedings that the offense would not be waived).

PETITION FOR REVIEW " RELIEF " INA 212(c)
Enriquez-Gutierrez v. Holder, 612 F.3d 400 (5th Cir. Jul. 16, 2010) (a waiver under INA 212(c) may be used to waive a post-IIRAIRA conviction if the proceedings in which the waiver is sought began prior to April 1, 1997), agreeing with Garcia-Padron v. Holder, 558 F.3d 196 (2d Cir.2009).

Sixth Circuit

RELIEF - INA 212(c) - JURY TRIAL
Kellerman v. Holder, 592 F.3d 700 (6th Cir. Jan. 25, 2010) (noncitizen convicted by jury trial ineligible for INA 212(c) relief under St. Cyr).

RELIEF - WAIVERS - 212(C) RELIEF - COMPARABLE GROUNDS
Koussan v. Holder, 556 F.3d 403 (6th Cir. Feb. 12, 2009) (INA 237(a)(3)(A)(ii) (violation of 18 U.S.C. 1546, fraud & misuse of entry documents, is not a "comparable" to INA 212(a)(6)(C)(1), misrepresentation to obtain entry document, for purposes of making an application for relief under former INA 212(c) in deportation proceedings), following Matter of Jimenez-Santillano, 21 I & N Dec. 567 (BIA 1996).

Seventh Circuit

RELIEF " 212(c) WAIVER " TRIAL CONVICTION
Khodja v. Holder, 666 F.3d 415 (7th Cir. Dec. 12, 2011) (waiver under INA 212(c) was available to applicant who was found guilty following jury trial prior to April 1, 1997, where applicant was able to show actual reliance on the availability of a 212(c) by showing that he had affirmatively abandoned his right to pursue a Judicial Recommendation Against Deportation; INS attorney showed up at the JRAD criminal sentencing hearing, described the 212(c) hearing process, and argued that the waiver was best left to the federal immigration judge; the state court agreed and denied the JRAD; after the denial, his defense attorney withdrew the JRAD motion).

RELIEF " WAIVERS " 212(c) RELIEF
Torres-Rendon v. Holder, 656 F.3d 456 (7th Cir. Aug. 23, 2011) (lawful permanent resident who obtained that status as a result of a bigamous marriage was not eligible for a waiver of deportation under former INA 212(c) because he was not lawfully admitted to permanent residence).

RELIEF " WAIVERS " 212(c) RELIEF
Torres-Rendon v. Holder, 656 F.3d 456 (7th Cir. Aug. 23, 2011) (a waiver of the fraud under former INA 241(f) applies only to those inadmissible on grounds of fraud; respondent was inadmissible on grounds of a controlled substance conviction); citing Matter of Sosa"Hernandez, 20 I. & N. Dec. 758, 760"61 (BIA 1993) (a waiver under INA 241(f) waives not only deportability but also the underlying fraud, thereby validating the applicant's lawful permanent resident status and making him theoretically eligible for a 212(c) waiver). NOTE: The courts reasoning is arguably faulty. In Sosa-Hernandez, the INS never charged the respondent with fraud, only with deportability for having been convicted of a controlled substance offense. In addition to finding deportability as charged for the drug trafficking offense, the IJ found sua sponte that he was excludable for fraud at the time of his entry as a LPR. See Matter of Sosa-Hernandez, 20 I&N Dec. 758, 759 (BIA 1993). Thus, the procedural posture of Sosa-Hernandez lines up with Torres: in both cases, there was commission of fraud at the time of entry as a LPR, the respondent was convicted for drug trafficking, and charged only with deportability for the drug offense, and IJ found an additional ground of deportability. In Torres, the IJ found that he was inadmissible for fraud in 2009 when he returned from a trip abroad; the BIA reversed that part of the IJ's decision and agreed that he was excludable in 1984 at the time of his entry. The BIA's reasoning for avoiding a direct application of Sosa-Hernandez was abominable: in Torres, the DHS challenged his eligibility for a 241(f) waiver and refused to charge him with an I-261 for the fraud ground. Thus, because DHS never charged him formally with being excludable at the time of entry in 1984 (before he pled guilty to drug trafficking), he does not qualify for a 241(f) waiver even though both the IJ and the BIA agreed that he had committed fraud as noted above. Thanks to Maria Baldini-Potermin.

