By: Attys. Robert L. Reeves and Elsie Hui Arias

The Attorney General has finally published regulations that establish procedures for certain criminal aliens to seek deportation relief under § 212(c) of the Immigration and Nationality Act (INA), implementing the U.S. Supreme Court’s precedent 2001 decision in INS v. St. Cyr.

Until April 1, 1997, when the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was enacted, § 212(c) relief was available to certain lawful permanent residents (LPRs) who resided in the United States for at least seven consecutive years, had become deportable because of a criminal conviction, and served less than five years in prison for this conviction. In considering whether to grant relief under § 212(c), an immigration judge weighed negative factors, such as the severity of the crime, against the positive equities in the alien’s case, such as evidence of his rehabilitation, and hardship to himself and qualifying relatives.

IIRIRA eliminated the availability of § 212(c) relief to aliens, precluding individuals who had been convicted of a deportable criminal offense from seeking this specific form of relief after April 1, 1997. However, legal issues later arose, relating to whether individuals who were convicted prior to April 1, 1997, were still eligible to apply for relief under § 212(c). The U.S. Supreme Court decided this issue in INS v. St. Cyr, holding that LPRs—whose criminal convictions were obtained through plea agreements prior to April 1, 1997—remain eligible for § 212(c) relief if they would have been eligible for this application at the time they were convicted. However, individuals who were convicted following a jury trial are not eligible for § 212(c) relief.

The final regulations provide that former INA § 212(c) relief is available to certain aliens who are currently in removal proceedings, who may be placed in removal proceedings, or who have completed immigration proceedings and are under final orders of deportation or removal due to certain criminal convictions. Eligible individuals under final orders of deportation or removal who are still in the United States must apply for this relief by filing a special motion to seek § 212(c) relief with the immigration judge or the Board of Immigration Appeals (BIA), on or before April 26, 2005.
The regulations also state that § 212(c) does not apply to individuals who: have departed the United States and are currently outside the United States; returned illegally to the United States after being issued a final order of deportation or removal; or are present in the United States without having been admitted or parole.

To find out whether a particular individual can avail himself of § 212(c) relief under St. Cyr, consult an immigration attorney who is knowledgeable and experienced in deportation/removal defense.