An Old Waiver Made New Again: Eligibility for 212(c) Waivers Expanded

By Attorneys Nancy E. Miller and Ben Loveman

A recent decision by the Ninth Circuit Court of Appeals has reopened a path to relief from removal for some green-card holders convicted of crimes.  In Cardenas-Delgado v. Holder, the Ninth Circuit overruled its own long-standing precedent and held that lawful permanent residents who were convicted of aggravated felonies after a jury trial were eligible to apply for a waiver under section 212(c) of the Immigration and Nationality Act (“INA”).  The court held that the repeal of 212(c) relief was impermissibly retroactive as applied to persons who were convicted after trial of aggravated felonies prior to April 24, 1996. The court had previously taken the position that 212(c) relief was only available to persons who had been convicted pursuant to a plea. 

Former INA section 212(c) provided for a waiver of inadmissibility or deportability for lawful permanent residents convicted of certain crimes who had resided in the U.S. for seven consecutive years and who had not served an aggregate of more than five years in prison for an aggravated felony or felonies.  In April of 1997 Congress eliminated 212(c) relief and replaced it with cancellation of removal.  One major difference between them is that those convicted of aggravated felonies are not eligible for cancellation of removal.  However, there are some people who remain eligible for INA 212(c) relief. 

Following years of litigation regarding this issue, the U.S. Supreme Court issued a decision determining that 212(c) relief remained available to certain green card holders convicted by plea bargain of crimes involving moral turpitude (CIMT) prior to April 1, 1997 or those in deportation proceedings commenced before April 24, 1996 convicted via a plea bargain of CIMTs or aggravated felonies.  The Supreme Court reasoned that stripping the right to apply for 212(c) relief from persons who had entered plea bargains in criminal cases would be impermissibly retroactive as it would undermine the basis of the plea bargain.  Essentially, the Supreme Court found that the person who had pled guilty had done so with the expectation of being able to apply for 212(c) relief and to strip them of this right after the plea agreement had been entered into would deprive them of the benefit of their bargain. 

In some jurisdictions, United States Circuit Courts of Appeals held that it did not matter whether a conviction had resulted from a plea agreement or resulted from a conviction at trial.  However, the Ninth Circuit Court of Appeals consistently maintained that only persons who had been convicted pursuant to a plea bargain could apply for 212(c) relief.  The Ninth Circuit’s rationale was that the law would only be impermissibly retroactive, if, in fact, the person could show that they had relied on the prior law in deciding to plead guilty to a charge.  So, they reasoned, persons who opted for trial rather than pleading guilty could not establish reliance and that the law was not impermissibly retroactive in those cases.
But, as mentioned above, the Ninth Circuit has now reversed its course and overruled its longstanding precedent.  The court based its holding on a recent Supreme Court case entitled Vartelas v. Holder where the Supreme Court held that a new law was impermissibly retroactive as applied to persons who had been convicted while the prior law was in place and that it is not essential to prove that the person had relied on the old legal regime. 

The bottom line is that persons who have been ordered deported and who are now in removal proceedings may have new relief available where there was previously no option.  For persons with prior orders of removal, it may be possible to successfully reopen their deportation orders and allow them to apply for 212(c) relief.  For such persons, it is imperative that they take action immediately.  While there is no fixed deadline for filing motions to reopen under this type of circumstance, in deciding whether to grant the motion, the immigration judge (IJ) or the Board of Immigration Appeals (BIA) looks to whether the alien acted diligently.  If the IJ or BIA decides that the non-citizen unreasonably delayed filing the motion, they can deny it on that basis.  Since the usual statutory deadline for filing a motion to reopen is 90 days from the date of a final decision, filing within 90 days of the change in law would be best. 

If you or a loved believes that this change in law may affect your immigration situation, you should speak with a reputable, knowledgeable and experienced immigration attorney to assess the impact of this exciting change of law on your case.