RELIEF " WAVIER UNDER INA 212(c) " MATTER OF BLAKE JUDICIAL REVIEW " ACTIONS OF DHS/ATTORNEY GENERAL
Frederick v. Holder, ___ F.3d ___, 2011 WL 1642811 (7th Cir. May 3, 2011) (Illinois aggravated felony sexual abuse of minor convictions did not have statutory counterpart to ground of inadmissibility, so noncitizen was not eligible for waiver of deportation under former INA 212(c); court lacks jurisdiction, under 8 U.S.C. 1252(g) ([N]o court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.), to address issue of whether DHS decision to charge respondent for an aggravated felony, rather than for two crimes of moral turpitude, violates equal protection).

RELIEF - WAIVERS - 212(c) RELIEF
Mancillas-Ruiz v. Holder, 625 F.3d 993 (7th Cir. Aug. 11, 2010) (aggravated felony crime of violence category has no statutory counterpart under INA 212(a)).

RELIEF - INA 212(c) - GUILTY PLEA AND RELIANCE REQUIRED
Esquivel v. Mukasey, 543 F.3d 919 (7th Cir. Sept. 11, 2008) (former INA 212(c) relief unavailable to noncitizen who was convicted, by jury, of murder in 1981), following United States v. De Horta Garcia, 519 F.3d 658, 661 (7th Cir.2008) ("relief under 212(c) is not available to any alien whose removal proceeding began after repeal except to those who affirmatively abandoned rights or admitted guilt in reliance on 212(c) relief."); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004).

Eighth Circuit

RELIEF " WAIVERS " 212(C) RELIEF " COMPARABLE GROUNDS
Lovan v. Holder, 659 F.3d 653 (8th Cir. Oct. 13, 2011) (rejecting the comparable grounds doctrine as applied to a person who would have been eligible for 212(c) relief before the crime of conviction became an aggravated felony: Had Lovan traveled to Laos and returned after his 1991 conviction but before repeal, he would have been considered excludable based on a prior conviction for a crime involving moral turpitude. See 212(a)(2)(A)(i)(I) (1994); In re Olquin"Rufino, 23 I. & N. Dec. 896, 897 (B.I.A.2006). If immigration officials had overlooked this criminal history and admitted him, he would have been eligible for 212(c) relief nunc pro tunc under In re G"A" as construed in Hernandez"Casillas. If that relief was granted, he could not have been deported based upon the same criminal conviction, without regard to the statutory counterpart analysis that was applied to aliens who did not travel in cases like Wadud. In re G"A", 7 I. & N. Dec. at 275. Rather than analyze the issue of retroactive effect in this manner, the BIA majority simply declared that it was free to apply the statutory counterpart doctrine as it has evolved in post-repeal cases. This was an error of law in applying St. Cyr ; accordingly, the agency should proceed to determine whether [Lovan] warrants a 212 waiver. Lovan I, 574 F.3d at 996.).

RELIEF - 212(C) RELIEF - AVAILABLE AFTER CONVICTION BY TRIAL
Lovan v. Holder, 574 F.3d 990 (8th Cir. Jul. 31, 2009) (St. Cyr applies to respondents who were convicted following a trial, so respondent is eligible for relief under former INA 212(c)); following Atkinson v. Attorney General, 479 F.3d 222, 230 (3d Cir. 2007) (non-citizen need not show "actual reliance" to seek relief under former INA 212(c); but see Carranza-De Salinas v. Gonzales, 477 F.3d 200, 206-09 (5th Cir. 2007) (non-citizen convicted after trial must show actual reliance on the possibility of INA 212(c) relief to be eligible for that relief now); see also Wilson v. Gonzalez, 471 F.3d 111, 122 (2d Cir. 2006) (INA 212(c) relief exists for individuals convicted after a trial only if they show actual reliance on the possibility of relief); Restrepo v. McElroy, 369 F.3d 627, 631-40 (2d Cir. 2004) (same); Dias v. INS, 311 F.3d 456, 458 (1st Cir. 2002) (INA 212(c) relief is not available to individuals who were convicted after trial); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004) (same); Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121-22 (9th Cir. 2002) (same).

