Expanded Waiver Relief For Persons Convicted at Trial

By Attorneys Robert L. Reeves and Eric Welsh

When a noncitizen is convicted of a criminal offense, the immigration consequences can be severe. Conviction for crimes known as “aggravated felonies” or “crimes involving moral turpitude” can, under certain circumstances, place an alien in jeopardy of deportation or removal.

For some, a waiver of inadmissibility or deportability might be available, but for many, relief is limited by the timing of the criminal conviction, and whether the conviction followed a guilty plea, or a jury trial. 

One such waiver for criminal grounds of inadmissibility or deportability is former section 212(c) of the Immigration & Nationality Act.  “Section 212(c)” was repealed by Congress on September 30, 1996, and no longer exists in the Immigration & Nationality Act itself. Nonetheless, 212(c) relief is still available to waive inadmissibility or deportability based on a criminal conviction under certain circumstances. 

In a landmark 2001 decision (INS v. St. Cyr), the U.S. Supreme Court held that 212(c) relief should remain available for legal permanent residents (LPRs) who pleaded guilty to criminal offenses and were convicted before September 30, 1996.  The Court found that persons who pleaded guilty before that date may have reasonably relied upon the availability of section 212(c) relief in choosing to plead.

After St. Cyr, Congress amended the Federal Regulations to state that although section 212(c) was no longer available for post-1996 convictions, the relief would remain available for LPRs who pleaded guilty prior to 1996. Until very recently, persons who pleaded not guilty and were convicted of an offense at trial were not able to apply for 212(c) relief, regardless of the date of the conviction.

On March 22, 2012, the U.S. Court of Appeals for the Ninth Circuit dramatically expanded the availability of section 212(c) relief to LPRs convicted of a criminal offense before September 30, 1996, regardless of whether the person pled guilty or was convicted at trial after a plea of not guilty.  In Peng v. Holder, the Ninth Circuit rejected the bright-line rule adopted by the Board of Immigration Appeals that barred aliens who were convicted at trial from seeking 212(c) relief. 

The court held that 212(c) remains available to an alien who pled not guilty and proceeded to trial, if the alien can plausibly argue that she relied on the availability of 212(c) in choosing to try her case rather than plead guilty.  The petitioner, An Na Peng, was indicted for a crime involving moral turpitude in January 1996, prior to the repeal of 212(c).  At that time, she would have been deportable and able to apply for 212(c) relief regardless of whether she pled guilty or proceeded to trial. 

She did choose to plead not guilty, and in May 1996, she was found guilty by a jury.  In September 1996, 212(c) was repealed, and when Peng later found herself in removal proceedings, the Board of Immigration Appeals found her ineligible for 212(c) relief because she chose to plead not guilty. 

The Ninth Circuit disagreed. The court noted that because Peng was statutorily eligible for 212(c) relief when she was criminally indicted in January 1996, she could have reasonably relied upon the possibility of 212(c) relief when she pled not guilty. 

The court noted that by pleading not guilty, Peng gave herself the dual protection of a possible acquittal, or, if convicted, eligibility for 212(c) relief. If Peng had pled guilty, she would have rendered herself immediately deportable, and her eligibility for 212(c) relief would have remained the same. 

The court found that distinguishing between a person in Peng’s situation who pled guilty and a person who pled not guilty would be arbitrary. As such, Peng remained eligible to apply for a 212(c) waiver.

The holding in Peng v. Holder greatly expands the potential application of 212(c) relief for LPRs convicted of crimes prior to September 30, 1996.  The Ninth Circuit has taken a commonsense and practical approach to the concept of “reasonable reliance,” and found that a bright-line rule barring aliens who pled not guilty from seeking 212(c) is arbitrary. 

This decision is a welcome change to the prior application of 212(c) relief. Any person with a criminal history who is facing deportation or removal should always consult with an experienced and knowledgeable immigration attorney to determine what relief may be available to them.