Swaby v. Ashcroft, 357 F.3d 156 (2d Cir. Feb. 3, 2004) (Former 212(c) relief unavailable to noncitizen convicted by jury trial, even if noncitizen can prove subjective reliance on availability of section 212(c) in rejecting plea offer and proceeding to trial; decision to proceed to trial disqualifies noncitizens from 212(c) as a matter of law).

Evangelista v. Ashcroft, 359 F.3d 145 (2d Cir. Feb. 23, 2004) (former INA 212(c) waiver not available to noncitizen who committed aggravated felony offense prior to AEDPA, but convicted after AEDPA).

Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. Jan. 22, 2004) (noncitizen who conceded deportability before AEDPA's effective date, expecting they could seek waivers under INA 212(c), remain eligible to apply). See also LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998).

United States v. Leon-Paz, 340 F.3d 1003 (August 22, 2003) (the Court reinterpreted United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. 2002), to mean that noncitizens, convicted after AEDPA (April 24, 1996), but before IIRAIRA (April 1, 1997) could not have relied upon the possibility of section 212(c) relief in the event the offense later becomes an aggravated felony offense, because 212(c) was not available to any aggravated felons upon the passage of AEDPA.

Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. Jan. 22, 2004) (noncitizen convicted by jury trial prior to AEDPA ineligible for 212(c) relief, despite INS v. St. Cyr).

Please see our E-Newsletter of August January 5, 2004 for a discussion on the topic.

United States v. Aguirre-Tello, 353 F.3d 1199 (10th Cir. Jan. 6, 2004) (deportation order not unlawful where respondent had no constitutional right to be informed of availability of discretionary 212(c) relief, and (2) respondent was not reasonably likely to have obtained 212(c) relief if he had been so advised).

United States v. Saldivar-Vargas, 290 F.Supp.2d 1210 (S.D. Cal. Nov. 10, 2003) (prior removal proceeding may not be used to demonstrate that defendant had previously been removed since immigration judge failed to inform him of discretionary relief from removal pursuant to INA 212(c)).

United States v. Gonzalez-Valerio, 342 F.3d 1051 (9th Cir. September 08, 2003) (assuming that an Immigration Judge did not adequately inform defendant of the availability of relief under Immigration and Nationality Act section 212(c), he cannot demonstrate prejudice, thus dismissal of an indictment for being found in the U.S. after prior deportation, 8 U.S.C. section 1326, is reversed).
http://caselaw.lp.findlaw.com/data2/circs/9th/0250260p.pdf

United States v. Garcia-Jurado, F.Supp.2d, 2003 U.S. Dist. LEXIS 14821 (E.D. N.Y. August 27, 2003) (illegal reentry indictment dismissed on grounds prior deportation was fundamentally unfair, since immigration judge failed to inform respondent he was eligible for 212(c) relief and he was deprived of judicial review).