RELIEF - 212(C) RELIEF - BLAKE - LPR WHO WAS READMITTED, BUT SHOULD NOT HAVE BEEN MAY SEEK 212(C)
Lovan v. Holder, 574 F.3d 990 (8th Cir. Jul. 31, 2009) (strongly suggesting that an LPR who commits a CIMT, leaves the U.S. and is re-admitted, and is then put into immigration proceedings as an aggravated felon should be eligible for a waiver under INA 212(c), despite lack of a comparable ground, because the immigration authorities should not have re-admitted the LPR upon seeking readmission), citing In re G-A-, 7 I. & N. Dec. 274 (B.I.A.1956); In re L-, 1 I. & N. Dec. 1 (BIA 1940).

Ninth Circuit

RELIEF " 212(c) WAIVER " JURY TRIAL
Cardenas-Delgado v. Holder, __ F.3d __ No. 11-72057 (9th Cir. 2013) (relief under former INA 212(c) is available to noncitizens who were convicted by jury trial; it is not required that the noncitizen establish reliance to show repeal of former INA 212(c) was impermissibly retroactive).

WAIVERS " 212(C) RELIEF " FIVE YEARS SERVED BAR
Corpuz v. Holder, 697 F.3d 807, *814 (9th Cir. Aug. 31, 2012) (while time in pre-conviction civil confinement to determine competence to stand trial generally would not be included in the phrase term of imprisonment for purposes of former INA 212(c), such a period is considered part of the term of imprisonment where the defendant was given credit for time served on the basis of the civil confinement, but with limitations: The question is how this time should be counted. We conclude that time spent in civil psychiatric confinement that is credited against a defendant's sentence should be counted in a manner that allows us to approximate, as closely as possible, the time the defendant would have served in prison had he never been in civil psychiatric confinement. This means that we should determine a constructive good time credit for the period spent in civil confinement based on the degree to which the defendant accumulated good time credit while in prison. The period spent in pre-trial psychiatric confinement should be calculated as part of the defendant's term of imprisonment only after this constructive good time credit is taken into account.).

RELIEF"WAIVERS"212(C) WAIVER"JURY TRIAL CONVICTIONS
Peng v. Holder, 673 F.3d 1248, 1250-1251 (9th Cir. Mar. 22, 2012) (The enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which repealed the waiver of deportation under Immigration and Naturalization Act (INA) 212(c), 8 U.S.C. 1182(c), does not affect the right of aliens to use the 212(c) waiver, when such aliens proceeded to trial and were convicted of a crime involving moral turpitude prior to the enactment of IIRIRA. Aliens charged with and convicted of a crime involving moral turpitude prior to the enactment of IIRIRA remain eligible for 212(c) relief, regardless of whether they pleaded guilty or proceeded to trial. Such aliens can demonstrate reasonable reliance on 212(c) prior to its repeal, because they may have acted differently had 212 relief not been possible at such time.). NOTE: This decision was made without reference to Vartelas v. Holder, 132 S.Ct. 1479 (Mar. 29, 2012), decided a week later. In Peng, the Ninth Circuit reaffirmed the prior cases that found that a noncitizen charged with a potential aggravated felony would not be able to show reliance on INA 212(c) if they proceeded to trial.

RELIEF"WAIVERS"212(c) RELIEF"COMPARABILITY REQUIREMENT
Rangel-Zuazo v. Holder, 2012 WL 432283 (9th Cir. Feb. 13, 2012) (unpublished) (granting petition for review of a final order of removal issued by the BIA in light of Judulang v. Holder, 132 S. Ct. 476 (2011), which required reversal of the BIA's conclusion that the petitioner was ineligible for a waiver under former INA 212(c) because he failed to meet the comparability requirement).

