While a noncitizen must be a lawful permanent resident to obtain a waiver under INA 212(c), and LPR status obtained through fraud is insufficient, it is possible to argue that a noncitizen who obtained LPR status though amnesty legalization, even though s/he was not technically qualified because of a criminal offense committed while s/he was a temporary resident, should still be considered an LPR for 212(c) purposes, since the adjustment was automatic (and therefore no fraud could have occurred), and the failure of the INS to rescind the temporary status prior to adjustment bars the INS from

Lepe-Guitron v. INS, 16 F.3d 1021, 1025-1026 (9th Cir. 1994) (because a childs 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child for purposes of the seven years "lawful unrelinquished domicile" required for discretionary waiver under the now-repealed INA 212(c)); accord, Rosario v. INS, 962 F.2d 220, 224 (2d Cir. 1992) (even if child is outside of the United States).

Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir. Dec. 7, 2005) (where INS erroneously granted LPR status to noncitizen who had prior aggravated felony conviction, noncitizen was ineligible for 212(c) relief in removal proceedings).

Sena v. Gonzales, 428 F.3d 50 (1st Cir. Nov. 2, 2005) (relief under former INA 212(c) unavailable to aggravated felon, since encouraging a noncitizen to reside in the United States in violation of law, an aggravated felony under 8 U.S.C. 101(a)(43)(N), is not comparable to encouraging a noncitizen to enter the United States in violation of law, under INA 1182(a)(6)(E)).

Gonzalez-Garcia v. Gonzales, ___ F.3d ___, 2005 WL 3047411 (5th Cir. Nov. 16, 2005) (convictions that pre-date the April 1, 1997 effective date of 8 U.S.C. 1229b(d)(1) [cancellation stop-time rule] do not stop the clock for purposes of cancellation of removal [or former INA 212(c)]).

A noncitizen LPR who leaves the United States during removal proceedings does not abandon a request for INA 212(c) relief by so doing. In Matter of Brown, 18 I. & N. Dec. 324 (BIA 1988), LPR respondent was convicted of possession of marijuana, proceedings commenced and LPR conceded deportability as charged in a hearing before the IJ, applied for a 212(c) waiver and the hearing was continued for investigation.

Elia v. Gonzales, ___ F.3d ___ (6th Cir. Oct. 24, 2005) (respondent who served more than five years for an aggravated felony conviction ineligible for 212(c) relief, even though respondent (after serving five years) obtained resentencing to two years, after winning argument in criminal court that five year sentence was improper).
http://caselaw.lp.findlaw.com/data2/circs/6th/033446p.pdf

Cordes v. Gonzales, ___ F.3d ___, 2005 WL 2060851 (9th Cir. August 24, 2005) ("We find that like the petitioner in United States v. Velasco-Medina, 305 F.3d 839 (9th Cir.2002), cert. denied,540 U.S. 1210 (2004), Cordes does not fit within the exception to section 304(b) of IIRIRA set forth in INS v. St. Cyr, 533 U.S. 289 (2001).

Velez-Lotero v. Achim, ___ F.3d ___, 2005 WL 1618827 (7th Cir.

Elia v. Gonzales, __ F.3d __ (6th Cir. July 22, 2005) (indeterminate sentence of 2-25 years is not a sentence of "less than five years" for purposes of pre-AEDPA 212(c) relief).
http://caselaw.lp.findlaw.com/data2/circs/6th/033446p.pdf