Rodriguez-Munoz v. Gonzales, __ F.3d __ (3d Cir. Aug. 16, 2005) (noncitizen convicted of aggravated felony cannot make simultaneous application for cancellation of removal and 212(c)). http://caselaw.lp.findlaw.com/data2/circs/3rd/051732p.pdf

The denial of 212 (c) relief after a jury trial resulting in a conviction, by virtue of such denial, arguably turns "alienage" into a restriction on the guarantees of the 6th Amendment right to a jury trial.

The new regulations make explicit that a noncitizen is ineligible who is "deportable under former section 241 of the Act or removable under section 237 of the Act on a ground which does not have a statutory counterpart in section 212 of the Act." 8 C.F.R. 1212.3(f)(5). The DHS may take the most narrow reading of this provision and argue that only drug-related aggravated felonies under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), can be waived by 212(c), since only that section is directly analogous to a ground of inadmissibility. Compare INA 101(a)(43)(B), 8 U.S.C.

United States v. Torres, 383 F.3d 92, n5 (3d Cir. September 7, 2004) ("According to statistics maintained by the Executive Office of Immigration Review, 212(c) relief was granted in more than half the cases to which it applied. See Julie K. Rannik, The Anti-Terrorism and Effective Death Penalty Act of 1996: A Death Sentence for the 212(c) Waiver, 28 U. Miami Inter-Am. L.Rev. 123, 150 n.80 (1996); see also St. Cyr, 533 U.S. at 296 n. 5.").

United States v. Torres, 383 F.3d 92 (3d Cir. September 7, 2004) (IJ failure to inform noncitizen of eligibility for discretionary relief did not render removal proceeding unconstitutional; illegal reentry charge sustained) One circuit has found such failure to inform violates due process, however, none other circuits to reach this issue agree. Compare United States v. Aguire-Tello, 353 F.3d 1199, 1207-10 (10th Cir.2004) (en banc), and United States v. Wilson, 316 F.3d 506, 509-511 (4th Cir.2003), and United States v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir.2003), and United States v.

Matter of Tin, 14 I. & N. Dec. 371 (Reg. Comm. 1973) (212(c) relief available nunc pro tunc for noncitizen already in United States).

Thaqi v. Jenifer, 377 F.3d 500 (6th Cir. July 23, 2004) (noncitizen convicted of two crimes involving moral turpitude prior to AEDPA and IIRAIRA eligible for 212(c) where first conviction was by jury trial, and second conviction was by guilty plea because the first conviction did not render noncitizen deportable).

Restrepo v. McElroy, 369 F.3d 627 (2d Cir. Apr. 1, 2004) (petitioner convicted by jury trial relied to his detriment upon the availability of an affirmative 212(c) application, by foregoing opportunity to apply for INA 212(c) relief immediately after incarceration, in reliance on his ability to apply for 212(c) later, when his case could be stronger due to a longer record of rehabilitation; elimination of 212(c) relief disrupted reasonable reliance and settled expectations; case remanded on key question of whether Mr.

Brown v. Ashcroft, 360 F.3d 346 (2d Cir. March 3, 2004) (for purposes of calculating total sentence for aggravated felony offenses under INA 212(c) (1995) ["convicted of one or more aggravated felonies and ha[d] served for such ... felonies a term of imprisonment of at least 5 years."], the convictions need not have been considered "aggravated felonies" at the time the respondent was convicted).

Matter of Vargas-Sarmiento, 23 I. & N. Dec. 651 (BIA 2004) (New York conviction of first-degree manslaughter, in violation of Penal Law 125.20(1) and (2), constitutes a crime of violence and therefore an aggravated felony for immigration purposes, under INA 101(a)(43)(F), 8 U.S.C. 1101(a)(43)(F)(2000), reasoning that acting with intent to cause serious physical injury or death to a person "by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," under 18 U.S.C.