RELIEF " WAIVERS " 212(C) RELIEF " STIPULATED FACTS TRIAL IS EQUIVALENT TO A GUILTY PLEA FOR PURPOSES OF ELIGIBILITY FOR 212(C) RELIEF
Tyson v. Holder, ___ F.3d ___ (9th Cir. Jan. 27, 2012) (We agree with Tyson that the stipulated facts trial in this case is substantially equal to a guilty plea for the purpose of 212(c) relief. We hold that applying the repeal of 212(c) relief would produce an impermissible retroactive effect on Tyson, who was convicted pursuant to a stipulated facts agreement based on a reasonable expectation that it would not negatively affect her immigration status. INS v. St. Cyr, 533 U.S. 289, 319 (2001); Landgraf v. USI Film Prods., 511 U.S. 244, 269-70 (1994). Because the BIA erred in its legal analysis of the effect of this stipulated facts trial, we reverse and remand with instructions to consider Tysons 212(c) application on the merits.).

RELIEF " WAIVERS " 212(C) RELIEF
Luna v. Holder, 659 F.3d 753 (9th Cir. Sept. 19, 2011) (the April 26, 2005, deadline to seek a waiver of removal under former INA 212(c), 8 U.S.C. 1182(c), established by 8 C.F.R. 1003.44, is a constitutionally-sound procedural rule; absent some exceptional circumstances, not present here, petitioners that miss the deadline are not entitled to relief).

RELIEF " INA 212(c) WAIVER " DISCRETION
Zheng v. Holder, __ F.3d __, 2011 WL 1709849 (9th Cir. May 6, 2011) (BIA erred in failing to consider respondents significant service to the community as a positive factor, separate from rehabilitation, in determining whether to grant relief as a matter of discretion).

RELIEF " WAIVERS " 212(c) WAIVER OF INADMISSIBILITY " RES JUDICATA
Paulo v. Holder, ___ F.3d ___, 2011 WL 1663572 (9th Cir. May 4, 2011) (res judicata binds BIA to the final decision of the district court, which held that petitioner, a native and citizen of the Philippines, is eligible for discretionary relief under INA 212(c); issue preclusion bars re-litigation where one party could have raised an issue but failed to do so during the original hearing; even if issue preclusion allows re-litigation in light of a subsequent change in the law, Matter of Blake did not constitute a change in the law).

RELIEF " WAIVERS " 212(c) WAIVER " PRE-IIRAIRA PROCEEDINGS
Pascua v. Holder, ___ F.3d ___, 2011 WL 1024434 (9th Cir. Mar. 23, 2011) (a waiver of removal under former INA 212(c) may be applied in deportation proceedings that commenced before the April 1, 1997, effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, to waive post-IIRAIRA criminal offenses).

RELIEF " WAIVERS " 212(C) RELIEF " EVIDENCE OF GUILTY PLEA
Gallegos-Vasquez v. Holder, ___ F.3d ___, 2011 WL 692086 (9th Cir. Mar. 1, 2011) (absent criminal records, statement by noncitizen that he understands the difference between jury trial and guilty plea, and that he was convicted by guilty plea, was sufficient to establish that he was eligible for relief under former INA 212(c) under St. Cyr).

RELIEF " WAIVERS " 212(C) RELIEF " EVIDENCE OF GUILTY PLEA
Gallegos-Vasquez v. Holder, ___ F.3d ___, 2011 WL 692086 (9th Cir. Mar. 1, 2011) (noncitizen had settled expectations at the time of his plea that he could receive relief under INA 212(c) to waive his convictions, even though he was a SAW applicant at the time, rather than a Lawful Permanent Resident).

RELIEF - WAIVERS - INA 212(c) - EFFECT OF WAIVER
Rodriguez v. Holder, ___ F.3d ___ (9th Cir. Aug. 23, 2010) (per curiam) (waived convictions under California Health & Safety Code 11350(a), possession of cocaine, still exist for the purposes of disqualifying respondent from eligibility for the personal-use exception to deportability for a later conviction of possession of less than 30 grams of marijuana); see Becker v. Gonzales, 473 F.3d 1000, 1003-04 (9th Cir.2007); Molina-Amezcua v. INS, 6 F.3d 646, 647 (9th Cir.1993) ("A waiver of deportation gives the alien a chance to stay in the United States despite his misdeed, but it does not expunge the conviction.").

RELIEF - WAIVERS - 212(C) RELIEF
Segura v. Holder, ___ F.3d ___, 2010 WL 2089396 (9th Cir. May 26, 2010) (noncitizen ineligible for 212(c) relief where initial admission as an LPR was obtained by mistake of INS, since noncitizen was inadmissible for conviction of a controlled substances offense at the time of admission, and INS failed to deny admission on that basis).

RELIEF - WAIVERS -- INA 212(c)
Kim v. Holder, __ F.3d ___ (9th Cir. May 3, 2010) (noncitizens held ineligible for INA 212(k) waiver for certain lawful permanent residents where they obtained LPR status through fraud).

RELIEF - WAIVERS - 212(H) WAIVER OF INADMISSIBILITY -
Sum v. Holder, ___ F.3d ___, 2010 WL 1630859 (9th Cir. Apr. 23, 2010) (aggravated felony bar to relief under INA 212(h) for lawful permanent residents is not defeated by claim that person was not "lawfully admitted" to permanent residence because he procured his green card by visa fraud.)

RELIEF - INA 212(c) WAIVER
Kawashima v. Holder, 593 F.3d 979 (9th Cir. Jan. 27, 2010) (motion to reopen to seek 212(c) relief, in light of St. Cyr, even if timely filed before April 26, 2005, was properly rejected as failing to comply with 8 C.F.R. 1003.44(h) because the motion did not contain the notation "special motion to seek 212(c) relief.").

RELIEF - 212(C) RELIEF - INAPPLICABLE TO DEPORTATION
Abebe v. Mukasey, 548 F.3d 787 (9th Cir. Nov. 20, 2008) (en banc) (a waiver under former INA 212(c) waives only inadmissibility, not deportability), overruling Tapia-Acuna v. INS, 640 F.3d 223 (9th Cir. 1981) (INA 212(c) waives both inadmissibility and deportability).

Note: this is the only jurisdiction that holds that INA 212(c) does not apply to any ground of deportation. This should not prevent noncitizens in deportation proceedings from applying for INA 212(c) in conjunction with an application for adjustment of status.

RELIEF - INA 212(c) WAIVER
United States v. Medina-Avila, ___ F.Supp.2d ___, 2008 WL 4446693 (D.Ariz. Sept. 30, 2008) (illegal reentry indictment dismissed, on grounds the underlying deportation order was legally invalid, because the immigration judge erroneously failed to advise the noncitizen that he was eligible for a waiver of deportability under INA 212(c), which rendered the removal proceedings fundamentally unfair).

RELIEF - 212(c) WAIVER
Williams v. Mukasey, 531 F.3d 1040 (9th Cir. Jul. 9, 2008) (publication in federal register of deadline upon which noncitizen previously ordered removed could move to reopen in order to apply for CAT, a new form of relief, was sufficient notice of deadline; noncitizen did not have right to actual notice of the deadline).

Eleventh Circuit

RELIEF - WAIVERS - 212(C) RELIEF - JURY TRIAL CONVICTIONS CANNOT BE WAIVED EVEN IF THE CONVICTION OCCURRED BEFORE THE REPEAL OF 212(C)
Ferguson v. U.S. Attorney General, ___ F.3d ___, 2009 WL 824434 (11th Cir. Mar. 31, 2009) ("Joining the majority of circuits, we decline to extend St. Cyr to aliens who were convicted after a trial because such aliens' decisions to go to trial do not satisfy St. Cyr ' s reliance requirement. Therefore, 212(c) relief is not available to such aliens. . . . And aside from her decision to go to trial, she points to no other "transactions" or "considerations already past" on which she relied. ").

Note: this decision agrees with the majority of the circuits in finding that at least some showing of reliance is required. It appears, however, that the Eleventh Circuit could find reliance even where the noncitizen was found guilty by jury, as in Restrepo v. McElroy, 369 F.3d 627 (2d Cir. Apr. 1, 2004).

BIA

RELIEF " WAIVERS " INA 212(C) RELIEF " APPLIED EQUALLY TO INADMISSIBLE AND DEPORTABLE LPRS
Matter of Abdelghany, 26 I&N Dec. 254, 269 (BIA 2014)(the BIA drew no distinction, for the purpose of retroactivity of eligibility for relief under former INA 212(c), between convictions at trial or guilty pleas, and found unpersuasive precedential decisions demanding a showing of detrimental reliance on the availability of relief: a lawful permanent resident convicted after trial need not demonstrate that he acted or could have acted in reliance on the availability of 212(c) relief when structuring his conduct. [Instead, all that is required is a showing; that the AEDPA or IIRIRA amendments attached a new disability to pleas or convictions occurring before their effective dates.).

ARTICLE
The BIA explained: If an otherwise qualifying LPR is removable or deportable by virtue of a plea or conviction between Apr. 24, 1996 and Apr. 1, 1997, 212(c) relief is available unless: (1) proceedings were commenced on or after Apr. 24, 1996, and the conviction renders the applicant deportable under one or more of the deportability grounds enumerated in 440(d) of the AEDPA; or (2) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act; or (3) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990 and Apr. 24, 1996. Id. at 272. Section 440(d) of AEDPA made the following classes of aliens ineligible for 212(c) relief: (1) aggravated felons; (2) those convicted of controlled substance offense; (3) those convicted of firearm offenses; (4) those convicted of specific miscellaneous crimes, such as espionage; and (5) those convicted of multiple CIMTs. AEDPA 440(d); see INA 212(c) (2005). An LPR who meets the 7 year domicile requirement and is removable or deportable by virtue of a plea or conviction entered before Apr. 24, 1996, is eligible to apply for discretionary relief under former section 212(c), however, the same grounds of inadmissibility apply. Matter of Abdelghany, 26 I&N Dec. 254. Thanks to Tamikka Pate at Crimmigration.com

Other

PRACTICE ADVISORY " RELIEF " WAIVERS " 212(c) RELIEF
NIP-NLG and Immigrant Defense Project have written an advisory on Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014). http://nipnlg.org/publications.htm

RELIEF"INA 212(c)"JURY TRIAL
The recent U.S. Supreme Court case, Vartelas v. Holder, includes language helpful in overcoming the quid quo pro argument that a noncitizen convicted by jury trial is ineligible for relief under former INA 212(c): As the Government acknowledges, th[is] Court has not required a party challenging the application of a statute to show [he relied on prior law] in structuring his conduct. Brief for Respondent 25"26. In Landgraf, for example, the issue was the retroactivity of compensatory and punitive damages as remedies for employment discrimination. [C]oncerns of . . . upsetting expectations are attenuated in the case of intentional employment discrimination, the Court noted, for such discrimination has been unlawful for more than a generation. 511 U. S., at 282, n. 35. But [e]ven when the conduct in question is morally reprehensible or illegal, the Court added, a degree of unfairness is inherent whenever the law imposes additional burdens based on conduct that occurred in the past. Id., at 283, n. 35. And in Hughes Aircraft, the Court found that Congress 1986 removal of a defense to a qui tam action did not apply to pre-1986 conduct in light of the presumption against retroactivity. 520 U. S., at 941"942.FN8 As in Landgraf, the relevant conduct (submitting a false claim) had been unlawful for decades. See 520 U. S., at 947. Vartelas v. Holder, 132 S.Ct. 1479, 1490-91 (Mar. 28, 2012).

RELIEF - INA 212(C) WAIVER - DEPORTATION PROCEEDINGS
The Law Office of Robert Jobe is reporting that the DHS is taking the position that INA 212(c) relief is still available to noncitizens in the Ninth Circuit who are charged with a ground of deportability, despite the Ninth Circuits decision in Abebe, because the federal regulations allow for INA 212(c) relief in deportation proceedings. Thanks to Robert Jobe.

RELIEF - 212(C) RELIEF - COURT TRIAL - SOME NEGOTIATED COURT TRIALS ARE TANTAMOUNT TO "SLOW PLEAS OF GUILTY" SO 212(C) RELIEF REMAINS AVAILABLE
In some jurisdictions, a defendant can negotiate the verdict of a court trial in the same way as for a guilty plea, saving the state the expense and uncertainty of a jury trial. Immigration counsel can argue that convictions resulting from these "slow pleas" are tantamount to guilty pleas, and convictions resulting from them should receive the same eligibility for 212(c) relief as those resulting from guilty pleas. See N. TOOBY & J. ROLLIN, CRIMINAL DEFENSE OF IMMIGRANTS 24.28(J) (2007).

RELIEF " WAIVERS " 212(c) RELIEF " SUPREME COURT HAS GRANTED CERTIORARI TO DECIDE COMPARABLE GROUNDS ISSUE
In Judulang v. Holder, Supreme Court Case No. 10-694, the Court agreed to hear a case about the continued availability of 212(c) relief. The question presented is: Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsections, but who did not depart and reenter the United States between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking discretionary relief from removal under former INA 212(c). See Matter of Blake, 23 I&N Dec. 722 (BIA 2005) (deportable lawful permanent residents who had not traveled abroad after their convictions could only seek discretionary relief if the government charged them under a deportation provision in the INA that used similar language to an exclusion provision). The circuits are now split three ways as to the lawfulness of the BIAs new approach. The Second Circuit has correctly rejected the BIAs new position as resting on an irrational distinction. The Ninth Circuit, in a sharply divided en banc decision, ruled that Section 212(c) does not apply to deportable LPRs at all--a position that neither the BIA nor the government has ever endorsed and that directly conflicts with St. Cyr. Eight other circuits have affirmed the BIAs new approach.

RELIEF " WAIVERS " 212(c) RELIEF " SUPREME COURT GRANTS CERTIORARI TO RECONSIDER MATTER OF BRIEVA
The Supreme Court recently granted certiorari in a case challenging the BIA's 212(c) decisions Matter of Blake and Matter of Brieva. In Matter of Blake, 23 I&N Dec. 722 (BIA 2005), and Matter of Brieva, 23 I&N Dec. 766 (BIA 2005), the BIA ruled that individuals who pled guilty to a crime of violence or sexual abuse of a minor aggravated felony are categorically ineligible for 212(c) relief, even if the offense would have made them inadmissible had they departed the country and presented themselves for readmission at the border. Similarly-situated individuals who had left the country and reentered remain eligible for 212(c) relief. The BIA's rule applies in every circuit except the Second Circuit, which has struck down Blake and Brieva as irrational. The Supreme Court will hear a case from the Ninth Circuit, Judulang v. Holder, 10-694. See http://www.supremecourt.gov/qp/10-00694qp.pdf. CD4:24.28;AF:2.44;CMT3:3.43

PRACTICE ADVISORY " RELIEF " WAIVERS " 212(c) RELIEF
Sara Fawk, Note, Eligibility for Section 212(c) Relief from Deportation: Is it the Ground or the Offense, the Dancer or the Dance?, 32 Western New England L. Rev. 417 (2010)(describing circuit split concerning whether to disqualify noncitizen from eligibility for waiver of deportability under former INA 212(c) unless the ground of deportability has a statutory counterpart ground of inadmissibility, with the First, Third, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits determining whether a comparable ground of exclusion exists by looking only at the statutory language of the charged ground of deportation and the language of the ground of exclusion that the respondent claims is comparable, and the Second Circuit which adopted an offense-specific approach in Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007), in which the comparable grounds determination turns not on the language of the grounds but instead on the offense committed by the petitioner; the Ninth Circuit rejected the comparable grounds analysis entirely in Abebe v. Mukasey, 554 F.3d 1203, 1206 (9th Cir. 2009) (en banc)(employ[ing] a[n equal protection] standard of bare rationality and offered a legitimate reason for the different treatment of deportees who are similarly situated to excludees but for a temporary departure from the country"namely, Congress could have limited section 212(c) relief to aliens seeking to enter the country from abroad in order to create an incentive for deportable aliens to leave the country.).

RELIEF " INA 212(c) WAIVER " COMPARABLE GROUNDS
Immigrant Defense Project, the National Immigration Project of the National Lawyers Guild, and the American Immigration Councils Legal Action Center, Practice Advisory, Implications of Judulang v. Holder for LPRs Seeking 212(c) Relief and for Other Individuals Challenging Arbitrary Agency Policies http://www.legalactioncenter.org/sites/default/files/Judulang-212-c-relief.pdf